text:
    Joycelyn J. KENDRICK, Individually, and on Behalf of the Estate of Marvin Kendrick, and Michael S. Kendrick, Kevin R. Kendrick, Darren B. Kendrick and Shellaugh Kendrick Ferlito v. NORTHSHORE REGIONAL MEDICAL CENTER, INC., Peter Randall Galvan, M.D. and Timothy Barton Ehrlich, M.D.
    No. 2013-C-0442.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Estate of Marvin Kendrick; Ferli-to, Shellaugh Kendrick; Kendrick, Darren B.; Kendrick, Joycelyn J. et al.; Kendrick, Kevin R.; Kendrick, Michael S.; — Plaintiff/s); Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 2005-14344; to the Court of Appeal, First Circuit, No. 2012 CA 0229.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    Dwight Allen WOOSLEY and Barbra Griffith Woosley v. PARISH OF EAST BATON ROUGE; the City of Baton Rouge/Parish of East Baton Rouge Department of Public Works and Evans-Graves Engineers, Inc.
    No. 2013-C-0441.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Woosley, Barbra Griffith; Woos-ley, Dwight Allen; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 578,106; to the Court of Appeal, First Circuit, No. 2012 CA 0422.

Denied.


text:
    STATE Of Louisiana v. Calvin Wayne CARTER.
    No. 2013-KK-0440.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. F, No. ll-F-2382; to the Court of Appeal, Second Circuit, No. 48,-109-KW.

Denied.


text:
    SUCCESSION OF Simon HARRELL, et al. v. ERRIS-OMEGA PLANTATION, INC., et al.
    No. 2013-C-0438.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Succession of Clara Hadnot Harrell; Succession of Simon Harrell et al.;— Plaintiff(s); Applying For Writ of Certio-rari and/or Review, Parish of Rapides, 9th Judicial District Court Div. G, No. 222,091; to the Court of Appeal, Third Circuit, No. 12-696.

Denied.


text:
    Matthew NEWSOM v. GLOBAL DATA SYSTEMS, INC. Jared Pavlu v. Global Data Systems, Inc.
    No. 2013-C-0429.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Global Data Systems, Inc.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, No. C-2008-5236 C/W C-2008-5577; to the Court of Appeal, Third Circuit, No. 12-412 C/W 12-413.

Denied.

VICTORY and CLARK, JJ„ would grant.


text:
    Melvin SPEARS, Jr. v. GRAMBLING STATE UNIVERSITY.
    No. 2013-C-0428.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Spears Jr., Melvin; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. O, No. 552061; to the Court of Appeal, First Circuit, No. 2012 CA 0398.

Denied.


text:
    Douglas CORMIER, et al. v. LOUISIANA FARM BUREAU CASUALTY INS. CO., et al.
    No. 2013-C-0427.
    Supreme Court of Louisiana.
    April 5, 2013.
   In re Cormier, Douglas; Cormier, Joann; Cormier, Meka; — PIaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Acadia, 15th Judicial District Court Div. E, No. 2009-10969; to the Court of Appeal, Third Circuit, No. 12-892.

Denied.


author: GENOVESE, Judge.

text:
    STATE of Louisiana o/b/o Ranetta J. JACKSON, Austin C. Jackson, Minor Children of Janice L. Jackson v. Brent C. JACKSON.
    No. 12-999.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 2013.
    Charles A. Riddle, III, District Attorney, Twelfth Judicial District, Renée Y. Roy, Assistant District Attorney, Marks-ville, LA, for Plaintiff/Appellant, State of Louisiana, Department of Children and Family Services, Child Support Enforcement.
    Clayton P. Schnyder, Jr., New Orleans, LA, for Defendant/Appellee, Brent C. Jackson.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

Lin this child support enforcement case, the State of Louisiana, Department of Children and Family Services (DCFS), sought to register and enforce a child support judgment rendered on behalf of Janice L. Jackson in the state of Kansas on January 9, 2001. Defendant, Brent C. Jackson, ex-husband of Janice and father of the children, filed a peremptory exception of prescription. The trial court granted the exception of prescription and dismissed the action filed by DCFS. DCFS appeals. For the following reasons, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Brent and Janice had two children: Ranetta Jackson, born February 21, 1983; and Austin Jackson, born May 13, 1994. On January 9, 2001, a Journal Entry Modifying Child Support was signed in the District Court of Leavenworth County, Kansas, wherein Brent’s “monthly child support obligation [was] modified to the sum of $337.00 per month beginning the 1st day of February, 2001,” and Janice was “granted a judgment in the amount of $21,079.00 against [Brent] which represents unpaid child support for the period of January 1997 through January 2001[.]”

The instant matter stems from a proceeding initiated on January 18, 2012, by DCFS, pursuant to the Uniform Interstate Family Support Act (UIFSA), to register the child support judgment against Brent rendered on behalf of Janice in Kansas on January 9, 2001. DCFS filed a Rule to Register and Enforce the Out of State Order against Brent, a resident of Louisiana and domiciliary of Avoyelles Parish.

In response, Brent filed Exceptions of No Right/No Interest in Plaintiff to Institute Suit and Prescription on June 26, 2012. Relative to the peremptory |2exception of prescription, Brent asserted: “These present proceedings were filed in Avoyelles Parish, Louisiana[,] in January 2012, some eleven (11) years after the out-of-state judgment had been obtained in the State of Kansas in 2001.” Citing La.Civ. Code Art. 3501.1, Brent argued that the efforts of DCFS to register and collect on the January 9, 2001 Kansas judgment were barred in Louisiana by prescription.

The hearing on Brent’s exceptions was conducted on June 27, 2012. At the conclusion thereof, the trial court took the matter under advisement pending submission of post-trial memoranda. On July 27, 2012, the trial court issued its written Reasons for Ruling wherein it denied Brent’s exceptions of no right of action and no cause of action, but granted his exception of prescription and dismissed the action filed by DCFS. The trial court’s written Reasons for Ruling stated:

Louisiana Children’s Code Article 1306.4 provides that the law of the issuing state (Kansas) governs the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the Order. Children’s Code Article 1306MB) provides that in a proceeding for arrearages, the prescriptive period under the law of this State or of the issuing State, whichever is longer applies. It is clear that in Louisiana the prescriptive period is ten years. Kansas law provides otherwise.
The applicable statute is 60-2403 which provided, prior to July 1, 2007, that a child support Judgment became dormant if certain collection or enforcement actions were not taken for a period of five years. Once dormant, the Judgment would become void after the passage of two additional years unless the Judgment was revived during the two year period of dormancy. Kansas statute 60-2404 provides that if a Judgment becomes dormant, it could also be revived within two years of a child’s emancipation.
In the case at bar, the State of Louisiana is seeking to enforce a January 9, 2001 Judgment of the State of Kansas. On January 10, 2005, a Rule to Show Cause for Contempt and Past Due Support was filed in the Parish of Rapides; however, same was dismissed on the |aparties[’] failure to appear. There was no attempt to revive the January 9, 2001 Judgment, other than the Rapides Parish filing, prior to July 1, 2007. Additionally, the youngest child, Austin, became emancipated on January 31, 2005. No action was taken until the filing of this action on June 27, 2012. Therefore, pursuant to applicable Kansas law, the Judgment of January 9, 2001 was prescribed under Kansas statute 60-2403 in its form prior to July 1, 2007.
Kansas statute 60-2403 was amended thereafter to provide that if a Judgment was not already void as of July 1, 2007, same would no longer be subject to being dormant. However, in the case at bar, as of July 1, 2007, the January 1, 2001 Judgment was dormant and prescribed pursuant to applicable Kansas law. The Louisiana [l]aw on prescription provides for a ten-year period which was longer at that time, however, no action was taken within the ten year period with the exception of [the] filing and a dismissal of the action in the Parish of Rapides. This filing and dismissal, along with correspondence from the Office of Children and Family Services indicating that Brent Jackson’s case closed December 14, 2004[,] with a warrant issued in 2001 being executed December 8, 2004[,] is further evidence that there were no filings and/or collection efforts as of January 9, 2011. Again, this is clearly more than ten years pursuant to applicable Louisiana [l]aw.
... [T]he law is quite clear that pursuant to the laws of the State of Kansas applicable as of July 1, 2007[,] and the law in the State of Louisiana, this action is prescribed.

A concomitant judgment was signed the same day. DCFS appeals.

ASSIGNMENTS OF ERROR

DCFS asserts the following assignments of error:

1)The trial court respectfully erred in finding that the 2001 Kansas Judgment against Brent C. Jackson was dormant and that it prescribed.
2) The trial court respectfully erred in stating that the youngest child, Austin Jackson, was emancipated in 2005 and that two years had passed thus barring a revivor.
3) The trial court respectfully erred in finding that 2001 Kansas Judgment had prescribed in accordance with the Louisiana [t]en year liberative prescription statute.

llaw and discussion

Standard of Review

In Leger v. Sonnier Exterminating Co., 05-1291, p. 4 (La.App. 3 Cir. 4/5/06), 926 So.2d 158, 161, writ denied, 06-1033 (La.6/23/06), 930 So.2d 982, this court set forth the appellate standard of review applicable to a peremptory exception of prescription as follows:

Ordinarily, when an appeal involves a ruling on a peremptory exception with contested issues of fact and “[w]hen evidence is introduced and evaluated in the trial court on a peremptory exception, the appellate court must review the entire record to determine whether the trial court manifestly erred with its factual conclusions.” Egle v. Egle, 01-927, p. 4 (La.App. 3 Cir. 2/6/02), 817 So.2d 136, 139 (quoting Parker v. Buteau, 99-519, p. 3 (La.App. 3 Cir. 10/13/99), 746 So.2d 127, 129). However, in a case in which there are no contested issues of fact and the only issue is the application of the law to the undisputed facts, as in the case at bar, the appellate court must decide whether the lower court’s decision is legally correct or incorrect. Sieferman v. State Farm Mut. Auto. Ins. Co., 01-439 (La.App. 3 Cir. 10/3/01), 796 So.2d 833 (citing Huddleston v. Farmers-Merchants Bank & Trust Co., 00-640 (La.App. 3 Cir. 11/2/00), 772 So.2d 356).

Prescription

Louisiana Children’s Code Article 1306.1 provides that “[a] support order or an income-withholding order issued by a tribunal of another state may be registered in this state for enforcement.” Louisiana Children’s Code Article 1306.4 (emphasis added) provides:

A. The law of the issuing state governs the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order.
B. In a proceeding for arrearages, the prescriptive period under the laws of this state or of the issuing state, whichever is longer, applies.

Louisiana Civil Code Article 3501.1 provides: “An action to make executory ar-rearages of child support is subject to a liberative prescription of ten years.”

|fiWhen the child support judgment at issue herein was signed in Kansas on January 9, 2001, Kansas Statute 60-2403 provided:

(a)(1) Except as provided in subsection (d), if a renewal affidavit is not filed or if execution, including any garnishment proceeding, support enforcement proceeding or proceeding in aid of execution, is not issued, within five years from the date of the entry of any judgment in any court of record in this state, including judgments in favor of the state or any municipality in the state, or within five years from the date of any order reviving the judgment or, if five years have intervened between the date of the last renewal affidavit filed or execution proceedings undertaken on the judgment and the time of filing another renewal affidavit or undertaking execution proceedings on it, the judgment, including court costs and fees therein shall become dormant, and shall cease to operate as a lien on the real estate of the judgment debtor. Except as provided in subsection (b), when a judgment becomes and remains dormant for a period of two years, it shall be the duty of the clerk of the court to release the judgment of record when requested to do so.
(2) A “renewal affidavit” is a statement under oath, signed by the judgment creditor or the judgment creditor’s attorney, filed in the proceedings in which the judgment was entered and stating the remaining balance due and unpaid on the judgment.
(3) A “support enforcement proceeding” means any civil proceeding to enforce any judgment for payment of child support or maintenance and includes, but is not limited to, any income withholding proceeding under the income withholding act, K.S.A. 23^,105 through 23-4,118 and amendments thereto, or the interstate income withholding act, K.S.A. 23-4,125 through 23-4,137 and amendments thereto, any contempt proceeding and any civil proceeding under the revised uniform reciprocal enforcement of support act (1968), K.S.A. 23-457 et seq. and amendments thereto.
(b)(1) If a judgment for the support of a child becomes dormant before the child’s emancipation, it shall be the duty of the clerk of the court to release the judgment of record when requested to do so only if the judgment has remained dormant for the period prior to the child’s emancipation plus two years. When, after the child’s emancipation, a judgment for the support of a child becomes and | ^remains dormant for a period of two years, it shall be the duty of the clerk of the court to release the judgment of record when requested to do so.
(2) The provisions of this subsection shall apply only to those judgments which have not become void as of July 1, 1988.
(c) The time within which action must be taken to prevent a judgment from becoming dormant does not run during any period in which the enforcement of the judgment by legal process is stayed or prohibited.
(d) If a renewal affidavit is not filed or if execution is not issued, within 10 years from the date of the entry of any judgment of restitution in any court of record in this state, the judgment, including court costs and fees therein shall become dormant, and shall cease to operate as a lien on the real estate of the judgment debtor. Except as provided in subsection (b), when a judgment becomes and remains dormant for a period of two years, it shall be the duty of the clerk of the court to release the judgment of record when requested to do so.

According to Kansas law:

The period of minority extends in all persons to the age of eighteen (18) years, except that every person sixteen (16) years of age or over who is or has been married shall be considered of the age of majority in all matters relating to contracts, property rights, liabilities and the capacity to sue and be sued.

Kansas Statute 38-101. Pursuant to Kansas Statute 38-108:

[T]he district courts for the several counties ... shall have authority to confer upon minors the rights of majority, concerning contracts and real and personal property, and to authorize and empower minors to purchase, hold, possess and control in their own person and right, and without the intervention or control of a guardian or trustee, any goods, chattels, rights, interests in lands, tenements and effects by such minor lawfully acquired or inherited; and such minor shall have full power to hold, convey and dispose of the same, and to make contracts and be subject to all the liabilities incident thereto, sue and be sued, and in all respects to exercise and enjoy all the rights of property and of contracts in the same manner and to the same extent as persons at the age of majority.

Also pertinent to this matter is Kansas Statute 60-2404, which provides:

A dormant judgment may be revived and have the same force and effect as if it had not become dormant if the holder thereof files a motion for revivor and files a request for the immediate issuance of an execution thereon if such motion is granted. Notice of the filing of the motion shall be given as for a summons under article 3 of this chapter. |7If the motion for revivor was filed within two years after the date on which the judgment became dormant or, in the case of a child support judgment, was filed during the period prior to the child’s emancipation, within two years after the child’s emancipation or within two years after the judgment became dormant, whichever is later, on the hearing thereof the court shall enter an order of revivor unless good cause to the contrary be shown, and thereupon the execution shall issue forthwith. On the hearing of a motion to revive a child support judgment, the court may enter an order to prevent the unjust enrichment of any party or to ensure that payments will be disbursed to the real party in interest. A judgment may also be revived by the filing of a written stipulation of revivor signed by all of the parties affected thereby. For the purpose of this section, a support enforcement proceeding, as defined by K.S.A. 60-2403 and amendments thereto, or any attachment or garnishment process shall have the same effect as the issuance of an execution.

DCFS asserts that the trial court erred in ruling that its action had prescribed because the January 9, 2001 Kansas judgment, which it seeks to register and enforce here, was deemed to be dormant pursuant to Kansas law. DCFS contends that the trial court utilized an incorrect date of emancipation for Austin, which made the trial court conclude that the January 9, 2001 judgment was dormant pursuant to Kansas’ law, thereby causing the trial court to apply Louisiana’s ten-year prescriptive period and determine that DCFS’s action, filed on January 18, 2012, had prescribed. We agree.

At the hearing of this matter, the parties did not dispute the relevant facts; however, it is evident from our review of the trial court’s written Reasons for Ruling that a factual error was made causing the trial court to render an erroneous ruling. The trial court correctly stated that in a proceeding for arrearages, the controlling prescriptive period under La.Ch.Code art. 1306.4(B) is either the law of Kansas, the issuing state, or the law of Louisiana, whichever is longer. Further, the trial court was also correct in stating that according to Kansas Statute 60-2403, a child support judgment becomes dormant if not acted upon for five years and that it is capable of being revived until two years after the youngest child’s | ^emancipation. While the trial court was correct in its interpretation of these provisions, it factually erred as to the date of the youngest child’s emancipation.

The trial court’s Reasons for Ruling stated that the youngest child, Austin, was emancipated on January 31, 2005. According to the record, Austin was born on May 13, 1994, and turned eighteen years old on May 13, 2012. The record in this proceeding is void of any evidence indicating that the period of minority for Austin ended by marriage at sixteen as prescribed by Kansas Statute 38-101, or that the rights of majority enumerated by Kansas Statute 38-108 were judicially conferred upon Austin earlier than his eighteenth birthday. Therefore, the trial court clearly erred in utilizing January 31, 2005, as the date of Austin’s emancipation and in determining that Louisiana’s ten-year prescriptive period applies to this matter. Thus, the trial court’s judgment granting Brent’s peremptory exception of prescription, which dismissed the action filed by DCFS, was erroneous. According to Kansas law, Janice has two years from May 13, 2012, to revive the January 9, 2001 child support judgment and seek its enforcement against Brent. Therefore, this case has not prescribed. Consequently, we reverse the trial court’s judgment and remand for further proceedings.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. This matter is remanded for further proceedings. Costs of this proceeding are assessed to Defendant/Appellee, Brent C. Jackson.

REVERSED AND REMANDED.

      . The UIFSA is embodied in Louisiana Children’s Code Article 1301.1, etseq.

      . We note that in Brent’s exception of prescription, he erroneously cites La.Civ.Code art. 3501; however, La.Civ.Code art. 3501.1 applies to child support judgment arrearages.

      . In 2007, Kansas Statute 60-2403(b) was amended and currently provides:
      (b) Except for those judgments which have become void as of July 1, 2007, no judgment for the support of a child shall be or become dormant for any purpose except as provided in this subsection. If a judgment would have become dormant under the conditions set forth in subsection (a), the judgment shall cease to operate as a lien on the real estate of the judgment debtor as of the date the judgment would have become dormant, but the judgment shall not be released of record pursuant to subsection (a).


author: SEXTON, Judge Pro Tem.

text:
    Juan Na BYRNSIDE and Debra Byrnside, Plaintiffs-Appellants v. Paul HUTTO, Defendant-Appellant.
    No. 47,685-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Dollar Law Firm, LLC, by Johnny Dollar, Monroe, LA, James Buckley, for Plaintiffs-Appellants, Juan Na Byrnside and Debra Byrnside.
    Neal Law Firm, by Mark J. Neal, Newman & Oliveaux, L.L.P., by Todd Newman, Monroe, LA, for Defendant-Appellant Paul Hutto.
    Voorhies & Labbé, Lafayette, LA, by Cyd Sheree Page, for Defendant-Appellee American National Property and Casualty Co. of Louisiana.
    Before DREW, PITMAN and SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

|T This case arises from a bar fight involving the plaintiffs, Juan Na Byrnside and Debra Byrnside, and the defendant, Paul Hutto. The plaintiffs appeal from a trial court judgment which found the defendant liable only for the injuries they suffered in the bar fight and not for Mr. Byrnside’s subsequent ruptured aortic aneurysm. The defendant also appeals from the trial court judgment. He complains of the trial court’s ruling that he did not act in self-defense and its failure to assess comparative fault against the plaintiffs. Both the plaintiffs and the defendant appeal from the trial court’s finding that the defendant’s liability insurance policy did not provide coverage for the damages sustained by the plaintiffs. We affirm the trial court judgment.

FACTS

There was a longstanding history of rancor between Mrs. Byrnside and Mr. Hutto. On the night of August 24, 2007, this hostility culminated in a physical altercation at the D’Arbonne Lake Lodge Lounge in Farmerville, Louisiana. While many of the witnesses were apparently intoxicated, the record indicates that Mrs. Byrnside and Mr. Hutto engaged in a verbal dispute which escalated into a physical confrontation. During the course of this incident, Mrs. Byrnside and her husband were both struck by Mr. Hutto. Mr. Byrnside was taken by ambulance to Union General Hospital in Farmerville. His medical records indicate that triage was started at 12:45 a.m. on August 25, 2007. He refused to undergo a head CT scan and was subsequently discharged against medical advice at approximately 2:26 a.m. However, at about 8:80 a.m. on August 26, 2007, he was admitted to the |2emergency room of St. Francis North Hospital in Monroe, where he was diagnosed with a ruptured aortic aneurysm. He underwent emergency surgery which successfully repaired the aneurysm.

On December 5, 2007, the Byrnsides filed suit against Mr. Hutto. Amended petitions were subsequently filed; Mr. Hutto’s liability insurer, American National Property and Casualty Company of Louisiana (ANPAC), was added as a defendant.

A bench trial was held in March 2011. Written reasons for judgment were filed by the trial court on July 5, 2011. The court found no evidence that Mr. Hutto acted in self-defense as to either of the plaintiffs. As to the physical confrontation between the two men, it concluded that Mr. Hutto was at fault while Mr. Byrnside was totally free from fault. As to the incident between Mr. Hutto and Mrs. Byrnside, the court found that, while Mrs. Byrnside made inappropriate comments to Mr. Hutto, his physical reactions to her verbal statements were unreasonable and not justified. Therefore, the court found Mr. Hutto solely at fault.

As to Mr. Byrnside’s ruptured aortic aneurysm, the trial court found that the plaintiffs failed to meet their burden of proving that it was caused by the altercation. In so ruling, the court relied upon the medical testimony given by Mr. Byrn-side’s treating physicians, Dr. Larry Barr and Dr. Frank Sartor. Both doctors indicated in their deposition testimony that had the rupture been caused by a traumatic injury, it would have been apparent immediately or shortly after the trauma. None of the evidence-including Mr. Byrn-side’s medical records from Union General Hospital and the photos | -¡taken by the police to document his injuries-indicated that he was suffering any acute distress within the appropriate time period after the attack. Consequently, the trial court awarded damages only arising out of the barroom brawl, not the subsequent ruptured aortic aneurysm. Mr. Byrnside was awarded $16,000 in general damages and $1,316.59 in special damages for the treatment he received at Union General Hospital, or a total of $17,316.59. Mrs. Byrnside was awarded general damages of $7,000.

On the issue of insurance coverage, the trial court noted that Mr. Hutto’s policy with ANPAC contained a general exclusion for intentional losses and an endorsement which excluded damages resulting from the insured’s intentional and malicious acts. The court found coverage excluded under the terms of both provisions.

Judgment in conformity with the written reasons was signed on August 25, 2011.

As previously indicated, both parties have appealed.

CAUSATION

The plaintiffs assert that the trial court was manifestly erroneous in failing to find that Mr. Byrnside’s ruptured aortic aneurysm was the result of Mr. Hutto’s physical attack. In particular, they argue that the trial court erred in not applying the presumption of causation set forth in Housley v. Cerise, 579 So.2d 973 (La.1991).

Law

In civil cases, a trial court’s findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or |4manifestly erroneous. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993); Dixon v. Tucker, 47,113 (La.App.2d Cir.5/16/12), 92 So.3d 1100, writ not considered, 2012-1838 (La.11/9/12), 100 So.3d 824. To reverse a factfinder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra.

Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Further, when findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Roseü, supra.

In Louisiana’s three-tiered court system, fact finding is allocated to the trial court, and its evaluations of credibility, even when based on depositions offered in lieu of live testimony, are accorded great deference. Virgil v. American Guarantee and Liability Ins. Co., 507 So.2d 825 (La.1987). Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal. Holley Homestead Trust v. Harrison, 44,149 (La.App.2d Cir.4/15/09), 11 So.3d 511.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the injury and the accident which caused the injury. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.2/20/95), 650 So.2d 757. Proof must be by a preponderance of the evidence. Maranto, | ¿supra. The test for determining the causal relationship is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Maranto, supra. Causation is a question of fact and is subject to the manifest error standard of review. Green v. K-Mart Corp., 2003-2495 (La.5/25/04), 874 So.2d 838; Henderson v. Gregory, 47,086 (La.App.2d Cir.6/20/12), 93 So.3d 818, writ denied, 2012-1695 (La.11/2/12), 99 So.3d 671.

To obtain the benefit of the Housley presumption, the plaintiff must show: (1) that he or she was in good health prior to the accident at issue; (2) that subsequent to the accident, symptoms of the alleged injury appeared and continuously manifested themselves afterward; and (3) through evidence, either medical, circumstantial or common knowledge, a reasonable possibility of causation between the accident and the claimed injury. Housley v. Cerise, supra; Henderson v. Gregory, supra. If the plaintiff can show these three elements, then he is entitled to a presumption of causation and the burden of proof shifts to the defendant to prove some other particular incident could have' caused the injury of which the plaintiff complains. If the plaintiff cannot show these three elements, he or she is not entitled to a presumption of causation and the burden of proof does not shift to the defendant. Henderson v. Gregory, supra. The application of the Housley presumption of causation to the facts is also a question of fact and subject to manifest error review. Henderson v. Gregory, supra.

| eJDiscussion

The plaintiffs assert that their testimony established that Mr. Byrnside began suffering symptoms indicative of the ruptured aortic aneurysm shortly after the bar incident, and that the trial court erred in not relating the rupture to the defendant’s physical attack upon Mr. Byrnside.

The medical evidence presented by the plaintiffs consisted of his medical records from Union General Hospital and St. Francis North Hospital, as well as the depositions of his treating physicians, Dr. Larry Barr and Dr. Frank Sartor. Dr. Barr, a general surgeon, was on call at St. Francis the second time Mr. Byrnside was seen in an emergency room after the altercation. When he realized that Mr. Byrn-side had a ruptured abdominal aneurysm, he called Dr. Sartor, a general/vascular surgeon. They performed surgery on Mr. Byrnside to repair his aneurysm.

In his deposition, Dr. Barr explained that an aneurysm is a dilated or expanded weak part in a blood vessel. The most common cause of an aortic aneurysm like Mr. Byrnside’s is arterial sclerosis, or a buildup of plaque initially on the inner lining of the blood vessel. Over time, the blood vessel expands, and the muscular wall weakens, becomes thinner and eventually ruptures. The risk factors for developing arterial sclerosis include diet, smoking and alcohol abuse, with smoking being the number one risk factor. According to Dr. Barr, a person can have an aneurysm for years. He opined that Mr. Byrnside had his aneurysm before the incident at the bar. Dr. Barr testified that a rupture of an aneurysm is usually spontaneous. When asked if trauma was a cause he saw for ruptures, Dr. Barr responded, “Possibly, it 17could be.” He said he might have seen a patient with an aortic aneurysm which had ruptured due to blunt force trauma, but he could not recall a specific incident. Furthermore, if trauma actually caused a rupture, he believed that it would occur immediately. Within seconds, the person would have symptoms such as sudden and severe abdominal pain, fainting, sweating, and low blood pressure.

Dr. Barr reviewed Mr. Byrnside’s Union General records from the night of the assault. The findings on the gastrointestinal portion of the physical exam — no pain on movement or palpation, no tenderness, and normal bowel sounds — led him to believe that “nothing serious” was going on inside Mr. Byrnside’s abdominal cavity at that time. The only finding that concerned him was a low blood pressure reading with a slightly elevated heart rate. However, the heart rate went down and the blood pressure was normal when recorded later. Dr. Barr stated that the low blood pressure reading could have been secondary to alcohol because intoxication causes blood pressure to drop. Dr. Barr noted that the Union General records indicated that Mr. Byrnside was intoxicated.

When asked if it was possible that a blunt force trauma could accelerate the bursting process if a person had a preexisting aneurysm, Dr. Barr stated that it was possible, but to his knowledge there was no way to make that determination. While he could not rule out the possibility, Dr. Barr stated that based on Mr. Byrn-side’s Union General medical records, he saw nothing to direct attention to his abdomen. Additionally, nothing in the emergency 18room record indicated that he was suffering from a ruptured aortic aneurysm at the time of his discharge.

Dr. Sartor testified in his deposition that once an aneurysm reaches a certain size, the mechanism by which it ruptures is very unpredictable. A patient with a ruptured aneurysm would be expected to have immediate symptoms, and the rupture would be sufficiently traumatic for the person to know that it had occurred. Dr. Sartor stated that, if a rupture is related to a traumatic incident, it should be apparent very shortly after the incident, within an hour.

According to Dr. Sartor’s review, the Union General records do not indicate trauma to the chest, abdomen or torso. When the patient presented, his vital signs were abnormal in that he had low blood pressure and a slightly elevated heart rate. When he was discharged, Mr. Byrnside’s blood pressure was in an acceptable range while his heart rate was still a bit high. Dr. Sartor observed that the medical records indicated that Mr. Byrnside’s blood alcohol level was high. In Dr. Sartor’s opinion, the patient was not suffering from a ruptured aneurysm when he was in the Union General emergency room.

Dr. Sartor testified that the main reason an aneurysm ruptures is that, as a degenerative process, it continually expands; once the pressure inside overcomes the integrity of the thinned-out aorta, it will rupture. Uncontrolled blood pressure is an external factor that can impact the condition. Although he could not “absolutely” exclude it, Dr. Sartor stated that in his 20 years of practice, he has never seen an episode where some type of external force caused an aneurysm to rupture.

laFor the Housley presumption to be applicable, the plaintiffs are required to show three conditions. The first of these is that the plaintiffs must show that Mr. Byrnside was in good health prior to the accident at issue. The record demonstrates that the plaintiff failed to make such a showing. To the contrary, Mr. Byrnside, who was 65 years old at the time of the bar altercation, testified that he began smoking when he was 20 or 21 years old and that he smoked between one and one-half to four packs of cigarettes per day. He had been diagnosed with chronic obstructive pulmonary disease years before the bar incident. Dr. Barr, one of Mr. Byrnside’s treating physicians, stated that smoking is the number one factor contributing to arterial sclerosis, the most common cause for developing the kind of aneurysm Mr. Byrnside had.

Additionally, the third Housley condition requires the plaintiffs to show, through evidence, either medical, circumstantial or common knowledge, a reasonable possibility of causation between the accident and the claimed injury. The plaintiffs have also failed to prove this element.

Mr. Byrnside’s own treating physicians — the only medical experts to testify — both opined that symptoms of a ruptured aneurysm would develop rapidly. Mr. Byrnside would have been at Union General shortly after or during the time periods they recited. Based upon their review of the Union General medical records, neither believed Mr. Byrnside was suffering from a ruptured aortic aneurysm at the time of his discharge from that hospital. While indicating that it might be possible for trauma to cause an aortic | ;naneurysm to rupture, the testimony of these medical experts failed to show a reasonable possibility that such an occurrence happened in the instant ease.

The plaintiffs also contend that the circumstantial evidence and common knowledge proved a reasonable possibility of causation. However, Dr. Sartor testified that in 20 years he had never seen external force cause such a rupture, and Dr. Barr could not recall ever treating a trauma-induced ruptured aneurysm. Such testimony tends to undermine the plaintiffs’ assertion that it is “common knowledge” that trauma can cause an aneurysm to rupture.

As to the circumstantial evidence, the plaintiffs assert that they proved that Mr. Hutto kicked Mr. Byrnside in the abdomen and that he soon began manifesting symptoms (low blood pressure, pain, nausea) indicative of a ruptured aortic aneurysm. Review of the record reveals that there was testimony from some witnesses that Mr. Hutto kicked Mr. Byrnside in the abdomen after pushing or knocking him down on the bar floor. However, there was no clear consensus of where he was kicked or the degree of force with which he was kicked. While the Union General medical records showed that Mr. Byrn-side’s blood pressure was low when it was taken shortly after his arrival, they also showed that it was normal by the time he left the hospital. Additionally, Dr. Ban-indicated that the low blood pressure might have been related to the patient’s high alcohol level. Mrs. Byrnside testified that her husband felt sick within 10 minutes of getting home. However, in | nher deposition she said they got home at about 2:30 a.m., and he began feeling sick at 11:30 a.m.

After a careful review of the record, we are unable to say that the trial court was manifestly erroneous in not applying the Housley presumption in the instant case. Nor do we find manifest error in the trial court’s determination that the plaintiffs failed to carry their burden of proving that the physical altercation with Mr. Hutto caused Mr. Byrnside’s ruptured aortic aneurysm.

FAULT

Mr. Hutto argues that the trial court erred in rejecting his contention that he acted in self-defense and in failing to assess comparative fault against the plaintiffs.

Law

The trial court’s apportionment of fault is a factual determination subject to the manifest error standard of review. Bennett v. Louisiana Farm Bureau Cas. Ins. Co., 43,216 (La.App.2d Cir.4/30/08), 983 So.2d 966. An appellate court must give deference to the allocation of fault as determined by the trier of fact. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607.

Under Louisiana jurisprudence, in order to succeed on a claim of self-defense (not involving deadly force), there must be an actual or reasonably apparent threat to the claimant’s safety and the force employed cannot be excessive in degree or kind. Landry v. Bellanger, 2002-1443 (La.5/20/03), 851 So.2d 943. The privilege of self-defense is based on the prevention of 112harm to the actor, not on the desire for retaliation or revenge, no matter how understandable that desire. Landry v. Bellanger, supra.

Testimony

In his testimony, Mr. Hutto maintained that he acted solely to protect himself and his date and that he only intended “to clear a path to get out the' door.” He stated that Mrs. Byrnside initiated the confrontation. Other witnesses corroborated this assertion. She came up to him when he and his date were seated at the bar and asked if he was Paul Hutto. He replied affirmatively, and she then began to make verbal threats. According to Mr. Hutto’s account, she threatened that she and her kids would kill him, even if they had to wait until he was an old man. He replied that they would not be having this conversation if her kids weren’t thieves and her kids would not be in prison if she had not condoned them stealing from him. At this point, he testified, she “really lost it.” Mr. Hutto further testified that Mrs. Byrnside spit in his face; however, no witness, including Mr. Hutto’s date, observed such an action.

At some point, Mr. Byrnside also approached and stood nearby with a hand in his pocket. Mr. Hutto said he didn’t know if Mr. Byrnside had a gun in his pocket. He asserted that both of the Byrnsides threatened him. According to Mr. Hutto, he pushed both of the Byrnsides because they had him “pinned against the bar.” He said he pushed Mr. Byrnside when Mr. Byrnside took a step toward him after he pushed Mrs. Byrnside. Mr. Hutto denied kicking Mr. Byrnside in the side but admitted putting his foot on the man’s chest as he lay on the floor and telling him to stay down. Shortly | ^thereafter, Mr. Byrnside got up and was in the doorway with someone holding him. He interpreted this as meaning that Mr. Byrnside was “coming after him.” Mr. Hutto testified that he said to get out of his way and told the man holding Mr. Byrnside to let him go. When the man complied, Mr. Hutto hit Mr. Byrnside with a closed fist and left the bar with his date.

Other witnesses — many of whom admitted to consuming alcohol during the evening — saw the events differently. Most testified that they saw physical contact between Mr. Hutto and Mrs. Byrnside; the descriptions of this contact varied from a push to a punch. Some witnesses thought Mr. Hutto kicked her too. There was some testimony that Mrs. Byrnside wagged her finger in Mr. Hutto’s face or touched his chest with her finger. There was no other evidence indicating that Mrs. Byrnside initiated any physical contact with Mr. Hutto.

Mr. Hutto was the only witness to testify that Mr. Byrnside threatened him. Another witness, Tammy Owens, had stated in her deposition that Mr. Byrnside came at Mr. Hutto after his physical contact with his wife and that they “had words.” At trial, she testified that she did not recall the men exchanging words. Several witnesses described Mr. Byrnside as moving forward after his wife was physically assaulted. However, others denied seeing any aggressive or otherwise provocative action on his part.

Discussion

The trial court was faced with conflicting testimony which required it to make numerous credibility calls. It concluded that there was no credible evidence that Mr. Byrnside made any threatening gestures or remarks to Mr. |uHutto or that he was armed. The court further concluded that Mr. Hutto struck Mr. Byrnside and, while Mr. Byrnside was on the ground, struck him again without provocation. Thereafter, when Mr. Byrnside was on his feet and was being either held up or back by someone, Mr. Hutto did not walk past Mr. Byrnside and leave the bar. Instead he instructed whoever was holding Mr. Byrnside to release him and then proceeded to hit him with his fist. Based upon these fact findings, the trial court held that Mr. Hutto was totally at fault and that he was not acting in self-defense.

As to Mrs. Byrnside, the trial court noted that while she made inappropriate and arguably provocative remarks to Mr. Hut-to, there was no credible evidence that she hit him or did anything to cause him to think that she would hit him. Additionally, by Mr. Hutto’s own admission, her alleged threats to kill him “even if she had to wait until he was old” did not involve a risk of imminent harm. Based upon the totality of the evidence, the trial court found that Mr. Hutto’s physical reactions to Mrs. Byrnside’s verbal statements were unreasonable and unjustified. Thus, the court assessed all fault to Mr. Hutto and concluded that he did not act in self-defense.

We find no manifest error in the trial court’s determination that Mr. Hutto was solely at fault in the physical altercations involving the' Byrnsides. Additionally, we find no manifest error in the trial court’s determination that Mr. Hutto did not act in self-defense. Mr. Hutto’s response to Mrs. Byrnside’s verbal assailment was unreasonable, as were his repeated, unprovoked physical contacts with her husband. The evidence does not show that there was an actual or reasonably apparent threat to Mr. Hutto’s safety.

| ^INSURANCE COVERAGE

The plaintiffs and Mr. Hutto contend that the trial court erred in finding that Mr. Hutto’s insurance policy excluded coverage because his actions were intentional and/or malicious. They cite Mr. Hutto’s testimony that he acted purely out of a desire to protect himself and his date and to clear a pathway to exit the bar; he also testified that he never intended to cause any injuries to the plaintiffs.

Policy provisions

The ANPAC policy included a general policy exclusion provision for intentional losses, which stated as follows:

WE do not cover loss resulting directly or indirectly from one or more of the following exclusions, regardless of any other causes or events contributing concurrently or in any sequence to the loss:
5. Intentional Loss, meaning loss that results from an act committed by or at the direction of any INSURED with the intent to cause loss.

The endorsement excluding coverage for intentional acts stated as follows:

Sections A and B do not apply to BODILY INJURY/PROPERTY DAMAGE or MEDICAL EXPENSES: ...
6. expected by, caused intentionally by or at the direction of any INSURED, or resulting from intentional and malicious acts of any INSURED. However, this exclusion does not apply to BODILY INJURY, PROPERTY DAMAGE or MEDICAL EXPENSES arising out of the reasonable use of force to protect people or property; ...

Law

An insurance policy is a contract between the insured and the insurer and has the effect of law between the parties. Because an insurance policy is a contract, the rules established for the construction of written instruments | inapply to contracts of insurance. The parties’ intent, as reflected by the words of an insurance policy, determines the extent of coverage, and the intent is to be determined in accordance with the plain, ordinary, and popular sense of the language used in the policy, unless the words have acquired a technical meaning. Washington v. McCauley, 45,916 (La.App.2d Cir.2/16/11), 62 So.3d 173, writ denied, 2011-0578 (La.4/29/11), 62 So.3d 115.

If the language in an insurance contract is clear and unambiguous, the agreement must be enforced as written and a reasonable interpretation consistent with the obvious meaning and intent of the policy must be given. Washington v. McCauley, supra. Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured. Canterberry v. Chamblee, 41,940 (La.App.2d Cir.2/28/07), 953 So.2d 900. The insurer has the burden of proving that a loss is subject to a policy exclusion. Canterberry v. Chamblee, supra.

Discussion

In its well-articulated written reasons for judgment, the trial court considered the two provisions in the ANPAC policy which excluded coverage for an insured’s intentional acts. First, it examined the general policy exclusion for “intentional loss,” which defined that term as meaning “loss that results from an act committed by or at the direction of any [insured] with the intent to cause loss.” The court reviewed Mr. Hutto’s separate acts of intentional contacts with the plaintiffs — intentionally pushing each of them to the ground, intentionally placing his foot on and/or kicking Mr. Byrnside in the upper chest while suggesting he stay down, and intentionally hitting Mr. |17Byrnside in the face with his fist after instructing the person holding Mr. Byrn-side to release him. It found the general exclusion applicable because the injuries that the plaintiffs proved were caused by Mr. Hutto’s actions — cuts, bruises and abrasions — were of the type and degree that one could reasonably expect from Mr. Hutto’s actions. The court deemed his actions and the resulting injuries to be intended by him.

By his own count, the 50-year-old Mr. Hutto testified that he had been in about 17 fights since childhood. He conceded that if a person was pushed down to the ground, one might expect that person to sustain an injury. He admitted that he did not accidentally bump into Mrs. Byrn-side; he intended to push her. Although he adamantly denied kicking Mr. Byrnside, he agreed that a person kicking someone in the abdomen might expect that the action could cause internal injury. Additionally, he testified that he meant to make contact when he hit Mr. Byrnside. In view of Mr. Hutto’s own testimony, we cannot fault the trial court’s analysis and conclusion that the cuts, bruises, and abrasions suffered by the Byrnsides in the altercation were reasonably expected and were intended by Mr. Hutto. Thus, the general policy exclusion was applicable.

The trial court concluded that Mr. Hut-to’s actions were also excluded under the endorsement. In so ruling, the court cited the history of discord among the parties which appeared to involve malice and its previously mentioned finding that self-defense was inapplicable. Again, we cannot find manifest error in the trial court’s conclusion. The intentional acts endorsement of the ANPAC policy excludes coverage arising from the | ^insured’s “intentional and malicious acts”; however, the exclusion does not apply in cases of self-defense. Although Mr. Hutto claimed to have acted as he did to flee the Byrnsides’ aggression and protect himself and his date, the evidence of his repeated physical contacts with the plaintiffs belies that contention. Particularly compelling is the evidence that, as Mr. Hutto left the bar, he instructed the persons holding Mr. Byrnside to release him and that he then immediately hit Mr. Byrnside in the face. Furthermore, in his own testimony, Mr. Hutto freely admitted that he and Mrs. Byrnside hated each other and had malice for each other.

We find no error in the trial court’s ruling that the ANPAC policy did not provide coverage for Mr. Hutto’s actions against the Byrnsides.

DAMAGES

The plaintiffs argued that the damages awarded to them were inadequate because the award compensated them only for their injuries arising directly from the bar altercation and not for the losses they sustained as a result of Mr. Byrnside’s ruptured aortic aneurysm.

It is well settled that a judge or jury is given great discretion in its assessment of quantum, both general and special damages. Guillory v. Lee, 2009-0075 (La.6/26/09), 16 So.3d 1104.

We found no manifest error in the trial court’s ruling on the causation issue concerning the ruptured aneurysm. Likewise, we find no manifest error in the damages awarded to the plaintiffs. The trial court’s awards to the plaintiffs, particularly the one to Mrs. Byrnside, are adequate for the immediate injuries received in the bar altercation.

^CONCLUSION

The trial court judgment is affirmed. Costs of this appeal are assessed one-half to Juan Na Byrnside and Debra Byrnside and one-half to Paul Hutto.

AFFIRMED.

      . On the other hand, there was also testimony that Mr. Hutto merely placed his foot on Mr. Byrnside’s chest and told him to stay down.


author: MOORE, J.

text:
    Phillip PATTERSON, et ux., Plaintiffs-Appellants v. STEPHENSON’S TREE SERVICE, LLC, et al, Defendant-Appellee.
    No. 47,702-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013..

      Guerriero & Guerriero, by Jeffrey D. Guerriero, Kevin D. Alexander, Elizabeth J. Guerriero, Monroe, LA, Wade L. House, for Appellants, Phillip and Charlotte Patterson.
    Nelson, Zentner,. Sartor & Snelling, L.L.C., Monroe, LA, by David G. Nelson, Allison M. Jarrell, for Appellee, Maxum Indemnity Co.
    Before STEWART, MOORE and LOLLEY, JJ.
   MOORE, J.

L Phillip Patterson appeals a summary judgment that dismissed his claim against Maxum Indemnity Co. on the basis of the auto exclusion in its Commercial General Liability (“CGL”) policy covering Stephenson’s Tree Service LLC. We affirm.

Factual and Procedural Background

In October 2009, Patterson was standing on a neighbor’s property in Morehouse Parish, watching Stephenson’s cut trees. One of Stephenson’s trucks got stuck in the mud; employees fastened a “snatch block” (a kind of pulley) to a nearby tree and ran a line through it, attaching one end of the line to the disabled truck and the other end to “another piece of heavy equipment” (so described in the petition) to tow the truck. Under great pressure, the line snapped and struck Patterson, causing serious injuries.

In April 2010, Patterson settled his claim against Stephenson’s motor vehicle liability carrier, Colony Insurance, for policy limits of $100,000. The agreement released Stephenson’s but expressly reserved all rights against its CGL and homeowner carriers.

In June 2010, Patterson filed this suit against Stephenson’s and Maxum, alleging various acts of negligence including inappropriately fastening the snatch block to the tree, using a rope that was insufficient to the task, and failing to warn the plaintiff of the danger of standing in the work area.

Maxum moved for summary judgment, urging that the claim was excluded under the policy’s auto exclusion. Maxum argued that the ^accident arose out of the use of not just one but two autos owned by Stephenson’s, and the settlement with Colony proved that the act was subject to motor vehicle coverage, not CGL.

Patterson opposed the motion, arguing that the accident arose from an operational risk rather than an automobile risk. He further argued that the policy’s auto exclusion was subject to an exception for “mobile equipment,” which included “Cherry pickers and similar devices used to raise or lower workers.”

After a hearing in April 2011, the district court denied the summary judgment. The court ruled orally that while the policy has an exclusion for “autos,” it does not exclude “mobile equipment”; the court considered this “somewhat ambiguous.” Further, the petition described the towing vehicle as a “piece of heavy equipment,” while the answer described it as a “vehicle,” leaving an issue of material fact as to whether it was an auto subject to the auto exclusion.

In November 2011, Maxum filed a second motion for summary judgment, citing further discovery showing that both vehicles involved in the accident were indeed autos under the CGL policy. It attached the affidavit of Kenneth Stephenson, Stephenson’s principal, stating that both vehicles were owned by the company, licensed for use on the road and listed as business vehicles on the Colony policy. It also attached registration certificates showing the two | ¿vehicles were a 1991 GMC chassis-and-cab and a 1998 GMC pickup. It argued that under the CGL policy, such vehicles met the definition of “auto” and not “mobile equipment.”

Patterson opposed the motion, urging that because of law of the case, the court could not revisit the issue of coverage. He also argued that the policy was ambiguous and the vehicles were mobile equipment, not autos. He attached a later affidavit from Kenneth Stephenson, referring to the vehicles as a “loader” (the one stuck in the mud) and a “cherry picker,” both maintained “primarily for purposes other than the transportation of persons and cargo.” Dark Xerox-style copies of photos of the trucks were also attached.

After a hearing in March 2012, the district court granted the summary judgment. By written ruling, the court found (1) both vehicles involved were “autos” under the CGL policy, (2) the negligent act that caused the injury was a natural and reasonable consequence and thus arose out of the use of the auto, (3) the policy is clear and unambiguous, and (4) law of the case did not apply, as Maxum supplied additional information to support the | ¿second motion for summary judgment.

Patterson now appeals, raising three assignments of error.

Discussion: Law of the Case

By his third assignment of error, Patterson urges the court erred in finding that the law of the case doctrine did not apply to its prior ruling that the policy was ambiguous. The doctrine holds that courts should not permit reargument, in the same case, of a previously decided point simply because there is doubt as to the correctness of the prior ruling. Welch v. Willis-Knighton Pierremont, 45,554 (La.App. 2 Cir. 11/17/00), 56 So.3d 242, writs denied, 2011-0075, 2011-0109 (2/25/11), 58 So.3d 457, 459. Patterson concedes that law of the case is a discretionary rule, but argues that when the court denied the first motion, this was tantamount to declaring the policy ambiguous and bound the second judge to that finding.

This argument lacks merit. The jurisprudence has consistently found no error when a court hears a second motion for summary judgment after previously denying a motion for summary judgment. Watkins v. City of Shreveport, 45,107 (La.App. 2 Cir. 3/3/10), 32 So.3d 346; Rogers v. Horseshoe Entertainment, 32,800 (La.App. 2 Cir. 8/1/00), 766 So.2d 595, writs denied, 2000-2894, 2000-2905 (La.12/8/00), 776 So.2d 463, 464; Melton v. Miley, 98-1437 (La.App. 1 Cir. 9/24/99), 754 So.2d 1088, writ denied, 99-3089 (La.1/7/00), 752 So.2d 867. When new evidence is introduced after the initial denial of a motion for summary judgment, the court may reconsider the motion. Watkins v. City of Shreveport, supra. In support of the second motion, Maxum offered Kenneth Stephenson’s affidavit and ^registration certificates for both of the vehicles involved; Patterson offered another affidavit from Stephenson and photos of the vehicles. With this additional, relevant evidence, the district court did not abuse its discretion in hearing the second motion for summary judgment.

Ambiguity of Policy

By his second assignment of error, Patterson urges the district court erred in finding the language of Maxum’s policy clear and unambiguous. He shows that any exclusion from coverage must be clear and unmistakable; if more than one interpretation of an exclusion is reasonable, the one affording coverage to the claimant must be adopted. Lucas v. Deville, 385 So.2d 804 (La.App. 3 Cir.1980) (on rehearing), writs denied, 386 So.2d 357, 359 (1980). He argues that Maxum’s policy is “nothing if not ambiguous”: the auto exclusion excludes coverage for injuries resulting from the use of an auto; other provisions negate the exclusion with respect to mobile equipment (vehicles maintained primarily for purposes other than transportation of people and cargo); and mobile equipment is defined to include cherry pickers and vehicles maintained primarily for purposes other than the transportation of persons or cargo. He suggests that these provisions make it impossible to tell if the cherry picker that caused his injury is an auto or mobile equipment. He also argues that even if the cherry picker was an auto, it was not being used in an excluded manner at the time of the accident. Finally, he suggests that the fact that two well-respected judges interpreted the policy in different ways shows conclusively that it is ambiguous.

LThe insurer has the burden of proving that a loss falls within a policy exclusion. Louisiana Maintenance Servs. v. Certain Underwriters at Lloyd’s of London, 616 So.2d 1250 (La.1993); Stills v. Mims, 42,799 (La.App. 2 Cir. 12/5/07), 973 So.2d 118. The mere fact that an insurance policy is a complex instrument requiring analysis to understand it does not render it ambiguous. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759; Oxner v. Montgomery, 34,727 (La.App. 2 Cir. 8/1/01), 794 So.2d 86, writ denied, 2001-2489 (La.12/7/01), 803 So.2d 36.

We have closely studied the applicable policy provisions and do not see the ambiguity urged by Patterson. The “Coverage A” section extends coverage for bodily injury and property damages to which the policy applies; it then excludes coverage for such damages arising out of the ownership, maintenance or use of an auto, but not for the operation of any machinery or equipment defined as mobile equipment. The Definitions section defines mobile equipment to include vehicles that are not self-propelled, such as cherry pickers; however, it specifically states that self-propelled vehicles, including cherry pickers mounted on a truck chassis, are considered autos. In the same vein, it adds that mobile equipment does not include any land vehicles that are subject to compulsory or financial responsibility law or other motor vehicle insurance law; such vehicles are considered autos. The plain meaning is that damages arising out of the use of autos, self-propelled mobile equipment or mobile equipment subject to motor vehicle insurance law are not covered by CGL but by an automobile 17poIicy. We perceive no ambiguity.

In Adams v. Thomason, 32,728 (La.App. 2 Cir. 3/1/00), 753 So.2d 416, writ denied, 2000-1221 (La.6/16/00), 764 So.2d 965, this court analyzed a CGL policy issued by Hartford Southeast with a similar structure that excluded bodily injury or property damage arising out of the ownership, maintenance or use of an auto or the transportation of mobile equipment (in that case, a cotton trailer). We rejected an argument that the exclusion was ambiguous, affirming a summary judgment which held that the driver of the pickup truck towing the cotton trailer was not covered under the CGL policy. Interpreting Maxum’s policy, we again find that these provisions do not create any ambiguity. We also find that the registration certificates and the photos of the vehicles remove any doubt as to whether the vehicles are autos, self-propelled mobile equipment or mobile equipment subject to motor vehicle insurance law (not covered) as opposed to mobile equipment (covered).

Finally, we attach little significance to the first judge’s remark that the policy was “somewhat ambiguous.” In context, the judge was likely noting that from the pleadings and the limited summary judgment evidence, he could not discern whether the cherry picker at issue would qualify as an auto (excluded) or mobile equipment (included) under the policy. This was a genuine issue of material fact, not a declaration that the policy was inherently ambiguous.

This assignment of error lacks merit.

| ⅜Application of the Exclusion

By his first assignment of error, Patterson urges the district court erred in (a) basing its ruling on a strict application of the “but for” test, and thus failed to distinguish between acts of negligence existing independent of and occurring prior to the alleged use of an auto, and (b) failing to find that the conduct did not arise out of the ownership, maintenance or use of an auto. He shows that to determine whether conduct “arises out of’ the use of an automobile, and thus is excluded from a CGL policy, courts use the two-prong test set out in Carter v. City Parish Gov’t of East Baton Rouge, 423 So.2d 1080 (La.1982): (1) was the conduct complained of a cause in fact of the harm? and (2) was the alleged tortfeasor under a duty to protect against the particular risk? He contends that Stephenson’s acts were a legal cause of the injury but did not arise out of the use of an auto. He offers the following cases in support: Trammel v. Liberty Mutual, 2001-0948 (La.App. 4 Cir. 2/13/02), 811 So.2d 78, rev’d on other grounds, 2002-0768 (La.5/24/02), 816 So.2d 294; Edwards v. Horstman, 27,776 (La.App. 2 Cir. 4/3/96), 672 So.2d 222; Johns v. State Farm, 349 So.2d 481, 6 A.L.R.4th 548 (La.App. 3 Cir.1977); Lucas v. Deville, supra. The real cause of the accident, Patterson suggests, was Stephenson’s conduct in using an inadequate rope, inadequately attaching the snatch block to the tree, and failing to clear the area of bystanders or to warn of the danger; the use of the vehicles was merely incidental to these predominant acts of negligence.

Maxum responds that under any analysis, using one auto to tow another auto out of the mud arises out of the use of the autos. Maxum also |9shows that the Trammel and Johns cases cited by Patterson involved homeowner policies with terms different from the instant CGL policy, and thus do not apply. It submits that the truly apposite cases did indeed find that the accidents arose from the use of an auto, such as Massey v. Century Ready Mix Corp., 552 So.2d 565 (La.App. 2 Cir. 1989), writ denied, 556 So.2d 41 (1990); Jones v. Louisiana Timber Co., 519 So.2d 333 (La.App. 2 Cir.1988); and Carter v. City Parish Gov’t of East Baton Rouge, supra.

The use of a cherry picker to pull a loader from the mud is a normal use of ’ such vehicles. The accident arose out of this use and in a situation where Stephenson’s had a duty to protect Patterson from the particular risk of harm, satisfying both prongs of the Carter test. The supreme court recently held, in a slightly different context, that “arising out of’ the “use” of a vehicle means “originating from,” “growing out of,” or “flowing from” the use. Bernard v. Ellis, 2011-2377 (La.7/2/12), p. 14-15, 111 So.3d 995, 2012 WL 2512772.

In light of these principles and a plain reading of Maxum’s policy, we find that Patterson’s personal injury arose out of the use of an auto, and hence fell under the exclusion from CGL coverage. The case is apposite to Jones v. Louisiana Timber Co., supra, in which Jones was trying to secure a load of logs to Louisiana Timber’s trailer. When the cable got snagged, Jones tugged hard on it; it suddenly came apart, hurling him backwards off the top of the load to the ground some 14-16 feet below. This court found that Jones’s conduct arose out of the use of the trailer. We also are guided by the seminal case of Carter v. City Parish Gov’t of East Baton Rouge, supra, in which a 10-year-old girl drowned after her uncle tried to drive the lincar through a flooded underpass; the supreme court found that the drowning arose out of the use of the car, and thus activated coverage under the uncle’s auto policy. The driver in Carter had just as much duty to protect his passenger from floodwater as Stephenson’s employees had to protect bystanders from towing hazards. The jurisprudence cited by Patterson is not persuasive. This assignment of error lacks merit.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the plaintiffs, Phillip and Charlotte Patterson.

AFFIRMED.

      . ¶ 2.g.: “This insurance does not apply to: 'Bodily injury’ *** arising out of the ownership, maintenance, use * * * of any * * * ‘auto’ * * * owned or operated by * * * any insured.”

      . ¶ 2.g.(5): "This exclusion does not apply to: ‘Bodily injury’ * * * arising out of:
      (a) The operation of machinery or equipment that is attached to, or part of, a land vehicle that would qualify under the definition of 'mobile equipment’ if it were not subject to a compulsory or financial responsibility law or other motor vehicle insurance law in the state where it is licensed or principally garaged; or
      (b) the operation of any machinery or equipment listed in Paragraph f.(2) or f.(3) of the definition of 'mobile equipment.’ ”
      ¶ 12.e.: ’’ ’Mobile equipment’ means any of the following types of land vehicles, including any attached machinery or equipment: * * * (2) Cherry pickers and similar devices used to raise or lower workers.”

      . ¶ 2: " ‘Auto’ means:
      a. A land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment; or
      b. Any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law in the state where it is licensed or principally garaged.”
      ¶ 12.f: * * * “However, ‘mobile equipment’ does not include any land vehicles that are subject to a compulsory or financial responsibility law or other motor vehicle insurance law in the state where it is licensed or principally garaged. Land vehicles subject to a compulsory or financial responsibility law or other motor vehicle insurance law are considered 'autos.' "

      . A different judge of the Fourth JDC heard the second motion for summary judgment.

      . We particularly note that Edwards v. Horstman, supra, cited and argued in brief, was reversed on writ of certiorari, the supreme court holding that the driver’s conduct therein "clearly constituted the ‘use’ of the automobile.” Edwards v. Horstman, 96-1403 (La.2/25/97), p. 8, 687 So.2d 1007, 1012. The appellate brief completely fails to mention this critical part of the case history, and counsel would do well to check each cite before integrating the case into argument.


text:
    STATE of Louisiana, Appellee v. Jeremy J. HUNTER, Appellant.
    No. 47,796-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.

      Douglas Lee Harville, Louisiana Appellate Project, for Appellant.
    James E. Paxton, District Attorney, Edwin S. Moberly, Anita T. Mack, Assistant District Attorneys, for Appellee.
    Before BROWN, MOORE and SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

bThe defendant, Jeremy J. Hunter, appeals as excessive his sentence to 20 years at hard labor following his guilty plea to attempted manslaughter. For the following reasons, the defendant’s conviction and sentence are affirmed.

FACTS

The defendant had been involved in a feud between two families. On October 24, 2010, the defendant peered into the window of an apartment and saw a person sleeping on a couch. He fired numerous rounds into the apartment from a 9-mil-limeter gun, striking Denise Miller 11 times. Although severely injured, Ms. Miller survived the shooting. Ms. Miller’s two-year-old granddaughter, who was sleeping on the couch with her, was unharmed.

On February 7, 2011, the defendant was charged by grand jury indictment with the attempted first degree murder of Ms. Miller. In a separate indictment, he was charged with the attempted first degree murder of the child. The indictment regarding Ms. Miller was amended to charge the defendant with attempted second degree murder.

Eventually, pursuant to a plea agreement, the charge concerning Ms. Miller was amended to attempted manslaughter. The defendant entered a plea of guilty to that offense on January 26, 2012. The indictment regarding the child was dismissed in exchange for the guilty plea. A number of other charges against the defendant were also dismissed.

In accepting the guilty plea, the trial court ascertained that the defendant had a ninth-grade education, but had earned a GED. The ^defendant was informed of the rights waived by entry of his guilty plea, the maximum possible sentence of incarceration for attempted manslaughter, and that the trial court would formulate the sentence after reviewing a presentence investigation (“PSI”) report. The court determined that the defendant was not pleading guilty due to any force or threats. The defendant stated under oath that he shot Ms. Miller. The trial court accepted the guilty plea.

The defendant appeared before the court for sentencing on February 28, 2012. Ms. Miller testified at the sentencing hearing and urged the court to impose the maximum sentence on the defendant.

The trial court ordered the defendant to serve 20 years at hard labor, with credit for time served. The defendant filed a motion to reconsider sentence which was denied by the trial court. The defendant appealed.

EXCESSIVE SENTENCE

The defendant argues on appeal that the sentence imposed is excessive. The 20-year-old defendant argues that he is an uneducated youth with no significant adult criminal history who was drawn into this shooting by a dispute between two families. He contends that with proper rehabilitation and education, he would not return to a life of crime and would not be a threat to others. He claims that, under these circumstances, the maximum sentence imposed upon him is excessive and is a violation of his constitutional rights. He claims that the maximum sentence of 20 years at hard labor is nothing more than the needless and purposeless imposition of pain and suffering. This argument is without merit.

IsLegal Principles

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Key, 46,119 (La.App.2d Cir.3/2/11), 58 So.3d 578, writ denied, 2011-0594 (La.10/7/11), 71 So.3d 310. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Key, supra. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, unit denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

On the second prong of the exces-siveness test, the court must determine whether a sentence violates La. Const. Art. I, § 20. A sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless | infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792; State v. Key, supra. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. State v. Key, supra.

Absent a showing of manifest abuse of the trial court’s sentencing discretion, this court may not set aside a sentence as excessive. State v. Guzman, 1999-1528, 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La. App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, unit denied, 2004-0597 (La.9/24/04), 882 So.2d 1165.

|5The offense of manslaughter is defined in La. R.S. 14:31, which provides in pertinent part:

A. Manslaughter is:

1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed....

The statute also provides that, under the facts present in this case, whoever commits manslaughter shall be imprisoned at hard labor for not more than 40 years.

The definition of an attempt to commit an offense and the penalty for an attempt are set forth in La. R.S. 14:27, which provides in pertinent part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.
D. Whoever attempts to commit any crime shall be punished as follows:
(3) ... he shall be fined or imprisoned or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.

| ^Discussion

The trial court stated that it carefully considered the PSI report which showed that Ms. Miller was shot 11 times with a 9-millimeter gun while sleeping on a couch with her two-year-old granddaughter. She was shot twice in the left thigh, three times in the right chest, once in the left chest, once in the right shoulder, twice in the left arm, once in the right arm, and once in the left breast. Nine bullets were removed from Ms. Miller; two bullets remain in her back because their location prevents safe removal. Ms. Miller’s lungs collapsed and she was in a coma for a long period of time. She spent six weeks in a nursing home to regain her ability to walk and to use her right hand. She still has limited use of her right arm.

The court noted that at the guilty plea, the defendant claimed that he had a .22 caliber pistol and that he was accompanied by two other individuals during the shooting. The court observed that the defendant was perhaps attempting to minimize his role in the shooting, but the court found it incredible that the defendant would testify in contravention of known facts. Seventeen 9-millimeter casings were found outside the window which provided a clear view of the couch area. The court noted that every shell casing found at the scene came from a 9-millimeter gun. The location of the casings in relation to the window, a window air conditioning unit and the couch, all supported the police report conclusion that one shooter with a 9-millimeter firearm, holding at least 17 rounds, fired through the window striking Ms. Miller 11 times.

|7The court observed that, although the defendant had prior arrests, the only criminal record considered by the court in imposing sentence was a 2006 conviction for simple possession of marijuana.

The court examined the criteria set forth in La. C. Cr. P. art. 894.1 in imposing sentence. The court found that there was an undue risk that during a suspended sentence or probation the defendant would commit another crime. According to the court, the defendant was in need of correctional treatment provided most effectively by commitment to a penal institution and that a lesser sentence than that imposed would deprecate the seriousness of the crime. The court noted that the crime manifested deliberate cruelty to the victim. The court stated that there was no other way to view firing 17 shots at a helpless, sleeping victim. The court considered the fact that the defendant entered upon the victim’s property without permission while armed with a dangerous weapon. The defendant violated the sanctity of her home by peering into a window and firing 11 bullets into her body, creating a risk of death or great bodily harm to more than one person. The defendant’s criminal conduct resulted in significant, permanent injury to the victim. She was left with physical and psychological scars as well as permanent partial disability.

The court noted that the defendant used a dangerous weapon in the commission of this offense. According to the court, the defendant’s actions were callous, cold, and cruel and demonstrated an absolute disregard and even contempt for the value of human life. The court observed that maximum sentences are reserved for the worst offenders and the worst | soffenses and the court was aware that the defendant received the benefit of a favorable plea bargain agreement. The court stated that the defendant was the worst kind of offender and this was the worst kind of offense. The court found that the maximum sentence for attempted manslaughter, 20 years at hard labor, was appropriate in this case.

The trial court articulated its reasons for the sentence in accordance with La. C. Cr. P. art. 894.1. The sentence is tailored to the offender and the offense and is not constitutionally excessive. It is not grossly out of proportion to the seriousness of the offense and it does not shock the sense of justice. The defendant was originally charged by two separate grand jury indictments with attempted first degree murder. He received a significant reduction in potential exposure to incarceration by being allowed to plead guilty to one count of attempted manslaughter.

The present offense involved violence arising from a dispute between families. The defendant shot through the window of a residence striking a sleeping grandmother 11 times. Miraculously, the victim survived and the young child sleeping on the couch with her was not harmed. However, the victim was seriously and permanently injured. Even though the sentence imposed was the maximum possible for the offense of attempted manslaughter, due to the circumstances of the offense and the extreme benefit received by the defendant in his plea agreement, the sentence is not excessive. The trial court acted within its discretion in sentencing the defendant to serve 20 years at hard labor.

^CONCLUSION

For the reasons stated above, we affirm the conviction and sentence of the defendant, Jeremy J. Hunter.

AFFIRMED.


author: LOLLEY, J.

text:
    Steven M. DAVIS, Plaintiff-Appellee v. Elmer E. PRESCOTT, III, et al., Defendants-Appellants.
    No. 47,799-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 27, 2013.
    Watson, Blanche, Wilson & Posner, Baton Rouge, LA, by Robert W. Robison, Jr., Jennifer M. Durham, for Appellants.
    Unglesby Law Firm, by Richard J. Gal-lot, Jr., Ruston, LA, Lewis 0. Unglesby, Barrett D. Burkart, Jr., Robert Mark Marionneaux, Jr., Baton Rouge, LA, for Appellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| j Elmer E. Prescott III appeals the judgment of the Second Judicial District Court, Parish of Claiborne, State of Louisiana in favor of Steven M. Davis. For the following reasons, we reverse the judgment of the trial court.

FACTS

In August 2006, Edward Thomas Davis died leaving five surviving children as well as a tract of immovable property in Claiborne Parish (the “property”)- Shortly after his death, a petition to probate notarial testament and to appoint independent executor was filed in the 18th Judicial District Court in the Parish of East Baton Rouge by Elmer E. Prescott III (“Prescott”). Prescott, Edward Thomas Davis’s son-in-law, was appointed independent executor of the estate.

On June 19, 2007, Prescott, as independent executor of the estate, granted a three-year mineral lease of the property to AIX Energy (the “AIX lease”). Prescott did not inform the legatees prior to granting the AIX lease. In March 2008, the succession was closed placing Steven M. Davis and his four siblings in possession of the property.

Shortly thereafter, Davis entered an agreement to sell his undivided interest in the property to a company named SOTJ, LLC. Unbeknownst to Davis, SOTJ, LLC was fully owned by Prescott’s stepson Donald Scully, Jr., who offered to purchase the land anonymously through SOTJ, LLC because Scully believed that Davis would refuse to sell his interest in the property to a member of the family. Ultimately, Davis sold his interest in the property to SOTJ, LLC in two separate payments. Shortly after the last payment was made, Davis received two AIX lease royalty checks totaling |2$29,436.00 in the mail. Davis claims that the royalty payments were his first notice of the AIX lease and that his undivided interest in the property contained natural gas.

Davis filed suit against his four siblings, Scully, and Prescott in Claiborne Parish claiming that they acted fraudulently against him and that had he known of the AIX lease he would not have sold his interest in the property for so little money. Davis also claimed that Prescott breached his fiduciary duty as an executor by granting a mineral lease without first obtaining Davis’s permission. The trial court dismissed the claims against Davis’s four siblings on an exception of no cause of action. After a trial, the trial court dismissed all claims against Scully and found Prescott liable for $69,436.00 for failing to obtain consent from all legatees prior to granting a mineral lease on the property greater than one year. Subsequently, the court signed an amended judgment correcting a clerical error and changing the damages award to $40,000.00. This appeal by Prescott and answer by Davis followed.

DISCUSSION

As his first assignment of error, Prescott argues that the trial court erred by holding that La. C.C.P. art. 3226 requires a succession representative to obtain a legatee’s consent prior to entering a mineral lease on succession property for greater than one year. Specifically, Prescott claims that the first paragraph of La. C.C.P. art. 3226, which the trial court relied upon, does not apply to the granting of mineral leases. Instead, he argues, the second and third paragraphs of La. C.C.P. art. 3226, added by |sActs 1974, No. 131, § 1, govern the treatment of mineral leases and that nowhere in these substituted paragraphs, which are specific to mineral leases, is there a requirement for consent of the heirs or legatees. We agree.

Louisiana C.C.P. art. 3226, which governs the lease of succession property states:

When it appears to the best interest of the succession, the court may authorize a succession representative to grant a lease upon succession property after compliance with Article 3229. No lease may be granted for more than one year, except with the consent of the heirs and interested legatees.
The court may also authorize the granting of mineral leases on succession property after compliance with Article 3229. The leases may be for a period greater than one year as may appear reasonable to the court. A copy of the proposed lease contract shall be attached to the application for the granting of a mineral lease, and the court may require alterations as it deems proper.
The order of the court shall state the minimum bonus, if any, to be received by the executor or administrator of the estate under the lease and the minimum royalty to be reserved to the estate, which in no event shall be less than one-eighth royalty on the oil and such other terms as the court may embody in its order. (Emphasis added).

Prior to that, the power of a succession representative to grant a mineral lease upon succession property was originally codified in La. R.S. 9:1491 by Act 129 of 1936. The law as it then stood required an executor, administrator, heir, or creditor to petition the court for an order to lease the mineral rights of succession property and to provide notice by publication in a newspaper 10 days prior to the date of the hearing. See George A. Wilson, Recent Developments In Louisiana Oil and Gas Laws, 11 Tulane L.Rev. 553, 557 (1936-1937). Act 110 of 1948 amended La. R.S. 9:1491 and provided that only an administrator or executor may apply for court | .authorization to lease the mineral rights of succession property. However, the law still required court authorization and notice by publication to interested heirs. See Leonard Oppenheim, One Hundred Fifty Years of Succession Law, 33 Tulane L.Rev. 43, 55 (1958-1959). Finally, Acts 1974, No. 131, § 1 replaced the second paragraph of La. C.C.P. art. 3226 which then stated, “This article does not apply to the granting of mineral leases” with the language of La. R.S. 9:1491.

Louisiana adopted the concept of an independent executor through enactment of La. C.C.P. art. 3396.15, which states:

Except as expressly provided otherwise in this Chapter, an independent administrator shall have all the rights, powers, authorities, privileges, and duties of a succession representative provided in Chapters 4 through 12 of this Title, but without the necessity of delay for objection, or application to, or any action in or by, the court.

The intent behind the creation of independent executorship was to allow the succession representative to perform its duties without having to apply to the court or to obtain court approval, thereby reducing the amount of time and money required to administer the estate. See La. C.C.P. art. 3396.15, Comment (e).

Here, the record reflects that the trial court erred by relying upon the first paragraph of La. C.C.P. art. 3226 to the exclusion of the second paragraph which specifically pertains to the leasing of mineral rights. First, the language in the second paragraph of La. C.C.P. art. 3226 stating “The court may also authorize the granting of mineral leases on succession property after compliance with Article 3229. The leases may be for a period of greater than one year as may appear reasonable to the court,” indicates | legislative intent to treat mineral leases differently than surface leases. Had the legislature intended the requirement of obtaining an heir’s consent to apply to mineral leases, there would be no need for this additional verbiage in the second paragraph. Second, the history of the law pertaining to a succession representative’s authority to lease mineral rights indicates that the legislature never intended the requirement for legatee consent, contained within the first paragraph of La. C.C.P. art. 3226, to apply to a succession representative’s authority to grant mineral leases on succession property. Prior to the 1974 amendment, the language of La. C.C.P. art. 3226 specifically stated that it did not apply to the granting of mineral leases. Furthermore, the only requirements to granting a mineral lease on succession property have been court approval and a publication notifying interested parties. The consent of interested legatees or heirs has never been required in order to grant mineral leases on succession property and the present language of La. C.C.P. art. 3226 does nothing to alter these longstanding requirements. On the contrary, the present language serves to perpetuate them. As an independent executor, Prescott was not required to request permission from the court prior to granting the AIX lease, as La. C.C.P. 3396.15 absolves the independent executor from the requirement of seeking court approval. Moreover, Prescott did not breach a fiduciary duty by granting the AIX lease without first obtaining Davis’s consent. Our finding on this issue pretermits any discussion of Prescott’s remaining assignments of error, and the assignment of error raised by Davis in his answer to appeal.

| .CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court in favor of Elmer E. Prescott III. Costs of this appeal are assessed to Steven M. Davis.

REVERSED.