author: MARC E. JOHNSON, J.

text:
    In re REINSTATEMENT OF SOUTHERN LABOR SERVICES, L.L.C.
    No. 13-CA-775.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.
    Stephen W. Brooks, Jr., Richard J. Voelker, Attorneys At Law, Covington, Louisiana, for Plaintiff/Appellant.
    Cade A. Evans, Attorney At Law, Lafayette, Louisiana, Preston L. Hayes, Attorney At Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARC E. JOHNSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   MARC E. JOHNSON, J.

12Intervenor/Appellant, Louisiana Construction and Industries, Self-Insurers Fund (hereinafter referred to as “the Fund”), appeals the judgment from the 24th Judicial District Court, Division “A”, ordering the reinstatement of Petitioner/Appellee, Southern Labor Services, L.L.C. (hereinafter referred to as “Southern Labor”), a dissolved limited liability company. For the following reasons, we vacate the trial court’s judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

The following facts are taken from the record and briefs.

On November 20, 2006, Stacey Roque and Joaquin Roque (hereinafter collectively referred to as “the Roques”) filed Articles of Organization that formed Southern Labor. The Roques were the sole members of the limited liability company. Southern Labor was created to provide contract labor for demolition and remediation projects in the wake of Hurricane Katrina.

IsDanilo Castillo was an employee of Southern Labor who was contracted to provide manual labor to Gill Industries, Ltd. (hereinafter referred to as “Gill Industries”). On August 10, 2008, Mr. Castillo was injured in the course of and scope of his employment. Subsequent to Mr. Castillo’s accident, Southern Labor reported the injury to its workers’ compensation carrier, the Fund. The Fund provided compensation coverage to Southern Labor through an indemnity agreement issued for Southern Labor’s exposure to workers’ compensation liabilities pursuant to the Louisiana Workers’ Compensation Act. After receiving Southern Labor’s claim, the Fund voluntarily initiated workers’ compensation payments to Mr. Castillo. During that time, Mr. Castillo did not assert a disputed claim for workers’ compensation benefits against Southern Labor.

On May 3, 2010, Southern Labor filed an affidavit to dissolve its status as a limited liability company pursuant to La. R.S. 12:1335.1. In the affidavit, the Roques swore that Southern Labor was no longer doing business, owed no debts, and was dissolved through the execution of the affidavit by its members, the Roques.

Over two years later, Mr. Castillo filed a workers’ compensation claim against Southern Labor on August 31, 2012. Mr. Castillo also filed a workers’ compensation claim against Gill Industries on September 7, 2012. On October 19, 2012, Gill Industries filed an Answer and Third-Party Demand, asserting in the third-party demand that Southern Labor was Mr. Castillo’s lending employer and owed defense, indemnity and/or contribution to Gill Industries for any and all compensation benefits it may have owed.

|4On December 18, 2012, the Roques filed a Petition to Reinstate Southern Labor Services, L.L.C. In the petition, the Roques sought the reinstatement of Southern Labor for the purposes of defending against claims by Gill Industries and Mr. Castillo. Southern Labor also sought to pursue claims against the Fund, as well as seeking penalties and attorney’s fees for the bad faith handling of the claims by the Fund. The Fund filed a Petition for Intervention and Answer to Petition for Reinstatement of Southern Labor Services, L.L.C. on February 15, 2013. The Fund asserted that the Roques voluntarily dissolved Southern Labor through an affidavit when they knew or should have known of the ongoing workers’ compensation claim of Mr. Castillo, and that the reinstatement action was instituted in an effort to avoid potential personal liability.

The matter was set for a Rule to Show Cause on May 1, 2013 as to why Southern Labor should not be reinstated. No evidence was admitted at the hearing. At the conclusion of the hearing, the trial court granted the reinstatement in an attempt to give the parties “a day in court to try [the] matter on the merits.” The trial court stated that it was granting the reinstatement for the sole purpose of allowing Southern Labor to litigate the matter regarding Mr. Castillo. In a written judgment rendered on May 13, 2013, the trial court granted the reinstatement of Southern Labor retroactive to May 3, 2010, the date of its dissolution by affidavit. The trial court also ordered the Louisiana Secretary of State to reinstate the active limited liability company status of Southern Labor retroactively to May 3, 2010. The instant appeal followed that judgment.

ASSIGNMENT OF ERROR

In its sole assignment of error, the Fund alleges the trial court committed reversible error when it ordered the Louisiana Secretary of State to reinstate the | ¡¡active status of Southern Labor retroactively to the date of its dissolution by affidavit.

LAW AND ANALYSIS

The Fund alleges the trial court committed reversible error in ordering the Louisiana Secretary of State to reinstate Southern Labor’s active status as a limited liability company retroactive to the May 3, 2010 dissolution date. The Fund argues the trial court improperly granted the reinstatement of Southern Labor solely based upon the allegations raised in the petition. The Fund further alleges the trial court committed reversible error by reinstating Southern Labor’s active status without requiring it to produce evidence establishing its entitlement to reinstatement. The Fund avers the trial court failed to determine that Southern Labor had a lawful purpose for the reinstatement, not merely the avoidance of personal liability by the Roques. The Fund further argues the trial court’s ruling deprived it of an opportunity to cross-examine any witness on behalf of Southern Labor in regard to the status of the entity at the time the affidavit of dissolution was filed. The Fund argues that the allegation that Southern Labor may have acquired a cause of action subsequent to dissolution is not a sufficient basis to support an order of reinstatement; particularly, reinstatement retroactive to the date of dissolution.

Conversely, Southern Labor contends the trial court was correct in its decision to reinstate it to an active status because there was no requirement for it to establish a “lawful purpose” or have an eviden-tiary hearing conducted. Although there was no statutory requirement for a “lawful purpose,” Southern Labor states that there was a “lawful purpose” submitted to the trial court. Southern Labor asserts there was evidence presented that reflected it was no longer doing business and owed no debts when its affidavit of dissolution was filed; and, only after the dissolution occurred, did the Funds’ alleged claims arise against it. |fiBecause Southern Labor, not the Roques, was the party that entered into the indemnity/insurance arrangement, Southern Labor argues that only it can assert and/or defend any claims regarding that arrangement. Southern Labor also contends that if it owed debts to the Fund at the time the affidavit of dissolution was filed, which it denies, then the statutory requirements of La. R.S. 12:1335.1 were not met, necessitating its reinstatement.

Louisiana Civil Code of Procedure article 1335.1 provides

A. In addition to all other methods of dissolution, if a limited liability company is no longer doing business and owes no debts, it may be dissolved by filing an affidavit with the secretary of state executed by the members or by the organizer, if no membership interests have been issued, attesting to such facts and requesting that the limited liability company be dissolved. Thereafter, the members, or the organizer if no membership interests have been issued, shall be personally liable for any debts or other claims against the limited liability company in proportion to their ownership interest in the company.
B. The secretary of state shall reinstate a limited liability company that has been dissolved pursuant to this Section only upon receipt of an order issue by a court of competent jurisdiction.

There is no statutory guidance provided as to whether members of a dissolved limited liability company are entitled to retroactive reinstatement of a company without having evidence admitted in support of the reinstatement. Furthermore, we do not have any jurisprudential guidance from this Circuit as to the procedural aspects of the admission of evidence for reinstatement. However, we do find the ruling in In re Reinstatement of CBG Investment Group, L.L.C., 09-2150 (La.App. 1 Cir. 6/3/10); 42 So.3d 429, persuasive.

In In re Reinstatement of CBG Investment Group, L.L.C., after voluntarily dissolving the company, former members of a limited liability company petitioned |7the court to reinstate its corporate status to avoid personal liability in an unresolved litigation. The plaintiff in the unresolved litigation filed a Petition for Intervention in the reinstatement proceeding. The former members filed a peremptory exception, alleging the plaintiff had no cause of action in the reinstatement proceeding. The exception was granted by the trial court, and the plaintiff appealed. On appeal, the Louisiana First Circuit Court of Appeal addressed the issue of whether the trial court abused its discretion when it ordered reinstatement of the limited liability company without conducting an evidentiary or adversarial hearing. In reversing the trial court, the First Circuit held that the former members of the company were not clearly entitled to retroactive reinstatement pursuant to granting of an ex parte Petition for Reinstatement without an evidentiary hearing. Id. at 434. The order directing reinstatement of .the limited liability company was vacated, and the matter was remanded for an evidentiary hearing. Id. at 435.

Our review of the In re Reinstatement of CBG Investment Group, L.L.C. case leads to the conclusion that evidence needs to be presented in order to have a limited liability company reinstated. Because the trial court reinstated Southern Labor retroactively to the date of dissolution without considering documentation properly admitted into evidence, we hold there was no basis presented to the court for the reinstatement. Consequently, we find the trial court erred in granting the reinstatement of Southern Labor and ordering the Louisiana Secretary of State to reinstate Southern Labor’s active status retroactive to the date of dissolution. Therefore, we vacate the trial court’s judgment and remand the matter to the trial court for an evidentiary hearing for the Roques to prove they are entitled to reinstatement of Southern Labor.

IsDECREE

For the foregoing reasons, we vacate the judgment and remand the matter for further proceedings. The Roques are assessed the costs of this appeal.

VACATED AND REMANDED.

      . In its briefs to the trial court and this Court, the Fund argues that Mr. Castillo was not an employee of Southern Labor. The Fund alleges Mr. Castillo was an employee of Southern Environmental of Louisiana, L.L.C., which was another limited liability company owned by the Roques. The issue of which company was Mr. Castillo's employer at the time of the accident is not a question before this Court in this appeal. For the sole purpose of simplicity within this opinion, Southern Labor is referred to as Mr. Castillo’s employer. This Court renders no decision as to Mr. Castillo’s actual employer.

      . We acknowledge our holding in In Re Islander Shipholding, Inc., 97-978 (La.App. 5 Cir. 4/15/98); 715 So.2d 7, where we affirmed the denial of a Petition to Annul the reinstatement of a corporation. In that matter, the Petition for Reinstatement was granted ex parte. However, the only issue before this Court in that case was whether shareholders who dissolved their corporation must notify anyone when the shareholders decide to reinstate the corporate status pursuant to La. R.S. 12:142.1(B). This Court's opinion did not render a decision concerning the procedural or evidentiary requirements of reinstatement of the corporation.


source: Caselaw Access Project

author: HANS J. LILJEBERG, Judge.

license: Public Domain

text:
    Gerald J. CRONLEY and Carolee C. Cronley v. BOARD OF ZONING ADJUSTMENTS of/and The Parish of Jefferson.
    No. 13-CA-789.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.

      Wiley J. Beevers, Steven M. Mauterer, Jared M. Newchurch, Shayna Lynn Beev-ers, Attorneys at Law, Gretna, Louisiana, for Plaintiff/Appellee.
    Kenneth B. Krobert, Assistant Parish Attorney, Harahan, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|2The Parish of Jefferson, through its Board of Zoning Adjustments (“Zoning Board”), appeals the trial court’s judgment reversing its decision to deny a property owner’s request for a zoning variance. For the following reasons, we reverse the trial court’s judgment and reinstate the decision of the Zoning Board.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Gerald and Carolee Cronley, are the owners of a single-family residence located at 3686 Lake Lynn Drive in Gretna, Louisiana. In April of 2012, the Cronleys received a notice from the Jefferson Parish Department of Inspection and Code Enforcement, informing them that they were in violation of Section 40-661(g)(2)(a) of the Jefferson Parish Code of Ordinances (“JPCO”) for parking their recreational vehicle (“RV”) in front of their home.

The Cronleys applied to the Zoning Board for a variance to allow them to park their RV on the side of their home. Pursuant to Section 40-661(g)(2)(d) of the JPCO, the Cronleys were required to maintain a five-foot side yard setback between the RV and the side property line. However, due to the width of the RV, la only 2.95 feet would remain between the RV and the side property line. Accordingly, the Cronleys requested a variance of 2.05 feet.

In their application to the Zoning Board for a variance, the Cronleys asserted that their son, Joey, has muscular dystrophy and that their RV is equipped to assist him with his daily needs. They further stated that Mr. Cronley sometimes travels for work and that it is difficult for Mrs. Cronley, who has a herniated disc, to assist Joey on her own without the equipment in the RV. Finally, in their application, the Cronleys indicated that Joey uses a machine to assist with his breathing and that he needs the power and equipment provided in the RV when there is a power outage.

During the public hearings and proceedings before the Zoning Board, several of the Cronleys’ neighbors expressed strong opposition to the requested variance, arguing that the RV is an “eyesore,” and that the neighborhood could start to resemble a “trailer park.” At the conclusion of the hearing on January 8, 2013, the Zoning Board denied the Cronleys’ request for a variance.

On January 23, 2013, the Cronleys filed suit in the Twenty-Fourth Judicial District Court against the Parish of Jefferson, through the Board of Zoning Adjustments, seeking reversal of the Zoning Board’s denial of their request for a variance. A hearing was held on May 21, 2013, at which the trial judge allowed additional testimony to be taken to supplement the record. Thereafter, on May 24, 2013, the trial judge rendered a judgment, reversing the decision of the Zoning Board and granting a variance of 2.05 feet to the Cronleys. It is from this judgment that the Zoning Board appeals.

LAW AND DISCUSSION

On appeal, the Zoning Board first argues that the trial court erred by failing to confine its review to the record of the proceedings before the Zoning Board. It asserts that the members of the Zoning Board were well aware of the physical | challenges faced by Joey Cronley and that no further testimony on this issue was needed.

Section 40-796(c) provides as follows:

The court shall render a decision from the record of the board unless, following review of the board’s record, it shall appear to the court that testimony is necessary for the proper disposition of the matter. The court may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. Costs shall not be assessed against the parish unless it shall appear to the court that the actions of the board constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct, pursuant to La. R.S. 9:2798.1. (Emphasis added.)

In their petition, the Cronleys requested that the trial court allow them to present additional testimony that was not provided at the hearing before the Zoning Board. The trial judge granted this request, noting that the record very briefly addressed the disabilities of Joey Cronley, which was the basis for the hardship asserted in the request for the variance. The trial judge indicated that it would allow the testimony of Joey Cronley or one of his parents regarding his disabilities, because “it was obvious there was more to it” than was set forth in the record of the Zoning Board proceedings.

Clearly, it appeared to the trial judge that additional testimony was necessary for the proper resolution of this matter. Considering the record before us, as well as Section 40-796(c) of the JPCO, we cannot say that the trial judge erred or abused his discretion by allowing the Cronleys to present additional testimony in their efforts to prove a hardship sufficient to warrant a variance. Accordingly, this argument by the Zoning Board is without merit.

|fiOn appeal, the Zoning Board further argues that the trial court erred in finding that the decision of the Zoning Board to deny the variance was arbitrary and capricious. It contends that a hardship based on the medical condition of an occupant is not an “undue hardship” under Louisiana law and the JPCO, but rather special conditions or circumstances peculiar to the land, structure, or building must be involved.

The Cronleys respond that the trial court’s judgment reversing the decision of the Zoning Board is not erroneous, noting that there is no statutory or jurisprudential definition of hardship, and that whether a hardship exists must be decided on a case-by-case basis.

A prima facie presumption of validity attaches to zoning board actions. Parish of Jefferson v. Davis, 97-1200, 97-1201, p. 8 (La.App. 5 Cir. 6/30/98), 716 So.2d 428, 433, writ denied, 98-2634 (La.12/11/98), 730 So.2d 460. A reviewing court cannot substitute its own judgment or interfere with the zoning board’s decision absent a showing that the board was arbitrary and capricious or abused its discretion. Id.; Freeman v. Kenner Board of Zoning Adjustments, 09-1060, p. 8 (La.App. 5 Cir. 4/27/10), 40 So.3d 207, 212. The person who opposes a zoning board’s decision bears the burden of proving that the decision was arbitrary, capricious, an abuse of discretion, or palpably unreasonable. In re: Pierre, 04-635, p. 5 (La.App. 5 Cir. 12/14/04), 892 So.2d 91, 92; Ostarly v. Zoning Appeals Board, Parish of Jeffer son, 02-55, p. 5 (La.App. 5 Cir. 10/29/02), 830 So.2d 542, 545, writ denied, 02-3112 (La.2/21/03), 837 So.2d 632.

Section 40-793(2) of the JPCO provides in pertinent part:

|fiThe purpose of the “variance” provisions of this section generally permit an applicant to apply for relief from the requirements of the letter of the ordinance when unnecessary hardship or practical difficulty exists, or when there is an exceptional or unusual physical condition of a lot, which condition is not generally prevalent in the neighborhood and which condition would prevent a reasonable or sensible arrangement of building on the lot.

The Jefferson Parish Comprehensive Zoning Ordinance (CZO), Section XXII 3.B, sets forth the circumstances which must exist before the zoning board may grant a variance, which can be summarized as follows:

1. Surrounding property values will not be negatively affected; and
2. The variance will positively affect neighborhood prosperity and welfare; and
3. The variance will not impair light and air, increase traffic congestion or parking problems, overburden fire protection or sewerage and water services, or produce other nuisances such as odors, dust, fumes, noise or glare; and either
4. Circumstances special to the property create a demonstrable hardship for the property owner; or
5. The property owner would be deprived of rights enjoyed by neighboring property owners were the variance not be granted, but would not thereby simply be granted special privileges, nor would the variance be merely for the owner’s convenience or profit.

Pierce v. Parish of Jefferson, 95-719, pp. 4-5 (La.App. 5 Cir. 1/17/96), 668 So.2d 1153, 1155; Guenther v. Zoning Appeals Board, Parish of Jefferson, 542 So.2d 612, 614 (La.App. 5 Cir.1989), writ denied, 544 So.2d 407 (La.1989).

Thus, before a variance may be granted, the Zoning Board must find that all of the first three requirements are present, plus one of the factors in the fourth or fifth paragraphs. Barreca v. Parish of Jefferson, 95-14, pp. 2-8 (La.App. 5 Cir. 4/25/95), 655 So.2d 403, 404; Cerminaro v. Jefferson Parish Zoning Appeals Board, 02-1041, p. 7 (La.App. 5 Cir. 2/11/03), 838 So.2d 193, 196. It is the 17burden of the person seeking the variance to establish that the appropriate requirements are met. Prescott v. Parish of Jefferson, 96-1058, p. 4 (La.App.4/9/97), 694 So.2d 468, 471. In the present case, the Zoning Board did not find that all of the necessary requirements were met.

A hardship that justifies the granting of a variance must stem from the application of the ordinance to the property in question and not from the actions of the applicant which amount to a self-induced hardship. Merrihue v. St. Charles Parish Planning & Zoning Dept., 496 So.2d 1232, 1235 (La.App. 5 Cir.1986), writ denied, 497 So.2d 1019 (La.1986). See also Freeman v. Kenner Board of Zoning Adjustments, supra at 212; and Gardner v. City of Harahan, 504 So.2d 1107, 1110 (La.App. 5 Cir.1987). No general rule can be formulated as to what constitutes a hardship or “practical difficulty” sufficient to authorize the grant of a variance. Merrihue, supra at 1234. Each zoning case must be decided on the facts particular to it, and all relevant factors must be considered. Id.

In the instant case, the testimony revealed that Joey Cronley suffers from muscular dystrophy and osteoporosis, is confined to an electric wheel chair, can no longer move his limbs on his own, and requires a machine to assist him with breathing. He also requires assistance to perform daily human functions, such as showering and going to the bathroom. Due to his osteoporosis, Joey is moved in a hoist or sling attached to a track on the ceiling to avoid breaking his bones. Although some renovations were made to the Cronleys’ home to assist with Joey’s care, the equipment in the house requires assistance and getting Joey to the bathroom can be difficult. Mrs. Cronley has a herniated disc which makes it difficult to assist with Joey’s care in the house. At the hearing before the Zoning Board, Mrs. Cronley testified that it is easier for her to have the motor home to assist with Joey’s daily care, because everything is “self-contained.”

Is At the hearing before the trial court, Gerald Cronley testified that he purchased the RV 16 to 18 months earlier, and he installed a platform wheelchair lift and other equipment to assist with Joey’s care. He identified pictures of the RV equipment, explained the hoist and track system in the RV, and testified that it is easy to push Joey to the bathroom in the RV. Mr. Cronley stated that there are three and a half bathrooms in the house, but only one of them has been modified by the State for Joey to use. He stated that all of the bathrooms could be modified for Joey to use “eventually.” Mr. Cronley testified that he uses the RV to travel for work, and that he is gone “close to 20 days” in a month. He also stated that the RV is Joey’s only means of transportation and that it is equipped with generators, which are necessary during a power outage. Mr. Cronley believes that Joey needs the RV, and he noted that Joey has outlived his life-expectancy.

When questioned about the circumstances pertaining to the property, Mr. Cronley testified that he did not believe that the configuration of his lot was any different from those located to the right and left of his house. He further agreed that there was not “anything unique about [his] lot as opposed to other houses located.... within 10 or 12 homes on either side.”

In opposition to the Cronleys’ request for a zoning variance, neighbors expressed concern that such a variance would create a precedent and result in the neighborhood being turned into a “trailer park.” At the hearing before the Zoning Board, Susan Ferrara, who is the president of the Property Owner’s Association for Stonebridge Subdivision, stated that the Association is opposed to the variance, as it would violate their covenants and by-laws. She stated that other residents in the subdivision who own RVs store them off-site and only bring them back to their residences when they want “to take them out.” Another neighbor, Mr. Emmett, stated that he owns an RV and that he and other RV owners store them off-site in border to keep the subdivision looking attractive. He opined that the Cronleys’ RV is an “eyesore,” that it “detracts from the entire street,” and that it would “take our property values down over the long run.”

Considering all of the facts and circumstances presented in the record before us, it is clear that all of the requirements for the issuance of a variance have not been met. The record of the proceedings before the Zoning Board and the trial court do not support a finding that the variance will positively affect neighborhood prosperity and welfare. Further, while the Cronleys certainly have shown a hardship due to Joey’s medical condition, they have not shown that circumstances special to the property create the hardship.

The members of the Zoning Board unanimously denied the Cronleys’ request for a variance, noting that expense is not a hardship, there was strong opposition from the Property Owners’ Association, it would not increase property values or adjoining property values would be depreciated, and the variance would not tend to preserve and advance the prosperity and general welfare of the neighborhood. As stated above, the person opposing a zoning board’s decision bears the burden of proving that the decision was arbitrary, capricious, or palpably unreasonable.

While we certainly sympathize with the Cronleys and understand that keeping the RV off-site will make caring for Joey more difficult, we are compelled to follow the law as it stands and apply it in this case. Based on the evidence in this matter, as well as the applicable law, we cannot say that the Zoning Board’s decision to deny the Cronleys’ request for a variance was arbitrary, capricious, or unreasonable. Accordingly, we find that the trial court erred by reversing the Zoning Board’s decision, and we reinstate the Zoning Board’s decision to deny the variance.

\WDECREE

For the foregoing reasons, we reverse the trial court’s judgment granting the variance of 2.05 feet to the Cronleys, and we reinstate the decision of the Zoning Board to deny the variance.

REVERSED.

      . The Zoning Board also claims that the trial judge erred by finding that a precedent had been established by the presence of other violations in the neighborhood. Although the trial judge noted in his reasons for judgment that the Cronleys submitted photographs of other homes in the neighborhood that had RV’s in their driveways, the trial judge did not make a finding that a precedent had been established by other violations in the neighborhood. Accordingly, this argument has no merit.


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

text:
    Louis C. PANNAGL v. John KELLY.
    No. 13-CA-823.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.

      Albert J. Nicaud, Jeffrey M. Siemssen, Attorneys at Law, Metairie, Louisiana, for PlaintifflAppellee.
    George I. Pivach, II, Timothy Thriffiley, Attorneys at Law, Belle Chasse, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|2Pefendant, John Kelly, appeals the grant of summary judgment on liability on a promissory note in favor of plaintiff, Louis Pannagl, and intervenor, 2909 Constance Street, LLC. For the following reasons, we affirm.

Procedural History

Plaintiff, Mr. Pannagl, filed a Petition mi Note thereby instituting the instant proceedings. Defendant, Mr. Kelly, filed an Answer and Reconventional Demand, raising affirmative defenses to the note and asserting claims against Mr. Pannagl for defamation and to rescind the transfer of his membership interest in 2909 Constance Street, LLC (“Constance Street”) for lack of consideration. Subsequently, Constance Street filed a Petition of Intervention, alleging it was the holder of the promissory note. In response, Mr. Kelly filed a Third Party Demand against Constance Street alleging that the limited liability company was liable to him on the note in the event that Mr. Kelly was found liable to Mr. Pannagl.

Thereafter, Mr. Pannagl and Constance Street filed a Motion for Partial Summary Judgment against Mr. Kelly on the note, and further sought dismissal of |sthe third party demand against Constance Street. At the conclusion of the summary judgment hearing, the trial court granted partial summary judgment in favor of Mr. Pannagl and Constance Street. The trial court further dismissed Mr. Kelly’s third party demand. Mr. Kelly’s timely appeal follows.

Facts

Mr. Kelly and Mr. Pannagl met sometime in 2006 or 2007. Mr. Kelly is a self-employed businessman, who engages in the purchase and sale of investment properties. Subsequent to their meeting, Mr. Pannagl, through his attorney’s trust account, invested sums of money, totaling approximately $300,000.00, with Mr. Kelly over several months to purchase immovable property through different entities. Mr. Kelly alleges that Mr. Pannagl sought to conceal cash from his ex-wife to obtain an advantage in their community property partition. Accordingly, Mr. Pannagl made clear that he did not want a membership interest issued to him or any documentation evidencing his investment or ownership in any property. The two men agreed they would “settle up” at a later date.

Mr. Kelly thereafter invested Mr. Pannagl’s money in two properties, 138 Lowerline and 2909 Constance Street, acquired through limited liability companies set up by Mr. Kelly aptly named 138 Lowerline, LLC and 2909 Constance Street, LLC. Pursuant to their agreement, Mr. Kelly possessed 100% membership interest in each company. In March 2009, 2909 Constance Street, LLC executed a note and mortgage in favor of Mississippi River Bank in the principal amount of $180,000.00. Mr. Kelly and Mr. Pannagl were guarantors of that note.

Mr. Kelly alleges that in late 2009, Mr. Pannagl advised him that the issues with his ex-wife were resolved and he wanted to obtain membership in 2909 LConstance Street, LLC. Consequently, on December 21, 2009, Mr. Kelly assigned his 100% membership interest in 2909 Constance Street, LLC to Mr. Pannagl, wherein he also agreed to repay the Mississippi River Bank note and mortgage. The assignment stated as follows:

Mortgage Note. JOHN shall be and remains responsible for and liable to the Company and LOUIS for all payments, until paid in full, on the Multiple Indebtedness Mortgage bearing against the property of the Company located at 2909-11 Constance Street, dated March 10, 2009, in favor of Mississippi River Bank, Loan account No. 504281690001, in the original principal amount $180,000.00.

Additionally, on that date, Mr. Kelly executed a promissory note, wherein he agreed to be responsible for and pay, on behalf of 2909 Constance Street, LLC and Mr. Pannagl, the remaining principal balance on the note and mortgage in favor of Mississippi River Bank, together with interest in arrears from the date of the note on the unpaid principle balance in satisfaction of the above loan. Specifically, the promissory note stated in pertinent part:

FOR VALUE RECEIVED, John Kelly, the undersigned individual, ... unconditionally promises to pay on behalf of 2909 Constance Street, LLC (“Holder”) and Louis C. Pannegl [sic], the principal sum of $174,545.66, together with interest in arrears from the date hereof on the unpaid principal balance, to Mississippi River Bank in satisfaction of Loan Account No. 504281690001.
All principal and interest of the above loan shall be paid in full within six (6) months of the execution of this Note.

Mr. Kelly, pursuant to his obligations under both the assignment and promissory note, issued checks to Mississippi River Bank each in the amount of $1,505.00 from the company bank account, which Mr. Kelly maintained after the assignment. After July 27, 2010, Mr. Kelly made no further payments to Mississippi River Bank in satisfaction of his obligations under the assignment and note. Consequently, Mr. Pannagl began making payments on the mortgage to Mississippi River Bank. When the balloon 1¡¡note on the mortgage became due on March 10, 2011, Mr. Pannagl paid the mortgage in full and received an assignment of the Mississippi River Bank note and mortgage.

Mr. Pannagl instituted the instant action against Mr. Kelly for breach of contract, interest and attorney’s fees pursuant to the assignment of membership interest, promissory note, and multiple indebtedness mortgage now held by Mr. Pannagl.

Assignments of Error

Appellant, Mr. Kelly, asserts that the trial court erroneously granted summary judgment where he sufficiently raised viable defenses to his liability on the note thereby raising genuine issues of material fact. Additionally, Mr. Kelly asserts that the trial court erroneously dismissed Mr. Kelly’s third party demand in favor of 2909 Constance Street, LLC.

Summary Judgment

Appellate courts review the granting or denial of a motion for summary judgment de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Migliore v. Gill, 11-407 (La.App. 5 Cir. 12/13/11), 81 So.3d 900, 902, writ denied, 12-94 (La.3/9/12), 84 So.3d 555; Smith v. Our Lady of the Lake Hosp., Inc., 639 So.2d 730, 750 (La.1994). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together -with affidavits, show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131, 137. The movants, Louis Pannagl and 2909 Constance Street, LLC, have the burden of proof. La. C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial, the movant need only point out to the court that there is |6an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to establish they will be able to satisfy their evidentiary burden of proof at trial, there is no genuine issue of material fact. Id. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Richard, supra, at 137.

Law

Under the Uniform Commercial Code, a “holder” is a person who is in possession of an instrument drawn or issued to him or his order. La. R.S. 10:1-201. A negotiable instrument must (a) be signed by the maker or drawer; and (b) contain an unconditional promise to pay a sum certain in money; and (c) be payable on demand or at a definite time; and (d) be payable to order or to bearer. La. R.S. 10:3-104. Unless specifically denied in the pleadings, each signature on an instrument is admitted. La. R.S. 10:3-308. When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense. Id.

In American Bank v. Saxena, 553 So.2d 836 (La.1989), the Louisiana Supreme Court held that summary judgment is the appropriate procedural device to enforce a negotiable instrument when the defendant establishes no defense against enforcement. Once the plaintiff, the holder of a promissory note, proves the maker’s signature, or the maker admits it, the holder has made out his case by mere production of the note and is entitled to recover in the absence of any further evidence. Johnson v. Drury, 99-608 (La.App. 5 Cir. 6/2/00), 763 So.2d 103, 109-110; Premier Bank, Nat’l Association v. Percomex, Inc., 615 So.2d 41 (La.App. 3rd Cir.1993); Thomas v. Bryant, 597 So.2d 1065 (La.App. 2nd Cir.1992).

17Once the plaintiff has met his burden of proof, the burden shifts to the defendant to prove the existence of a triable issue of fact. Saxena, 553 So.2d at 846. Such proof can be established through parol evidence. Johnson, 763 So.2d at 110; Scafidi v. Johnson, 420 So.2d 1113 (La.1982); Thomas, 597 So.2d at 1068. However, the evidence must be admissible as a matter of law and must consist of specific factual details. Equipment, Inc. v. Anderson Petroleum, Inc., 471 So.2d 1068 (La.App. 3rd Cir.1985) [defendant disputed the amount claimed by plaintiff, but offered no specific facts in support of his allegation]; Louisiana National Bank v. Jumonville, 563 So.2d 965 (La.App. 1st Cir.1990) [parol evidence is not admissible to vary the terms of an instrument].

In order to defeat summary judgment, the defendant must assert a valid defense to liability on the note, not separate and distinct claims that are unrelated to the question of liability. Saxena, supra at 844 [defendant admitted his debt to the plaintiff, but attempted to avoid liability by seeking tort damages from the plaintiff]; Gulf Federal Savings and Loan Association v. Nugent, 528 So.2d 782 (La.App. 3rd Cir.1988), writ denied, 533 So.2d 19 (La.1988) [factual dispute existed concerning substitution of collateral, but there was no dispute regarding the note and guaranty].

Although the defendant may have a separate, unrelated claim or reconventional demand against the holder based on fraud, deceit or misrepresentation, the separate, unrelated claim is not necessarily a defense sufficient to thwart the motion for summary judgment. Saxena, supra at 845-846. In order to successfully thwart a motion for summary judgment, a debtor must allege the defense of want or failure of consideration, and he may defend on the basis that the creditor breached its obligation to accept monthly payments or to allow prepayment of the note. Johnson, supra at 110; Malcombe v. LeBlanc, 539 |sSo.2d 665, 670 (La.App. 3rd Cir.1989); Mandella v. Russo, 294 So.2d 598, 601 (La.App. 4th Cir.1974). Other claims based on the relationship between the parties may also defeat the motion. Rosenthal v. Oubre, 504 So.2d 1102, 1105-1106 (La.App. 5th Cir.1987).

In both Malcombe v. LeBlanc, 539 So.2d 665 (La.App. 3rd Cir.1989), and Ouachita National Bank in Monroe v. Gulf States Land and Development, Inc., 579 So.2d 1115 (La.App. 2nd Cir.1991), writ denied, 587 So.2d 695 (La.1991), summary judgment in favor of the holder of a promissory note was defeated because the debtor as serted a viable defense to liability on the note. In Malcombe, the debtor offered the deposition testimony of the creditor to prove an agreement that monthly payments could be made on the note, which evidence created an issue of fact as to whether the debtor was in default or whether the note was due at the time alleged. Malcombe, supra at 669-670. In Ouachita National Bank, the defendant’s allegation that the plaintiff breached an overall agreement, of which the notes were only a part, raised a genuine issue of material fact as to the question of liability on the note itself. Ouachita National Bank, supra at 1123. Similarly, in Commercial National Bank in Shreveport v. Pipe Sales of Shreveport, Inc., 600 So.2d 130, 133 (La.App. 2nd Cir.1992), writ denied, 604 So.2d 1006 (La.1992), the court reversed summary judgment in favor of the creditor because the defendant, a guarantor, raised an issue of fact as to whether the debt was legitimately contracted.

Analysis

In support of their motion for summary judgment, Mr. Pannagl and 2909 Constance Street, LLC produced and submitted the originally executed promissory note and Mr. Kelly admitted his signature on the note. As the Saxena court noted, “[wjhen signatures are admitted or established, production of the instrument disentitles the holder to recover on it unless the defendant establishes a defense.” Saxena, 553 So.2d at 842; La. R.S. 10:3-308. Therefore, the question presented for our review is whether Mr. Kelly asserted a viable defense to liability on this note sufficient to defeat summary judgment.

Consideration

First, we reject as a valid defense Mr. Kelly’s claim that he received no valuable consideration for assuming responsibility and liability on the note. Negotiable instruments are deemed prima facie to have been issued for valuable consideration. Talley v. Celestin, 04-1003 (La.App. 5 Cir. 1/11/05), 894 So.2d 389, 392. Once the signature of the defendant is proven, the burden of proof shifts to the defendant to show that the note was given without consideration. Id. However, once evidence has been introduced to rebut the presumption of consideration, the burden of proof shifts back to the plaintiff to show, by a preponderance of the evidence, that there was consideration. Id.

Although Mr. Kelly submitted an affidavit stating that nothing of value was received for his execution of the assignment of membership interest and the promissory note, Mr. Kelly’s deposition testimony reflects otherwise. Mr. Kelly admitted that Mr. Pannagl invested at least $300,000.00 in the Lowerline and Constance Street properties with a return of approximately $20,000.00 in rents from the properties. Moreover, Mr. Kelly admitted that he assigned his membership interest in 2909 Constance Street, LLC to Mr. Pannagl in an effort to make the men “square.” Furthermore, an inconsistent affidavit offered only after the motion for summary judgment is filed is not sufficient to create a genuine issue of material fact where no justification for the inconsistency is offered. Garrett v. Adcock Const. Co, 13-134 (La.App. 4 Cir. 8/14/13), 122 So.3d 1134, 1139; Hudson v. Progressive Sec. Ins. Co., 05-2648 (La.App. 1 Cir. 11/3/06), 950 So.2d 817, 820. Neither at the summary judgment hearing nor on appeal did Mr. Kelly offer any evidence or explanation that Mr. Pannagl’s $300,000.00 investment was anything other than the consideration given for his execution of the assignment and note. As such, Mr. Kelly fails to rebut the presumption that consideration was given for the note.

Error

We also reject as. a valid defense Mr. Kelly’s assertion that the assignment of membership interest and promissory note were executed in error. Mr. Kelly asserts that he did not intend to transfer his interest in 2909 Constance Street, LLC and remain solely liable for payment of the company’s debts. He asserts that it was his understanding in executing the assignment and note that he would pay the Mississippi River Bank mortgage note for six months, at which time Mr. Pannagl would refinance the note without Mr. Kelly’s involvement. Mr. Kelly argues that he believed by signing the note that he was simply acknowledging his guaranty of the Mississippi River Bank note.

The Civil Code recognizes the right of individuals to freely contract. La. C.C. art. 1971; see also, Art. I, § 23 of the Louisiana Constitution of 1974. A contract is defined as “an agreement by two or more parties whereby obligations are created, modified, or extinguished.” La. C.C. art. 1906. A contract is formed by the consent of the parties. La. C.C. art. 1927. Consent may be vitiated by error, fraud, or duress. La. C.C. art. 1948. However, error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art. 1949. A unilateral error does not vitiate consent to a contract if the cause of the error was the complaining party’s inexcusable neglect in discovering the error. Smith v. Remodeling Service, Inc., 648 So.2d 995, 999 (La.App. 5th Cir.1994).

| n Here, Mr. Kelly’s assertions of unilateral error in executing both the assignment of membership interest and promissory note are unsupported by the record. Both documents clearly and unequivocally represent and reflect that Mr. Kelly, in addition to assigning his membership interest in 2909 Constance Street, LLC, would remain solely liable and responsible for payment of the entire balance of the Mississippi River Bank loan within six months of the execution of the note. Further, evidence was admitted at the hearing that Mr. Kelly was aware of the conditions of the note prior to its execution. It is well settled that a party who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, that he did not understand it, or that the other party failed to explain it to him. Aguillard v. Auction Management Corp., 04-2804, 2857 (La.6/29/05), 908 So.2d 1, 23. Moreover, a defendant bears the burden of proving the affirmative defense of error vitiating consent. Bank of New York Trust v. Bass, 13-405, 2013 WL 6040235, at *4, (La.App. 1 Cir. 11/13/13). We find that Mr. Kelly fails to bear his burden that he executed the note in error.

Unclean Hands

Finally, we reject as a valid defense Mr. Kelly’s assertion that Mr. Pannagl’s “unclean hands” in the transaction defeats liability on the note. Mr. Kelly maintains that Mr. Pannagl invested with Mr. Kelly through his attorney’s trust account to hide community assets from his wife during ongoing domestic litigation. Therefore, Mr. Kelly asserts that Mr. Pannagl instituted this litigation with “unclean hands.”

Louisiana courts recognize the rule that every suitor who seeks relief at their hands must himself be free from any unlawful or inequitable conduct with respect to the matter or transaction in question. This rule is known in equity as the rule of 112“clean hands.” United Financial Services of Baton Rouge, Inc. v. Guste, 555 So.2d 561 (La.App. 1st Cir.1989); citing Rhodes v. Miller, 189 La. 288, 179 So. 430, 432 (1938). Mr. Kelly’s application of this doctrine, however, is misplaced. The clean hands doctrine only applies when the fraud relates to the matter or transaction being asserted as a claim or defense. United Financial, supra. Even if Mr. Pannagl did not have “clean hands” with regard to his domestic litigation with his wife, Mr. Kelly has failed to allege, assert, or show that Mr. Pannagl engaged in any fraud or misrepresentation relative to the instant transaction or litigation. Therefore, the clean hands doctrine does not apply. We further note that Mr. Kelly was complicit in any scheme to defraud Mr. Pannagl’s wife by agreeing to structure the deal as the men did.

Mr. Kelly herein has failed to assert any defenses to liability on the note thereby failing to raise a genuine issue of material fact sufficient to defeat summary judgment. Accordingly, we find the trial judge properly granted partial summary judgment in favor of Mr. Pannagl and 2909 Constance Street, LLC.

Third Party Demand

Mr. Kelly asserts that the trial court erroneously dismissed his third party demand against 2909 Constance Street, LLC for reimbursement on the Mississippi River Bank mortgage note. Specifically, Mr. Kelly asserts that under suretyship principles, as a guarantor of the mortgage note, he has a right of reimbursement from the principle obligor, 2909 Constance Street, LLC.

While Mr. Kelly’s understanding of the suretyship principles is correct, his application under the instant circumstances is misplaced. In this instance, the terms of the assignment of membership interest and promissory note are controlling. In assigning his membership interest in the limited liability company and executing the promissory note in favor of the LLC and Mr. Pannagl, Mr. |,sKeIly unequivocally agreed to remain responsible for and liable to the LLC and Mr. Pannagl for all payments, until paid in full, on the mortgage note in favor of Mississippi River Bank. In doing so, Mr. Kelly assumed the obligations of 2909 Constance Street, LLC and Mr. Pannagl with respect to the Mississippi River Bank note. At that point, the status of the parties changed and Mr. Kelly became the sole obligor of the note. When Mr. Kelly defaulted on the mortgage note, Mr. Pannagl paid the balance of the mortgage note and received an assignment of the Mississippi River Bank note. Therefore, the trial court properly ruled that Mr. Kelly owes the amount due on the note to Mr. Pannagl with no right of reimbursement from the LLC.

Mr. Kelly further asserts the trial court erroneously dismissed the third party demand when an issue of fact exists as to whether he intended to release 2909 Constance Street, LLC from its obligations under the Mississippi River Bank mortgage note. Specifically, Mr. Kelly argues that in executing the two instruments, he only intended to reaffirm his surety obligations on the bank note, and did not intend to relieve the LLC from all liability under that note.

Contracts are interpreted according to the true intent of the parties. La. C.C. art. 2045; Bourgeois, Bennett, L.L.C. v. Gauthier, Downing, Labarre, Beiser & Dean, a P.L.C., 07-842 (La.App. 5 Cir. 3/11/08); 982 So.2d 124, 126. When the words of the contract are clear, unambiguous, and lead to no absurd consequence, no further interpretation may be made or consideration of extrinsic evidence be had in search of the parties’ intent and the contract must be enforced as written. La. C.C. art. 2046; Bourgeois, supra. When a contract can be construed from the four corners of the instrument, interpretation of the contract presents a question of law that can be decided on summary judgment. Id.

114Again, the plain language of the assignment of membership interest and the promissory note executed by Mr. Kelly is clear and unambiguous. Mr. Kelly unconditionally promised to pay in full and remain liable for the Mississippi River Bank note on behalf of 2909 Constance Street, LLC and Mr. Pannagl. The four corners of the assignment of membership interest and promissory note, when read as a whole and in context, do not provide for a right of reimbursement by Mr. Kelly. Mr. Kelly executed both documents with full knowledge of its terms and with the assistance of counsel. Had Mr. Kelly intended to reserve his right of reimbursement, he would have either amended the documents to reflect such right or refused to execute the documents. It is clear from the two contracts that Mr. Kelly is to be solely liable on the mortgage note.

Accordingly, we find that the trial court properly dismissed Mr. Kelly’s third party demand.

Decree

Considering the foregoing, the judgment of the trial court granting partial summary judgment in favor of Louis Pannagl and 2909 Constance Street, LLC and dismissing John Kelly’s third party demand is affirmed.

AFFIRMED.

JOHNSON, J., dissents with reasons.

JOHNSON, J.,

dissents with reasons.

IH, respectfully, dissent from the majority opinion for the following reasons.

First, it is my opinion that there is a procedural problem with the appeal. In his petition and supplemental petition, Mr. Pannagl asserted several demands against Mr. Kelly. In opposition, Mr. Kelly filed a reconventional demand, asserting claims against Mr. Pannagl. Constance, L.L.C. filed a petition for intervention, and Mr. Kelly filed a third-party demand against Constance, L.L.C. The trial court in this matter rendered partial summary judgments in favor of Mr. Pannagl and Constance, L.L.C., wherein it adjudicated the principal demands of Constance, L.L.C. and dismissed Mr. Kelly’s third-party demand against Constance, L.L.C. These rulings of the trial court created a procedural problem with our current review of the appeal.

La. C.C.P. art. 1915 provides, in pertinent part:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final determination unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.

(Emphasis added).

1 ¡.Here, La. C.C.P. art. 1915(A) applies to the intervention and third-party demand against Constance, L.L.C. Thus, the judgments against Constance, L.L.C. are final and appealable. However, only one of Mr. Pannagl’s principal demands was adjudicated, and Mr. Kelly’s reconventional demand against Mr. Pannagl was not ruled upon. There was no designation by the trial court that its ruling was a final judgment with no reason for just delay. Thus, the assignments of error concerning Mr. Pannagl are presently non-appealable because all of the claims involving Mr. Pannagl have not been adjudicated. (See, Morales v. Parish of Jefferson, 10-273 (La.App. 5 Cir. 11/9/10); 54 So.3d 669, 675, where this Court held that a “partial summary judgment does not constitute a final judgment for purposes of appeal and, thus, may be revised by the trial court at any time prior to the rendition of the judgment adjudicating all issues and claims.”) As a result, Mr. Kelly’s appeal against Mr. Pan-nagl should be dismissed due to this procedural defect.

Thus, I would dismiss the assignments of error in the appeal that regard Mr. Pannagl on the basis of lack of appellate jurisdiction and allow Mr. Kelly 30 days from the date the opinion is rendered to file a supervisory writ. Conversely, the assignments of error regarding Constance, L.L.C. can be addressed in this appeal because those rulings are final.

Second, I would reverse the summary judgment in favor of Constance, L.L.C. on the basis that there is a genuine issue of material fact as to whether Mr. Kelly received consideration for signing the promissory note on behalf of the company. While it is uncontested that Mr. Kelly received, at least, $300,000.00 from Mr. Pannagl to invest in various properties, reasonable minds can differ as to whether that money was only in consideration of the transfer of interest in Constance, L.L.C. from Mr. Kelly to Mr. Pannagl. When Mr. Kelly referenced | ¡¡“being squared” in his deposition, it could be argued that the money was not in consideration of Mr. Kelly’s signing of the promissory note on behalf of Constance, L.L.C. with Mississippi River Bank. Constance, L.L.C. is its own entity, and it arguably did not provide Mr. Kelly with anything of value for his obligation. Due to the existence of the genuine issue of lack of consideration between Constance, L.L.C. and Mr. Kelly, I would reverse the trial court’s summary judgment and remand the matter for further proceedings.

      . Mr. Kelly alleges that Mr. Pannagl did not wish to be involved with 138 Lowerline, LLC, which owned the Lowerline property.


author: ROBERT A. CHAISSON, Judge.

text:
    Charles COULON & Jeanene Coulon v. Terry G. CREEL, M.D., Kiran G. Zaveri, M.D., Dan Fertel, M.D., East Jefferson General Hospital Auxiliary, Inc. and East Jefferson General Hospital Foundation.
    No. 13-CA-835.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.

      James P. Nader, Attorney At Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Ann Marie LeBlanc, Kathryn M. Caraway, Attorneys At Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   ROBERT A. CHAISSON, Judge.

| ¡Jeanene and Charles Coulon appeal from a jury verdict awarding Mr. Coulon $150,000 in general damages in their medical malpractice claim against Terry G. Creel, M.D., and the Louisiana Patient’s Compensation Fund. For the following reasons, we affirm that judgment.

FACTS AND PROCEDURAL HISTORY

On January 18, 2007, at about 10:30 p.m., Charles Coulon, then 65 years old, suffered an ischemic stroke, or brain vessel blockage, while lying on his living room sofa. His wife heard a thump when he rolled onto the floor, which is where she found him. She called an ambulance, and he arrived at the hospital emergency room within 45 minutes of the incident.

Mr. Coulon was seen by Dr. Terry Creel, the emergency room physician. Dr. Creel’s notes indicate that he was familiar with Tissue Plasminogen Activator (t-PA), a drug that can promote blood flow in the brain by dissolving blood clots | -¡causing a blockage, as with ischemic strokes. His notes further show that he declined to use the drug because Mr. Coulon suffered trauma when he fell off the sofa, and one of the dangerous side effects of the drug is that it can promote bleeding if a patient has other injuries. By the next morning, when Mr. Coulon was seen by Dr. Donald Adams, a neurologist, it was Dr. Adams’ opinion that aside from supportive measures, there was no opportunity for therapeutic intervention. After several weeks of physical, occupational, and speech therapy, Mr. Coulon was discharged on January 23, 2007.

It was Dr. Creel’s decision not to administer t-PA in the emergency room that came to be the focal point of this medical malpractice action. The medical review panel exonerated Dr. Creel, and a jury trial was eventually held. During that trial, the Coulons presented the testimony of two experts who were of the opinion that t-PA should have been administered in the emergency room. Two defense experts testified to the contrary. The jury found that Dr. Creel’s treatment fell below the appropriate standard of care in not administering t-PA, and thus deprived Mr. Coul-on of a chance for a better outcome. It awarded Mr. Coulon $150,000 in general damages. The Coulons urged a motion for judgment notwithstanding the verdict, or alternatively for a new trial. These motions were denied and this appeal followed.

DISCUSSION

Plaintiffs’ first assignment of error is that the general damage award is too low. The standard of appellate review of general damage awards is whether the trier of fact abused its much discretion in fixing the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). In Youn, the court explained that the role of the appellate court is not to decide what it considers an appropriate award, but rather whether the trier of fact abused its discretion. The court went on to state |4that an appellate court should rarely disturb such an award, and should only do so “when that award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances.” Id. at 1261.

Where there is an additional factor of loss of a chance for a better result, the proper analysis was set forth in Graham v. Willis-Knighton Medical Center, 97-0188 (La.9/9/97), 699 So.2d 365. There, the facts were that because of a delay in performing a procedure, the plaintiff lost the chance to save his leg from amputation. The jury awarded $470,000 in general damages. The court noted that where the chance of survival (or in the present case, the chance for a better result) is less than fifty percent, the court may not award full damages for the loss. Rather, the factfinder must focus on the chance of a better result that has been lost, based on all evidence of record. Because the Graham jury award was for the loss of the leg, and because the evidence showed that had the procedure been done timely there was a twenty to thirty-three percent chance that the leg could have been saved, the court reduced the award to $140,000. The court finally noted that such awards can be tested on appeal by considering the percentage chances and the losses incurred by the victim, and any other relevant evidence. Id. at 373, citing Smith v. State, Dept. of Health and Hosp., 95-0038 (La.6/25/96), 676 So.2d 543.

In the case before us, the evidence adduced at trial showed that Mr. Coulon, although retired, had an active life which included fishing and flying. After the stroke, he was left with the inability to talk and his right arm and leg are basically useless. He is confined to a wheel chair, but is still able to take care of basic needs using his left arm. There is no expectation that his condition will ever improve significantly.

| sDr. Christopher Lewandowski, an expert in the field of emergency medicine and the treatment of strokes, and Dr. Steven Levine, a neurologist, testified for the Coulons. Dr. Lewandowski was of the opinion that the failure to administer t-PA fell below the proper standard of care. He further testified that although it could not be said with any certainty what would have been the outcome had Mr. Coulon been given the t-PA, he cited a study performed by the National Institute of Neurological Disorders and Stroke (NINDS) which indicated the following: patients receiving the drug showed a full recovery rate 12-14% better than those not receiving it, and similarly showed about a 30% chance of a better outcome in regard to speaking and walking than the control group receiving placebos. Dr. Levine testified similarly that the NINDS study showed a 12-14% chance of full recovery, and about a one-third chance of a better outcome, which might have included Mr. Coulon being able to walk and speak better.

Defendants’ experts were Dr. Jerome Hoffman, and Dr. Joseph Litner, both emergency room physicians, and both of whom were aware of the NINDS study. Dr. Hoffman, while agreeing with the one-third and 12-14% figures, was of the further opinion that the reason for the discrepancy was that the patients who improved were not as ill as the other group. He did not think that Mr. Coulon would have received any benefit from the treatment. Dr. Litner agreed with the testimony of Dr. Hoffman, and added that in his opinion, the vast majority of patients receiving the drug showed no change, and that a significant portion of them died.

The evidence most in favor of Mr. Coul-on is that he suffered a one-third loss of a chance for a better result, and a one-eighth chance for a full recovery. While we are mindful that these percentages are not to be applied mechanically, they are nonetheless pertinent in assessing the jury award for reasonableness. Graham, | Bsupra,: Smith, supra. Here, the jury found that $150,000 was warranted in general damages. In Graham, the court faced a situation in which the jury awarded $470,000 for loss of a leg; the court nonetheless used a figure in evidence of some 30 percent to reduce the award to $140,000. Here, the situation is the reverse in that the jury might have surmised that total damages came to $450,000, reduced to one-third for loss of a better outcome, or indeed came to $1,200,000, reduced to one-eighth for loss of a chance at full recovery. In either case, we are unable to articulate reasons why the actual award was an abuse of the jury’s much discretion in that it is too low. The entire record shows that this amount was within the reasonable discretion of the fact finder, and as such this court must affirm that award.

The Coulons’ second and third assignments of error urge that: 1) it was error to deny the motion for judgment notwithstanding the verdict, and alternatively, 2) it was error to deny the motion for a new trial. The procedure used in these trial court motions is provided in La. C.C.P. art. 1811. This procedure was the subject of this court’s opinion in In re Gramercy Plant Explosion at Kaiser, 04-1191 (La.App. 5 Cir. 3/28/06), 927 So.2d 492, writ denied 06-1003 (La.6/14/06), 929 So.2d 1271. There, the trial court granted a motion for a judgment notwithstanding the verdict, and alternatively conditionally granted a new trial in the event that the JNOV was set aside on appeal. The JNOV was in fact set aside on appeal. The court explained that the test for granting a JNOV was whether the evidence pointed so strongly in favor of the moving party that reasonable fact finders could not have reached the verdict at issue. Id. at 498, citing Trunk v. Medical Center of Louisiana at New Orleans, 04-0181 (La.10/19/04), 885 So.2d 534. In reversing the JNOV, the court found that there was a reasonable basis for the jury verdict and therefore that the JNOV was an abuse of the trial judge’s discretion. On the 17question of the conditional granting of the new trial, the court observed that the test for a new trial is whether there has been a miscarriage of justice. It noted that our supreme court has held that when a JNOV is reversed on a determination that the jury verdict is reasonable, that same determination should be applied to reverse a ruling that a conditional new trial is warranted. Id. at 502, citing Trunk.

In the present case, we have determined that the jury award was a reasonable exercise of the jury’s much discretion. Because of that determination of reasonableness, both the motion for JNOV, and the alternative motion for a new trial were properly denied.

DECREE

For the foregoing reasons, the judgment of the trial court is hereby affirmed.

AFFIRMED.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Neal CLULEE v. V.J. ST. PIERRE, Jr. Individually and His Official Capacity as President of St. Charles Parish.
    No. 13-CA-881.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.

      Wiley J. Beevers, Shayna Lynn Beevers, Steven M. Mauterer, Jared M. Newchurch, Attorneys at Law, Gretna, Louisiana, for Plaintiff/Appellant.
    Alan A. Zaunbrecher, Attorney at Law, Metairie, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡¿Plaintiff appeals the trial court’s sustaining of defendant’s exception of no cause of action. For the following reasons, we affirm that portion of the trial court judgment sustaining the exception of no cause of action. However, we reverse that portion of the trial court judgment dismissing plaintiff’s claims without giving him the opportunity to amend his petition in accordance with La. C.C.P. art. 934 and remand the matter to the trial court to allow plaintiff the opportunity to do so.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Neal Clulee, filed a defamation action against defendant, V.J. St. Pierre, individually and in his official capacity as President of St. Charles Parish. The petition alleges that the St. Charles Parish Council nominated plaintiff as the St. Charles Parish representative for the New Orleans Aviation Board and that the resolution to nominate plaintiff was approved by Mr. St. Pierre in his capacity as St. Charles Parish President. The petition further states that Mr. St. Pierre vetoed ¡(¡subsequent resolutions re-nominating plaintiff to the Aviation Board and voiced opposition to plaintiffs appointment. The petition proceeds to allege that Mr. St. Pierre, “in the office of the Parish President[,]” maliciously conveyed to St. Charles Parish council members and others the false information that plaintiff had unlawfully hauled and dumped contaminated material onto the New Orleans Airport property. In the final paragraph of the petition, before the prayer for relief, plaintiff states that his reputation has been maliciously attacked by the most powerful person in parish government — the St. Charles Parish President, Mr. St. Pierre.

The petition also alleges that Mr. St. Pierre “at times, acted outside the course and scope of employment as Parish President.” The petition further references that Mr. St. Pierre, while at a crawfish boil, disseminated false and malicious statements about plaintiff to his long-time friend, Dorothy Dufrene.

In response to plaintiffs petition, Mr. St. Pierre filed an exception of no cause of action, asserting that plaintiffs petition fails to state a cause of action against him, individually or in his official capacity as St. Charles Parish President. After a hearing, the trial court denied the exception of no cause of action as to Mr. St. Pierre in his official capacity but sustained the exception as to Mr. St. Pierre individually. This timely appeal follows.

DISCUSSION

On appeal, plaintiff contends that the trial judge erred in sustaining the exception of no cause of action as to his claims against Mr. St. Pierre individually and further erred in dismissing his claims against Mr. St. Pierre individually 1 ¿without the opportunity to amend his petition to properly state a cause of action. For the following reasons, we find the trial court properly sustained the exception of no cause of action as to Mr. St. Pierre in his individual capacity but find that the trial judge erred in failing to allow plaintiff the opportunity to amend his petition to properly state a cause of action, pursuant to La. C.C.P. art. 934.

An exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Indus. Companies, Inc. v. Durbin, 02-0665 (La.1/28/03), 837 So.2d 1207, 1213. The exception of no cause of action is triable on the face of the petition and no evidence may be introduced to support or controvert the exception. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00-2882 (La.5/15/01), 785 So.2d 803, 806. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Whether the plaintiff can prove the allegations set forth in the petition is not determinative of the exception of no cause of action. Wood v. Omni Bancshares, Inc., 10-216 (La.App. 5 Cir. 4/26/11), 69 So.3d 475, 479-80. Because the trial of the exception is solely on the face of the pleadings, the court may not go beyond the petition to the merits of the case. Id.

An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency |sand affording the plaintiff the opportunity of presenting evidence at trial. Industrial Cos., 837 So.2d at 1213; Badeaux v. Sw. Computer Bureau, Inc., 05-0612 (La.3/17/06), 929 So.2d 1211, 1217. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. New Orleans Craft Temple, Inc. v. Grand Lodge of Free & Accepted Masons of the State of Louisiana, 13-525 (La.App. 5 Cir. 12/19/13), 131 So.2d 957. The pertinent question is whether, in the light most favorable to the plaintiff and with every doubt resolved in the plaintiffs behalf, the petition states a valid cause of action for relief. Id.

Defamation is a tort which involves the invasion of a person’s interest in his reputation and good name. Huxen v. Villasenor, 01-288 (La.App. 5 Cir. 9/25/01), 798 So.2d 209, 212. To maintain an action for defamation, a plaintiff must prove (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. If even one of the required elements of the tort of defamation is lacking, the cause of action fails. Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129, 140; New Orleans Craft Temple, Inc., 131 So.3d at 965.

Further, a petitioner alleging a cause of action for defamation must set forth in the petition with reasonable specificity the defamatory statements allegedly published by the defendant. Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706, 713; see also La. C.C.P. art. 891. A plaintiff in a defamation suit must name the individual offenders and allege separate acts of defamation as to each, including specific defamatory statements. Id. citing Juneau v. Avoyelles Par. Police Jury, 482 So.2d 1022, 1027 (La.App. 3d Cir.1986).

|fiAs to plaintiffs allegations against Mr. St. Pierre individually, the petition contains a blanket statement that Mr. St. Pierre, “at times, acted outside the course and scope of employment as Parish President.” The petition further sets forth a general allegation that Mr. St. Pierre made false and malicious statements to his long-time friend, Dorothy Dufrene, while attending a crawfish boil. We find that the blanket statement that Mr. St. Pierre made defamatory statements while acting in his individual capacity “at times” as well as the unspecified allegations surrounding Mr. St. Pierre’s defamatory statements made to a long-time friend at a crawfish boil are insufficient to properly state a cause of action in defamation. These allegations do not set forth with “reasonable specificity” the alleged defamatory statements made nor do they sufficiently set forth the underlying facts to support the cause of action against Mr. St. Pierre individually. See Fitzgerald, 737 So.2d at 713.

We find that plaintiff has failed to state a cause of action in defamation against Mr. St. Pierre in his individual capacity. The issue of whether Mr. St. Pierre acted in his official or individual capacity at the time he made the alleged defamatory statements cannot be addressed until plaintiff first sets forth allegations sufficient to state a cause of action against Mr. St. Pierre in both his official and individual capacities. See Bush v. Fidelity & Deposit Company of Maryland, 516 So.2d 1199 (La.App. 2 Cir.1987).

Accordingly, for the foregoing reasons, we find the trial court was correct in sustaining the exception of no cause of action as to Mr. St. Pierre individually. However, we find the trial court erred in failing to allow plaintiff the opportunity to amend his petition to set forth sufficient allegations to state a valid cause of action against Mr. St. Pierre individually.

|7La. C.C.P. art. 934 provides that “when the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed ... the action, claim, demand, issue, or theory shall be dismissed.” (emphasis added). See also Hurricane Fence Co., Inc. v. Jensen Metal Products, Inc., 12-956 (La.App. 5 Cir. 5/23/13), 119 So.3d 683, 688. After a review of the petition in this matter, we find that the grounds of the objection raised in the exception of no cause of action could be removed by amendment of the petition to allege a valid cause of action against Mr. St. Pierre, individually. Therefore, we find the trial judge erred in failing to allow plaintiff the opportunity to amend his petition.

Accordingly, we affirm that portion of the trial court judgment sustaining the exception of no cause of action but reverse that portion of the judgment dismissing plaintiffs claims against Mr. St. Pierre individually. We remand this matter to the trial court with instructions that the trial court issue an order to the plaintiff to amend his petition to state a cause of action against Mr. St. Pierre individually within a reasonable time delay, pursuant to La. C.C.P. art. 934. See DiLeo v. Hansen, 09-974 (La.App. 5 Cir. 6/29/10), 45 So.3d 1120,1124.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS.

      . Mr. St. Pierre questions the jurisdiction of this court, asserting that the judgment at issue is not a final, appealable judgment because the trial judge failed to designate the judgment as final pursuant to La. C.C.P. art. 1915(B). We find the judgment appealed is a final, appealable judgment under La. C.C.P. art. 1915(A) without the necessity for further designation by the trial court under La. C.C.P. art. 1915(B) because it dismisses a party from the litigation. Riehm v. State Farm Mut. Auto. Ins. Co., 07-651 (La.App. 5 Cir. 1/22/08), 977 So.2d 1045, 1046, writ denied, 08-0387 (La.4/18/08), 987 So.2d 350; see also La. C.C.P. 1911. We find that Mr. St. Pierre, in his individual capacity, is a party separate and apart from Mr. St. Pierre in his capacity as St. Charles Parish President.

      . La. C.C.P. art. 934 provides: When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.


text:
    Charles C. COE, Jr. v. SOCIETY OF LOUISIANA CERTIFIED PUBLIC ACCOUNTANTS, et al.
    No. 13-CA-892.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.
    E. John Litchfield, Michael J. Marsiglia, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Arthur J. Lentini, Attorney at Law, Me-tairie, Louisiana, for Plaintiff/Appellant.
    Christopher Guidroz, Thomas J. Fischer, Shannon H. Huber, Peter S. Thriffiley, Jr., Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT A. CHAISSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|2Plaintiff appeals the trial court’s judgment granting an exception of prescription and dismissing plaintiffs petition with prejudice. We affirm.

Facts & Procedural History

On February 14, 2013, Charles C. Coe, Jr., instituted the instant action via a Petition for Writ of Quo Warranto and/or Alternatively Declaratory Judgment against the Society of Louisiana Certified Public Accountants (the “Society”) and its board of directors seeking to have the Society show “by what authority it claims to possess to allow the Society’s nominat mg committee to use ‘plurality’ votes in determining the winner of nominations to positions to the Society’s board of directors.” The Society filed a peremptory exception of prescription. After a hearing, the trial court granted the exception and dismissed plaintiffs petition with prejudice. Mr. Coe appeals the trial court’s judgment.

IsThe Society of Louisiana Certified Public Accountants is a voluntary professional organization for certified public accountants in Louisiana. It is a nonprofit corporation governed by a board of directors, which conducts the Society’s business in accordance with its bylaws. Mr. Coe, a member of the Society, contends that the Society’s nominating committee, in violation of the Society’s bylaws, wrongfully uses plurality rather than majority voting when selecting nominees to the board of directors. For many years, Mr. Coe repeatedly complained to the board about this procedure and the board repeatedly rejected his interpretation of the bylaws. On October 30, 2009, as a result of Mr. Coe’s repeated protests and attempts to change the plurality voting practice, the board of directors approved a motion to codify its regular practice, adding language to the nominating voting procedure that “[ejections will be determined by a plurality vote for each position for which a nomination has been made. In the event of a tie; there will be a run-off between the tied candidates.” Mr. Coe avers both that the board’s ongoing practice of many years continuing until today and into the future as well as its October 30, 2009 action codifying this practice are in violation of and/or in direct conflict with the Society’s Articles of Incorporation, Bylaws, and Robert’s Rules of Order.

Assignment of Error

Plaintiff maintains that the trial court erroneously applied the one year peremption provision contained in La. R.S. 12:208 to the present case.

Law & Discussion

The issue presented on appeal is the applicability of La. R.S. 12:208 to Mr. Coe’s challenge of the Society’s use of plurality voting in its nomination process. ^Louisiana Revised Statute 12:208 conforms the ultra vires doctrine’s application to nonprofit corporations. In pertinent part, La. R.S. 12:208 states:

A. Invalidity of an act of a corporation, or of a conveyance or transfer of movable or immovable property to or by a corporation, by reason of the fact that the corporation was without capacity or power to perform such act or to make or receive such conveyance or transfer, may be asserted only:
(1) In an action by a member of the corporation to set aside such act, conveyance or transfer, brought within one year after the act was done or the conveyance or transfer was consummated, which time limit shall not be subject to suspension on any ground or interruption on any ground other than timely suit.

Mr. Coe argues that his challenge does not fall within the scope of La. R.S. 12:208 because he does not contest a specific act of the Society at a given point. Rather, he argues, he is challenging an unauthorized practice that is used every year and will be used in the future. Mr. Coe likens the Society’s continued use of plurality voting during its nomination process to a continuing tort, occurring each year, in effect creating a new cause of action each time. Mr. Coe argues that La. R.S. 12:208 is inapplicable to the acts of which he complains.

Applying a plain reading of the statute, members of a nonprofit organization have one year to question an act of its board of directors, and the time limitation to bring the action shall not be subject to suspension or interruption. While Mr. Coe maintains that the instant action does not challenge one single act of the Society, but its continued practice of plurality voting, his petition reflects otherwise. Mr. Coe specifically complains of the board of directors’ amendment of the nominating procedure to utilize plurality voting at the October 30, 2009 meeting, and that said amendment was in violation of the Society’s articles of incorporation, bylaws, and | ¡¡Robert's Rules of Order. This is precisely an “act of a corporation” as contemplated by La. R.S. 12:208. While Mr. Coe additionally avers that the original invalid nature of the ongoing plurality voting practice as well as the invalidity of the October 30, 2009 attempted “fix” render all subsequent actions by the nominating committee to be in violation of the Society’s bylaws and Robert’s Rules of Order, we are unpersuaded that the nominating committee’s subsequent use of the board-approved plurality voting process precludes the application of the peremption created by La. R.S. 12:208, or that it creates a new cause of action every time an election is held.

In Silliman Private School Corporation v. Shareholder Group, 01-0964 (La.App. 1 Cir. 5/10/02), 819 So.2d 1088, shareholders of a nonprofit corporation sought a preliminary injunction and declaratory judgment blocking the issuance of additional stock that was approved by its board of directors in late 1985 and authorized by shareholder vote in early 1986, asserting purported irregularities. The action was brought in 1999 to enjoin the voting of the additional shares of stock until a determination as to their validity could be made by the trial court. Notwithstanding that some of the additional shares were sold just one month prior to the filing of the action, the First Circuit adopted the findings of the trial court, which held that under La. R.S. 12:208(A)(1), any claim pertaining to the additional shares was barred one year after the board originally authorized the issuance of the additional shares in 1986.

Here, as in Silliman, supra, it is the October 2009 board action legitimating its ongoing practice which is the focal point of the case. We likewise hold that La. R.S. 12:208 serves to prescriptively bar Mr. Coe’s petition challenging an act taken by the Society’s board of directors nearly four years prior to this suit; and we reject Mr. Coe’s notion that the continued practice of plurality voting by the nominating | (¡committee in the face of the alleged illegal October 2009 board action defeats the application of the peremption set forth in La. R.S. 12:208(A)(1). The legality of the board’s October 30, 2009 action, wherein it acted alone, rather than by full membership vote to formally adopt the plurality voting procedure was open to suit for one year. Mr. Coe, as well as the rest of the membership, had notice of the newly codified voting procedure and the opportunity to challenge the procedure either internally, or by bringing an action against the board within one year of adoption. As ' evidenced by the record, the formal adoption of the voting procedure was in response to Mr. Coe’s failed attempts of having the procedure changed internally. Mr. Coe possessed full knowledge of the board’s action in 2009, and failed to bring an action against the Society with one year.

Decree

Accordingly, we affirm the trial court’s judgment granting defendants’ exception of prescription.

AFFIRMED.

      . La. C.C.P. art. 3901 defines quo warranto as "a writ directing an individual to show by what authority he claims or holds public office, or office in a corporation, or directing a corporation to show by what authority it exercises certain powers Its purpose is to prevent usurpation of office or of powers.

      . While some Louisiana professional associations such as the Louisiana State Bar Association mandate membership of those persons of the relevant profession who practice within the state, membership in this society is strictly voluntary.

      . Under the ultra vires doctrine, a corporation may not act beyond the object for which the corporation was created, as defined by the law or charter. Simon v. Sw. Louisiana Elec. Membership Corp., 267 So.2d 757, 759 (La.App. 3rd Cir. 1972).

      . Despite arguing the inapplicability of La. R.S. 12:208 to the circumstances, plaintiff fails to point to which prescriptive period would apply.


author: MARC E. JOHNSON, Judge.

text:
    N.E.N.H., L.L.C. v. BROUSSARD-BAEHR HOLDINGS, L.L.C. and Ann R. Baehr.
    No. 13-CA-893.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.

      Charles R. Gerage, Attorney At Law, Metairie, Louisiana, for Plaintiff/Appellee.
    Ginger K. DeForest, Attorney At Law, Abita Springs, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12Defendant/Appellant, Ann R. Baehr, appeals the granting of summary judgment in favor of Plaintiff/Appellee, N.E.N.H., L.L.C. (“N.E.N.H.”), regarding the personal liability of a mortgage and note for an LLC from the 24th Judicial District Court, Division “H”. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 14, 2010, Broussard-Baehr Holdings, L.L.C. (“Broussard-Baehr Holdings”) entered into a mortgage with N.E.N.H. for $150,000.00 on property located at 3231 N. 1-10 Service Road in Metairie, Louisiana. Troy G. Broussard and Ms. Baehr signed the mortgage on behalf of Broussard-Baehr Holdings as managing members. On the same date, Mr. Broussard and Ms. Baehr signed a note for $150,000.00 in favor of N.E.N.H. The $150,000.00 was to be paid in 36 consecutive monthly installments of $1,521.40 each, commencing on September 3, 2010, with one final installment being due and payable on August 3, 2013. In the note, the signatures blocks were styled as follows:

BROUSSARD-BAEHR HOLDINGS, L.L.C.

BY: x Troy G. Broussard_

TROY G. BROUSSARD, Managing Member and as Personal [Guarantor

|sa; Anne R. Baehr_

ANNE R. BAEHR, Member and as Personal Guarantor

The note stated that the parties “jointly, severally and in solido” promised to pay $150,000.00 and provided that the makers of the note bound themselves unconditionally as original promisors for the payment.

On March 27, 2012, N.E.N.H. filed a “Suit on Note and for Recognition of Mortgage,” alleging that Broussard-Baehr Holdings, Ms. Baehr and Mr. Broussard were jointly, severally and solidarily liable for failing to make payments due as of November 3, 2011, as required under the note. In response, the defendants to the action filed an exception of lack of amicable demand. Ms. Baehr and Mr. Broussard also filed an exception of no cause of action. A hearing on the exceptions was held on August 27, 2012, wherein the trial court overruled the exception of lack of amicable demand as to Broussard-Baehr Holdings. The remaining matters involving Ms. Baehr and Mr. Broussard were taken under advisement. In a judgment rendered on October 29, 2012, the remaining exceptions were overruled.

Subsequent to the rulings on the exceptions, N.E.N.H. filed a “Motion for Default” and “Motion for Confirmation of Default Judgment,” alleging the defendants failed to answer the suit. Prior to the confirmation of the default judgment, the defendants filed an “Answer and Affirmative Defenses” on December 20, 2012.

On March 28, 2013, Ms. Baehr and Mr. Broussard filed a “Motion for Summary Judgment,” asserting there were no genuine issues of material fact that they only signed the note in their representative capacities as members of Broussard-Baehr Holdings. N.E.N.H. also filed a “Motion for Summary Judgment” on April 5, 2013, alleging the defendants executed a promissory note, ^defaulted on their obligations, and were liable for the debt of the promissory note. The motions were heard on April 30, 2013.

In a judgment rendered on May 8, 2013, the trial court denied the motion for summary judgment filed by the defendants and granted the motion for summary judgment filed by N.E.N.H. In the summary judgment in favor of N.E.N.H., the trial court found Broussard-Baehr Holdings and Ms. Baehr to be liable jointly, severally and in solido for the principal amount of $144,171.54, plus accrued interest from November 3, 2011 at the rate of 9% percent per annum until paid in full. The trial court also awarded late charges, bank fees, reasonable attorney’s fees, and court costs in favor of N.E.N.H. and against Broussard-Baehr Holdings and Ms. Baehr. Additionally, the trial court reserved all litigious rights against Mr. Broussard. Ms. Baehr timely appeals the judgment.

ASSIGNMENTS OF ERROR

On appeal, Ms. Baehr raises the following assignments of error: 1) the trial court erred in granting summary judgment because N.E.N.H. failed to prove that she was not shielded from personal liability by the laws governing limited liability companies; and 2) the trial court erred in granting summary judgment because the “eight corners” of the mortgage and promissory note do not show that Ms. Baehr assumed individual liability. We will jointly address the assignments of error.

LAW AND ANALYSIS

Appellate courts review summary judgments de novo, using the same criteria that governed the trial court’s consideration of whether summary judgment is appropriate, asking whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Favre v. Boh Bros. Const. Co., L.L.C., 11-451 (La.App. 5 Cir. 3/13/12); 90 So.3d 481, 485, writ \ ^denied, 12-1024 (La.6/22/12); 91 So.3d 976. 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. Id., citing DROR Intern. L.P. v. Thundervision, L.L.C., 11-215 (La.App. 5 Cir. 12/13/11); 81 So.3d 182, writ not considered, 12-0127 (La.3/23/12); 84 So.3d 560.

“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admission, 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 that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable person could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Favre, 90 So.3d at 485.

In this matter, Ms. Baehr alleges the trial court erred in granting summary judgment in favor of N.E.N.H. because N.E.N.H. did not prove that she could be held personally hable for signing the mortgage and note on behalf of Broussard-Baehr Holdings. Ms. Baehr argues that, under Louisiana law pertaining to LLCs, she was entitled to a shield of protection from liability by being a member of Broussard-Baehr Holdings. Thus, Ms. Baehr contends the veil could not be pierced to hold her personally liable. Additionally, to the extent the words “personal guarantor” appear to obligate her individually, Ms. Baehr argues that those words entirely contradict the mortgage in numerous places, which repeatedly states the mortgage and accompanying note are solely obligations of Broussard-Baehr Holdings. Ms. Baehr avers that the word “personal” by her signature as | ¡/‘Member” on one occasion should not change the entire nature of the mortgage, the note, and the law protecting her from personal liability.

Conversely, N.E.N.H. argues the trial court properly granted the summary judgment in its favor because it demonstrated all of the essential elements necessarily entitling it to a summary judgment, and Ms. Baehr failed to demonstrate that a genuine issue as to material fact existed. N.E.N.H. contends the note is neither ambiguous nor unclear as to the capacity in which Ms. Baehr was affixing her signature. N.E.N.H. argues that the words “Personal Guarantor” underneath the signatures of Mr. Broussard and Ms. Baehr on the note signify an indorsement. N.E.N.H. argues that the indorsement made it clear that the individual parties were incurring personal liability as obli-gors on the note, along with Broussard-Baehr Holdings. We agree with N.E.N.H.’s position.

A contract of guaranty is equivalent to a contract of suretyship, and the two terms may be used interchangeably. Veterans Commercial Properties, LLC v. Barry’s Flooring, Inc., 11-6 (La.App. 5 Cir. 5/24/11); 67 So.3d 627, 629. A surety-ship is an accessory promise by which one binds himself for another already bound and agrees with the creditor to satisfy the obligation if the principal debtor does not do so. Id. An agreement of suretyship must be express and in writing and must be explicit. Id. Contracts of guaranty are subject to the same rules of interpretation as contracts in general. Id.

Contracts are interpreted according to the true intent of the parties. La. C.C. art. 2045; First Bank and Trust v. Redman Gaming of Louisiana, Inc., 13-369 (La.App. 5 Cir. 12/12/13); 131 So.3d 224, 228. When the words of the contract are clear, unambiguous, and lead to no absurd consequence, no further interpretation may be made or consideration of extrinsic evidence be had in search of the parties’ intent and the contract must be enforced as written. La. C.C. art. 2046; First Bank and Trust, supra. When a contract can be construed from the four corners of the instrument, interpretation of the contract presents a question of law that can be decided on summary judgment. Id.

In the case at bar, Ms. Baehr signed the promissory note as a member on behalf of Broussard-Baehr Holdings and as a personal guarantor. Ms. Baehr’s personal guaranty is in writing and is expressed. The language of the note is clear and unambiguous that Ms. Baehr, Mr. Broussard and Broussard-Baehr Holdings jointly, severally and solidarily promised to pay N.E.N.H. $150,000.00 under the note. It is also clear and unambiguous that those parties bound themselves in solido as original promisors for the payment of the principal, interests, costs and attorney’s fees. The language of the promissory note and the guaranty within it lead to no absurd consequences. As a result, no further interpretation needs to be performed by this Court.

Furthermore, we reject Ms. Baehr’s argument that she is protected from all personal liability for the note under the limited liability company laws because she is a member of Broussard-Baehr Holdings. As mentioned above, Ms. Baehr signed as a member of Broussard-Baehr Holdings and as a personal guarantor. While it is true that Ms. Baehr is afforded specific protections as a member of Broussard-Baehr Holdings, those protections as a member do not extend to her signature in the capacity as a personal guarantor to the promissory note.

DECREE

For the foregoing reasons, we affirm the summary judgment in favor of N.E.N.H., L.L.C. Ms. Baehr is assessed the costs of this appeal.

AFFIRMED.

      . At the hearing, Mr. Broussard revealed that he had filed for bankruptcy. Thus, the proceeding against him personally was stayed.