author: GUIDRY, J. KUHN, J.,

text:
    EXXONMOBIL PIPELINE COMPANY v. UNION PACIFIC RAILROAD COMPANY.
    No. 2008 CA 2347.
    Court of Appeal of Louisiana, First Circuit.
    May 13, 2009.
    Rehearing Denied June 15, 2009.

      Gary A. Bezet, Robert E. Dille, Gregory M. Anding, Carol L. Galloway, Mark A. Marionneaux, Baton Rouge, LA, for Plaintiff/Appellant, ExxonMobil Pipeline Company.
    Kimberly R. LaHaye, Michael D. Hunt, H. Alston Johnson, III, Jane A. Robert, and Clifton J. Ivey, Jr., Baton Rouge, LA, for Defendant/Appellee, Union Pacific Railroad Company.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   GUIDRY, J.

|2ExxonMobil Pipeline Company (Exxon-Mobil) appeals from a trial court judgment dismissing its petition for expropriation of land owned by Union Pacific Railroad Company (Union Pacific). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

ExxonMobil is a common carrier pipeline company and in 1979, constructed an eight inch ethylene pipeline in Plaquemine, Louisiana servicing the Georgia Gulf Chemicals and Vinyls facility. In 2007, ExxonMobil constructed an additional eight inch ethylene pipeline, which ties in to the existing pipeline at a valve site located approximately one thousand feet east of Highway 1 in Plaquemine and runs east to the Shinteh polyvinyl chloride facility located on Highway 105. The new pipeline does not cross, but runs parallel to, property owned by Union Pacific.

ExxonMobil approached Union Pacific about acquiring access across Union Pacific’s property in order to reach ExxonMo-bil’s valve site for maintenance and inspections. When ExxonMobil’s request was denied, ExxonMobil filed a petition for expropriation, asserting that in order to maintain and inspect the pipeline servicing Shintech, it needed a right-of-way and access road servitude across land owned by Union Pacific to access the valve site and pipeline. Following a bench trial, the trial court signed a judgment in favor Union Pacific and against ExxonMobil, dismissing all of ExxonMobil’s claims with prejudice. ExxonMobil now appeals from this judgment.

1 .DISCUSSION

Expropriation of private property for public purposes is addressed in Article I, Section 4 of the Louisiana Constitution of 1974, which provides in pertinent part:

Property shall not be taken or damaged by a private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question.

In addition, La. R.S. 45:254 provides, in pertinent part:

All persons included in the definition of common carrier pipe lines as set forth in R.S. 45:251 have the right of expropriation with authority to expropriate private property under the state expropriation laws for use in its common earlier pipe line business, and have the right to lay, maintain and operate pipe lines, together with telegraph and telephone lines necessary and incident to the operation of these pipe lines, over private property thus expropriated, and have the further right to lay, maintain and operate pipe lines along, across, over and under any navigable stream or public highway, street, bridge or other public place, and also have the authority, under the right of expropriation herein conferred, to cross railroads, street railways, and other common carrier pipe lines by expropriating property necessary for the crossing under the expropriation laws of this state.

Expropriation laws are special and exceptional in character, in derogation of common rights, and as such, must be strictly construed. United Gas Pipe Line Company v. Blanchard, 149 So.2d 615 (La.App. 1st Cir.), writ denied, 149 So.2d 615 (1963).

As a common carrier, ExxonMobil has the right to expropriate private property for use in its common carrier pipeline business, but in order to exercise that right, must demonstrate that the expropriation is for a public and necessary purpose. See Louisiana Resources Company v. Greene, 406 So.2d 1360, 1362-1363 (La.App. 4th Cir.), writ denied, 412 So.2d 84 (La.1982).

| ,[In determining whether a proposed expropriation is for a public purpose, the courts look to the extent of the public’s right to its use rather than the number of persons actually using the property at any given time. Texas Pipe Line Company v. Stein, 190 So.2d 244, 252 (La.App. 4th Cir.1966), rev’d on other grounds, 250 La. 1104, 202 So.2d 266 (1967). Further, there must be a general public right to a definite use of the property, as distinguished from a use by a private individual or corporation which may prove beneficial or profitable to some portion of the public. Terrebonne Parish Police Jury v. Kelly, 472 So.2d 229, 232 (La.App. 1st Cir.1985) (citing River & Rail Terminals v. Louisiana Railway & Navigation Company, 171 La. 223, 130 So. 337, 340 (La.1930)). However, actual use by the public is not the criteria by which public purpose is determined. Texas Pipe Line Company, 190 So.2d at 250.

Additionally, article I, section 4, requires that a private entity demonstrate a necessary purpose. “Necessary” refers to the necessity of the purpose of the expropriation as opposed to the necessity for a specific location. Claiborne Electric Cooperative, Inc. v. Garrett, 357 So.2d 1251, 1255 (La.App. 2nd Cir.3/27/78), writ denied, 359 So.2d 1306 (La.1978).

It is the responsibility of the courts to determine, based on the particular facts presented, whether a taking is for a necessary and public purpose, and a trial court’s determination on this issue should not be reversed on appeal absent manifest error. See Terrebonne Parish Police Jury, 472 So.2d at 231; Coleman v. Chevron Pipe Line Company, 94-1773, p. (La.App. 4th Cir.4/24/96), 673 So.2d 291, 296, writ denied, 96-1784 (La.11/1/96), 681 So.2d 1259; Town of Vidalia v. Unopened Succession of Ruffin, 95-580, p. 6 (La.App. 3rd Cir.10/4/95), 663 So.2d 315, 319; and Calcasieu-Cameron Hospital Service Distinct v. Fontenot, 628 So.2d 75, 78 (La.App. 3rd Cir.1993), writ denied, 94-0168 (La.1994), 634 So.2d 854.

| sIn the instant case, ExxonMobil seeks to expropriate a right of way to build an access road solely to enable it to access its pipeline to perform routine maintenance and inspections. ExxonMobil asserts that the pipeline serves a public purpose and that the access road is necessary to maintain that public purpose. However, the record is devoid of any evidence that the right of way and proposed access road itself will serve a public purpose. In fact, the evidence presented at trial suggests that the portion of the access road crossing Union Pacific’s property will be a private crossing, with a locked gate that will only be accessible by ExxonMobil. Further, according to the record, the access road will only be used by ExxonMobil to access its pipeline at the valve site to perform routine maintenance and inspections. None of this evidence demonstrates, however, that the public has a general right to a definite use of the property.

ExxonMobil relies on two supreme court cases for the proposition that an access road itself serves a public purpose. However, we find these highway quick-taking cases to be inapplicable. First, in State v. Jeanerette Lumber & Shingle Company, 350 So.2d 847 (La.1977), the Louisiana Department of Highways sought to expropriate a permanent 400 foot servitude, including a 100 foot access canal. The supreme court examined whether the Department of Highways established that the taking of the 400 foot servitude, particularly the 100 foot wide access canal, was for a highway purpose, as the case involved the highway quick-taking statute. As noted by the supreme court, a highway purpose is distinct from, and unconnected to the more general notion of public purpose. See Jeanerette, 350 So.2d at 855. Ultimately, the supreme court determined that the Department of Highways failed to establish that the servitude was sought for a highway purpose, as the access canal and surrounding property was primarily used to provide the public with access to the Atchafalaya Swamp for recreational purposes.

|fiIn addition, in Red River Waterway Commission v. Fredericks, 566 So.2d 79 (La.1990), the Red River Waterway Commission sought to expropriate a strip of land in order to acquire a route for building a permanent access road to Lock and Dam Number 3. Again, the supreme court examined the highway quick-taking statute, but his time, only addressed whether the Red River Waterway Commission acted arbitrarily, capriciously, or in bad faith in determining the necessity of the taking. The supreme court specifically did not address whether the taking was for a public purpose. As such, we find these two cases to deal with issues inapposite to those currently before this Court.

Finally, ExxonMobil asserts that the right of way and access road are required to ensure the safe operation of the pipeline and to ensure the safety of the residents of that area. Generally, a public purpose is found when the purpose is to promote the public health, safety, and morals of the residents or inhabitants of a state or political subdivision. See Terrebonne Parish Police Jury, 472 So.2d at 231-232 (citing State ex rel. Porterie v. Housing Authority of New Orleans, 190 La. 710, 182 So. 725 (La.1938)). However, the cases in which such a public purpose has been found involved the state or political subdivision expropriating land, where the land itself was needed to protect the safety of the public. See Terrebonne Parish Police Jury, 472 So.2d at 232 (the Police Jury sought to expropriate a right of way to drain a subdivision and to receive effluent overflow from a sewerage oxidation pond in which sewerage is pumped from the subdivision, without which, raw sewerage would be pumped on to the subdivision residents property, exposing residents to health hazards); see also State ex re. Porterie, 182 So. at 745-746 (the supreme court upheld the constitutionality of the Slum Clearance or Housing Authority Act, which provided for expropriation by the New Orleans Housing Authority of property located in the slums to erect new buildings and provide housing to low-income residents.)

|7In the instant case, the land sought to be expropriated by ExxonMobil would not itself be used to protect the safety of the public, but rather, would only be used by ExxonMobil to access its pipeline and right of way to perform statutorily required maintenance and inspections. See 49 C.F.R. § 195.412; 49 C.F.R. § 195.420; 49 C.F.R. § 195.452. Accordingly, we find no error in the trial court’s determination that ExxonMobil failed to establish a public and necessary purpose for the expropriation of the right of way and access road servitude across property owned by Union Pacific.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are to be borne by the appellant, ExxonMobil Pipeline Company.

AFFIRMED.

KUHN, J., dissents & assigns reasons.

KUHN, J.,

dissenting.

1 í Subsection B(4) of Louisiana Constitution Article 1, Section 4 provides, “Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose....”

ExxonMobil Pipeline Company does not have to prove that the public will directly use an access road in order to establish a public purpose. ExxonMobil has established a public purpose; ie., that it needs access to its ethylene pipeline to perform inspections and maintenance of the valve site to ensure the integrity and safe operation of the pipeline and the safety of the public. Such maintenance is required as addressed in 49 C.F.R. 195.452. The access road is needed to perform these statutorily-required inspections.

ExxonMobil does not have to establish a greater public interest than Union Pacific Railroad Company because it has been expressly granted the right to traverse railroads pursuant to La. R.S. 45:254, which provides:

All persons included in the definition of common carrier pipe lines as set forth in R.S. 45:251 have the right of expropriation with authority to expropriate private property under the state expropriation laws for use in its common carrier pipe line business, and have the right to lay, maintain and operate pipe lines, together with telegraph and telephone lines necessary and incident to the operation of these pipe lines, over private property thus expropriated, and have the further right to lay, maintain and operate pipe lines along, across over and under any navigable stream or public highway, street, bridge or other public place, and also have the authority under light of expropriation herein conferred, to cross railroads, street railways, and 12other common carrier pipe lines by expropriating property necessary for the crossing under the expropriation laios of this state.
Emphasis added.

The reference to the right to cross railroads is not expressly limited to the right to lay pipelines that cross railroads; the language is broad enough to encompass the right of passage or access across a railroad. Further, ExxonMobil’s proposed use of the property at issue does not interfere in any significant way with Union Pacific’s operations and continued use of the property.

Union Pacific also asserts that because ExxonMobil has access to the pipeline by an alternative route, its access across the Union Pacific property is not necessary. However, the term “necessary” in the context of an expropriation proceeding refers to the necessity of purpose for the expropriation, not the necessity of a specific location. Calcasieu-Cameron Hosp. Service Dist. v. Fontenot, 628 So.2d 75, 78 (La.App. 2d Cir.1993), writ denied, 94-0168 (La.3/18/94), 634 So.2d 854. An expropriating authority enjoys a presumption that the route chosen is the best and most feasible. Texas Eastern Transmission Corp. v. Bowie Lumber Co., 176 So.2d 735, 740. Further, Union Pacific has not established that ExxonMobil is guilty of fraudulent practices, bad faith, or conduct or practices amounting to an abuse of the privilege of expropriation. Id. at 739-49.

Here, the record also shows the trial court did not give adequate consideration to the evidence addressing ExxonMobil’s safety considerations regarding the location of the access road. ExxonMobil presented testimony addressing the potential risk of harm to the public that could be caused by constructing an access road on top of and parallel to the pipeline on its existing servitude. Thus, ExxonMobil has demonstrated the necessity of its proposed expropriation as well as a public purpose.

      . At the time the pipeline was constructed, Georgia Gulf was known as Georgia-Pacific Corporation.

      . Louisiana Revised Statute 45:251(1) defines a "common carrier'' as including all persons engaged in the transportation of petroleum as public utilities and common carriers for hire; or which on proper showing may be legally held a common carrier from the nature of the business conducted, or from the manner in which such business is carried on. ExxonMo-bil and Union Pacific stipulated prior to trial that ExxonMobil is a common carrier.

      . On appeal, ExxonMobil asserts that the trial court committed legal error. However, from our review of the record, we do not find such legal error. During the trial, and in its reasons for judgment, the trial court discussed the public's right to use the property sought to be expropriated and cited Texas Pipe Line Company v. Stein, 190 So.2d 244 (La.App. 4th Cir.1966). Though other circuit courts of appeal have adopted a more expansive definition of public purpose, recognizing a purpose that will benefit the public interest, this circuit has followed the more restrictive definition of the public's right to use as articulated in Terrebonne Parish Police Jury v. Kelly, 472 So.2d 229, (La.App. 1st Cir.1985). Accordingly, we find no error in the trial court’s application of the right to use standard, particularly given that the proposed expropriation is sought by a private entity.
      Further, having found no error in the trial court’s determination that ExxonMobil failed to establish a public purpose for the expropriation, we pretermit discussion of whether ExxonMobil abused its discretion in selecting the route to access its valve site.


source: Caselaw Access Project

author: GUIDRY, J.

license: Public Domain

text:
    Succession of Gladys M. BURNS v. Tasia Stavros Burns CLUTTER, Gerald Louis Burns and Melba Donaldson Burns.
    No. 2008 CA 2082.
    Court of Appeal of Louisiana, First Circuit.
    May 13, 2009.
    Rehearing Denied June 15, 2009.

      Robert H. Harrison, Jr., Watson, LA, for Plaintiff-Appellant, Alma Burns, in her capacity as executrix of the Succession of Gladys M. Burns.
    Eric Oliver Person, New Orleans, LA, for Defendants-Appellees, Gerald Louis Burns and Melba Burns.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   GUIDRY, J.

|2A succession representative appeals a judgment denying the succession’s claim to a certain parcel of land based on the representative’s attempt to exercise a right of first refusal granted to the decedent. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

According to the petition, an act of cash sale was executed on November 25, 1977, wherein Gladys M. Burns and Patrie W. Burns sold a 30-acre tract of land in Livingston Parish to Mervyn Burns and Tasia Stavros Burns, but reserved a right of first refusal to repurchase the property from Mervyn and Tasia, under the same terms and conditions by which the property was conveyed, in the event Mervyn and Tasia wished to sell the property. On June 28, 1995, Tasia, who had inherited Mervyn’s interest in the property upon his death, agreed to sell the property to Gerald Louis Burns and Melba Donaldson Burns for $15,000, pursuant to a bond for deed contract.

On October 25, 2007, Alma Burns, as executrix of the Succession of Gladys M. Burns, filed a “Petition to Enforce Right of First Refusal,” seeking to have the bond for deed contract rescinded and seeking recognition of her right, as succession representative, to repurchase the property on behalf of the succession. Gerald and Melba, who were named as defendants in the petition, peremptorily excepted to the petition on the grounds of prescription, no cause of action, and no right of action. Following a hearing, the trial court rendered judgment sustaining the exception in part as to the objections of prescription and no cause of action, but denied the exception in part as to the objection of no right of action, and dismissed the proceedings without prejudice. Following judgment, the trial court granted | sAlma, in her capacity as executrix, a devolutive appeal.

DISCUSSION

By this appeal, Alma contends that the trial court erroneously sustained the peremptory exception on the grounds of prescription and no cause of action. The petition in this matter is premised on Alma’s claim that the decedent had reserved a right of first refusal to reclaim certain property sold to Tasia and her deceased spouse, Mervyn. The exact language regarding the right of first refusal, as recited in the 1977 contract wherein the property at issue was conveyed to Tasia and Mer-vyn, is as follows:

During the next thirty years from the date of this conveyance, the Vendor reserves one-half of the timber rights in and to the described property.and this conveyance is made on the condition that the above described property cannot be sold, mortgaged, leased, rented or used by anyone other than the Vendee without the prior consent of the Vendor and in the event [the] Vendee desires to sell the above described property, Vendor shall have the first right to purchase said property for the amount of the consideration being paid herewith.

Alma filed a petition seeking to enforce the right of refusal provided in the 1977 contract, contending that Tasia breached the foregoing contractual provision when she executed the bond for deed granting Gerald and Melba the conditional right to purchase the property.

The tidal court found that Alma’s claim was prescribed, applying La. C.C. art. 2568, and it further found that Alma had no cause of action as a consequence of having found that the claim was prescribed. We agree with Alma’s assertion that the trial court erred in retroactively applying La. C.C. art. 2568 to this matter.

First, we observe that La. C.C. art. 2568 refers to the time limitation for exercising a right of redemption, whereas the more specific provision governing the right of first refusal is found in La. C.C. art. 2628, which article is entitled “Time limitation for option and right of first refusal.” Notably, both codal provisions were enacted pursuant 1993 La. Acts, No. 841, § 1, and made effective |4January 1, 1995. Because the codal articles produced the substantive change of placing a time limitation (prescriptive period) on the exercise of rights, the provisions of the articles are not subject to retroactive application. See Gorum v. Optimist Club of Glenmora, 99-1963, pp. 5-6 (La.App. 3d Cir.8/30/00), 771 So.2d 690, 694, writ denied, 00-2740 (La.11/27/00), 775 So.2d 451.

Nevertheless, we find that the objections of prescription and no cause of action raised in Gerald and Melba’s peremptory exception were properly sustained in this case. The right of first refusal granted in the 1977 contract did not provide for an express or definite term; rather, the term stipulated for the exercise of the rights granted under the contract was whenever it became necessary to prevent the title from passing to someone else. See Crawford v. Deshotels, 359 So.2d 118, 122 (La.1978). The express language of the contract provides that “in the event Vendee desires to sell the above described property, Vendor shall have the first right to purchase said property for the amount of the consideration being paid herewith.” (Emphasis added.)

According to the petition in this matter, on June 28, 1995, Tasia entered into a bond for deed contract with Gerald and Melba, which contract was recorded. Although the bond for deed contract did not result in the immediate transfer of ownership or title, it nevertheless was sufficient to indicate a “desire” by Tasia to sell the property, as a bond for deed contract is defined as “a contract to sell real property, in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer.” La. R.S. 9:2941. At the time the bond for deed contract |5was executed, both Patrie and Gladys were living, and pursuant to the provision in the 1977 contract, Tasia was obligated to offer the property to Patrie and Gladys prior to executing the bond for deed contract with Gerald and Melba.

Upon the happening of Tasia’s “desire” to sell the property, her failure to offer the property to Patrie and Gladys was a breach of the 1977 contract. While as we previously explained, the prescriptive periods provided in La. C.C. arts. 2568 and 2628 cannot be applied retroactively to this matter, the general prescriptive period applicable to breach of contract claims, La. C.C. art. 3499 (formerly La. C.C. art. 3544), does apply. See Allen v. Carollo, 95-1840, p. 4 (La.App. 1st Cir.4/4/96), 674 So.2d 283, 286. That article provides that a personal action is subject to a liberative prescription of ten years. Accordingly, a claim asserting the right of first refusal granted in the 1977 contract was required to be filed within ten years of the event triggering the running of prescription on the exercise of the right, which was the execution of the bond for deed contract on June 25, 1995. This action to enforce the right of first refusal was not filed until October 25, 2007, more than twelve years after the triggering event. Thus, the finding that the claim is prescribed was proper.

CONCLUSION

Based on the foregoing discussion, we affirm the judgment of the trial court sustaining the peremptory exception on the grounds of prescription and no cause of action and dismissing the claim filed against Gerald and Melba Burns by Alma Burns on behalf of the Succession of Gladys Burns. All costs of this appeal are charged to Alma Burns, as executrix of the Succession of Gladys Burns.

AFFIRMED.

      . Sometime prior to executing the bond for deed contract, Tasia remarried and acquired the last name of Clutter.

      . The provisions of La. C.C. art. 2628 were originally enacted as La. C.C. art. 2627, but later redesignated as La. C.C. art. 2628 pursuant to the statutory revision authority of the Louisiana State Law Institute. See La. C.C. art. 2628 — Historical and Statutory Notes.

      . The petition states that the bond for deed contract "is on file and of record at COB 663, page 115,” but it does not state in what parish. As the immovable property that is the subject of the bond for deed contract is located in Livingston Parish, it is assumed that is the parish of recordation.

      . The record contains documents relative to the probate of Gladys’ succession, and included among the documents is an "Affidavit of Death, Domicile and Heirship,” wherein it is recited that Patrie died on April 27, 1996, and Gladys died on November 3, 2005.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Alda Ann Freitas HOLMES v. Michael Raymond MONTZ.
    No. 09-CA-55.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2009.
    Gregory A. Miller, Attorney at Law, Norco, LA, for Plaintiff/Appellee.
    Robert R. Faucheux, Jr., Attorney at Law, Laplace, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|2On October 10, 2008, defendant-appellant, Michael Raymond Montz, filed a motion for devolutive appeal which was granted by the trial court. After receiving the transcript and record, this Court, in accordance with Rule 2-12.7 of the Uniform Rules -Courts of Appeal, mailed the required notice to defendant-appellant advising him that his appellant brief was due on February 17, 2009. Defendant-appellant did not file his brief by February 17, 2009, nor did he ask this Court for any extension of time. Thereafter, in accordance with Rule 2-8.6 of the Uniform Rules, this Court, by notice dated February 23, 2009, advised defendant-appellant that his appeal would be dismissed as abandoned if he did not file a brief by March 25, 2009. As of March 25, 2009, defendant-appellant had not filed his brief, nor had he asked for any extension of time to file his brief. Rather, defendant-appellant did not file his brief until April 1, 2009, as indicated by the postmark on his filing.

l-iOn April 3, 2009, plaintiff-appellee, Alda Freitas Holmes, filed a motion to dismiss appeal as abandoned based on the untimely filing of the appellant’s brief. On April 6, 2009, this Court issued an order that all parties show cause, by briefs only, on May 4, 2009, why the appeal of Michael Raymond Montz should not be dismissed as abandoned. On April 29, 2009, plaintiff-appellee filed a memorandum in support of the motion to dismiss appeal as abandoned. However, as of this date, defendant-appellant has not filed a brief in accordance with this Court’s April 6, 2009 order.

Rule 2-8.6 of the Uniform Rules-Courts of Appeal provides as follows:

For civil appeals, if an appellant does not file a brief within the time prescribed by Rule 2-12.7 or any extension thereof granted by the court as provided by Rule 2-12.8, a notice shall be mailed by the clerk to counsel for the appellant, or to the appellant if not represented, that the appeal shall be dismissed 30 days thereafter unless a brief is filed in the meantime. If an appellant does not file a brief within 30 days after such notice is mailed, the appeal shall be dismissed as abandoned. Provided, however, that irrespective of the time limit, provided in Rule 2-12.7 for the appellee to file a brief, the appellee’s brief shall be filed within 20 days from the clue date shown on the notice of abandonment.

Considering the foregoing, we hereby dismiss the appeal of Michael Raymond Montz as abandoned.

APPEAL DISMISSED.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    James HENDRICKSON v. William GUILLORY, Latter & Blum Property Management Inc., ABC Insurance Company and XYZ Insurance Company.
    No. 2008-CA-0930.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 2009.
    Berney L. Strauss, Rhett E. King, Strauss & King, APLC, New Orleans, LA, for Plaintiff/Appellant.
    Raymond A. Pelleteri, Jr., Alexander R. Saunders, Pelleteri & Wiedorn, L.L.C., New Orleans, LA, for Defendant/Appellee, William Guillory.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR. and Judge EDWIN A. LOMBARD).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| plaintiff-appellant, James Hendrickson, appeals a summary judgment in favor of one of the defendants, William Guillory, dismissing plaintiffs claims against Guillo-ry at plaintiffs cost.

On Mai'ch 24, 2003, the plaintiff filed a petition for personal injury damages he sustained during a fire in his French Quarter apartment on March 26, 2002. He named as defendants his landlord, Guillo-ry; Latter & Blum Property Management, Inc.; ABC Insurance Company as the liability insurer of William Guillory and/or his property at 912 St. Phillip St.; and XYZ Insurance Company as the liability insurer of Latter & Blum Property Management.

In his First Amended and Supplemental Petition for Damages, the plaintiff named as additional defendants, Dorian M. Bennett, Inc., and its alleged liability insurer, DEF Insurance Company.

Subsequently, Dorian M. Bennett, Inc. filed a Third Party Demand against Certain Underwriters at Lloyds, London as Guillory’s liability insurer.

On September 24, 2007, Guillory filed the motion for summary judgment that is the subject of this appeal, contending that Guillory had no duty to Hendrickson to install smoke detectors or alarms and/or Guillory’s failure to do so |2was not a cause-in-fact of plaintiffs injuries. On April 2, 2008, the trial court granted Guil-lory’s motion for summary judgment and dismissed the plaintiffs suit. The plaintiffs motion for new trial was denied.

Guillory concedes that the “plaintiff in this case was very severely injured.”

Among the exhibits annexed to Guillo-ry’s Motion for Summary Judgment was a copy of the plaintiffs deposition.

According to plaintiffs deposition he was working at the “Howl at the Moon” bar and restaurant on Bourbon Street on the night of March 25, 2002. He testified that,

Typically I would go in around 2:00 o’clock in the afternoon and, depending on business, I would be there until between 3:00 and 6:00 a.m.

His shift did not end until two or three o’clock the morning of March 26. He stopped by a grocery store on his way home to pick up some groceries and a six-pack of beer.

When he arrived at his apartment at 912 St. Phillip Street, which he estimated to be around 3:00 or 4:00 a.m., he proceeded to cook some sausage patties in the oven, checked his e-mail, and remained in his apartment for a while where he took a shower and changed his clothes.

Shortly thereafter, between 10:00 and 11:00 a.m. on the morning of March 25, he went to the Alibi Bar where he drank beer for approximately four hours. He estimated that he left the Alibi Bar and got back home at around 3:00 to 4:00 p.m. the afternoon of March 26. He still had no sleep from the night before. He then fell asleep in an easy chair in front of the T.V. after presumably smoking some cigarettes. The plaintiff has not argued on appeal that the fire was caused by any defect in the premises or with any appliances supplied as part of the leasehold. |sThe plaintiff did note in his opposition to the Motion for Summary Judgment that the origin of the fire was in the back room kitchen area. The only allegation below against the defendant-landlord, Mr. Guillory, is that he failed to provide fire extinguishers and smoke detectors. On appeal, the plaintiff has focused his arguments exclusively on smoke detectors. Plaintiff has not raised the question of fire extinguishers in this appeal. Therefore, we consider the question of fire extinguishers to be abandoned.

Guillory contends that the accident would have occurred irrespective of his allegedly negligent conduct in not providing fire extinguishers or smoke detectors. Therefore, he argues that even if he did have a duty to provide fire extinguishers and smoke detectors, the failure to do so was not a cause-in-fact of the plaintiffs injuries. Guillory states in his brief that:

[T]he plaintiffs condition of severe exhaustion and intoxication points to the conclusion that he would have suffered his alleged injuries irrespective of the absence of fire extinguishers and/or smoke detectors.

This is the type of inference that a fact finder might make after a trial on the merits. However, there is not enough evidence in the record on a motion for summary judgment to warrant the conclusion that just because the plaintiff had been drinking and had not had much sleep, that he necessarily was not in condition to benefit from a smoke detector had one been installed.

We review summary judgments de novo: First, despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. See Independent Five Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 at pp. 16-17 (La.2/29/00), 755 So.2d 226, 286 (noting the court “must draw those inferences from the undisputed | Tacts which are most favorable to the party opposing the motion”); See also Hebert v. St Paul Fire and Marine Ins. Co., 99-0333 (La.App. 4th Cir.2/23/00), 757 So.2d 814.

Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050.

On the basis of a motion for summary judgment, the record does not permit the conclusion that the plaintiff would have been injured regardless of the presence of a smoke alarm. Therefore, if this court is to affirm the judgment below it cannot be on the basis that the plaintiff would have been injured regardless of whether there had been a smoke detector.

Accordingly, the decision of this court must be based on a determination of whether the defendant had a duty to the plaintiff to supply a smoke detector and breached that duty. At the outset there can be no dispute that if the defendant owed such a duty, then the duty was breached as the defendant does not dispute the fact that there was no smoke detector. If such a duty existed then, at the very least, it creates a genuine issue of material fact as to whether the undisputed breach of that duty constituted a cause in fact of the plaintiffs injuries. Thus, this appeal boils down to the question -of whether the defendant owed the plaintiff a duty to furnish a smoke detector. The defendant argues that he had no duty to do so.

The question of whether a duty exists in a particular set of circumstances is a question of law for the court to decide. Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/97), 646 So.2d 318, 322. Summary judgment procedure is well suited to the resolution of questions of law.

Lott v. Lebon, 96-1328 (La.App. 4 Cir. 1/15/97), 687 So.2d 612, provides no guidance to this Court as it was not decided on motion for summary judgment. The same can be said of Lee v. Carwile, 168 So.2d 469 (La.App. 3 Cir.1964). | ¿Additionally, the plaintiff’s case in Candle was based on the violation of certain statutory requirements and there are no such applicable statutory requirements in the instant case. Moreover, in spite of the violation of fire safety regulations, the Carwile court still ruled in favor of the defendant based on a finding that the violation of the fire safety regulations was not the cause of the plaintiffs injuries.

However, we agree with the plaintiff that negligence does not depend solely on violation of statute. Haydel v. Hercules Transport, Inc., 94-0016 (La.App. 1 Cir. 4/7/95), 654 So.2d 408; Corley v. Gene Allen Air Service, 425 So.2d 781, 784 (La.App. 8 Cir.1982). La. C.C. art. 2315 provides a general theory of negligence, along with strict liability (now negligence) under La. C.C. art. 2317.1, and landlord liability under La. C.C. art. 2695.

In South Cent. Bell Tel. Co. v. Sewerage and Water Board of New Orleans, 94-1648 (La.App. 4 Cir. 3/16/95), 652 So.2d 1090, this Court explained that:

In RobeBs v. Benoit, 605 So.2d 1032 (La.1991), the Louisiana Supreme Court held that in order to prevail on a negligence claim under La. C.C. articles 2315 and 2316 a plaintiff must prove 5 separate elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant failed to conform his conduct to the appropriate standard (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) actual damages (the damages element.) To meet the cause-in-fact element, a plaintiff must prove only that the conduct was a necessary antecedent of the accident, that is, but for the defendant’s conduct, the incident probably would not have occurred. The critical test in Louisiana is phrased in terms of the “ease of association” which melds policy and foreseeability into one inquiry: Is the harm which befell the plaintiff easily associated with the type of conduct engaged in by the defendant? The essence of the legal cause inquiry is whether the risk and harm | fiencountered by the plaintiff fall within the scope of protection of the duty.
The scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. Rules of conduct are designed to protect some persons under some circumstances against some risks. The scope of protection inquiry asks whether the enunciated rule extends to or is intended to protect this plaintiff from this type of harm arising in this manner.... In determining the limitation to be placed on liability for defendant’s substandard conduct, the proper inquiry is often how easily the risk of injury to plaintiff can be associated with the duty sought to be enforced. Faucheaux v. Terrebonne Consolidated, Government, 615 So.2d 289, 293-294 (La.1993).

Id. at pp. 3-4, 652 So.2d at 1093-94.

While we cannot say that the plaintiff has totally abandoned his arguments concerning the defendant’s alleged breach of certain alleged statutory duties, he has shifted the emphasis of his arguments on appeal to theories of general negligence, strict liability and landlord liability. He makes only a passing reference to certain statutes in footnote # 9 to his appellate brief. We shall, however, give those statutes our full consideration.

La. R.S. § 40:1581 provides in pertinent part:

A. All single and two family dwellings constructed after Januai’y 1, 1992, shall contain approved smoke detectors.

It is undisputed that the apartment was constructed before January 1, 1992. Therefore, La. R.S. § 40:1581 is inapplicable. La. R.S. § 40:1578.6, effective in January of 1975, requires that newly constructed buildings must comply with fire and safety codes, and reads in pertinent part:

17This Section shall not apply to existing buildings, except as provided for by R.S. 40:1641 et seq., ... unless the fire mar-shall deems that a serious life hazard exists due to a particular condition.

The plaintiff does not contend that the apartment was constructed after the January 1975 effective date of the statute. Nor does the plaintiff contend that the fire marshal made any finding with respect to any “life hazard” at the premises. Therefore, there is nothing in the record that would create a genuine issue of material fact under La. R.S. § 40:1578.6.

The plaintiffs footnote also refers to the New Orleans Municipal Code § 26-246 requirement to furnish a smoke detector, but under New Orleans Municipal Code, § 26-176 that requirement does not apply to premises not constructed, altered or repaired after the effective date of the Code, in this case Ordinance No. 21228, § 2, 9^1-03. The plaintiff does not contend that 912 St. Philip Street was constructed, altered or repaired after the effective date of the Code requirement to furnish smoke detectors.

The fact that the statutory provisions exempt certain classes of properties from their application (the defendant’s property in the instant case being one such property) can be read as an indication that the regulation creates the implication that, absent the existence of some extraordinary set of circumstances which the plaintiff has not demonstrated in the instant case, a policy decision was made that as a matter of law owners of excluded properties would not be considered to be negligent in taking advantage of the exclusion. In the context of the landlord-tenant relationship in older structures to which the smoke detectors statutes and ordinances do not apply, this policy can be viewed from the perspective of the fact [sthat inexpensive smoke detectors are available and that the tenant can purchase one just as easily as can the landlord, especially when we can reasonably assume that the cost will ultimately be passed along to the tenant anyway in the form of rent.

The cases cited by the plaintiff, Potter v. First Federal S & L, 615 So.2d 318, 325-326 (La.1993); Veazey v. Elmwood, Planation Association, 650 So.2d 712 (La.1994); and Viola v. Arlen Realty Corporation, 402 So.2d 232 (La.App. 4 Cir.1981), do not involve any similar or analogous statutory provisions. More particularly, none of those cases involved smoke detectors.

While Mercadel v. Housing Authority of New Orleans, 00-1885 (La.App. 4 Cir. 9/19/01), 803 So.2d 64, is a smoke detector personal injury case, it is totally inapposite to the instant case. In Mercad,el, the landlord, the Housing Authority of New Orleans, assumed the responsibility of supplying and maintaining a smoke detector, but then was found to have been negligent in the maintenance of it, resulting in the tragic deaths of several tenants. Mercadel stands for the proposition that when the landlord assumes the responsibility to furnish a smoke detector and to service it, the landlord owes a duty to the tenant to discharge responsibilities in a non-negligent manner and may be held liable for the failure to do so.

More on point is Pulling ex rel. Pulling v. Desmate, 00-1869 (La.App. 5 Cir. 5/30/01), 788 So.2d 706, a fire death case which provides persuasive support for the trial court decision in the instant case to grant Guülory’s motion for summary judgment. In Pulling, the court reversed the trial court denial of the defendant’s motion for summary judgment, finding among other things that where plaintiff |9failed to overcome the defendant’s evidence that the Jefferson Parish Building Code did not require smoke detectors in a home of the age of the home where the fire occurred, there was no breach of duty in failing to have a smoke detector installed. As the plaintiff in the instant case has failed to show that any statutory requirement obligating Guillory to install a smoke detector, according to the court’s rationale in Pulling, Guillory had no duty to do so.

The plaintiffs unsuccessful motion for new trial below was based entirely on the unreported federal district court case of Bacon v. Travelers Insurance Company, 1995 WL 716772, E.D.La., December 5, 1995, which also happens to be the case his brief relies upon most heavily in this appeal. In Bacon the district court found that the landlord had a duty to provide smoke detectors based on one federal case almost twenty years old applying Mississippi law and another almost thirty years old applying Washington law. In the Mississippi case, Hill v. London, Stetelman, and Kirkwood, Inc., 906 F.2d 204 (5th Cir.(Miss.) 1990), the statutory law required that the property be supplied with a smoke detector which is the direct opposite of the instant case where the defendant’s property fell into the class of specifically exempted properties.

The Washington case cited by the Bacon court, Younger v. U.S., 662 F.2d 580 (9th Cir.1981), involved a particular rule peculiar to the common law of Washington and has no bearing on this Court’s decision here today.

Additionally, the Bacon court (apparently unaware of the Pulling case to the contrary, supra) acknowledged that outside of these two distinguishable foreign cases, it could find no other precedent from any jurisdiction to support its position. Accordingly, in the absence of any precedent of substance to the contrary, we find no basis for overruling the trial court on this issue. Therefore, even viewing all the Imfacts in the light most favorable to the plaintiff, we find as a matter of law that the defendant owed the plaintiff no La. C.C. art. 2315 duty to provide a smoke detector under these circumstances.

The plaintiff also contends that the defendant had a landlord’s duty under La. C.C. art. 2695 to provide a premises free of vices and defects. We find that the absence of a smoke detector is not the type of vice or defect envisioned by La. C.C. art. 2695. In Bacon, supra, the court specifically found that the failure to supply a smoke detector was not a breach of La. C.C. art. 2695. We agree.

In footnote # 12 to his appellate brief, the plaintiff makes reference to La. C.C. art. 2317.1 as also being applicable. However, he cites no authority in support of that position and makes no argument other than the statement that is applicable. We find this argument unpersuasive and mention it only for the sake of completeness.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . Mercadel is silent as to whether HANO rules, regulations or policies require HANO to supply and maintain smoke detectors. All we know is that in Mercadel it assumed the responsibility to do so for whatever reason.


author: STEWART, J.

text:
    Michael J. NEWTON, Plaintiff-Appellee v. Roger BERRY, Defendant-Appellant.
    No. 44,383-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    May 20, 2009.
    Kristy Nicole Holmes, Assistant District Attorney, for Confidential Party, B.N.
    Charles W. Strickland, for Appellant.
    Kammer & Huckabay by: Charles H. Kammer, III, Shreveport, for Appellee.
    Before BROWN, STEWART and LOLLEY, JJ.
   STEWART, J.

liThe defendant, Roger Berry, appeals a judgment granting a protective order against him under the Domestic Abuse Assistance provisions of the Louisiana Children’s Code, Articles 1564-1575. Because the record supports the trial court’s imposition of the protective order, we affirm.

FACTS

On February 5, 2008, the plaintiff, Michael J. Newton, filed a petition for protection from abuse on behalf of his minor daughter, B.N., who was then four years old. As alleged in the petition, B.N. reported that Roger Berry, her stepfather, entered the bathroom and urinated while she and sister, H.L., were bathing and that he had taken off his clothes and gotten into the bed with the girls when their mother was not home. The petition also related that B.N. is afraid of Berry and that he spanks her.

Finding probable cause to believe B.N. to be a child in need of care because of alleged sexual abuse, the juvenile court judge signed a temporary restraining order prohibiting Berry from having contact with B.N. Also, Berry was ordered to show cause why he should not be held in contempt of court for violating a protective order issued on August 22, 2007, prohibiting him from interfering with the communications between B.N.’s parents, Michael Newton and Sheri Berry. An attorney was appointed to represent the minor child.

Protective Order Proceedings

The hearing on the protective order took place on February 29, 2008, and August 22, 2008. Michael Newton testified that he and Sheri Berry share custody of B.N. on a seven-day schedule. While in Newton’s custody |gon February 3, 2008, B.N. told him and his sister that she had seen “a boy pee.” She identified the boy as “Daddy Roger.” She also said that he had gotten into the bed with her while he was naked and tickled her. Newton said that B.N.’s statements came “out of the clear blue.” He denied coaching her. Newton admitted to disliking Berry, wishing him harm, and saying that he is a bad man on many occasions in B.N.’s presence.

Carrie Grohalski, Newton’s sister, was living with him and heard what B.N. said about Berry. When Grohalski asked B.N. where her mother was when Berry did these things, B.N. said that she was either at grandma’s or in the bathroom. Grohal-ski denied that she and Newton initiated the conversation with B.N. about Berry, and she stated that she did not consider B.N. to be a child who makes up stories. Grohalski recalled that B.N. said on nu- ' merous occasions that Berry is mean and spanks her.

Newton’s other sister, Leona “Lonnie” Hammons, testified that B.N. reported similar things to her about Berry while staying with her on February 6 and February 7. B.N. told Hammons that Berry had taken off his clothes, gotten into the bed with her, and tickled her stomach. B.N. said her mother was not home when this happened. Hammons also claimed that B.N. later told her twice that Berry had touched her private area.

Jennifer Flippo, an expert in forensic interviewing, conducted a taped interview with B.N. on February 8, 2008, at the Gingerbread House. Flippo testified that B.N. said that Berry was mean and spanked her with a belt. B.N. also said that Berry had taken off his clothes and gotten into bed with her when her mother was gone and that he had used the bathroom while she |sand her sister were bathing. B.N. told Flippo that her mother knew about these occurrences. The only touching reported by B.N. was that Berry had tickled her stomach.

Flippo found no reason to disbelieve B.N. She was particularly concerned about an adult male taking off his clothes and getting into bed with a child. Flippo described such conduct as part of a “grooming” process by which a potential molester begins with small instances and builds up to more serious behaviors. However, Flip-po admitted that she could not say whether that was Berry’s intention, and she agreed that tickling could simply be playing. Flippo later clarified that B.N. discussed the bed instance and tickling as one episode and explained that the occurrence of the two together presented a wholly different dynamic from what would be considered playing. Though Flippo was not alarmed about the report of Berry entering the bathroom to urinate while B.N. and her sister bathed, we note that the trial coui't disagreed with her opinion on this behavior.

When questioned about the possibility of a parent influencing B.N. to say these things about Berry, Flippo answered that Newton’s negative comments about Berry could to some, extent influence B.N. However, she did not believe that Newton’s negative remarks would have caused a young child like B.N. to fabricate stories of a sexual nature about Berry. Flippo found no indication that B.N. was influenced by her father to make up stories about Berry.

Sheri Berry described B.N.’s relationship with Berry as “wonderful.” She denied knowing about any inappropriate occurrences. Explaining that |4she runs errands during the day while Berry is at work, Sheri insisted that she never leaves the girls alone with Berry. She later clarified that the girls might be left alone with him in one room while she is in another. Sheri also claimed that the B.N. and her sister, H.L., never slept together, but she later said that they occasionally slept together on weekends.

Sheri explained that she was present when the bathroom incident reported by B.N. occurred. According to Sheri, she was washing the gii’ls’ hair in the bathtub when Berry entered to use the bathroom. Because a wall separates the tub from the toilet, only his back was visible to the girls. Sheri testified that the other bathroom in the home was inoperable at the time and that she assumed he had some emergency that prevented him from waiting until the girls were done in the bathroom.

Roger Berry also testified about the great relationship he has with B.N. He stated that she is the first to hug him when he gets home from work and that Sheri sometimes has to hold her back for him to get inside. Berry denied the allegation that he got into bed naked with B.N., and he denied any inappropriate touching. He stated that the girls only sleep together on weekends when they ask him to make a tent or arrange a pallet on the floor. Otherwise, they have to sleep in their own rooms. He asserted that the girls would never even be in a bed together during the day. Like Sheri, he also testified that he is never left alone with the girls, but he later admitted that he had been left alone with them in a room while Sheri was elsewhere in the house.

| .-¡Berry admitted that he did use the bathroom in the girls’ presence. He described the layout of the bathroom and said that only his back would have been visible to B.N. and her sister. It was his belief that the stories told by B.N. about him had been “planted in her head” by Newton.

Rhonda Newton Aaron, Newton’s ex-wife, also testified on behalf of Berry. Rhonda and Newton began living together in July 2007, married on August 4, 2007, and separated in October 2007. She denied that her short relationship with Newton was contentious and indicated that she feels indifferent toward him. Rhonda testified that Newton hated Berry and frequently said in B.N.’s presence that Berry was bad and mean. However, B.N. never seemed scared of Roger Berry and was always ready to return to the Berry home. Rhonda claimed that Newton asked her for assistance in finding a hit man to kill Berry. Specifically, he allegedly asked if her former husband, who rode with the “Ban-didos,” could have Berry “taken care of.” Rhonda also claimed that Newton talked about planting drugs in Berry’s car or home and wanted to have nude photographs of Sheri posted on a website. Rhonda never told the Berrys or the police about Newton’s alleged plots.

Dr. Deborah Brown, an expert in child sexual abuse counseling, testified on behalf of B.N. Dr. Brown had approximately 25 sessions with B.N., beginning in August 2007. It appears from the record that B.N. was referred to counseling after some type of injury occurred, though the record is not clear on the details. According to Dr. Brown, Sheri accompanied B.N. and took over the sessions. Dr. Brown eventually realized that B.N. |(iwas reluctant to talk in her mother’s presence and that Sheri influenced B.N.’s behavior. At one session, B.N. told Dr. Brown that her mother wanted her to say that Berry is nice and that she was not allowed to watch “tv.” in the van if she did not say it. B.N. mainly complained that Berry whipped her.

At a session immediately after B.N.’s interview with Flippo, B.N. told Dr. Brown about Berry getting into bed with her while he was naked. According to Dr. Brown, B.N. entered, began playing with some figures, and then started talking about what Berry had done without being prompted by questioning. Dr. Brown noted that B.N. was with her father that day and that he, unlike Sheri, did not stay with B.N. during the session.

When questioned about the possibility of these incidents being planted in B.N.’s mind, Dr. Brown explained that she would be suspicious if a child came to therapy and immediately began talking about incidents using language a child would not ordinarily use or describing what happened in a rote fashion. While B.N. began talking about what Berry did without being asked anything, Dr. Brown did not believe that B.N. had imagined or fabricated the incident. Dr. Brown testified there was nothing automatic about B.N.’s speech and nothing to indicate that she had been coached by her father. In sum, Dr. Brown believed there was validity to B.N.’s claims about Berry, and she believed that B.N. was very scared of him.

Finally, the children testified in chambers. B.N. said that Berry is mean and that he spanks her. She indicated that she had seen him naked. |7B.N. also said that Berry went “potty” while she and her sister were taking a bath and that he tickled her on the belly when she was in her bed.

H.L., the daughter of Sheri Berry and half-sister of B.N., was eight years old when she testified. She admitted that Berry once used the bathroom while she and B.N. were taking a bath, but she said he had his back to them. She was “absolutely, positively certain” that he had never gotten into bed with them while naked. She also testified that Berry is never alone with B.N., and explained that the girls always follow their mother. She said that she and B.N. sleep in their own beds unless Berry makes a pallet on the floor for them or sets up a tent. She also stated that Berry is nice, that he fixes their dinner plates, that he does not spank them with a belt, and that he tickles them on the feet, neck and underarm area.

When questioned by counsel for Newton, H.L. stated that her mother and Berry went over possible questions and her answers at least three times. She also admitted to having been alone with Berry on some occasions. When the judge asked her more about why her mother and Berry went over her testimony with her, H.L. indicated it was to make sure she did not forget anything or get mixed up. She specifically indicated that they went over questions about the bathroom incident and about whether Berry was ever seen naked.

The record indicates that the trial judge and counsel for the parties also reviewed the DVD recording of Flippo’s forensic interview of B.N. at the Gingerbread House.

IsAfter hearing arguments, the trial judge granted the protective order effective from September 30, 2008. The order prohibits Berry from having any contact with B.N. until February 6, 2021. He was not held in contempt for violating the prior order. Berry’s appeal followed.

DISCUSSION

Berry argues that the trial court improperly considered the Gingerbread House recording and that the evidence was insufficient to support the issuance of the protective order. He also complains that Newton did not establish the requirements for issuance of the protective order by clear and convincing evidence.

The trial court issued the protective order under the Domestic Abuse Assistance provisions of the Louisiana Children’s Code, articles 1564-1575. The issuance of a protective order under these provisions requires proof of the allegations of the petition by a preponderance of the evidence. La. Ch. C. art. 1569(B) and (D); Hendrick v. Hendrick, 42,566 (La.App.2d Cir.8/22/07), 964 So.2d 454. We find no merit to Berry’s argument that Newton had to prove the allegations of the petition for protection from abuse by clear and convincing evidence.

We must now determine whether the issuance of the protective order against Berry was supported by a preponderance of the evidence. Our review focuses on whether the trial court abused its discretion in granting the protective order. Culp v. Culp, 42,239 (La.App. 2d Cir.6/20/07), 960 So.2d 1279, unit not considered, 2007-1836 (La.10/5/07), 964 So.2d 378.

loThe stated purpose of the Domestic Abuse Assistance law is to “provide a civil remedy in the juvenile courts for domestic violence in the homes in which children reside which will afford the victim immediate and easily accessible protection.” La. Ch. C. art. 1564. This law seeks to provide a remedy against domestic abuse, which

includes but is not limited to physical or sexual abuse and any offense against the person as defined in Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950, except negligent injury and defamation, committed by one family or household member against another.

La. Ch. C. art. 1565(1). Stepparents are included as family or household members. La. Ch. C. art. 1565(2).

Berry argues that there was no evidence of physical abuse and that the acts complained of were not shown to be sexual abuse or offenses against the person as required under La. Ch. C. art. 1565, particularly indecent behavior with a juvenile. He contends that B.N.’s stories about him are suspect and uncorroborated. He suggests that B.N. was coached to say these things about him by Newton, who admitted to hating him and who always made derogatory statements about him in B.N.’s' presence.

Having carefully reviewed the testimony presented at trial in light of the Domestic Abuse Assistance provisions, we find no abuse of discretion by the trial court in granting the protective order. We note that domestic abuse is defined expansively as including, but not being limited to, physical and sexual abuse and offenses against the person set forth in Chapter 1 of Title 14 of the Louisiana Revised Statutes. The acts attributed to Berry, particularly that of getting into bed while naked with a young girl, can easily | inbe included under the ambit of domestic abuse. Such behavior appears to constitute grooming, as that term was explained by Jennifer Flippo, and we find nothing in the law that would require the courts to ignore such behavior and leave a child at the mercy of the perpetrator until more harm is done. We reject Berry’s attempts in his brief to equate his conduct with instances where a young child might accidentally come upon a parent in a state of undress, and we find ludicrous his reference to nudists as an excuse for his conduct.

Moreover, we find that Berry’s conduct does appear to constitute indecent behavior with a juvenile, which includes any lewd or lascivious act upon or in the presence of a child done with the intent of arousing or gratifying the sexual desires of either person. La. R.S. 14:81(A)(1). This court has defined “lewd” as lustful, indecent, and signifying a form of immorality relating to sexual impunity carried on in a wanton manner, and “lascivious” as indecent, obscene, and tending to incite lust and to deprave the morals with respect to sexual relations. State v. Sturdivant, 27,680, p. 6 (La.App. 2d Cir.2/28/96), 669 So.2d 654, 658. The act of an adult male disrobing, getting into bed with a young girl, and tickling her stomach cannot be considered anything other than lewd and lascivious behavior intended to arouse or gratify his sexual desires.

As shown by the record, B.N. related this occurrence along with the fact that Berry relieved himself in front of her and her sister while the two girls were in the bathtub to her father, her two aunts, Jennifer Flippo, and Dr. Brown. Her testimony in chambers was substantially the same. Neither |T1 Flippo nor Dr. Brown found any indication that B.N. had fabricated these things or that she had been coached or otherwise influenced by her father. Newton admitted to his great dislike of Berry. However, neither his antagonism toward Berry nor the suspect testimony of Newton’s ex-wife, who was not shown to have any significant contact or relationship with B.N., casts doubt on B.N.’s otherwise consistent telling of what happened to her. In fact, the only evidence of coaching related to the Berrys’ coaching of H.L., who told the court that they went over questions and answers with her to make sure that she was positive and did not get “mixed up.”

We observe that both Berry and Sheri Berry admitted to the bathroom incident. Their admissions establish that B.N. was not lying when she told her father and aunt that she “saw a boy pee” and that it was “Daddy Roger.” The fact that B.N. was truthful about the bathroom incident lends credence to her claim that “Daddy Roger” got into her bed while he was naked and tickled her stomach. We also observe that the Berrys’ credibility was called into question by their insistence that Roger Berry was never alone with the girls. On cross, both Roger and Sheri had to clarify their testimony to admit that he is at times alone in a room with the girls when Sheri is in another room. Moreover, their testimony was contradicted by H.L. who admitted that she and B.N. had stayed home with Roger on some “really short occasions” and that she had accompanied him to work, to the doctor, and to the dump.

Based on our review, we find that the trial testimony establishes the allegations of the petition for protection from abuse by a preponderance of l^the evidence and provides sufficient cause for the trial court’s issuance of the protective order.

Berry also complains that the trial court abused its discretion in reviewing the DVD without it having been properly introduced into evidence. He argues that the protective order should be vacated due to the trial court’s improper consideration of the DVD.

The trial court refers to the DVD in his reasons for judgment. However, appeals are taken from the judgment, not from the reasons for the judgment. Greater New Orleans Expressway Com’n v. Olivier, 2002-2795 (La.11/18/03), 860 So.2d 22. The record shows that the DVD was never actually admitted into evidence. Counsel for B.N. sought to introduce the DVD after the trial court asked whether it had been admitted. Counsel for Berry objected on the grounds that no foundation had been laid for its admission. However, the DVD was a recording of Flippo’s forensic interview with B.N. Flqopo testified that the interview was recorded, and her testimony was based on her interview with B.N. In light of Flippo’s testimony, the admission of the DVD would have been cumulative evidence. The trial court allowed the parties to go view the DVD, and then the trial court viewed it before ruling on the matter. Under these facts, Berry was not prejudiced by the trial court’s consideration of the DVD.

Lastly, the case law cited by Berry does not support his argument. In each case, the basis of the trial court’s judgment was its consideration of matters not admitted into evidence. In Robert S. Robertson, Ltd. v. State Farm Ins. Companies/State Farm Fire and Cas. Companies, 05-435 (La.App.13 5th Cir.1/17/06), 921 So.2d 1088, the tidal court’s ruling on an arbitration award was based on its review of an insurance policy. However, neither the policy nor the applicable provisions were admitted into evidence as required to prove the existence of the policy, its coverage, or exclusions. In State v. Young, 99-1310 (La.App. 1st Cir.4/17/00), 769 So.2d 12, an habitual offender adjudication was improperly based on Boykin transcripts ordered by the trial court after taking the matter under advisement. Finally, in City of Eunice v. CLM Equipment Company, Inc., 505 So.2d 976 (La.App. 3d Cir.1987), the trial court’s judgment finding the defendant liable for sales and use taxes was based on a city ordinance that was not proven in court or made part of the record.

While it appears the DVD was not part of the record, it was also not the sole basis for the trial court’s ruling. The trial court’s ruling was based on and supported by the trial testimony, including that of Flippo and B.N. The DVD was cumulative and not necessary to prove the allegations in this matter in which the trial testimony more than sufficed to support the issuance of the protective order.

CONCLUSION

For the reasons explained, we affirm the trial court’s judgment granting a protective order against the defendant, Roger Berry. Costs of appeal are assessed to the defendant.

AFFIRMED.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Je’Lynn BOYD, Leah Roussel, Judy Breaux, Courtney Doussan and Karen Copeland v. GYNECOLOGIC ASSOCIATES OF JEFFERSON PARISH, INC.
    No. 08-CA-1263.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2009.

      Michael S. Brandner, Jr., Attorney at Law, Metairie, LA, and Bobby J. Delise, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Jerry W. Sullivan, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|2This appeal arises out of a dispute over unpaid wages. For the foregoing reasons, we affirm the judgment of the trial court in part, reverse in part, and render.

LAW AND DISCUSSION

On Friday, May 23, 2003, Je’Lynn Boyd, Leah Roussel, Judy Breaux, Courtney Doussan, and Karen Copeland (the “appel-lees”) were discharged by their employer, the Gynecologic Associates of Jefferson Parish, Inc. (“GAJP”). At that time, GAJP was in the process of dissolving because the physician partners had determined that the business was no longer feasible. According to the appellees, they received their paychecks for the previous payroll period on Friday, May 23, 2003. That payroll period began on Thursday, May 8, 2003, and ended on |3Wednesday, May 21, 2003. The appellees contend that they were not paid for work they performed on Thursday, May 22, 2003, and Friday, May 23, 2003.

On June 2, 2003, the appellees filed a Petition for Damages in the First Parish Court of Jefferson Parish against GAJP. Je’Lynn Boyd and Courtney Doussan contended that they were owed $128.00 for work performed on May 22, 2003, and May 23, 2003. Leah Roussel contended that she was owed $136.00 for work performed on May 22 and May 23. Judy Breaux contended that she was owed $176.00 for work performed on May 22 and May 23. Karen Copeland contended that she was owed $4,696.51 for accrued vacation and sick pay and for work performed on May 22 and May 23.

GAJP filed an Answer to Petition and Reconventional Demand on August 3, 2003. The GAJP denied the facts alleged in the appellees’ Petition for Damages. In its Reconventional Demand, GAJP alleged that Karen Copeland issued two checks during the course her employment that had not previously been approved by GAJP’s board of directors.

On February 7, 2005, the appellees filed a Motion for Summary Judgment. In the memorandum accompanying the Motion, the appellees alleged that GAJP had failed to pay earned wages within three days from the date of discharge in violation of La. R.S. 23:631 and that they were therefore entitled to ninety days penalty wages pursuant to La. R.S. 23:632. The appel-lees also alleged that they were entitled to reasonable attorney fees. GAJP filed an opposition to the Motion for Summary Judgment. In the memorandum accompanying the motion, GAJP alleged that the appellees had voluntarily terminated their employment with GAJP on May 23, 2003. GAJP contended that the appellees were not entitled to penalty wages pursuant to La. R.S. 23:632 because they had not established that “demand for payment was made at the place he was usually paid.” Moreover, GAJP |,,contended that Karen Copeland was not entitled to accrued vacation and sick pay. The Motion for Summary Judgment was denied on July 19, 2006.

Trial commenced in this matter on May 10, 2007. Dr. James Bohm, Dr. Janos Varos, Dr. Michael Graham, Bonnie Schilling, Donna Varos, and each of the appel-lees testified. After trial concluded, the trial judge took the matter under advisement.

Judgment was rendered on July 24, 2007. The trial judge awarded Je’Lynn Boyd $128.00 in past due wages and $5,760.00 in statutory penalties. The trial judge awarded Leah Roussel $144.00 in past due wages and $6,480.00 in penalties. The trial judge awarded Judy Breaux $176.00 in past due wages and $7,920.00 in penalties. The trial judge awarded Karen Copeland $274.48 in past due wages and $12,441.60 in penalties. The trial court also awarded Karen Copeland $6,953.30 in accrued sick and vacation time and $625,770.00 in penalties on said accrued benefits. This timely appeal followed.

GAJP assigns two errors to the proceedings below. First, GAJP contends that the trial court erred in awarding the appellees back pay because they had already been paid for services rendered on May 22, 2003, and May 23, 2003. Second, GAJP contends that the trial court erred in awarding the appellees penalty wages.

FIRST ASSIGNMENT OF ERROR

In its first assignment of error, GAJP alleges that the court erred in awarding the appellees back pay because they had already been paid for services rendered on May 22, 2003, and May 23, 2003. GAJP alleges that it presented “uncontradicted testimony” that the former president of GAJP paid the appellees for past due wages, thus, an award of back pay was not warranted.

1 .-,GAJP relies heavily on the testimony of Dr. Michael Graham, its president until May 7, 2003. At trial, Dr. Graham was asked if he had “help[ed] any of [his] clients financially,” to which he replied, “I advanced [the appellees] the money.”

La. R.S. 23:631 requires an employer to pay “the amount then due” under the terms of employment upon the discharge or termination of an employee. It provides, in pertinent part:

A. (l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.
(b) Upon the resignation of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday for the pay cycle during which the employee was working at the time of separation or no later than fifteen days following the date of resignation, whichever occurs first.
(emphasis added)

The “person employing such laborer or other employee” is the employer. See, e.g., Beaty v. Colgrove Const. Co., 420 So.2d 1271, 1272 (La.App. 3 Cir.1982). In the instant case, Dr. Graham was not the appellees’ employer at the time he advanced the appellees money; Dr. Graham resigned from GAJP on May 7, 2003 to start a new obstetrics practice but did not make the money advance until June. GAJP cannot rely on payments made by Dr. Graham after his resignation to satisfy its statutory duty to pay “the amount then due” under the terms of the appellees’ employment because Dr. Graham was not “the person employing such laborer[s] or other employee[s]” at the time he made such payments.

Moreover, GAJP’s argument ignores the distinction between an “advance” and “wages.” For the purposes of La. R.S. 23:631, “wages” are equivalent to 1, “the amount then due under the terms of employment.” Boudreaux v. Hamilton Medical Group, Inc., 644 So.2d 619 (La.1994); Williams v. Dolgencorp, Inc., 2004-139 (La.App. 3 Cir. 9/29/04), 888 So.2d 260, amended on rehearing, writ denied, 2005-0174 (La.3/24/05), 896 So.2d 1042. Wages are vested rights; any contract by which employees forfeit their wages if discharged before the contract is completed is unlawful. La. R.S. 23:634; Black’s Law Dictionary 1557 (7th ed.1999). An “advance” is an unconditional loan which carries with it the obligation to repay. See, e.g., Alco-Columbia Paper Service, Inc. v. Nash, 273 So.2d 630 (La.App. 4 Cir.1973). After reviewing the record, we conclude that Dr. Graham’s payment to the appellees was an advance rather than payment of wages. He implored the other doctors at GAJP to “pay the girls” and testified that he told the other doctors that the appellees “deserve[d] to get paid.” When GAJP refused, he “advanced” them money. It is clear that Dr. Graham expected GAJP to pay the appellees’ wages and that he advanced several of the appellees money when GAJP rebuffed him personally.

Accordingly, this assignment of error has no merit.

SECOND ASSIGNMENT OF ERROR

In their second assignment of error, GAJP avers that the trial court erred in awarding the appellees statutory penalty wages. More specifically, the appellees argue that the trial court erred in finding that the appellees made proper demand for payment upon it, and that the trial court erred in awarding vacation pay to Karen Copeland.

Penalty Wages

Penalty wages in Louisiana are governed by La. R.S. 23:631 and La. R.S. 23:632. La. R.S. 23:632 provides, in pertinent part:

17Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three clays shall have elapsed from time of making the first demand following discharge or resignation.
(emphasis added)

Thus, to recover statutory penalty wages, an employee must prove that wages were due and owing under La. R.S. 23:631, that a demand for payment was made at the place where the employee was usually paid, and that the employer failed to pay wages due and owing following demand. See, e.g., Jackson v. Housing Authority for Parish of St. James, 05-665 (La.App. 5 Cir. 3/14/06), 926 So.2d 606. These statutes, being penal in nature, must be strictly construed. Jacobs v. Brown Medical Center, 93-675 (La.App. 5 Cir. 1/12/94), 631 So.2d 461, writ denied, 635 So.2d 239, 1994-0373 (La.3/25/94).

In Boudreaux v. Hamilton Medical Group, Inc., 94-0879 (La.10/17/94), 644 So.2d 619, the Louisiana Supreme Court addressed the definition of “wages” for the purposes of the wage penalty statutes. The Boudreaux plaintiff had been involuntarily terminated from his position. The plaintiffs employment contract provided for “a sum of money” to be paid upon involuntary termination, and he argued that said sum constituted “wages” under La. R.S. 23:632. Boudreaux, 644 So.2d at 622. The defendant objected,' contending that the sum of money was a “one time” payment not due until involuntary termination, and was therefore not wages. Id. Siding with the defendant, the Court reasoned:

[T]he inclusion in the statute of the words “whether the employment is by the day, week or month” seems clearly to signify that only amounts due as wages are contemplated. Otherwise these words would be superfluous. If the Isstatute is intended to cover all amounts due by the employer to the employee, regardless of whether they are wages, there is no need for the statute to specify the pay periods of wages.
Since the phrase in La.R.S. 23:631 “any amount then due under the terms of employment” is modified by the phrase “whether the employment is by the hour, day, week, or month” (pay period), it is obvious that “the amount then due under the terms of employment” set forth in La.R.S. 23:631 refers to wages which are earned during a pay period. In other words, “terms of employment” refers to a particular pay period. Therefore, only compensation that is earned during a pay period will be considered wages under the statutes. This interpretation is consistent with the references to “wages” throughout the statutes.
(emphasis added) (citing Stell v. Caylor, 223 So.2d 423, 426 (La.App. 3d Cir.), writ refused, 254 La. 778, 226 So.2d 770 (1969)).

Here, the appellees established that they were not paid two days wages. They introduced checks and pay stubs into evidence indicating that their standard ten-business day pay period began on Thursday and ended on Wednesday. All four appellees established through internal records that they worked on Thursday, May 22, 2003, and Friday, May 23, 2003. They were paid on Friday, May 23 for the previous pay period beginning on Thursday, May 8, 2003, and ending on Wednesday, May 21, 2003. However, the appellees were not paid wages for services performed on May 22 or May 23. Thus, GAJP is subject to the penalty provisions of La. R.S. 23:632 and must pay the ap-pellees “for ninety days wages” at their “daily rate of pay.”

Demand for Payment

GAJP alleges that the appellees did not make a proper “demand for pay-, ment” upon it. We disagree. The appel-lees established through testimony that they asked former GAJP president Dr. Michael Graham to intercede on their behalf, and that he in turn asked the remaining GAJP directors to pay the appellees for labor performed on May 22, 2003, and Friday, May 23, 2003. In addition, the appellees made proper demand for payment by filing suit. GAJP’s assertion that |9the filing of a lawsuit against a former employer for unpaid wages does not constitute demand for payment is wholly without merit. The Louisiana Supreme Court has held that when a “defendant denies liability after suit is filed, technical deficiencies in a pre-suit demand are waived by him and will not defeat the imposition of statutory penalties designed to enforce prompt payment.” Carriere v. Pee Wee’s Equipment Co., 364 So.2d 555, 557 (La.1978). See also Gatte v. Coal Operators Cas. Co., 256 La. 325, 236 So.2d 485 (1970). In the instant case, GAJP denied liability after suit was filed, therefore, it waived any objection to pre-suit demand.

Vacation and Sick Pay

GAJP alleges that the trial court erred when it awarded accrued vacation and sick pay to Karen Copeland. GAJP additionally contends that the trial court erred in applying the penalty provisions of La. R.S. 23:632 to the award of accrued vacation pay. We disagree with the former premise, but agree with the latter.

La. R.S. 23:631(D) provides:

D. (1) For purposes of this Section, vacation pay will be considered an amount then due only if, in accordance with the stated vacation policy of the person employing such laborer or other employee, both of the following apply:
(a) The laborer or other employee is deemed eligible for and has accrued the right to take vacation time with pay.
(b) The laborer or other employee has not taken or been compensated for the vacation time as of the date of the discharge or resignation.
(2) The provisions of this ■ Subsection shall not be interpreted ■ to allow the forfeiture of any vacation pay actually earned by an employee pursuant to the employer’s policy.

Additionally, La. R.S. 23:634 strictly forbids an employer from requiring an employee to, by contract, forfeit wages upon termination. To wit, section La. R.S. 23:634(A) provides:

l1ftA. No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation.

The jurisprudence is clear that accrued vacation benefits are “wages” for the purposes of La. R.S. 23:631 and La. R.S. 23:632. See, e.g., Wyatt v. Avoyelles Parish School Bd., 2001-3180 (La.12/4/02), 831 So.2d 906. In Beard v. Summit Institute of Pulmonary Medicine and Rehabilitation, Inc., 1997-1784 (La.3/4/98), 707 So.2d 1233, 1235 the Louisiana Supreme Court concluded:

When an employer agrees to pay employees for unused vacation time as a condition of their employment, that accrued vacation pay is compensation that is earned during a pay period under Boudreaux. As such, accrued vacation time is an “amount then due under the terms of employment” and constitutes wages under La. R.S. 23:631.

The same is true for accrued sick benefits. At trial, Karen Copeland established that she was owed 402.39 hours of accrued vacation and sick leave. Karen Copeland was therefore entitled to $6,953.30 in accrued vacation and sick leave, which represents 402.39 hours of vacation and sick leave at $17.28 an hour. Thus, we find that the trial court did not en- in awarding $6,953.30 in accrued vacation benefits and sick benefits to Karen Copeland.

However, we find that the trial court erred in applying the penalty provisions of La. R.S. 23:632 to the award of accrued vacation pay and sick pay. As previously mentioned, Karen Copeland is entitled to ninety days penalty wages because she made proper demand on GAJP and GAJP failed to pay wages that were due and owing. The parties stipulated prior to trial that Karen Copeland’s hourly wage was $17.28 and that her daily wage was $138.24. Accordingly, Karen Copeland is entitled to $12,441.60 in statutory penalties, which represents ninety Indays wages at $138.24 per day. She is not entitled to $625,770.00 in penalties on the accrued benefits.

CONCLUSION AND DECREE

For the foregoing reasons, the portion of the trial court’s judgment awarding past due wages and statutory penalties to Je’Lynn Boyd, Leah Roussel, Judy Breaux, and Karen Copeland is affirmed. The portion of the trial court’s judgment awarding $6,953.30 in accrued vacation benefits and sick benefits to Karen Copeland is affirmed. The portion of the trial court’s judgment awarding Karen Copeland $625,770 in penalties on accrued sick and vacation leave is reversed. Judgment is entered in favor of GAJP on that claim. Costs assessed equally to the appellees and GAJP.

AFFIRMED IN PART; REVERSED IN PART; RENDERED.

      . See, e.g., Theriot v. P R Farms, Inc., 527 So.2d 3 (La.App. 3 Cir., 1988) (finding that it was appropriate to split the costs equally between the parties when “the judgment was granted in favor of plaintiffs [but] they did not prevail on all issues.”).