author: HIGGINBOTHAM, J.

text:
    COMMERCIAL FLOORING AND MINI BLINDS, INC. and Commercial Flooring and Mini Blinds of Baton Rouge, L.L.C. v. Stephen Keith EDENFIELD and Commercial Flooring of Baton Rouge, L.L.C.
    No. 2013 CA 0523.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2014.
    Rehearing Denied March 20, 2014.

      Jack E. Morris, Metairie, LA, Pamela L. Ashman, Baton Rouge, LA, for Plaintiffs-Appellees, Commercial Flooring and Mini Blinds, Inc. and Commercial Flooring and Mini Blinds of Baton Rouge, L.L.C.
    Walton J. Barnes, II, Greenwell Springs, LA, for Defendants-Appellants, Stephen Keith Edenfleld and Commercial Flooring of Baton Rouge, L.L.C.
    Alice Estill, Baton Rouge, LA, for Defendant-Appellee, Marshall Kyle Eden-field.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   HIGGINBOTHAM, J.

1 gThis action involves a dispute over the conversion of business assets. The appeal challenges a $601,380.00 damage award in a judgment rendered September 7, 2012, pursuant to a jury verdict. The verdict was in favor of Commercial Flooring and Mini Blinds, Inc. (CFMB-Inc.) and Commercial Flooring and Mini Blinds of Baton Rouge, L.L.C. (CFMB-BR), collectively referred to as the plaintiffs, and against Stephen Keith Edenfleld (Keith) and Commercial Flooring of Baton Rouge, L.L.C. (CF-BR), collectively referred to as the defendants. The amount awarded by the jury represented compensation to the plaintiffs for the defendants’ wrongful conversion of CFMB-Inc.’s one-half interest in the assets of CFMB-BR. The judgment dismissed the plaintiffs’ conversion claim against a third defendant, Marshall Kyle Edenfleld (Kyle). The defendants moved for a new trial, or in the alternative, remittitur, and a judgment notwithstanding the verdict. The trial court denied all of the defendants’ post-trial motions; this appeal followed. For the outlined reasons, we amend the judgment in part, and as amended, we affirm.

FACTS AND PROCEDURAL HISTORY

In 1996, Patrick J. Rooney (Pat) acquired the assets of a flooring business in the New Orleans area and he formed a new business known as CFMB-Inc. As the business grew and thrived, CFMB-Inc. expanded into Baton Rouge. Pat hired Keith Edenfleld to manage the Baton Rouge location. In 1999, Pat and Keith decided to become business partners when they formally created a new limited liability company (L.L.C.) for the Baton Rouge operation, which they called CFMB-BR. Keith and CFMB-Inc. each owned a 50% membership interest in the new L.L.C. The Baton Rouge business continued to grow and expand with different locations doing business as Floor-scapes at one location and Flooring Depot U.S.A. at another location.

|sOn October 1, 2004, Pat and Keith formed yet another L.L.C. called Roonfield Properties, L.L.C. (Roonfield), in order to purchase property and a building located on Airline Highway in Baton Rouge. Keith and Pat (not CFMB-Inc.) each owned a 50% membership interest in Roonfield. Roonfield then leased the property/building to CFMB-BR under a verbal agreement so that CFMB-BR could operate its Baton Rouge businesses, Flooring Depot U.S.A. and Floorscapes, at the Airline property location. Keith managed CFMB-BR with the help of his brother, Kyle, and Pat received a monthly salary and benefits for his role as a partner in the business.

Following Hurricane Katrina in 2005, Pat decided to sell his New Orleans business operation, CFMB-Inc. to his son, Christian Rooney, who had formed his own business, Commercial Flooring Gulf Coast, L.L.C. (CF-GC), in 2006. However, the sale of CFMB-Inc.’s New Orleans operations specifically excluded and did not affect CFMB-Inc.’s membership interest in CFMB-BR. It was somewhere at that point in time that Pat and Keith began to engage in informal discussions about the possible sale of the Baton Rouge business operations.

In 2006, Pat and Keith offered to sell Roonfield to another flooring business for $2.1 million, so that each of them would clear $500,000.00 after the Roonfield property debt was paid. However, that deal was never finalized. In 2007, Keith’s brother, Kyle, approached Pat to discuss Kyle’s purchase of Pat’s interest in Roon-field for $500,000.00, which could have resulted in the Edenfield brothers each owning a 50% membership interest in Roonfield. While Pat agreed to Kyle’s proposal, Kyle could not complete the financial arrangements in order to make the purchase final. Discussions continued, and on August 30, 2007, Pat and Keith closed on a sale in which Pat assigned his 50% membership interest in Roonfield to Keith for $500,000.00. Consequently, after the assignment was complete Keith owned 100% of the membership interest in Roonfield.

_JjA dispute arose, however, over what was actually sold to Keith in the Roonfield assignment. The language of the assignment document was silent as to CFMB-Inc. and CFMB-BR. The document explicitly stated that the assignment represented “the complete understanding between the parties ..., and supersedes all prior negotiations, representations, guarantees, warranties, promises, statements, or agreements, either written or oral, between the parties.” Despite this language, Keith maintained that after the closing he owned 100% of the entire Baton Rouge business operations (Roonfield and CFMB-BR). Keith stated that he had a verbal agreement with Pat where Keith paid $500,000.00 for Pat’s 50% membership interest in Roonfield as well as CFMB-Inc.’s 50% membership interest in CFMB-BR. Keith paid an additional $213,375.67 in debts owed by CFMB-BR so that the deal could be refinanced. After the closing, CFMB-BR continued to pay Pat a salary of $2,500.00 per month and allowed him to use a credit card that was paid by CFMB-BR, just as before the closing.

On the same day of the closing Keith formed a new L.L.C. called CF-BR. He also opened new bank accounts for CF-BR and began transferring the assets of CFMB-BR into CF-BR. It was not until September 2008, after seeing tax returns for CFMB-BR, that Pat allegedly learned that Keith no longer considered Pat’s company, CFMB-Inc, a co-owner of CFMB-BR. At that time, Pat also purportedly learned about Keith’s new company, CF-BR, in which Kyle had a membership interest, and that Keith and/or Kyle had transferred all of CFMB-BR’s assets into the new company. Because Pat denied that CFMB-Inc. sold its 50% membership interest in CFMB-BR at the same time that Keith purchased Pat’s 50% membership interest in Roonfield, Pat consulted an attorney.

This lawsuit was filed on December 2B, 2008, on behalf of CFMB-Inc. and CFMB-BR for damages, an accounting, and in-junctive relief against Keith and his new business, CF-BR. CFMB-Inc. and CFMB-BR specifically alleged that Keith | ^and CF-BR wrongfully converted CFMB-Inc.’s one-half interest in the assets of CFMB-BR. The same allegations were later made against Kyle, when he was added as an additional defendant in a supplemental and amending petition on June 29, 2010. Keith and CF-BR defended the lawsuit on the grounds that CFMB-Inc. no longer had any ownership interest in the assets of CFMB-BR after the closing date on August 30, 2007, and alternatively, that Keith and CF-BR were entitled to a credit for the payment of debts made on behalf of CFMB-Inc. and CFMB-BR.

A four-day jury trial was held in August 2012. The jury ultimately found that CFMB-Inc. did not sell its membership interest in CFMB-BR to Keith or CF-BR when Pat sold his membership interest in Roonfield to Keith on August 30, 2007. Additionally, the jury found that Keith and CF-BR, but not Kyle, had wrongfully converted CFMB-Inc.’s one-half interest in CFMB-BR, and that the value of the assets converted by Keith and CF-BR was $601,330.00. The trial court signed a judgment rendered in accordance with the jury verdict, and thereafter, denied Keith and CF-BR’s motions for new trial, remittitur, and judgment notwithstanding the verdict.

Keith and CF-BR appeal, asserting error in the jury’s failure to recognize that a sale of all of Pat and CFMB-Inc.’s interests in the entire Baton Rouge operation took place on August 30, 2007; thus, it was error to award damages for conversion. The defendants also argue there was insufficient evidence to award damages and that the trial court erred in allowing the valuation testimony of the plaintiffs’ expert. Alternatively, the defendants argue that the damage award was excessive because it failed to consider Keith’s 50% membership interest in CFMB-BR and the defendants’ payment of CFMB-BR’s debts.

STANDARD OF REVIEW

It is well-settled that a court of appeal may not set aside a jury’s finding of fact in the absence of manifest error, and where there is conflict in the testimony, ^reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable, Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where two permissible views of the evidence exist, the jury’s choice between them cannot be manifestly erroneous. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 883 (La.1993). “[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Id., 617 So.2d at 882. We review the record before us in accordance with this standard.

LAW AND ANALYSIS

Agreement to Sell

This action for conversion revolves around the issue of whether there was an oral agreement between Keith and Pat for the sale of the entire Baton Rouge business operation, including Roonfield’s property and building, and CFMB-BR’s assets and inventory. Pat maintains that he only agreed to assign his one-half interest in Roonfield (the property and building) to Keith for $500,000.00, which allowed for Keith to own 100% of Roonfield. Conversely, Keith insists that the agreement was for Pat to assign his one-half interest in Roonfield along with CFMB-Inc.’s one-half interest in CFMB-BR, which would make Keith owner of 100% of the entire Baton Rouge business operation. The written assignment stated that it was Pat’s intent to assign his 50% membership interest in Roonfield to Keith. CFMB-Inc. and CFMB-BR are not mentioned in the assignment.

There is no written document in the record evidencing Pat’s alleged intent to assign or sell CFMB-Inc.’s one-half interest in CFMB-BR to Keith. This fact is not in dispute, as the parties’ experts and the banker all agreed. While Keith acknowledges there is no written documentation of the agreement, he maintains that he and Pat had an oral agreement for the entire Baton Rouge business |7operation to be assigned to Keith. The jury, however, found no evidence of any agreement — written or verbal — to sell CFMB-Inc.’s one-half interest in CFMB-BR to Keith when Pat sold his one-half interest in Roonfield to Keith. Defendants argue that the jury’s finding was manifestly erroneous.

To meet the burden of proving an-oral agreement to sell something valued over five hundred dollars, the contract must be proved by at least one witness and other corroborating circumstances. See La. Civ.Code art. 1846. A party may serve as his own witness and the “other corroborating circumstances” may be general and need not prove every detail; however, the corroborating circumstances that are required must come from a source other than the party claiming the oral agreement. See Pennington Const., Inc. v. R A Eagle Corp., 94-0575 (La.App. 1st Cir.3/3/95), 652 So.2d 637, 639. Further, the existence or non-existence of a contract is a question of fact, and the jury’s determination of this issue will not be disturbed unless manifestly erroneous. Townsend v. Urie, 2000-0730 (La.App. 1st Cir.5/11/01), 800 So.2d 11, 15, writ denied. 2001-1678 (La.9/21/01), 797 So.2d 674. Similarly, the issue of whether there were corroborating circumstances sufficient to establish an oral contract is a question of fact. Pennington Const., 652 So.2d at 639.

When evaluating the evidence needed to establish the existence of a contract, the jury is allowed to make credibility determinations. Imperial Chemicals Ltd. v. PKB Scania (USA), Inc., 2004-2742 (La.App. 1st Cir.2/22/06), 929 So.2d 84, 93, writ denied, 2006-0665 (La.5/26/06), 930 So.2d 31. The jury heard conflicting testimony and made a decision based on its consideration of all the evidence presented. We will now consider the evidence from each party’s perspective.

According to Pat, he and his wife have membership interests in CFMB-Inc., but he is the only officer; and CFMB-Inc. owns one-half of CFMB-BR in Baton IsRouge. Pat testified that he and Keith each owned a 50% membership interest in Roonfield (prior to the August 30, 2007 assignment), and Roonfield leased the land and building it owned on Airline Highway to CFMB-BR, d/b/a Flooring Depot, U.S.A., which was equally owned by CFMB-Inc. and Keith. Pat stated that sometime after Hurricane Katrina in 2005, Keith informed him of a potential buyer for the Airline property and building owned by Roonfield. According to Pat, the price that he and Keith agreed to sell the property and building for was $2.1 million so that he and Keith would each clear $500,000.00 after the debts were paid. However, the potential buyer declined to purchase the Roonfield property/building at that price.

Pat further testified that in April 2006, he sold the assets, goodwill, inventory, and receivables of CFMB-Inc. in New Orleans to his son’s company, CF-GC, while specifically retaining CFMB-Inc.’s interest as the half-owner of CFMB-BR in Baton Rouge. Pat stated that Keith’s brother, Kyle, who ran the operations of CFMB-BR, approached him about purchasing Pat’s one-half interest in Roonfield for $500,000.00, but Kyle was not financially prepared to buy at that time. Shortly after that discussion, Pat stated that he agreed to sell only his one-half membership interest in Roonfield to Keith for $500,000.00. Keith and Pat closed on the Roonfield sale on August 80, 2007, where Pat appeared in his personal capacity as half-owner of Roonfield, not on behalf of CFMB-Inc. Kyle was not involved in the closing for the Roonfield assignment, even though Pat initially thought he was selling his one-half interest in Roonfield to both Keith and Kyle. Pat testified that Roon-field assets did not include any of the flooring business assets owned by CFMB-BR. Further, the $500,000.00 check that he received was made payable to him personally, not CFMB-Inc.

After the sale of Roonfield, Pat testified that he believed he was still in business with Keith because the sale of Roonfield did not affect the flooring |nbusiness they owned together (CFMB-BR) in Baton Rouge. Pat continued to receive the same monthly salary and the use of a CFMB-BR credit card after the sale of Roonfield. Pat also testified that six to seven months after he sold his interest in Roonfield to Keith, he signed a document as an officer and guarantor on behalf of CFMB-BR to continue to allow the processing of credit card purchases.

Pat denied knowing anything about Keith’s alleged acquisition of CFMB-Inc.⅛ one-half share of CFMB-BR until September 2008, which was a year after the closing date for the Roonfield deal. It was at that point that Pat learned about CF-BR, the new company that Keith and Kyle formed shortly before the Roonfield closing. He also discovered that Keith and Kyle’s new company was doing business as Flooring Depot U.S.A. and Floorscapes, which is what CFMB-BR had always done. In November 2008, Pat received a letter from Keith’s attorney stating Keith’s position that Pat sold his interest in CFMB-BR on August 30, 2007, for $500,000.00 plus one year’s salary and the use of a company credit card, that Keith had assumed all assets and liabilities of CFMB-BR, and that the Baton Rouge business was now being operated as CF-BR. This lawsuit was filed the next month because Keith and CF-BR refused to return the assets of CFMB-BR.

According to Keith, Pat approached him after Hurricane Katrina, near the beginning of 2006, to discuss selling the Baton Rouge operations. Keith stated that Pat wanted out of the business. Keith indicated that Pat was also attempting to put together a deal to sell the New Orleans operations at that time, and in April 2006, Pat sold the assets of CFMB-Inc. in New Orleans to his son’s new company, CF-GC. After Pat sold the New Orleans operations, Keith stated that he and Pat talked informally numerous times about Keith purchasing the Baton Rouge business.

Keith testified that he and Pat verbally agreed on a price of $500,000.00 for Pat to “walk away” from the Baton Rouge business, which included the Roonfield property. In April 2007, Keith began submitting the necessary paperwork for |1 prefinancing the agreed upon price for the entire Baton Rouge operation. He stated that the agreement involved him taking over all of the old debt of CFMB-BR, to continue paying Pat’s salary for a year, to continue giving Pat the use of a credit card for one year, and paying Pat $500,000.00, Keith insisted that he and Pat closed on the sale of the entire Baton Rouge operation on August 30, 2007.

Additionally, Keith testified that the refinancing he personally took on at the August 80, 2007 closing involved paying off all the debt owed by Roonfield and CFMB-BR. Keith indicated that he would have never paid off the entire business debt if he had not acquired the entire business, and that the Roonfield property was useless to him without the accompanying flooring business. Keith adamantly asserted that Pat knew the sale was for everything — the Baton Rouge business and the Airline property/building — and that Pat agreed to the deal because he was ready to get out of the flooring business and happy to have the debt paid off. Keith stated that he did not take the assets of CFMB-BR; rather, he paid for them and Pat knew that Keith was transferring those assets into a new business, CF-BR, at the time of the closing on the deal. Keith acknowledged that he paid Pat personally for the assets of CFMB-BR instead of CFMB-Inc, because he made the deal directly with Pat.

Kyle also testified at trial, but he admitted that he was not involved in the transaction that resulted in the disputed sale to Keith. However, Kyle stated that he, Keith, and Pat spoke many times about Pat wanting out of the Baton Rouge business in 2006. According to Kyle, they informally discussed how Keith and Kyle intended to be partners when Pat was bought out of the Baton Rouge business. Kyle confessed that he did not attend the closing on August 30, 2007, and he has not seen any of the documents about the deal.

Clearly, the jury listened to this contradictory testimony and carefully considered all of the evidence, before finding there was no evidence of a sale — [written n or verbal — of CFMB-Inc.’s one-half interest in CFMB-BR. In light of the conflicting evidence in the record, we find no manifest error in the jury’s determination that Keith failed to carry his burden of proving that he and Pat had an oral agreement regarding the sale of CFMB-Inc.’s one-half membership interest in CFMB-BR.

Conversion

Next we consider the jury’s finding that Keith and CF-BR wrongfully converted the assets of CFMB-BR. Conversion is an intentional tort that consists of an act in derogation of the plaintiffs’ possessory rights. Aymond v. State, Dept. of Revenue and Taxation, 95-1663 (La.App. 1st Cir.4/4/96), 672 So.2d 273, 275. Any wrongful exercise or assumption of authority over another’s goods, depriving him of the possession, permanently or for an indefinite time is a conversion. Id. Our supreme court has held that conversion is committed when any of the following occurs: (1) possession is acquired in an unauthorized manner; (2) the goods are removed from one place to another with the intent to exercise control over them; (3) possession of the goods are transferred without authority; (4) possession is withheld from the owner or possessor; (5) the goods are altered or destroyed; (6) the goods are used improperly; or (7) ownership is asserted over the goods. See Dual Drilling Co. v. Mills Equipment Invest ments, Inc., 98-0343 (La.12/1/98), 721 So.2d 853, 857, Thus, the conversion action is predicated on the fault of the defendant and directed to the recovery of the goods or, in the alternative, the plaintiff may demand compensation. Id. See also, Snow v. Weyant, 2004-1438 (La.App. 1st Cir.8/3/05), 923 So.2d 34, 38.

After a thorough review of the record, we find there is a reasonable factual basis for the jury’s determination that Keith and CF-BR converted the assets of CFMB-Inc. and CFMB-BR. The jury’s finding of conversion is not manifestly erroneous in light of the conclusion that the parties did not have an agreement to | Tasell the assets of CFMB-BR, and considering the fact that CFMB-BR’s assets were un-disputedly transferred to another company, CF-BR, with the intent that CF-BR would have control and dominion over them. Since there is insufficient evidence that Keith or CF-BR had the authority to sell or take possession of 100% of CFMB-BR’s assets, it follows that Keith’s acknowledged transfer of all the assets to CF-BR constituted an unlawful conversion.

We find no merit to the defendants’ argument that conversion is impossible since Keith co-owned the assets of CFMB-BR, That line of reasoning ignores the established fact that Keith and CF-BR transferred all of CFMB-BR’s assets that were half-owned by CFMB-Inc. without CFMB-Inc.’s authority. Keith and CF-BR exercised dominion and control over assets that they did not legally possess given that they were half-owned by CFMB-Inc. The improper dominion exercised by Keith and CF-BR over CFMB-Inc.’s half-interest in CFMB-BR’s assets seriously interfered -with CFMB-Inc.’s ownership rights. These facts clearly meet the definition of conversion. See Dual Drilling, 721 So.2d at 857. We also disagree with the defendants’ contention that the plaintiffs somehow sanctioned the transfer of the assets. The evidence reasonably supports a finding that Pat was unaware of the transfer of the assets until a full year had passed; thus, Pat could not have consented to the transfer of assets on behalf of CFMB-Inc. We further note that since the assets are now a part of Keith’s new business, CF-BR, the record does not support a finding that the assets can be returned to CFMB-BR or CFMB-Inc. Accordingly, the plaintiffs are entitled to demand compensation for the wrongfully converted assets. See Snow, 923 So.2d at 38.

Damages

The measure of damages for tor-tious conversion, when the property cannot be returned to the plaintiffs, is the value of the property at the time of conversion. See Dual Drilling, 721 So.2d at 857-858; Matherne v. Terrebonne Parish Police Jury, 462 So.2d 274, 279 (La.App. 1st Cir.1984), writs denied, 463 So.2d 1321 (La.1985). See also, Gurst v. City of Natchitoches, 428 So.2d 502, 504-505 (La.App. 3d Cir.1983). Keith and CF-BR maintain that the jury did not hear competent evidence regarding valuation, that the jury award was excessive and contrary to the law and evidence, and that the trial court erred in allowing the plaintiffs’ expert to testify as to business valuation because the expert was not qualified to give valuations and his methodology was questionable. The plaintiffs contend that the jury heard conflicting expert testimony and chose to accept the valuation offered by the plaintiffs’ expert. The plaintiffs also argue that the trial court did not abuse its discretion in allowing the plaintiffs’ expert to testify regarding the value of CFMB-BR’s business.

It is well-settled that a jury is given great discretion in its assessment of quantum for both general and special damages. Guillory v. Lee, 2009-0075 (La.6/26/09), 16 So.3d 1104, 1116. The adequacy of a jury’s damage award should be determined on the basis of the facts and circumstances peculiar to the case under review. Abuse of discretion must be clearly demonstrated before an appellate court may tamper with an award of damages. Callison v. Livingston Timber, Inc., 2002-1323 (La.App. 1st Cir.5/9/03), 849 So.2d 649, 655. It is well settled that a trial court is accorded broad discretion in determining whether expert opinion evidence should be held admissible and its decision will not be overturned absent an abuse of discretion. Williams v. Our Lady of the Lake Hosp., Inc., 2009-0267 (La.App. 1st Cir.9/11/09), 22 So.3d 997, 1000. The trier of fact is free to accept or reject in whole or in part the testimony of any witness. Rosell 549 So.2d at 844. Credibility determinations, including the evaluation of and resolution of conflicts in expert testimony, are factual issues to be resolved by the trier of fact, which should not be disturbed on appeal in the absence of manifest error. Hanks v. Entergy Corp., 2006-477 (La.12/18/06), 944 So.2d 564, 581.

114The day before the trial on the merits in this case, the trial court held a hearing on the defendants’ motion to strike the plaintiffs’ expert, Matthew C. Person. Mr. Person, testified at the hearing and at trial that he was a certified public accountant (C.P.A.) licensed to practice in Louisiana and that he provided consulting, business management, and business valuation services. Mr. Person admitted that he did not have any special business valuation accreditations, but he stated that accreditation is not required. Because Mr. Person was asked to perform the business valuation three years after CFMB-BR went out of business, he stated that he was limited in the valuation methods that he could use because all that he had available were income tax returns. Mr. Person used two methods, both considering goodwill but not the debts assumed by Keith, to value CFMB-BR at the time of the conversion in August 2007. He used the Rule of Thumb method, which is market driven and based on sales. He also used a Revenue Ruling from the IRS, which is a balance sheet/formula approach to valuation. Mr. Person testified that he could not use other valuation standards because of insufficient relevant data. In due course, the trial court allowed Mr. Person to testify at trial as an expert C.P.A. in the area of standards and measures. Mr. Persons opined that CFMB-BR had a total value of $1,202,660.00 and that CFMB-Inc.’s one-half interest in CFMB-BR was worth $601,330.00, which was what the jury ultimately awarded the plaintiffs in damages.

Based on Mr. Person’s qualifications and the evidence in the record, we cannot say that the trial court abused its vast discretion in allowing Mr. Person to offer expert opinion evidence on the value of CFMB-BR. Likewise, we do not find that the jury abused its discretion or manifestly erred in relying on Mr. Person’s testimony to determine the appropriate value of CFMB-BR for calculating the amount of damages sustained by the wrongful conversion of CFMB-BR’s assets. The jury heard from the defendants’ expert, Mr. Mark W. |15Shirley, who was also a licensed C.P.A. with a practice that concentrated in business valuation and financial analysis. Mr. Shirley used the same data as Mr. Person to conduct his valuation of CFMB-BR, but he used an asset method called book value, that took into consideration the debts as well as assets. Mr. Shirley determined that Pat had been adequately compensated by the $500,000.00 payment he received on August 30, 2007, as well as receiving the benefit of having the debts of CFMB-BR paid off.

Each expert criticized the other expert’s methodology, most notably the exclusion of marketable goodwill from the valuation method used by Mr. Shirley. After listening to both experts’ conflicting testimony, the jury was free to accept Mr. Person’s opinion that CFMB-Inc.’s one-half share of CFMB-BR was valued at $601,330.00. Given the evidence in the record, we find that the jury’s acceptance of Mr. Person’s valuation testimony was not manifestly erroneous.

We do find, however, that the jury manifestly erred when it assessed damages for the full value of CFMB-Inc.’s share of the converted property without taking into consideration the amount of debt that was paid off on behalf of CFMB-BR. Cf. Dual Drilling, 721 So.2d at 858 (where the Supreme Court found manifest error in the award of full value for new equipment at the time of the conversion without allowance for depreciation of the equipment). There is ample evidence in the record that Keith’s refinancing of CFMB-BR’s debt ultimately benefitted CFMB-Inc. The record reflects that while Pat may not have actually known that CFMB-BR’s debts had been paid at the time of the closing on the Roonfield assignment, the debts were in fact paid off, releasing CFMB-Inc. from further liability on CFMB-BR’s debts.

Jerald W. Denicola, Jr., the banker who processed Keith’s refinancing loan for the closing on August 30, 2007, testified that CFMB-BR’s debts were paid off so that money could be lent to Keith and his new company, CF-BR. The payment 11fiof CFMB-BR’s debt clearly enhanced the value of CFMB-BR and benefitted Pat, as 100% owner of CFMB-Inc, which owned a one-half membership interest in CFMB-BR. Pat left the closing with a $500,000.00 payout, a continuance of his salary, and the extended use of a company credit card. Keith, on the other hand, left the closing owning the Airline Highway property/building, a new company, CF-BR, that was in debt due to the refinancing of the Baton Rouge business operations and property/building, and the assets of CFMB-BR.

The evidence shows the total amount of CFMB-BR’s debt that was paid off was $213,378.68. One-half of the debt pay-off should have been figured into the full value of CFMB-BR, since CFMB-Inc. was responsible for only half of CFMB-BR’s debt. Thus, $106,689.34 should be offset and deducted from the total damage award. Accordingly, we amend the amount awarded to the plaintiffs, CFMB-Inc. and CFMB-BR, to a total of $494,640.66, which reflects the debt of CFMB-BR paid by Keith.

CONCLUSION

For the outlined reasons, the September 7, 2012 judgment of the trial court is amended in part to reduce the amount of damages awarded to the plaintiffs, Commercial Flooring and Mini Blinds, Inc. and Commercial Flooring and Mini Blinds of Baton Rouge, L.L.C., from $601,330.00 to $494,640.66, together with legal interest from December 23, 2008, until paid, plus all trial court costs to be taxed separately. As amended, the trial court judgment is affirmed. Costs of this appeal are assessed equally between the parties, one-half to the plaintiffs and one-half to the defendants.

AMENDED IN PART AND AS AMENDED, AFFIRMED.

KUHN, J., concurs.


source: Caselaw Access Project

author: HANS J. LILJEBERG, Judge. JOHNSON, J.,

license: Public Domain

text:
    Tisha GRADY v. CHOICES OF LOUISIANA, INC.
    No. 13-CA-437.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 12, 2014.
    Mary Bubbett Jackson, J. Forester Jackson, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellee.
    William B. Hidalgo, Attorney at Law, Covington, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, MARC E. JOHNSON, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|2Pefendant, Choices of Louisiana, Inc. (“Choices”), appeals a summary judgment rendered in favor of its former employee and plaintiff herein, Tisha Grady, awarding her $486.00 for 27 hours of vacation pay, $12,060.00 for penalty wages, and $1,500.00 in attorney fees. For the following reasons, we reverse the summary judgment and vacate the awards to Ms. Grady. We also deny Ms. Grady’s Motion for Attorney Fees on Appeal.

FACTS AND PROCEDURAL HISTORY

Choices is an opioid treatment center in Laplace, Louisiana. On February 23, 2010, plaintiff was hired by Choices as a licensed practical nurse earning $18 per hour. When she was hired, Ms. Grady was provided with a copy of Choices’ employment manual, for which she signed a receipt and acknowledgement form. The employment manual provides that full-time employees who work at least 40 hours per week are eligible for paid vacation time. Under the terms of the employment manual, Rail vacation time must be used by December 31st in the year that it is earned, and unused vacation time may not be accumulated and carried over to the next year.

Under the section entitled, “New Employees,” the employment manual contains the following pertinent provision:

If you were hired prior to July 1 of any calendar year, you will be eligible for the available vacation shown above to be used by the end of the calendar year in which you were hired. You will be eligible for 40 hours of vacation effective the first day of January following the date of hire. (Emphasis added.)

Under the section entitled, “Other Employees,” the employment manual provides, in pertinent part:

The company allows its employees to use their whole year’s worth of vacation beginning each January 1. We do this because we believe the employee will be with us the entire year. However, paid vacation is something earned over time. Should an employee leave our company before December 31, his or her vacation will be prorated by the number of weeks she or he has worked during the year. If less time is used than is earned, the employee will be paid for that unused time. If more time is used than earned, the pay received for that time will be deducted from the employee’s final pay, according to the following probation schedule.
(Emphasis added.)

Probation schedule:

If eligible for 40 hours of vacation, one earns 0.77 hours per week worked.
There are 52 weeks in a year.

Because Ms. Grady was hired before July 1, 2010, pursuant to the terms of the employment manual, she was eligible to use 40 hours of vacation time as of January 1, 2011. On April 16, 2011, Ms. Grady’s employment with Choices was terminated for allegedly violating policies of the company. Prior to the termination of her employment, Ms. Grady did not use any vacation time in 2011.

When Ms. Grady’s employment was terminated, Choices determined that she had earned 13 hours of vacation pay by calculating the number of weeks worked in 2011 and crediting her with 0.77 hours per week, as per the terms of the employment manual. Choices paid Ms. Grady for these 13 hours of vacation time. Ms. Grady ^demanded payment for the remaining 27 hours of vacation time, claiming that she was entitled to payment for the full 40 hours of vacation. However, Choices refused to pay Ms. Grady for the remaining 27 hours, asserting that because her employment was terminated prior to December 31, 2011, her vacation was prorated pursuant to the terms of the employment policy.

On November 2, 2011, Ms. Grady filed suit against Choices, alleging that when her employment was terminated, she was entitled to the full 40 hours of vacation pay. Ms. Grady further sought penalty wages, pursuant to the Louisiana Wage Payment Act, LSA-R.S. 23:631, et seq., legal interest, attorney fees, and court costs. On July 23, 2012, Ms. Grady filed a Motion for Summary Judgment asserting that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law for 27 additional hours of vacation pay, 90 days of penalty wages per LSA-R.S. 23:632, and attorney fees.

Ms. Grady’s Motion for Summary Judgment came before the trial court for hearing on November 21, 2012, and the trial judge took the matter under advisement. Thereafter, on November 27, 2012, the trial court rendered a judgment, granting Ms. Grady’s Motion for Summary Judgment, awarding her $486.00 for unpaid wages, 90 days of penalty wages in the amount of $12,060.00, attorney fees in the amount of $1,500.00, and court costs. In its reasons for judgment, the trial court reasoned that because Ms. Grady was eligible to use 40 hours of vacation time as of January 1, 2011, those vacation hours were accrued. The trial court also found that Choices made Ms. Grady forfeit 27 hours of vacation pay upon the termination of her employment, which is prohibited under LSA-R.S. 23:634. Choices appeals.

DISCUSSION

It is well-settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment |Bis appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Nuccio v. Robert, 99-1327, p. 6 (La.App. 5 Cir. 4/25/00), 761 So.2d 84, 87, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544. A summary judgment is appropriate when there remains no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191, 195. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B)(2).

In its first assignment of error on appeal, Choices argues that the trial court was wrong when it ignored the terms of Choices’ employment manual providing that vacation pay is earned over time and found that plaintiff had accrued 40 hours of vacation pay as of January 1, 2011. Choices asserts that its employment manual provides that an employee is “eligible” for vacation pay as of January 1st if she is employed by July 1st of the previous year. However, the manual clearly states that vacation hours are accrued or earned over time at a rate of 0.77 hours for every week worked. It further provides that vacation pay is prorated if an employee leaves employment before December 31st without using her vacation. Thus, when Ms. Grady’s employment was terminated on April 16, 2011, she was only entitled to 13 hours of vacation pay, which is calculated by the number of weeks worked in 2011 times 0.77. Choices asserts that it properly paid Ms. Grady for the 13 hours of vacation time earned and accrued during that year, and that she is not entitled to be paid for the remaining 27 hours.

Ms. Grady responds that because she was entitled to take 40 hours of vacation as of January 1, 2011, this vacation pay was fully earned and accrued at that time. l6She claims that she had a vested right to 40 hours of vacation pay and that Choices made her forfeit 27 hours, which is unlawful pursuant to LSA-R.S. 23:631 et seq. Ms. Grady further claims that proration of vacation pay violates LSA-R.S. 23:634.

LSA-R.S. 23:631(A) provides that upon termination of an employee, the employer must pay “the amount then due under the terms of employment” to the employee. Section D(l) of this statute provides that vacation pay is considered “an amount then due” only if, in accordance with the stated vacation policy of the employer: 1) the employee is deemed eligible for and has accrued the right to take vacation time with pay; and 2) the employee has not taken or been compensated for the vacation time. Finally, Section (D)(2) provides that this section shall not be interpreted to allow the forfeiture of any vacation pay actually earned by the employee pursuant to the employer’s policy.

In the present case, Ms. Grady was hired prior to July 1, 2010. Therefore, pursuant to the terms set forth in Choices’ employment manual, she was eligible for 40 hours of vacation as of January 1, 2011. However, the full 40 hours of vacation were not accrued as of that date. Rather, vacation time was to be accrued weekly at a rate of 0.77 hours per week. Accordingly, when Ms. Grady’s employment was terminated on April 13, 2011, she had only earned or accrued 13 hours of vacation pay. It is undisputed that Ms. Grady had not taken any vacation time in 2011 prior to leaving her employment with Choices.

Based on the clear language of the employment manual, Ms. Grady was not entitled to payment for the full 40 hours of vacation when her employment was terminated. Rather, Choices properly paid her for the 13 hours of vacation that was actually earned.

In its reasons for judgment, the trial court did not find that, pursuant to the employment manual, Ms. Grady was entitled to receive vacation pay for the 27 hours |7claimed. Rather, the trial court found that Ms. Grady was entitled to this pay because Choices’ policy of prorating an employee’s vacation time by the number of weeks worked until termination of employment is prohibited pursuant to LSA-R.S. 23:634.

LSA-R.S. 23:634(A) provides:

No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation.

The Louisiana Wage Payment Act, LSA-R.S. 23:631 et seq., is designed to compel prompt payment of earned wages upon an employee’s discharge or resignation. Davis v. St. Francisville Country Manor, L.L.C., 13-190, 2013 WL 5872030, at *2 (La.App. 1 Cir. 11/1/13), 136 So.3d 20, 22. The law is clear that accrued vacation pay is a wage and must be paid upon termination of employment. Boyd v. Gynecologic Associates of Jefferson Parish, Inc., 08-1263, p. 10 (La.App. 5 Cir. 5/26/09), 15 So.3d 268, 275; Aguillard v. Crowley Garment Mfg. Co., 01-593, 01-594 (La.App. 3 Cir. 2/27/02), 824 So.2d 347, writs denied, 02-1170, 02-1348 (La.8/30/02), 823 So.2d 955, 956. However, if the vacation pay has not yet accrued as of the date of termination, it is not “an amount then due” that is required to be paid under LSA-R.S. 23:631. The provisions of LSA-R.S. 23:631 and 23:634 do not prevent an employer from restricting an employee’s right to accrue annual leave. Wyatt v. Avoyelles Parish School Board, 01-3180, 02-0131, 02-0259, p. 11 (La.12/4/02), 831 So.2d 906, 915.

LSA-R.S. 23:631 and 23:634 prohibit the forfeiture of vacation pay that is actually earned by the employee pursuant to the employer’s policy. Choices’ policy of prorating an employee’s vacation time by the number of weeks worked until termination of employment is not prohibited by LSAR.S. 23:634 or otherwise against |spublic policy. Ms. Grady was paid for the vacation pay that she actually earned by multiplying the number of weeks she worked in 2011 by 0.77, and she was not entitled to payment for any additional hours of vacation. While Ms. Grady was eligible for 40 hours of vacation as of January 1, 2011, the full 40 hours had not accrued by the date of termination of her employment.

Based on our de novo review, we find that the trial court erred by finding that Ms. Grady was entitled to 27 additional hours of vacation pay. Accordingly, we reverse the summary judgment and vacate the award of $486.00 for unpaid wages.

In its second assignment of error, Choices asserts that the trial judge was wrong when she ruled that Choices was required to pay Ms. Grady 90 days of penalty wages, totaling $12,060.00, pursuant to LSA-R.S. 23:632.

LSA-R.S. 23:632 provides, in pertinent part:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages.

Because Choices paid Ms. Grady for the vacation time that she actually earned and did not fail to comply with the provisions of LSA-R.S. 23:631, no penalty wages should have been awarded. Accordingly, we reverse the award of $12,060.00 in penalty wages.

Ms. Grady has filed a Motion for Attorney Fees, seeking an award for work on this appeal. Based on our findings in this opinion, we deny this request.

⅛DECREE

For the foregoing reasons, we reverse the summary judgment rendered by the trial court, and vacate the awards to Ms. Grady for unpaid wages, penalty wages, and attorney fees. We also deny the Motion for Attorney Fees.

REVERSED; MOTION FOR ATTORNEY FEES DENIED.

JOHNSON, J., dissents with reasons.

JOHNSON, J.,

dissents with reasons.

|,I, respectfully, dissent from the majority opinion for the following reasons.

First, I find that Choices’ argument that it properly prorated Ms. Grady’s vacation pay at a rate of 0.77 hours for every week worked pursuant to the employment manual is without merit. Upon being hired by Choices, employees were given a copy of the company’s employment manual that included the policies regarding vacation pay. The manual stated that full-time employees who worked, at least, 40 hours per week were eligible for paid vacation time. The manual further provided,

All vacation time must be used by December 31 in the year that it is earned. Unused vacation time may not be accumulated and carried over to the next year. If an employee earns vacation time during the year, the employee must take the vacation before the end of the year.

Pursuant to the manual, all new employees were subject to a 180-day orientation period before being eligible for vacation pay. Under the “New Employees” section, the manual provided a list indicating available vacation time for specific orientation period completion timeframes, e.g., if the orientation was completed by October 15th during the first year of employment, then 24 hours would be available to the employee. The manual further provided,

|2If you were hired prior to July 1 of any calendar year, you will be eligible for the available vacation shown above to be used by the end of the calendar year in which you were hired. You will be eligible for 40 hours of vacation effective the first day of January following the date of hire.

The vacation pay provisions of the manual also included a section entitled, “Other Employees.” That particular section provided, in pertinent part:

Other employees who have been with the company for more than one year are covered by the following procedures:
Each January 1, you are eligible for paid vacation time based upon the number of years of accumulated service that you will complete during the year. For instance, if you were hired on September 1[,] 1986, then during the calendar year of 1995, you will have 9 hours of accumulated service.
⅜ * *
The company allows its employees to use their whole year’s worth of vacation beginning each January 1. We do this because we believe the employee will be with us the entire year. However, paid vacation is something earned over time. Should an employee leave our company before December 31, his or her vacation will be prorated by the number of weeks she or he has worked during the year. If less time is used than is earned, the employee will be paid for that unused time. If more time is used than earned, the pay received for that time will be deducted from the employee’s final pay, according to the following probation schedule.

Under the “Other Employees” section, the manual also contained a subsection entitled “Probation Schedule” that listed the number of vacation hours an employee could earn per week worked based upon the various hours of eligible vacation pay. The section provided, in particular, “[i]f eligible for 40 hours of vacation, one earns 0.77 hours per week worked.”

On February 23, 2010, Choices hired Ms. Grady as a licensed practical nurse. On the same date, Ms. Grady was provided a copy of Choices’ manual for which she signed a receipt and acknowledgement form. Ms. Grady’s orientation period ended on August 22, 2010. According to the applicable timeframe listed in the manual for completion of the orientation period, Ms. Grady was eligible for 24 |Rhours of vacation pay effective on August 23, 2010. She used the 24 hours of vacation pay on October 20-22, 2010. On January 1, 2011, Ms. Grady was eligible for 40 hours of paid vacation time. She was eligible for the 40 hours of vacation time under the “New Employees” section of the manual because she had not yet been employed with Choices for an entire year.

The “New Employee” section explains the number of hours of vacation time which a new employee is eligible for the following year; however, that section is completely devoid of any language referring to the proration of any vacation pay based upon the length of employment. That particular proration language is included under the “Other Employees” section, which was applicable to employees who had worked with the company for more than one year as of January 1, 2011. Thus, the provisions listed under the “Other Employees” section of the manual did not apply to Ms. Grady. Because the language used in each of the sections of the employment manual is clear and explicit and lead to no absurd consequences, no further interpretation in search of the parties’ intent should have been made by the majority opinion. See, Certified Cleaning & Restoration, Inc. v. Lafayette Ins. Co., 10-948 (La.App. 5 Cir. 5/31/12); 96 So.3d 1248, 1251.

Therefore, pursuant to the clear and unambiguous language in its employment manual, I find that Choices was not entitled to prorate Ms. Grady’s vacation pay at a rate of 0.77 hours per every week worked. Next, I find Choices’ “use it or lose it” policy was improperly applied to the payment of Ms. Grady’s vacation pay.”

La. R.S. 23:631 provides, in pertinent part:

A.(l)(a) Upon the discharge of any laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.
_L * * *
D.(l) For purposes of this Section, vacation pay will be considered an amount then due only if, in accordance with the stated vacation policy of the person employing such laborer or other employee, both of the following apply:
(a) The laborer or other employee is deemed eligible for and has accrued the right to take vacation time with pay.
(b) The laborer or other employee has not taken or been compensated for the vacation time as of the date of the discharge or resignation.
(2) The provisions of this Subsection shall not be interpreted to allow the forfeiture of any vacation pay actually earned by an employee pursuant to the employer’s policy.

In addition, La. R.S. 23:634 provides, in pertinent part:

A. No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation.

According to the rate of eligible vacation hours listed in the employment manual, Ms. Grady was a new employee eligible for 40 hours of vacation time effective on January 1, 2011. Those hours had to be used prior to the end of 2011. The language under the “New Employee” section did not state that the eligibility for the 40 hours of vacation time was a mere gratuity given by Choices to the employees. No other conditions or limitations were placed on the new employees for eligibility for those hours. Essentially, Ms. Grady simply had to be hired by Choices prior to July 1, 2010 and remain employed with the company in order to have received the 40 hours of vacation time on January 1, 2011. Pursuant to the employment manual, Ms. Grady had to schedule and use those vacation hours by December 31, 2011 because they could not be carried over to the next year; however, she did not use any of the 40 hours prior to her discharge. When Ms. | ^Grady’s employment ended on April 13, 2011, Choices determined that she had forfeited 27 hours of her vacation pay that she had accrued as of January 1st and refused to pay for those remaining hours.

After review, I find that Choices violated La. R.S. 23:631 and 23:634 by failing to compensate Ms. Grady for her remaining 27 hours of vacation pay. In arriving at this conclusion, I take my guidance from the Louisiana Supreme Court’s interpretation of the Louisiana Final Wage Act in Wyatt v. Avoyelles Parish School Board, 01-3180 (La.12/4/02); 831 So.2d 906. In that ease, the supreme court reviewed a similar “use it or lose it” policy where each employee of the School Board earned annual leave at a rate based on the years of service for every year of employment. The days earned in a certain year could not be used until the following year. Those days that were earned in the previous year that were not used by June 30 of the following year could not thereafter be used and were considered “lost.” At the times of retirement for each of the employees, the School Board withheld the payment of various hours of annual leave to the employees.

Although the supreme court concluded the School Board’s “use it or lose it” policy was not per se illegal, the court found the School Board’s failure to compensate the employees for their accrued right to unused vacation pay earned under the terms of the policy violated the statutory provisions. The court held:

Pursuant to La. R.S. 23:631(D), vacation pay is “an amount then due” if, according to the employers stated vacation policy, the employee is eligible for and has accrued the right to take vacation time with pay and the employee has not taken or been compensated for the vacation time as of the date of his resignation. Subsection (D) cannot be interpreted to allow the forfeiture of any vacation pay actually earned by an employee pursuant to the employer’s policy.
Similarly, La. R.S. 23:634 prohibits an employment contract which requires the forfeiture of “wages” upon resignation or discharge. Accrued vacation time is “wages.”
Id. at 912-913. (Internal citations omitted).

In concluding that the School Board violated La. R.S. 23:631 and 23:634 through its failure to compensate the employees, the court reasoned:

At the time of their retirement, plaintiffs had only accrued the right to unused annual leave they had earned in the previous year and any annual leave they earned during the year of their retirement. Thus, the Board was obligated under La. R.S. 23:631 to compensate plaintiffs for this amount of unused annual leave they had accrued prior to their retirement. Any failure to compensate plaintiffs for this amount of accrued unused leave was in violation of La. R.S. 23:631.

| rJd. at 914.

In the case at bar, Ms. Grady was eligible for 40 hours of vacation time. Pursuant to the employment manual, she was eligible for those hours due to the fact that she had been employed with Choices prior to July 1, 2010. On January 1, 2011, Ms. Grady had accrued the right to either use and/or schedule to use (if she intended to use more than four days of leave) any or all of those eligible hours of vacation pay. Like the employees in Wyatt, when her employment ended with Choices, Ms. Grady was entitled to payment for the unused hours of vacation pay she actually earned in 2010. (See, Wyatt at 914, n. 7, for an explanatory example of when leave is “actually earned.”). Thus, Choices could not force Ms. Grady to forfeit the 27 unused hours she had actually earned pursuant to the employment manual.

Furthermore, when an employer promises a benefit to employees, and employees accept by their actions in meeting the conditions, the result is not a mere gratuity or illusory promise; but, it is a vested right in the employee to the promised benefit. Knecht v. Board of Trustees for State Colleges and Universities and Northwestern State University, 591 So.2d 690, 695 (La.1991). Where an employer has a clearly established policy that vacation time is not considered wages actually earned by an employee, the employee is not entitled to 17reimbursement for unused, accrued vacation time upon discharge or resignation. Chapman v. Ebeling, 41,710 (La.App. 2 Cir. 12/13/06); 945 So.2d 222, 226. However, in the absence of a clear written policy establishing that vacation time granted by an employer to an employee is nothing more than a mere gratuity and not a wage, accrued but unused vacation time is a vested right for which an employee must be paid upon discharge or resignation. Id., citing Wyatt, supra.

As mentioned earlier, the employment manual for Choices did not specify that the vacation pay for new employees was nothing more than a mere gratuity and not a wage. Thus, the 40 hours of vacation time was a promised benefit from Choices for Ms. Grady’s continued employment with the company. Despite Choices’ argument that Ms. Grady had to earn the 40 hours of vacation pay during 2011 at a rate of 0.77 hours worked per week, the 27 hours that were remaining on the day of Ms. Grady’s discharge were already “actually earned” and were a vested right that should have been paid to her.

After a de novo review, I find that Ms. Grady was entitled to summary judgment as a matter of law in her favor on the issue of payment of vacation pay. In following the interpretation of the Louisiana Final Wage Act set forth in Wyatt, supra, and other applicable jurisprudence, I find that Choices violated La. R.S. 23:631 and 23:634 when it forced Ms. Grady to forfeit the remaining hours of accrued vacation pay she became eligible for on January 1, 2011. Therefore, it is my opinion that Ms. Grady is entitled to payment of $486.00 for the remaining 27 hours of vacation pay. Additionally, I find that Ms. Grady is entitled to the penalties and attorney’s fees awarded to her by the trial court because Choices refused to pay Ms. Grady the amount due to her under the terms of its own “use it or lose it” policy.

      . Both Choices and Ms. Grady attached copies of selected pages of Choices' employment manual to memorandum to the lower court. There are slight differences between the two manuals. However, when I reference the employment manual throughout this dissent, I am referring to the manual submitted by Ms. Grady because it was the one in effect during the time of her employment. The manual submitted by Choices did not take effect until August 1, 2011, which was a few months after Ms. Grady’s employment had ended.

      . It is questionable as to whether the calculation of the dates and hours in the example is correct.

      . Under the "Vacation schedule" section of the policy, employees were required to submit vacation requests consisting of four or more days no later than January 31 of the same year in which the vacation was to be taken. The policy further stated that it was not necessary to schedule vacations that were fewer than four days by January 31.


author: FREDERICKS HOMBERG WICKER, Judge.

text:
    JEFFERSON PARISH HOSPITAL DISTRICT NO. 1 d/b/a West Jefferson Medical Center v. K & B LOUISIANA CORPORATION and Rite Aid Headquarters Corporation
    Nos. 13-CA-508 C/W, 13-CA-730.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 12, 2014.
    Peter J. Butler, Jr., Richard G. Passler, Susan F. Drogin, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    George D. Fagan, Alex P. Tilling, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and STEPHEN J. WINDHORST.
   FREDERICKS HOMBERG WICKER, Judge.

IsThese consolidated appeals arise out of plaintiffs purchase of commercial property subject to a pre-existing lease between defendant-lessee and a third party seller.

First, plaintiff, Jefferson Parish Hospital District No. 1 d/b/a West Jefferson Medical Center (West Jeff), appeals the trial court’s granting of summary judgment in favor of defendants, K & B Louisiana Corporation d/b/a Rite Aid and Rite Aid Headquarters Corporation (hereinafter collectively referred to as “Rite Aid”). In that judgment, the trial court determined that La. Const, art. VII, § 14(A), which prohibits the donation of public funds, does not apply or have effect to nullify the lease at issue under the facts of this case. For the following reasons, we agree.

|4Second, Rite Aid appeals the trial court’s judgment denying its motion to tax costs. Following the trial court’s granting of summary judgment, Rite Aid, as the prevailing party, filed a motion to tax costs pursuant to La. C.C.P. art. 1920. After considering West Jeffs position that, as a state entity, it is immune from the payment of a prevailing party’s court costs, the trial court denied Rite Aid’s motion. Rite Aid appeals that judgment and, for the following reasons, we find that West Jeff, as an unsuccessful plaintiff, is not immune from the payment of court costs and that the trial judge could, in his discretion, tax costs against West Jeff. For the following reasons, we reverse the judgment of the trial court on this issue and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The pertinent facts in this case are not in dispute. In 2003, West Jeff purchased a piece of commercial property, adjacent to West Jefferson General Hospital, at 4535 Westbank Expressway in Marrero for $3,730,000.00. The property is a large shopping center facing the Westbank Expressway; a portion of the shopping center contains a Rite Aid store. At the time of the 2003 purchase, a 1976 lease remained in effect between the property owner, Marrero Shopping Center, Inc. (MSC), and Rite Aid. The lease set the property rent at $3.35 per square foot of the leased property in addition to a certain percentage of net sales for that store location. The lease included renewal options, providing Rite Aid the option to extend the lease through 2032.

In 2012, West Jeff filed suit against Rite Aid seeking to nullify the lease at issue. West Jeff filed a motion for summary judgment, asserting that the 1976[filease at issue is an absolute nullity because the rent is so far below fair market value that the lack of sufficient consideration renders the lease a donation of public funds in violation of La. Const. art. VII, § 14(A). Rite Aid filed a cross-motion for summary judgment, asserting that the lease, executed between two private parties, is valid and is not an unlawful donation of public funds. After a hearing, the trial court denied West Jeffs motion for summary judgment and granted Rite Aid’s cross-motion for summary judgment, finding that La. Const. art. VII, § 14(A) does not apply under the facts of this case. We agree.

In support of its motion for summary judgment, Rite Aid introduced into evidence the June 2, 2003 Act of Cash Sale that reflects that West Jeff purchased the property at issue from Marrero Shopping Center, Inc. for the amount of $3,730,000.00. The act of sale clearly states that the purchase of the property is “subject to” the “current leases[,]” including the “[l]ease by and between Marrero Shopping Center, Inc. and K & B Louisiana Corporation by merger of Katz & Besthoff # 23 into K & B Louisiana Corporation and now d/b/a Rite Aid, original lease made January 23, 1976.” The act of sale further provides that West Jeff “assumes ... all obligations and liabilities of the lessor under the Current Leases....”

In further support of its motion for summary judgment, Rite Aid produced documentation to show that West Jeff considered the existing Rite Aid lease prior to purchasing the property. The record reflects that on September 30, 2002, Lewis J. Derbes, a certified real estate appraiser, forwarded correspondence to the Senior Vice-President of West Jeff concerning his appraisal of the subject property. In that correspondence, Mr. Derbes stated that he analyzed the property to determine Rthe fair market value of the property, which he assessed as $4,300,000.00. In his appraisal, Mr. Derbes considered the leases encumbering the property and specifically stated that “two of the leases are long term in nature and considered to be well below market rental rates (i.e. Rite Aid Drugs space and Westbank Ambulatory Care space)....” The appraisal further stated that “due to below market rents in two long term leases, there appears to be significant Leasehold Interests in the Rite Aid space and the Westbank Ambulatory space.”

Additional documentation produced in support of Rite Aid’s motion for summary judgment reflects that the parish administration also analyzed the anticipated property purchase. An October 7, 2002 memorandum issued by the parish administration states that the purchase of the property at issue provided a substantially higher investment return compared to the administration’s other investments. The memorandum issued by the administration further stated:

We have also identified several other opportunities that would benefit the Medical Center, if and when, any of the existing tenants wish not to renew their leases. Among these are a storage facility for Medical Records — we currently pay a third party $250,000 annually to provide this service. Because of the visibility of the shopping center and the availability of parking, this location is also ideal for a wide range of outpatient services.
Based on the above analysis, it is our recommendation that the Medical Center proceed with the purchase of the Marrero Shopping Center. While providing an excellent return on investment in the short-term, it will also provide flexibility in developing the Medical Center Campus for the long term.

Rite Aid also attached several of West Jeffs Board of Directors’ meeting minutes. The minutes reflect that, on January 28, 2002, the Board of Directors recommended making an offer to acquire the property at issue. Further, the October 28, 2002 meeting minutes reflect that “[c]urrent leases were discussed-’^Finally, the February 24, 2003 minutes reflect that a resolution, authorizing the purchase of the property at issue for $3,730,000.00, was presented; the resolution specified that the purchase was “subject to the leases encumbering said property.”

DISCUSSION

Summary Judgment

The law is well-settled that an appellate court reviews the granting of a motion for summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764, 765. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

This Court has stated:

Summary judgment procedure is intended to make a just and speedy determination of every action. La. C.C.P. art. 966. It is favored and the procedure shall be construed to achieve this intention. Id. Under La. C.C.P. art. 966, the initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, the nonmoving party then must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted.

Sharpless v. Louisiana Dep’t of Transp., 12-457 (La.App. 5 Cir. 2/21/13), 110 So.3d 1117, 1119-20.

In opposition to Rite Aid’s cross-motion for summary judgment, West Jeff argued that the lease at issue is in violation of La. Const, art. VII, § 14(A) because |sWest Jeff, as a public entity, cannot lease publicly owned property below fair market value. La. Const. art. VII, § 14(A) provides:

Section 14. (A) Prohibited Uses. Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private. Except as otherwise provided in this Section, neither the state nor a political subdivision shall subscribe to or purchase the stock of a corporation or association or for any private enterprise.

We find the trial court correctly determined that La. Const, art. VII, § 14(A) does not apply to nullify the lease at issue under the facts of this case— where the property purchase was made subject to the pre-existing lease between two private parties, Rite Aid and MSC. In this case, West Jeff conducted a full appraisal analysis to determine if the property purchase, including the terms of the existing leases encumbering the property, was in its best interest. Therefore, we find the trial court did not err in its granting of summary judgment in favor of Rite Aid. All costs of this appeal are taxed against plaintiff-appellant, West Jeff.

Motion to Tax Costs

After the trial court granted Rite Aid’s cross-motion for summary judgment, dismissing West Jeffs petition in this case, Rite Aid filed a motion to tax costs. Rite Aid, as the prevailing party, requested that the trial judge order West Jeff to pay Rite Aid’s recoverable costs under La. C.C.P. art. 1920. In opposition to the motion, West Jeff asserted that, as a political subdivision of the state, it is immune from the payment of court costs. West Jeff argued that political subdivisions of the state are immune from payment of court costs even in proceedings where the political subdivision is a plaintiff who is unsuccessful in suit. After considering West Jeffs argument concerning immunity, the trial judge denied Rite Aid’s Emotion to tax costs. For the following reasons, we find that West Jeff is not immune from the payment of court costs.

The Louisiana Constitution of 1974 provides that “[njeither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.” La. Const. art. 12, § 10(A). Further, the Louisiana Supreme Court, in Segura v. Louisiana Architects Selection Board, 362 So.2d 498, 499 (La.1978), held that court costs are part of the “liability” to which a party is cast in litigation. In 1995, the Louisiana Constitution was amended to provide that the “legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages.” La. Const. art. 12, § 10(C). This Court, in State, Dep’t of Transp. & Dev. v. Lauricella Land Co., L.L.C., conducted a thorough analysis of the state’s and its political subdivisions’ immunity and determined that neither the state nor any of its political subdivisions are immune from the payment of its own court costs. 12-384 (La.App. 5 Cir. 12/11/12), 106 So.3d 1124, writ denied, 13-0094 (La.3/1/13), 108 So.3d 1174. In Lauricella Land, supra, this Court conducted the following analysis:

Prior to its amendment in 1992, LSA-R.S. 13:4521(A) provided:

Except as provided in R.S. 13:5112, R.S. 19:12.1, R.S. 19:113.1, and R.S. 48:451.3, and as hereinafter provided, neither the state nor any parish, municipality, or other political subdivision, public board, or commission shall be required to pay court costs in any judicial proceeding instituted or prosecuted by or against the state or any such parish, municipality, or other political subdivision, board, or commission, in any court of this state or any municipality of this state, including particularly, but not exclusively, those courts in the parish of Orleans and the city of New Orleans. This Section shall have no application to stenographers’ costs for taking testimony.
The plain language of this 1991 version of LSA-R.S. 13:4521(A) granted the state, its agencies, and political subdivisions of the state l1flimmunity from all court costs (with the exceptions provided for in the referenced statutes of 13:5112, 19:12.1, 19:113.1 and 48:451.3). In finding that the state, its agencies, and political subdivisions of the state could be liable for court costs, the Segura court reasoned that the Louisiana Constitution of 1974 superseded the immunity afforded the state, its agencies, and political subdivisions of the state by statute. In June of 1992, the Louisiana legislature amended LSA-R.S. 13:4521(A) to add: “Costs which are temporarily deferred pursuant to this Section cannot be shifted to opposing parties during the pendency of such deferment.” In LIGA v. Gegenheimer, 93-3021 (La.4/21/94), 636 So.2d 209, the Supreme Court analyzed and interpreted this amendment to LSA-R.S. 13:4521(A). In LIGA the Supreme Court stated that the “state, state agencies, and political subdivisions are no longer immune from payment of court costs.” The Court found that, after its decision in Segura, LSA-R.S. 13:4521(A) was amended to provide that “court costs due from the state and state agencies are ‘temporarily deferred.’ ” Again, in 1995, in its decision in Prejean v. Dixie Lloyds Ins. Co., 94-2979 (La.5/22/95), 655 So.2d 303, 307, modified on other grounds on reh’g, 94-2979 (La.9/15/95), 660 So.2d 836, the Supreme Court reiterated that “the state and state agencies are ‘exempt from the prepayment of court costs’ or have been given a ‘temporary deferment’ from the payment of court costs until a final judgment is rendered.” (Emphasis in original.).

106 So.3d at 1128-30.

Although the narrow issue presented to this Court in Lauricella Land concerned a political subdivision’s own costs, this Court determined that neither the state nor its political subdivisions is immune from court costs unless such immunity is statutorily provided. The narrow issue presented in this case is whether a political subdivision of the state can be responsible for an opposing party’s costs pursuant to La. C.C.P. art. 1920 in a suit in which a political subdivision is an unsuccessful plaintiff. There is no statutory immunity specifically provided to the state or its political subdivisions limiting any liability for court costs of an opposing prevailing party under La. C.C.P. art. 1920.

La. C.C.P. art. 1920 provides that, “[ejxeept as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” While it is the general rule that the party cast in 1 ^judgment should be taxed with costs, the trial court may assess costs in any equitable manner and against any party in any proportion it deems equitable. Carcamo v. Raw Bar, Inc., 12-294 (La.App. 5 Cir. 11/27/12), 105 So.3d 936, 939. The trial court has great discretion in awarding costs. Id.

We find that the trial judge improperly determined that he could not, in his discretion, tax costs against West Jeff as a political subdivision of the state. Accordingly, because the trial judge rendered his judgment based upon an error of law, we remand this matter for a subsequent hearing on Rite Aid’s motion.

SUMMARY JUDGMENT AFFIRMED; JUDGMENT ON MOTION TO TAX COSTS REVERSED; REMANDED.

      . The parties previously entered into a 1960 lease (the Old Lease), which expired on April 30, 1976. The parties entered into a new agreement in 1976, after the expiration of the Old Lease, because the parties contemplated that the leased premises would be remodeled and expanded, pursuant to plans and specifications mutually agreed upon by the parties. The parties later executed a "Lease Amendment” on June 12, 1992, wherein the rent was increased and the lessee agreed to pay a one-time payment of $25,000.00 to MSC. The amended lease set the rent at $3.35 per square foot in addition to a percentage of net sales in excess of $2,022,040.00. The amendment further granted the lessee nine (9) optional five-year renewal periods, providing the right to extend the lease through 2032.

      . The parties introduced the deposition testimony of Michael Adock, the corporate representative of West Jeff. Mr. Adock did not dispute the recorded act of sale, which re-fleets that the 2003 purchase was subject to the Lease at issue.

      . Mr. Derbes estimated the value of the Leasehold Interests to be $700,000.00.

      . The record further reflects that West Jeff considered expropriation of the purchased property but made the determination that a purchase of the property was in West Jeff's best financial interest.

      . Upon review of the transcript in this matter, we find that neither party introduced into evidence any documentation attached to their pleadings in support of or opposition to the motion to tax costs. The Louisiana Supreme Court has instructed that "[e]vidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record.” Denoux v. Vessel Mgmt. Services, Inc., 07-2143 (La.5/21/08), 983 So.2d 84, 88-89.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    GULF COAST BANK AND TRUST COMPANY v. MONTOLI & PITRE, LLC, Jerry H. Muhs and Wanda C. Muhs.
    No. 13-CA-784.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 12, 2014.
    Jack A. Ricci, Michael S. Ricci, Jonathan L. Schultis, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellee.
    Richard A. Richardson, Attorney at Law, Madisonville, Louisiana, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   FREDERICKA HOMBERG WICKER, Judge.

12At issue in this appeal is whether the power of attorney executed by defendants, Mr. Jerry H. Muhs and Ms. Wanda C. Muhs, expressly authorized Mr. Muhs to bind Ms. Muhs personally as a surety on a loan to Montoli & Pitre, LLC, a company they owned together. We conclude that the power of attorney at issue here did expressly authorize this act and therefore affirm the trial court’s grant of summary judgment in favor of plaintiff, Gulf Coast Bank and Trust Company.

FACTS AND PROCEDURAL HISTORY

Together, Mr. Jerry H. Muhs and Ms. Wanda C. Muhs owned, as members, Mon-toli & Pitre, LLC (hereinafter “the L.L.C.”). On September 30, 2009, the L.L.C. secured a Small Business Administration loan from Gulf Coast Bank and Trust (hereinafter “the Bank”) for the principal amount of $132,000.00. This loan was executed by the L.L.C. through Mr. Muhs’ signatures on at least three documents. First, Mr. Muhs signed the promissory note on the loan both as a member of the L.L.C. himself, and as the agent of Ms. Muhs. This promissory note alleges Mr. Muhs’ status as agent for Ms. Muhs was created “by virtue of a | .-¡power of attorney dated September 28, 2009.” Second, Mr. Muhs signed a “commercial guaranty” in which he obligated himself to be personally liable as a surety to the L.L.C.’s loan. Finally, Mr. Muhs signed a separate “commercial guaranty,” as the agent of Ms. Muhs, which obligated Ms. Muhs to be personally liable as a surety to the L.L.C.’s loan. Ms. Muhs’ commercial guaranty stated that Mr. Muhs signed on behalf of Ms. Muhs “by virtue of a power of attorney dated September 28, 2009.”

By his signatures, Mr. Muhs bound the L.L.C. to make regular payments on this loan starting on October 30, 2009. There is no indication in the record that the L.L.C. failed to abide by the loan’s terms during the first two years of its effect. However, from October 31, 2011 onwards, the L.L.C. failed to make payments on the loan and the Bank placed the L.L.C. in default.

On May 29, 2012, the Bank filed suit against the L.L.C., Mr. Muhs, and Ms. Muhs. In this suit, the Bank alleged that these defendants were liable to it for: the principal amount of the loan; accrued interest on the loan; late fees; and attorney’s fees with legal interest.

On January 22, 2013, the Bank moved for summary judgment against defendants. The parties argued this. motion through memoranda with attached exhibits and at a hearing on March 27, 2013. In opposition to summary judgment, defendants argued that Ms. Muhs was not personally liable for the L.L.C.’s loan because she had not validly authorized Mr. Muhs to bind her as a personal surety on the loan.

On April 18, 2013, the trial court granted summary judgment in favor of the Bank. The court found defendants hable for: the loan’s principal amount of 14$130,502.95; accrued interest of $10,527.20 as of January 14, 2013; a per diem of $22.35 for each day thereafter; attorney fees in the amount of 5% of the loan’s principal balance; and the costs of these proceedings.

Thereafter, Ms. Muhs moved for a de-volutive appeal. The trial court granted Ms. Muhs’ appeal on June 24, 2013. Neither the L.L.C. nor Mr. Muhs appealed the trial court’s April 18, 2013 judgment against them.

DISCUSSION

In her sole assignment of error, Ms. Muhs argues the trial court erred in finding her personally liable for the L.L.C.’s debt to the Bank and in granting summary judgment in the Bank’s favor. Ms. Muhs contends that she is free from this liability because she did not authorize Mr. Muhs to execute the “commercial guaranty” on her behalf. While Ms. Muhs does not deny that she and Mr. Muhs signed the above referenced power of attorney document, she asserts that the power of attorney document gave Mr. Muhs authority to act as her agent in her capacity as a member of the L.L.C., but not in her personal and individual capacity. We disagree.

Appellate courts conduct a de novo review of a summary judgment under the same criteria which govern the trial court’s consideration of whether summary judgment is appropriate. DROR Int'l, L.P. v. Thundervision, L.L.C., 11-215 (La.App. 5 Cir. 12/13/11), 81 So.3d 182, 185, writ not considered, 12-0127 (La.3/23/12), 84 So.3d 560. The summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of every action, except those disallowed by law. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and |5that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof remains with the movant. La. C.C.P. art. 966(C)(2).

In the above referenced “power of attorney dated in September 28, 2009,” Mr. and Ms. Muhs described themselves as residents “of the full age of majority of ... North Carolina.” Ms. Muhs then appointed Mr. Muhs to be her “agent and attorney-in-fact” and gave Mr. Muhs the following powers to act:

[Mr. Muhs may] act for [Ms. Muhs] in connection with a loan transaction with Gulf Coast Bank & Trust Company and to execute any and all documents necessary to consummate said loan transaction.
[Ms. Muhs] ... does hereby authorize [Mr. Muhs] to incorporate in said instruments such terms, conditions and agreements as said agent shall deem necessary and proper in his own sole discretion, to sign all papers, documents and acts necessary in order to complete the herein above described transaction, and to do any and all things [Mr. Muhs], in her [sic] sole discretion, deems necessary and proper in connection therewith.
[Ms. Muhs] does further ... give and grant [Mr. Muhs] complete power to perform any and all acts necessary and proper in the premises as fully as [Ms. Muhs] could do if she were personally present and acting for herself.

This power of attorney did not reference the L.L.C.

To resolve Ms. Muhs’ assignment of error, we must determine whether the power of attorney executed by the Muhses validly gave Mr. Muhs authority to bind Ms. Muhs, in her personal capacity, as a guarantor of the L.L.C.’s loan. To answer this question, we first look to the relevant Civil Code articles governing mandate.

The power of attorney at issue is a contract of mandate governed by the provisions of the Louisiana Civil Code, articles 2989 et seq. Under our Civil Code, a general mandate may confer authority to do whatever is appropriate under |fithe circumstances. Acts that are incidental or necessary for the performance of the general mandate need not be specified. La. C.C. art. 2995. However, in articles 2996 and 2997, the Civil Code sets forth those instances in which authority of an agent to act on behalf of the principal must be specifically described or “express.” Under Article 2997, authority to “(8) Contract a loan, acknowledge or make remission of a debt, or become a surety” must be given expressly.

Furthermore, while a contract of mandate is not generally required to be in any particular form, when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form. La. C.C. art. 2993. Here, the act in question is a suretyship agreement and the law prescribes that a “suretyship must be express and in writing.” La. C.C. art. 3038. Therefore, in order to be valid, Mr. Muhs’ mandate contract must be in writing and expressly give him authority to bind Ms. Muhs as a surety to the L.L.C.’s loan. We find that both requirements are met in this case.

The power of attorney at issue here was written, witnessed, and signed by both the principal, Ms. Muhs, and the mandatary, Mr. Muhs. Furthermore, the power of attorney expressly gives Mr. Muhs authority to act as her agent in connection with “a loan transaction” with the Bank “and to execute any and all documents necessary to consummate said loan transaction.” Ms. Muhs gave Mr. Muhs this authority to act “as fully” as she could “if she were personally present and acting for herself,” Importantly, this power of attorney did not limit Mr. Muhs to acting for Ms. Muhs in her capacity as a member of the L.L.C. Instead, the power of attorney authorizes Mr. Muhs to perform any “any and all acts necessary and proper ... as fully as [Ms. Muhs] could do if she were personally present and acting for herself.” Most particularly, the words “for herself’ authorize Mr. Muhs to bind Ms. Muhs personally, not merely in her capacity as a member of the L.L.C.

|7Ms. Muhs argues that under persuasive authority of the case In re Succession of Aucoin, 99-2171 (La.App. 1 Cir. 11/8/00), 771 So.2d 286, this Court should find that the power of attorney contract at issue in this case did not meet the requirement that authority to bind a person as a surety must be expressly given. We again disagree. In Aucoin, the First Circuit was faced with the question of whether a wife, by a power of attorney, gave her husband the legal authority to donate her immovable property. Id. at 287. The Court correctly recognized that this is another situation where a contract of mandate must expressly give the mandatary authority to donate immovable property in order for the mandatary to have that authority. Id. at 288 (citing La. C.C. arts. 2996 and 2997). The court then went on to analyze the contract of mandate in question. It determined that, while the contract did provide the husband-mandatary with “general authority” over the principal-wife’s affairs, it did not expressly give the husband-mandatary the authority to donate the wife-principal’s immovable property. Id. The court therefore concluded that the husband-mandatary did not have the legal authority to donate the wife-principal’s immovable property. Id.

After studying Aucoin, we find that it is distinguishable from this case. The power of attorney at issue in Aucoin was a general grant of authority executed over four years before the transaction in question. In contrast, in the present case, the power of attorney is a limited grant of authority to Mr. Muhs to act “in connection with a loan transaction” with the Bank executed only two days before Mr. Muhs bound Ms. Muhs as a surety on the loan to the L.L.C.

Furthermore, we recognize that under Civil Code article 3021, “[o]ne who causes a third person to believe that another person is his mandatary is bound to the third person who in good faith contracts with the putative mandatary.” In the circumstances of this case, even if we were to find that the mandate contract did 18not expressly give Mr. Muhs the authority to bind Ms. Muhs as a surety for this loan, we would find that Ms. Muhs’ act of executing this particular power of attorney caused the Bank to believe that Mr. Muhs was her mandatary for this purpose and contract with him as such. Therefore, even if we were to find that Ms. Muhs did not give the express authority in question here, we would still find that the trial court’s judgment finding her liable in the stated amounts was correct.

Considering the above, we find that the particular power of attorney executed by Mr. and Ms. Muhs expressly gave Mr. Muhs the power to bind Ms. Muhs as a surety to the LLC’s loan. The trial court correctly granted the Bank’s motion for summary judgment and ordered the defendants to pay amounts in accordance with the terms of the loan.

CONCLUSION

Based on the foregoing, the judgment appealed from is affirmed. All costs of this appeal are assessed to appellants.

AFFIRMED.

      . Defendants also argued that summary judgment was improper because the LLC had given the Bank proceeds from the sale of inventory in satisfaction of the loan. However, this argument was abandoned on appeal. See Uniform Rules Courts of Appeal, R. 2-12.4.

      . See Eclipse Telecommunications Inc. v. Telnet Int'l Corp., 01-271 (La.App. 5 Cir. 10/17/01), 800 So.2d 1009, 1011 (“A contract of guaranty is equivalent to a contract of suretyship. The terms guaranty and surety-ship may be used interchangeably. Guaranty Bank and Trust Co. v. Jones, 489 So.2d 368 (La.App. 5 Cir.1986). Suretyship is defined as ‘an accessory contract by which a person binds himself to a creditor to fulfill the obligation of another upon the failure of the latter to do so.' [La.] C.C. Art. 3035.”)

      . Under La. C.C. art. 2989, "A mandate is a contract by which a person, the principal, confers authority on another person, the man-datary, to transact one or more affairs for the principal.”