author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Mildred M. BOUGERE, Vicki Bougere Fleming, William R.E. Bougere and Gary Bougere v. NORTHROP GRUMMAN SYSTEMS CORPORATION (Successor to Avondale Shipyards, Inc.) Avondale Shipyards Inc., Kemper Insurance Group, Travelers Insurance Company and Commercial Union Insurance Company.
    No. 12-CA-181.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2012.

      A. Remy Fransen, Jr., Attorney at Law, New Orleans, LA, for Plaintiff/Appellants.
    Samuel M. Rosamond, III, Adam D. de-Mahy, Gary A. Lee, Richard M. Perles, Gordon P. Wilson, A. Ann Cates, David L. Hoskins, Kristopher T. Wilson, Attorneys at Law, New Orleans, LA, Brian C. Bossier, Edwin A. Ellinghausen, Christopher T. Grace, III, Attorneys at Law, Metairie, LA, for Defendant/Appellees.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

| sPlaintiffs appeal the trial court’s judgment granting defendants’ exception of no cause of action dismissing their wrongful death claims pursuant to the immunity extended in La. R.S. 23:1032. For the reasons discussed below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Fernand Fortune Bougere was employed by Avondale Shipyards, Inc. (Avon-dale) from 1945 until his retirement as a welding supervisor in May of 1986. During his employment, Mr. Bougere was exposed to asbestos fibers allegedly causing him to contract mesothelioma, an asbestos-related cancer, from which he died on July 7, 2010.

On July 1, 2011, plaintiffs, Mr. Bougere’s surviving wife and children, filed suit against Kemper Insurance Group, The Travelers Indemnity Company, and Commercial Union Insurance Company, as Avondale’s executive officers’ insurers, asserting both survival and wrongful death claims under La. C.C. art. 2315.1 and 2315.2. In their petition, plaintiffs assert that Avondale’s negligence, directly and through its executive officers, deprived Mr. Bougere of a safe workplace and unnecessarily exposed him to asbestos, ultimately causing his death.

14Pefendants filed an exception of no cause of action as to plaintiffs’ wrongful death claims, asserting that Avondale’s executive officers are granted tort immunity pursuant to the exclusivity provision of La. R.S. 23:1032.

On September 30, 2011, the trial court conducted a hearing and sustained defendants’ exception of no cause of action, dismissing plaintiffs’ wrongful death claims. Because the judgment granting defendants’ exception of no cause of action did not dispose of all claims in litigation, plaintiffs filed a motion to have the judgment designated final pursuant to La. C.C.P. art. 1915(B), which the trial court granted. This timely appeal follows.

DISCUSSION

An exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. Indus. Companies, Inc. v. Durbin, 02-0665 (La.1/28/03), 837 So.2d 1207, 1213. The exception is triable on the face of the petition. To determine the issues raised by the exception each well-pleaded fact in the petition must be accepted as true. Badeaux v. Sw. Computer Bureau, Inc., 05-0612 (La.3/17/06), 929 So.2d 1211, 1217. An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007, 1018 (La.1998). The determination whether an exception of no cause of action is properly granted is a question of law requiring a de novo review. Indus. Companies, Inc. v. Durbin, 02-0665, p. 6 (La.1/28/08), 837 So.2d 1207, 1213.

The Louisiana Worker’s Compensation Act provides that compensation benefits are an employee’s exclusive remedy against his employer for | ¡^unintentional injuries arising out of and in the course and scope of his employment. Bazley v. Tortorich, 397 So.2d 475 (La.1981). Prior to 1976, this tort immunity extended only to an employer. Thus, an injured worker could pursue an action in tort against an employer’s negligent executive officers and their liability insurers. Id. Further, if the injured worker died as a result of an occupational injury, “his survivors could maintain both a survival action for the decedent’s damages as well as a wrongful death action for their own damages against executive officers.” Walls v. Am. Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262, 1265. However, La. R.S. 23:1032 was amended by Act 147, effective October 1, 1976, to further extend tort immunity to any “principal, officer, director, stockholder, partner, or employee of the employer[.]” Walls, 98-0455 (La.9/8/99), 740 So.2d at 1265.

Defendants assert that because plaintiffs’ wrongful death action did not accrue until Mr. Bougere’s death on July 7, 2010, the tort immunity extended to executive officers through the 1976 amendment to La. R.S. 23:1032 applies to this case and bars plaintiffs’ wrongful death claims against defendants. Plaintiffs assert that because decedent was exposed to asbestos and subject to the executive officers’ negligence prior to the 1976 amendment to La. R.S. 23:1032, the pre-1976 law should apply-

In the Walls case, the Louisiana Supreme Court addressed an issue identical to that presented in this case — whether La. R.S. 23:1032 applies to bar a wrongful death action against executive officers when the exposure and alleged negligent conduct occurred before the 1976 amendment to the worker’s compensation act but the employee’s death did not occur until years later. In Walls, the decedentjem-ployee,6 Mr. Walls, worked for Land & Marine Coastal as a sandblaster from 1964 to 1970, where he was exposed to silica dust. On March 17, 1995, Mr. Walls died of silicosis; his survivors filed survival and wrongful death claims against his employer and its executive officers, asserting that Mr. Walls’ silicosis and ultimate death resulted from his occupational exposure to silica dust. One of the employer’s executive officer’s insurers filed an Exception of No Cause of Action, asserting that the 1976 amendment to La. R.S. 23:1032 extends tort immunity to executive officers and thus bars plaintiffs’ wrongful death claims. The plaintiffs in Walls argued that the 1976 amendment could only permissibly extend immunity for negligent acts committed after its effective date, October 1, 1976. Plaintiffs asserted that because the executive officers’ negligent acts occurred during Mr. Walls’ employment between 1964 and 1970, the pre-1976 law applied and permitted a wrongful death action against the executive officers.

In determining which version of La. R.S. 28:1032 to apply to the plaintiffs’ claims, the Court in Walls acknowledged that the issue was complicated “by the allegation that all liability producing conduct was complete six years prior to the effective date of the amendment.” Walls, 98-0455 (La.9/8/99), 740 So.2d at 1268. However, the Court determined that the immunity extended by La. R.S. 23:1032 is an affirmative defense based upon the individual defendant’s “status,” rather than a law evaluating a defendant’s conduct. Id. at 1267. The Court considered the fact that a “wrongful death action is an independent and distinct action that arises even in the absence of a viable personal injury action by the direct tort victim and compensates the beneficiaries for their own individual injury arising out of the victim’s death.” Id. at 1270. The Court found that the plaintiffs’ cause of action for wrongful death did not arise until Mr. Walls’ death in 1995; |7therefore, the Court applied the post-amendment law, extending tort immunity to the executive officers and barring plaintiffs’ wrongful death claims against them and their liability insurers.

An action for wrongful death is authorized by La. C.C. art. 2315.2 and compensates beneficiaries for their own injuries suffered as a result of the victim’s death. The Louisiana Supreme Court has consistently recognized that an action for wrongful death does not and could not arise until the date of the victim’s death. Walls, 98-0455 (La.9/8/99), 740 So.2d at 1269-70; Taylor v. Giddens, 618 So.2d 834, 840 (La.1993); and Guidry v. Theriot, 377 So.2d 319 (La.1979).

We find that plaintiffs’ wrongful death action did not arise until July 7, 2010, the date of Mr. Bougere’s death. We further find that the post-amendment law applies, extending tort immunity to Avondale’s executive officers and barring plaintiffs’ wrongful death claims against defendants.

Plaintiffs contend that recent jurisprudential developments cast doubt on the Louisiana Supreme Court’s 1999 decision in Walls. Plaintiffs argue that the Supreme Court’s subsequent decision in Rando v. Anco Insulations, Inc., 08-1163, 08-1169 (La.5/22/09), 16 So.3d 1065, applies to allow a wrongful death action against defendants. We disagree.

In Rando, the Louisiana Supreme Court granted certiorari to resolve a split among the circuit courts of appeal as to whether mesothelioma is a covered occupational disease under the pre-amendment version of La. R.S. 23:1031.1. The plaintiff-employee in Rando filed suit in tort against his employer for damages resulting from exposure to asbestos. After considering the worker’s compensation act legislative history and interpreting the language of La. R.S. 23:1031.1, the Court found that meso-thelioma is not a covered occupational disease under the pre-amendment version of the worker’s compensation act and thus an employee is not 18barred from bringing an action in tort against his employer for injuries related to asbestos exposure occurring prior to 1976. The plaintiff-employee in Rando filed suit in tort against his employer for damages resulting from exposure to asbestos; Rando does not involve a wrongful death claim. The Louisiana Supreme Court in Rando does not discuss nor call into question its earlier decision in Walls.

Plaintiffs maintain that the Rando holding, which recognizes a cause of action in tort for mesothelioma resulting from asbestos exposure occurring prior to 1976, should also extend to a cause of action in tort for wrongful death claims arising out of such exposure. Plaintiffs contend that a Second Circuit decision, Bozeman v. Union Carbide, 46,425 (La.App. 2 Cir. 6/22/11), 70 So.3d 169, expands the Supreme Court’s holding in Rando to extend to wrongful death claims. In Bozeman, the surviving children of decedent-employee, Mr. Bozeman, filed both wrongful death and survival actions for damages resulting from Mr. Bozeman’s exposure to asbestos and subsequent death from meso-thelioma. The defendant-employer filed an exception of no cause of action as to both the wrongful death and survival actions, which the trial court granted. After the Supreme Court rendered its decision in Rando — holding that an employee is not barred from bringing a tort suit against an employer for damages resulting from asbestos exposure occurring prior to 1976— plaintiffs filed a motion to reconsider the trial court’s previous judgment. The trial court denied the motion to reconsider. On appeal, the Second Circuit found that the trial court judgment granting defendants’ exception of no cause of action was a partial judgment and could thus be amended at any time. The court further found that retroactive application of the Louisiana Supreme Court’s holding in Rando was appropriate and reversed the trial court’s judgment “with respect to the Bozemans’ claim for non-intentional tort.” Bozeman, 46,425, p. 7 (La.App. 2 Cir. 6/22/11), 70 So.3d at 173.

It is unclear whether the Second Circuit in Bozeman reversed the trial court judgment only as to plaintiffs’ survival action or as to both plaintiffs’ wrongful death and survival actions. In its opinion, the Boze-man court stated a distinction between the “wrongful death” claims and the “non-intentional tort” claims asserted by the plaintiffs and specifically tailored its holding to reverse only the trial court judgment “with respect to the Bozemans’ claim for non-intentional tort[.]” However, a wrongful death claim is also a non-intentional tort claim and, thus, it is unclear whether the Second Circuit reversed the trial court judgment as to both the survival and wrongful death actions. To the extent that Bozeman reversed the trial court’s judgment with respect to the plaintiffs’ wrongful death claims, we respectfully disagree with such holding and decline to extend such holding to this case.

The Supreme Court has consistently held the survival and wrongful death actions are separate and distinct claims. The Court has stated:

[Sjurvival and wrongful death actions are separate and distinct. Guidry v. Theriot, 377 So.2d 319 (La.1979). Each right arises at a different time and addresses itself to the recovery of damages for totally different injuries and losses. Id. The survival action comes into existence simultaneously with the existence of the tort and is transmitted to beneficiaries upon the victim’s death and permits recovery only for the damages suffered by the victim from the time of injury to the moment of death. Id. It is in the nature of a succession right. Comment, Wrongful Death: Prescription? Peremption? Confusion! 39 La.L.Rev. 1239, 1249 (1979). On the other hand, the wrongful death action does not arise until the victim dies and it compensates the beneficiaries for their own injuries which they suffer from the moment of the victim’s death and thereafter.
Taylor v. Giddens, 618 So.2d 834, 840 (La.1993).

| mThe cause of action for a wrongful death claim does not arise until the date of death. Accordingly, the holding in Rando — concerning an employee’s cause of action for exposure and injury occurring before 1976 — is inapplicable in this case because plaintiffs’ cause of action for wrongful death did not arise until Mr. Bougere’s death on July 7, 1995.

We find that the Louisiana Supreme Court’s decision in Walls v. American Optical Corp., is determinative of the issue presented in this case. The trial court properly found that tort immunity extended by the 1976 amendment to La. R.S. 23:1032 applies to bar plaintiffs’ wrongful death claims against Avondale’s executive officers. The judgment of the trial court granting defendants’ exception of no cause of action as to plaintiffs’ wrongful death claims is affirmed.

AFFIRMED

      . Plaintiffs also named as defendants Nor-thropp Grumman Systems Corporation (successor to Avondale Shipyards, Inc.) and Avon-dale Shipyards, Inc.

      . Defendants also filed an exception of vagueness and motion to strike, which are not before this Court.

      . In Walls, the Louisiana Supreme Court granted certiorari to determine "whether La. R.S. 23:1032 as amended in 1976, which extends tort immunity to executive officers, bars a wrongful death action against the executive officers and their liability insurers when the decedent's occupational exposures occurred entirely before the statute was amended, but his death from silicosis did not occur until years after the amendment’s effective date.” Walls, 98-0455 (La.9/8/99), 740 So.2d at 1264.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    QUANTUM RESOURCES MANAGEMENT, L.L.C. and Milagro Producing, L.L.C. v. PIRATE LAKE OIL CORP., et al. Quantum Resources Management, L.L.C. and Milagro Producing, L.L.C. v. Pirate Lake Oil Corp., et al.
    Nos. 12-CA-256, 12-CA-338.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2012.
    Rehearing Denied Dec. 13, 2012.

      Joe B. Norman, Katherine S. Roth, Attorneys at Law, New Orleans, LA, Jeffery D. Lieberman, Attorney at Law, Lafayette, LA, for Plaintiff/Appellee-2nd Appellant.
    John F. Shreves, Donald J. Brannan, Megan S. Peterson, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Adrian F. LaPeyronnie, III, Attorney at Law, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

|sIn this concursus proceeding concerning disbursement of revenues from producing oil and gas wells, appellant, Allen Kent Jones (“Mr. Jones”), a defendant-in-con-cursus, appeals a summary judgment that was granted in favor of his daughter, ap-pellee, Jennifer Jones (“Ms. Jones”), also a defendant-in-concursus, which found that Ms. Jones was entitled to the portion of funds which were deposited into the registry of the court below by the concursus plaintiffs, Quantum Resources Management, L.L.C. and Milagro Producing, L.L.C. (“Quantum and Milagro”), attributable to her naked ownership interest in and to certain immovable property located near the Lafitte community of Jefferson Parish, Louisiana. This judgment, given without reasons, also denied Mr. Jones’ cross-motion for summary judgment, wherein he sought the same portion of the deposited funds, but as usufructuary of Ms. Jones’ naked ownership interest in and to the subject property. For the reasons that follow, we reverse both the trial court’s grant of summary judgment in favor of Ms. Jones and the trial court’s denial of summary judgment in favor of Mr. Jones, and accordingly render judgment granting Mr. Jones’ motion for summary judgment, confirming that Mr. |4Jones, as usufructuary, is entitled to the mineral proceeds deposited into the registry of the court in proportion to the naked owners’ interest in and to the subject property.

FACTS AND PROCEDURAL BACKGROUND

On April 29, 2010, Quantum and Milagro filed this concursus proceeding, alleging that they were the owners of several oil, gas, and mineral leases that covered, among other properties, Lots 1-5 in the Third Jefferson Drainage District, in Sections 13 and 24, Township 16 South, Range 28 East, near Lafitte, in Jefferson Parish, Louisiana, locally known as “The Pen” (the “subject property”). Quantum and Milag-ro asserted that they were the unit operator of the CRIS 2 RA SUA Unit (the “Subject Unit”), which the aforementioned lots contributed acreage to, and upon which were situated two producing wells, known as the Mayronne No. 1 Well and the Mayronne No. 2-Alt Well.

Desiring to pay the proper parties the proceeds of production from these wells, Quantum and Milagro instituted this con-cursus proceeding, naming various parties as defendants-in-concursus that Quantum and Milagro had identified from the public records as possibly having ownership interests in and to portions of the property that formed part of the Subject Unit. As part of the concursus proceeding, Quantum and Milagro deposited production proceeds from the producing wells attributable to the disputed property involved in the Subject Unit into the registry of the court. Named as defendants in the concursus proceeding, among others, were Alan Kent Jones, Jennifer Elizabeth Jones, Patrick Kent Lindsay Jones and Jacqueline A.L. Jones.

|sThe salient facts in this case are these. On May 30,1989, Elizabeth Corrine Hand-lin Jones, wife of Allen Kent Jones, and mother of Jennifer, Patrick, and Jacqueline Jones (collectively, the “Jones children”), died testate in the State of Texas. At the time of her death, Louisiana law provided that all children of the deceased, regardless of age, were forced heirs. In her will, Mrs. Jones bequeathed all of her property, both community and separate, to her surviving spouse, appellant Mr. Jones. It is undisputed that the subject Lots 1-5 near Lafitte were Mrs. Jones’ separate property.

On August 27, 1999, Mr. Jones and the Jones children filed, in the 24th Judicial District Court, an action entitled “Ancillary Succession of Elizabeth Corrine Jones,” bearing Docket No. 543-542. On that same day, a Judgment of Possession was rendered in said ancillary succession proceeding, recognizing that the Jones children were Mrs. Jones’ forced heirs as to her Louisiana separate property, and reducing the universal bequest that Mrs. Jones had made to Mr. Jones, since the original bequest to Mr. Jones impinged upon the Jones children’s legitime. The Judgment of Possession further placed Mr. Jones into possession of half of Mrs. Jones’ interest in and to the subject property (the disposable portion) in full ownership, and placed the Jones children into possession of the remaining half of her interest in and to the subject property (the forced portion) as naked owners, subject to a lifetime usu-fruct in favor of Mr. Jones.

|fiOn March 17, 1997, prior to the filing of Mrs. Jones’ ancillary succession proceeding, the State of Louisiana, Office of Conservation, issued Order 1414, effective on February 25, 1997, establishing the Subject Unit which included portions of the subject property. According to the record, the Mayronne No. 1 Well began production sometime in 1996, and the May-ronne No. 2-Alt Well began production sometime in 2000.

Several of the defendants-in-concursus, including Mr. Jones and Ms. Jones, asserted claims in the concursus proceeding to the funds deposited into the registry of the court. In due course, Mr. Jones filed a motion for summary judgment, arguing that under the provisions of the Louisiana Mineral Code, he, as usufructuary, was entitled to the portion of the proceeds deposited into the registry of the court attributable to his children’s naked ownership interests in and to the subject property. Jennifer Jones thereupon filed a cross-motion for summary judgment, taking the contrary position that under the pertinent Mineral Code provisions, the naked owners, not the usufructuary, are entitled to the mineral proceeds in question, arguing that Mr. Jones’ usufruct was created in 1989 at Mrs. Jones’ death, at which time there were no “open mines” on the subject property, production having not begun from the subject property until at least 1997.

After entertaining briefs and conducting a hearing on the motions, the trial court rendered judgment on December 15, 2011 granting Ms. Jones’ motion for summary judgment and denying Mr. Jones’ motion for summary judgment. The trial court did not assign reasons for its judgment. Upon Ms. Jones’ motion, the trial court issued a judgment on February 15, 2012, amending the decretal language of the original judgment to state:

|7IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Jennifer Elizabeth Jones’ Motion for Summary Judgment is GRANTED against Allen Kent Jones and that Jennifer Elizabeth Jones is recognized as the owner of and entitled to the funds deposited in the registry of the court in this concur-sus proceeding in proportion to her naked ownership interest in Lots 1-5 of the Third Jefferson Drainage District, Jefferson Parish, Louisiana.

On appeal, Mr. Jones argues that the trial court erred in finding that his usu-fruct over his deceased wife’s separate property (her interest in and to the subject property) was created at the time of her death in 1989, rather than in 1999 as a result of the Judgment of Possession rendered in her ancillary succession proceeding that reduced the impingement on his children’s legitime. He argues that because his usufruct was created in 1999 after the oil and gas production in question commenced, he is entitled to the usufruct of the mineral proceeds in question pursuant to Article 190(A) of the Mineral Code. Ms. Jones counters that the trial court correctly found that Mr. Jones’ usufruct was created at the time of Mrs. Jones’ death in 1989 before the oil and gas production in question commenced, and he is thus not entitled to the usufruct of the mineral proceeds in question.

Quantum and Milagro have also appealed the judgment under review, arguing that under the Louisiana Mineral Code, all “surviving spouse usufructuaries,” whether legal or conventional, are entitled to the usufruct of mineral proceeds, regardless of whether “open mines” existed at the time of the usufruct’s creation. Mr. Jones notes in his brief that his arguments are moot if this Court accepts Quantum and Milagro’s arguments, which would accord him the relief he seeks.

\ ANALYSIS

Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The procedure is favored and shall be construed to accomplish these ends. Id.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The initial burden of proof is with the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. Id.; Callis v. Jefferson Parish Hosp. Service, Dist. # 1, 07-580, pp. 4-5 (La.App. 5 Cir. 12/27/07), 975 So.2d 641, 643. Whether a particular fact is material can be seen only in light of the substantive law applicable to the case. Hubbard v. Jefferson Parish Parks and Recreation, 10-24, p. 6 (La.App. 5 Cir. 5/25/10), 40 So.3d 1106, 1110.

| ¡/There are no facts at issue in this appeal. The issue posed by the parties to this appeal concerns the interpretation of Articles 190 and 191 of the Louisiana Mineral Code (LSA-R.S. 31:1, et seq.). By way of background, Article 4 of Mineral Code states that the Code is applicable to all forms of minerals, including oil and gas. Further, Article 188 of the Mineral Code states that except as specially provided in Articles 189 through 191 of the Code, the usufruct of land does not include the landowner’s rights in minerals. Articles 189, 190, and 191 of the Mineral Code currently provide as follows, to-wit:

Article 189. Conventional usufruct may include enjoyment of mineral rights
A conventional usufruct, including one created by a donation inter vivos or mortis causa, may by express provision include the use and enjoyment of all or a specified portion of the landowner’s rights in minerals.
Article 190. Usufructuary of land entitled to enjoyment of mines or quarries worked; exception
A. If a usufruct of land is that of parents during marriage, or any other legal usufruct, or if there is no provision including the use and enjoyment of mineral rights in a conventional usufruct, the usufruc-tuary is entitled to the use and enjoyment of the landowner’s rights in minerals as to mines or quarries actually worked at the time the usu-fruct was created.
B. If a usufruct of land is that of a surviving spouse, whether legal or conventional, and there is no contrary provision in the instrument creating the usufruct, the usufructu-ary is entitled to the use and enjoyment of the landowner’s rights in minerals, whether or not mines or quarries were actually worked at the time the usufruct was created. However, the rights to which the usufructuary is thus entitled shall not include the right to execute a mineral lease without the consent of the naked owner.
Article 191. When oil and gas wells and lignite operations considered open mines
| mA. As applied to oil and gas, the principle stated in Article 190 means that if at the time a usufruct is created minerals are being produced from the land or other land unitized therewith, or if there is present on the land or other land unitized therewith, a well shown by surface production test to be capable of producing in paying quantities, the usufructuary is entitled to the use and enjoyment of the landowner’s rights in minerals as to all pools penetrated by the well or wells in question.
B. As applied to lignite or another form of coal, the principle stated in Article 190 means that if at the time a usufruct is created the land has been included in a mining plan, the usufructuary is entitled to the use and enjoyment of the landowner’s rights in minerals as to all seams proposed to be developed in the mining plan provided the following requirements are satisfied:
(1) Lignite or another form of coal has been discovered as a result of acts committed on the land or due to acts providing a reasonable basis of proof of the discovery of the mineral.
(2) A mining plan for the ultimate production of lignite or other forms of coal, together with a permit issued by the responsible government official, is filed in the conveyance records of the parish or parishes in which the land is located.
(3) Actual mining operations have begun on land included in the plan, although such operations need not be conducted on the land subject to the usufruct.

We see that, by its own terms, Article 190 of the Mineral Code, as currently written, divides usufructuaries into two categories. The first category, contained in paragraph (A) of this Article, provides that the usufructuary is entitled to the use and enjoyment of the landowner’s rights in minerals as to mines or quarries actually worked at the time the usufruct was created if the usufruct of land is that of “parents during marriage, or any other legal usufruct, or if there is no provision including the use and enjoyment of mineral rights in a conventional usufruct.” The second category, contained in paragraph (B) of this Article, provides that the usu-fructuary is entitled to the use and enjoyment of the landowner’s rights in minerals, whether or not mines or quarries were actually worked at the time the | uusufruct was created, if the usufruct of land is that of “a surviving spouse, whether legal or conventional, and there is no contrary provision in the instrument creating the usu-fruct.” Prior to its amendment in 1986, this Article did not treat “surviving spouse” usufructuaries separately from other usufructuaries.

Louisiana Civil Code article 544 states: “Usufruct may by established by a juridical act either inter vivos or mortis causa, or by operation of law. The usufruct created by juridical act is called conventional; the usufruct created by operation of law is called legal.” It is clear in this case that Mr. Jones’ usufruct over that portion of his wife’s separate property held in naked ownership by her forced heirs is not a “legal usufruct,” since there is no usufruct that arises by operation of law in Louisiana in favor of a surviving spouse over a deceased spouse’s separate property. Accordingly, La. C.C. art. 890, which addresses the legal usufruct of a surviving spouse over a deceased spouse’s portion of community property, is not applicable to the facts of this case.

Though factually the surviving spouse of his deceased wife, we find that in this case Mr. Jones is not considered a “surviving spouse” usufructuary as that term is used in Article 190(B) of the Mineral Code. He inherited full ownership of his deceased wife’s separate property as a legatee of his deceased wife, not as her surviving spouse. Further, we reject Ms. Jones’ legal position that Mr. Jones’ usu-fruct was established upon her mother’s death; Mrs. Jones’ will bequeathed all of her property to Mr. Jones in full ownership, not as a usufructuary. Mr. Jones’ usufruct is clearly conventional, rather than legal or by operation of law, since it was established by a juridical act, the Judgment of Possession that was rendered in | iaMrs. Jones’ ancillary succession proceeding. In the ancillary succession proceeding filed in 1999, Mrs. Jones’ forced heirs (her children) moved to reduce the excessive mortis causa donation Mrs. Jones made to Mr. Jones, her husband who survived her, pursuant to La. C.C. art. 1503, which was their right, regardless of whether Mrs. Jones’ legatee was her surviving spouse or a third person. A reduction of an excessive donation does not occur by operation of law; it may be brought by the forced heirs as their choice. La. C.C. art. 1504; Estate of Harvey, 678 F.Supp. 1268 (E.D.La.2/11/88). Accordingly, Mr. Jones’ full ownership of the property would not have been reduced to a usufruct of a portion thereof in the absence an action by the forced heirs. Therefore, his usufruct, which was a reduction of his full ownership rights as bequeathed to him by his wife, was created by the Judgment of Possession, a juridical act, that was rendered in Mrs. Jones’ ancillary succession proceeding in 1999.

Now that we have determined that Mr. Jones’ usufruct of the subject property was created when the Judgment of Possession was rendered in Mrs. Jones’ ancillary succession proceeding in 1999 (rather than at the time of Mrs. Jones’ death in 1989), we now must determine whether under Article 190 of the Mineral Code he is entitled as usufructuary to the use and enjoyment of the landowner’s rights in minerals. As we have found above, the Judgment of Possession created a conventional usufruct established by juridical act, as opposed to a surviving spouse usufruct arising by operation of law. Accordingly, we find that Mr. Jones’ usufruct is governed by the provisions of Article 190(A) of the Mineral Code (as opposed to Article 190(B)). Further, the Judgment of Possession |1sdoes not contain any provision therein relative to Mr. Jones’ use and enjoyment of the mineral rights. As such, Mr. Jones would only be entitled to the oil and gas proceeds if there was an “open mine” at the time his usufruct was created. Because all parties agree the Mayronne No. 1 well began producing prior to 1999 when Mr. Jones’ usufruct was created, and thus was an “open mine” as defined by Article 191(A) of the Mineral Code, quoted supra, Mr. Jones “is entitled to the use and enjoyment of the landowner’s rights in minerals as to all pools penetrated by the well or wells in question.” Accordingly, we find that Mr. Jones, as usufructuary, is entitled to the mineral proceeds deposited into the registry of the court in proportion to the naked owners’ interest in and to the subject property.

CONCLUSION

For the above reasons, we reverse both the trial court’s grant of summary judgment in favor of Ms. Jones and the -trial court denial of summary judgment in favor of Mr. Jones, and accordingly render judgment granting Mr. Jones’ motion for summary judgment, confirming that Mr. Jones, as usufructuary, is entitled to the mineral proceeds deposited into the registry of the court in proportion to the naked owners’ interest in and to the subject property.

REVERSED AND RENDERED

      . An earlier appeal in this case concerned a summary judgment that was rendered in favor of other defendants-in-concursus, denying their claims to a portion of the deposited funds, which this Court affirmed. Quantum Resources Management, L.L.C. and Milagro Producing, L.L.C. v. Pirate Lake Oil Corporation, et al., 11-813 (La.App. 5 Cir. 5/31/12), 98 So.3d 394. That judgment is not germane to the substantive issues involved in the instant appeal.

      . In September of 2010, Jennifer Jones and her brother, Patrick Jones, filed a separate proceeding in the 24th Judicial District Court entitled “Petition for Annulment of Judgment Obtained by Fraud and Ill Practices,” Docket No. 692-379 (they were not joined by their sister Jacqueline, who appears in other pleadings in this record aligned with Mr. Jones). Therein, they attack the Judgment of Possession rendered in the ancillary succession proceeding, contending that they had no knowledge of the ancillary succession proceeding, despite the fact that the matter was filed on their behalf, denying the validity of their signatures on those pleadings. They also argued that it was a conflict of interest for the same counsel to represent them and their father, one that they did not waive. Another part of the petition asserted that awarding them naked ownership subject to Mr. Jones' usu-fruct rather than full ownership of the forced portion impinged upon their legitime. As of the date of the issuance of this opinion, there has been no judgment in the annulment matter. Thus, the Judgment of Possession rendered in the Ancillary Succession remains valid and final at this time. We express no opinion in the annulment matter or how a nullity judgment in that suit might affect the instant matter.

      . The judgment also denied Mr. Jones’ motion for summary judgment against Patrick Lindsey Jones, his son and brother of Ms. Jones. Patrick Jones is not a party to this appeal.

      . Ms. Jones’ brief questions whether Quantum and Milagro, as plaintiffs-in-concursus, have standing to appeal the judgment in question, which addressed the rights of other parties. We shall not address the standing issue, except to note that under La. C.C.P. art. 2164, the Court of Appeal may render any judgment that is just, legal and proper on the record before us, which includes the ability to reverse judgments on grounds other than those asserted by an appellant. Given that Mr. Jones, who clearly has standing, has appealed the judgment, we may consider Quantum and Milagro’s arguments in the nature of an ami-cus curiae brief.

      . LSA-R.S. 31:1 provides: "This Title shall be known as the Louisiana Mineral Code. The provisions hereunder may be referred to and cited either as Articles of the Mineral Code or as Sections of the Revised Statutes. Thus Article 30 of the Louisiana Mineral Code may also be referred to as R.S. 31:30.” In this opinion, we will refer to the statutes in this Title of the Revised Statutes simply as Articles of “the Mineral Code” or "the Code.”

      . Although included, the headings or titles to these Articles are given for the purpose of convenient reference and do not constitute part of the law. LSA-R.S. 1:13.

      . The rights granted to the usufructuary under Paragraph (B) of this Article specifically do not include the right to execute a mineral lease without the consent of the naked owner.

      . Louisiana Civil Code article 890 provides: “If the deceased spouse is survived by descendants, the surviving spouse shall have a usu-fruct over the decedent’s share of the community property to the extent that the decedent has not disposed of it by testament. This usufruct terminates when the surviving spouse dies or remarries, whichever occurs first.”

      . Louisiana Civil Code article 1503 provides: "A donation, inter vivos or mortis causa, that impinges on the legitime of a forced heir is not null, but is merely reducible to the extent necessary to eliminate the impingement." (Emphasis in original.)

      .Nor does a reduction render a testament null. La. C.C. art. 1503; Jarel v. Moon’s Succession, 190 So. 867 (La.App. 2 Cir.1939); Succession of Dancie, 191 La. 518, 186 So. 14 (1939); Succession of Barth, 178 La. 847, 152 So. 543 (1934). Also, a reduction action is prescriptable. La. C.C. art. 3497. Thus, the forced heirs may lose their right to reduce an excessive donation through inaction.

      . Because all of the parties took the position on appeal that Mr. Jones’ usufruct was that of a ‘‘surviving spouse," they devoted much time in the briefs to the question of whether paragraph (A) of Article 191 of the Mineral Code (which explains what an "open mine” means regarding oil and gas operations) applies only to the usufructs described in paragraph (A) of Article 190 of the Mineral Code, or whether it also applies to "surviving spouse” usufructu-aries (described in Paragraph (B) of Article 190). Because we have determined in this opinion that Mr. Jones’ usufruct is not that of a "surviving spouse,” we expressly leave this question open for another day, as the answer to this question would be only dicta if answered in this opinion.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Diane R. SCHNELL v. Anthony MENDOZA, Hilman Mendoza and Jane Mendoza.
    No. 12-CA-272.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2012.

      Robert T. Garrity, Jr., Teresa G. Castle, Attorneys at Law, Harahan, LA, for plaintiff/Appellant.
    John A.E. Davidson, Christopher J. Davidson, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   WALTER J. ROTHSCHILD, Judge.

| ¡¡This litigation arises out of a contract for the purchase of immovable property executed between the parties on January 31, 2008. Following a bench trial, the court rendered judgment in favor of plaintiff. Plaintiff now appeals from this judgment. We affirm.

On December 17, 2009, Diane R. Schnell filed the instant Petition for Damages and Intentional Interference with Contract naming as defendants Anthony Mendoza and Jane Wallain Mendoza wife of/and Hil-man Mendoza. Plaintiff alleges that she entered into a bond for deed contract with defendants for certain property located in Jefferson Parish. By this agreement, defendants agreed to deliver title of the property to plaintiff after payment of monthly installments and a final stipulated sum to defendants. Plaintiff alleges in the petition that defendants interfered with the performance of the contract by concealing defects in the property, failing to make repairs and misrepresenting that property was free of [«¡encumbrances. Plaintiff alleged that she was damaged as a result of breach of the agreement, and that she was forced to incur additional expenses to enjoy quiet enjoyment and peaceful possession of her home. Defendants filed an answer, generally denying all allegations of the petition.

In April of 2010, plaintiff received a Notice to Vacate the subject property for violation of the contract between the parties, including failure to pay and late payment of installments due. Thereafter, plaintiff filed a Notice of Lis Pendens in these proceedings and also sought and obtained from the trial court a temporary restraining order preventing alienation of the property while her claims against defendants were pending.

This matter was tried in a bench trial on September 27, 2011 and was taken under advisement. On December 6, 2011, the trial court rendered judgment in favor of Diane R. Schnell and against Hilman and Jane Mendoza in the amount of $10,760.75, plus costs and interest from the date of judicial demand. On the same date, the trial court issued reasons for judgment indicating that the judgment represented damages in the form of repair costs noted in the inspection report which should have been incurred by defendants.

Diane R. Schnell has filed a devolutive appeal from this judgment on the basis that the trial court erred in failing to determine that the bond for deed contract failed due to fault of defendants, thereby entitling plaintiff to the return of the deposit payment made on the property and well as return of mortgage, insurance and tax payments made by plaintiff. Ms. Schnell argues that such claims are encompassed by the scope of her petition for damages or that her pleadings were expanded at trial to include rescission of the contract and return of all sums paid.

Defendants contend that the trial court judgment is correct as plaintiff failed to assert a claim to rescind the bond for deed contract and further that the evidence ^presented at trial does not support a rescission of the contract by plaintiff. Defendants argue that the only evidence presented at trial was submitted in pursuit of the specific damage claim asserted in plaintiffs petition, and therefore the evidence presented did not enlarge the scope of plaintiffs pleading.

At trial, Ms. Schnell testified that she entered into a bond for deed contract in January of 2008 with the Mendozas for a home in Kenner. A copy of the contract was introduced into evidence, and provided that Ms. Schnell was to pay $45,000 at the time the contract was executed, $2,068.45 in monthly installments, and the remaining balance in February of 2011. She was also required to maintain insurance and pay taxes on the property. Ms. Schnell stated that although the contract also provided that no existing mortgages applied to the property, she later discovered that two home equity mortgages as well as a lien existed at the time the contract was executed, and these encumbrances remained in effect until she brought the present litigation.

Ms. Schnell stated that she moved into the home in February of 2008 and immediately began experiencing problems with the home. She stated that many of the problems were noted on the Inspection Report prepared prior to the sale and the sellers had promised to repair these issues prior to the time she moved in. She stated she informed Anthony Mendoza of the problems but he failed to resolve the issues in a satisfactory manner. Ms. Schnell stated that she personally contracted for the repairs and paid the invoices herself. Evidence in the record includes several invoices and receipts and cancelled checks for payments for repair services relating to the Kenner home.

Ms. Schnell also testified that she paid the monthly installment payments as well as payments for taxes and insurance pursuant to the bond for deed contract through December of 2009. She stated that at this time, Mr. Mendoza cancelled Isthe contract. She therefore discontinued making the installment payments and filed the present lawsuit for damages and interference with the contract.

Anthony Mendoza testified at trial that he is the son of Jane and Hilman Mendoza, the owners of the subject property, and that he acted as his parents’ agent in the sale of the home to Ms. Schnell. Mr. Mendoza stated that his parents agreed to execute a bond for deed contract, and that he was aware that the home was inspected prior to the transfer. Mr. Mendoza stated that he approved a list of repairs to the home which were completed prior to the closing, and he submitted evidence of his response to the inspection report, although he did not produce receipts of the actual services rendered. Mr. Mendoza stated that he authorized the cancellation of the bond for deed contract in December of 2009 for Ms. Schnell’s actions in failing to timely pay the note, failing to pay late fees, and failing to pay for the necessary insurance for the home.

In rendering judgment in favor of Ms. Schnell, the trial court awarded her $10,760.75, plus costs and interest. In its reasons for judgment, the trial court found that Ms. Schnell established at trial that Mr. Mendoza misrepresented the condition of the property and failed to make agreed upon repairs as outlined in the home’s inspection report. The amount of the award reflected the repair receipts submitted into evidence. The trial court further found that the bond for deed contract was not voided by defendants’ failure to disclose encumbrances on the property. However, the court found that the issue of cancellation of the contract due to Ms. Schnell’s failure to make contractual payments was not placed before the court and thus, the award of damages could only include receipts for repairs which were covered by the inspection report.

By this appeal, Ms. Schnell contends that the trial court erred in failing to find that the bond for deed contract was invalidated by the Mendozas’ actions, and |fiin failing to award plaintiff the return of the deposit made on the property, the monthly mortgage payments, as well as insurance and tax payments. For the reasons stated herein, we find these arguments to be without merit.

It is well established that Louisiana utilizes a system of fact pleading. Cox. v. W.M. Heroman & Co., 298 So.2d 848, 855 (La.1974), overruled, on other grounds by A. Copeland Enterprises, Inc. v. Slidell Memorial Hosp., 94-2011 (La.6/30/95), 657 So.2d 1292, 1299. Fact pleading advances several goals of the petition, such as satisfying the defendant’s constitutional guarantee of due process by providing the defendant with fair notice, limiting the issues before the court, and notifying the defendant of the facts upon which the plaintiff bases his claims. Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706, 713. The plaintiff need not plead a theory of the case, but only facts that would support recovery. Ramey v. DeCaire, 03-1299 (La.3/19/04), 869 So.2d 114, 118. Moreover, every pleading must be construed so as to do substantial justice. La. C.C.P. art. 865

According to our code of civil procedure, no technical forms of pleading are required. All allegations of fact of the petition, exceptions, or answer shall be simple, concise, and direct, and shall be set forth in numbered paragraphs. La. C.C.P. art. 854. However, even though a theory of the case need no longer be pled, a petition must contain a short, clear and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation. It shall also conclude with a prayer for judgment for the relief sought. La. C.C.P. art. 891; Greemon v. City of Bossier City, 10-2828 (La.7/1/11), 65 So.3d 1263, 1272.

With these principles in mind, we consider whether Ms. Schnell’s petition in the instant matter pled a cause of action relating to the validity of the bond for deed 17contract before the trial court. The pleading which initiated this matter was entitled “Petition for Damages and Intentional Interference with Contract.” It pled the existence of the bond for deed contract, and stated that damages to plaintiff was “caused by the intentions [sic] interference with said contract by defendants,” namely, affirmative concealment of known defects to the property, failing to disclose a known defect and fraudulently misrepresenting defects and conditions. Plaintiff also alleged that defendant Anthony Mendoza fraudulently misrepresented that the title was free and clear of liens and encumbrances, misrepresented the square footage of the property, misrepresented the age of the roof, and misrepresented repairs completed prior to closing. She further alleged that Mr. Mendoza agreed to make repairs without intent to perform the repairs, and failed to present receipts as proof of said repairs. She averred that she relied on the misrepresentations and suffered damages as a result. Finally, Ms. Schnell alleged that Mr. Mendoza intentionally interfered with the contract by attempting to change the terms of the contract and by continually harassing her and disturbing her quiet possession.

In the final paragraph of the petition, plaintiff alleged as follows:

Petitioner, Schnell, has suffered damages due to the actions of Anthony Mendoza and his representatives [sic] conduct. As a result of seller’s breach of the agreement, plaintiff has been damaged and was forced to incur additional expenses to maintain quite [sic] enjoyment and peaceful possession of her home including, but not limited to those expressed herein and that will be proved at a trial of this matter.

In her prayer, plaintiff prayed generally “for such damages as are reasonable in these premises, together with legal interest thereof from the date of judicial demand, and for all costs of these proceedings.”

| ¡After a careful review of the petition, we find that plaintiffs petition clearly relies on the validity of the contract in asserting her claim for damages for interference with the contract. However, although plaintiff argued at trial that the contract was void from the inception or had been breached, we fail to find that the allegations of the petition can be construed as stating a cause of action for breach of the bond for deed contract. Rather, the clearly stated allegations of plaintiff’s petition sound in tort for damages based on defendants’ acts of misrepresentation, fraud and intentional interference with contract. Plaintiff failed to assert any allegations whatsoever regarding a breach of the bond for deed contract or to provide factual allegations which would support the cancellation of this contract. Further, plaintiff merely sought damages for defendants’ actions on tortious grounds, and failed to sufficiently plead a cause of action for breach of contract which would have entitled plaintiff to damages beyond those for the unfinished repair items listed in the inspection report.

Plaintiff further claims that even if her petition did not specifically allege a cause of action for breach of contract, the scope of her pleading was expanded by the evidence presented at trial, as authorized by La. C.C.P. art. 1154. We disagree.

The general rule is that pleadings may be enlarged by evidence adduced without objection when such evidence is not pertinent to any other issue raised by the pleadings and, hence, would have been excluded if objected to timely. Roberson v. Provident House, 576 So.2d 992, 995 (La.1991). In the present case, we find that all of the evidence presented at trial relates to the cause of action in tort as raised by plaintiffs petition. In her testimony, Ms. Schnell testified as to Mr. Mendoza’s actions in failing to honor his promise to make the repairs as set out in his response to the inspection report. Although she also identified the home Lequity mortgages which she alleged were applicable to the subject property, she testified that Mr. Mendoza misrepresented that the property was free of encumbrances. Although plaintiffs counsel argued in the opening statement that the contract had been breached, plaintiff failed to present testimony or evidence which was unrelated to the claims in tort and which would solely support a cause of action for breach of contract such that defendants would have been put on notice that such a claim was being asserted.

Our review of applicable law and the evidence in the record fails to indicate that the pleadings in this case were enlarged to encompass a cause of action for breach of contract. We therefore conclude that the issue of the cancellation of the bond for deed was not at issue in the present litigation and the trial court did not err in failing to consider such a cause of action.

In ruling in favor of plaintiff, the trial court in this ease found that plaintiff presented sufficient evidence to prove that Anthony Mendoza on behalf of his parents promised to make repairs to the subject property yet failed to honor this promise. The court awarded damages based on the repair receipts presented by plaintiff at trial. Defendants do not take issue with this judgment against them, and we fail to find that the trial court’s ruling is clearly wrong. Accordingly, the judgment in favor of plaintiff Diane R. Schnell and against Jane and Hilman Mendoza is hereby affirmed. Plaintiff shall bear all costs of this appeal.

AFFIRMED

      . The named sellers were Jane and Hilman Mendoza; however, their son Anthony Mendoza was given power of attorney to conduct all transactions in this matter.


author: SUSAN M. CHEHARDY, Judge.

text:
    Lynn WAGUESPACK, Wife of/and Timothy Waguespack, Individually and on behalf of His Minor Child, Timothy Waguespack v. SENTRY SELECT INSURANCE COMPANY, Frazier Trucking, Inc, and Cody King.
    No. 12-CA-280.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2012.

      Thomas A. Gennusa, II, Joseph S. Pia-cun, Reid S. Uzee, Attorneys at Law, Me-tairie, LA, Leonard J. Cline, Attorney at Law, Metairie, LA, for Plaintiffs/Appellants, Lynn Waguespack, Wife of/and Timothy Waguespack, Individually and on behalf of His Minor Child, Timothy Wag-uespack.
    Charles M. Ponder, III, Attorney at Law, New Orleans, LA, James L. Donovan, Jr., Attorney at Law, Metairie, LA, for Defendants/Appellees, Sentry Select Insurance Company, Frazier Trucking, Inc., and Cody King.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

laThis is an automobile personal injury case in which the plaintiff seeks reversal of a jury verdict in favor of the defendant driver. We affirm, for the following reasons.

PROCEEDINGS BELOW

Lynn Waguespack filed suit on July 24, 2009, against Sentry Select Insurance Company, Frazier Trucking, Inc., and Cody King. She was joined as plaintiff by her husband, Timothy Waguespack, individually and on behalf of his minor child, Timothy Waguespack. The petition alleges that on March 19, 2009, at approximately 4:32 p.m., Lynn Waguespack was driving her 2006 Nissan Altima westbound on 1-10 near Causeway Boulevard. In the car with her were her daughter, Taylor, age 13; her son, Timothy, age 14; and her elderly aunt, Frances Catalano. Ms. Wag-uespack alleged she was stopped due to traffic congestion when, suddenly and without warning, her car was struck from the rear by a 2009 Peterbilt 18-wheeler owned by Frazier and operated by King. She alleged King fled the scene of the accident.

Ms. Waguespack alleged the accident caused painful and permanent personal injuries to her and her son. She sought damages for pain and suffering, mental anguish and distress, medical expenses, loss of personal property, and loss Rof use, lost wages and/or loss of earning capacity, disability, and loss of enjoyment of life. Mr. Waguespack sought damages on behalf of his son for his son’s injuries to the back and left shin, and numerous contusions and abrasions, as well as pain and suffering, mental anguish and distress, medical expenses, and loss of enjoyment of life. On his own behalf, Mr. Waguespack sought damages for loss of consortium, loss of services, and loss of society between him and his wife.

The defendants answered by admitting that Cody King was in the course and scope of his employment on the date of the accident, but denied the allegations as to the occurrence of the accident. They raised as affirmative defenses, in the event the accident occurred as alleged by the plaintiffs, that the incident was of insufficient magnitude to impart personal injuries to Lynn Waguespack or to her son and, further, that Lynn Waguespack had pre-existing conditions that were not caused, aggravated, or exacerbated by this accident or, alternatively, that she failed to mitigate her damages. In supplemental and amending answers, the defendants added as affirmative defenses comparative negligence on the part of Lynn Wagues-pack, and negligence on the part of third persons for whom the defendants are not responsible.

In the pretrial order the defendants asserted that minimal if any damage was visible on the rear of Waguespacks’ vehicle. Further, prior to the accident, Lynn Waguespack was involved in a slip-and-fall accident on December 11, 2002, from which she claimed injuries to her neck, right hip, leg and ankle, and low back pain. She was treated for those injuries, but failed to report them to all of the physicians who treated her following the accident of July 24, 2009. The defendants also contested the nature and extent of Lynn Wagues-pack’s economic damage claims.

|4The plaintiffs framed the contested issues for trial as (1) the facts surrounding the collision; (2) the extent of the plaintiffs’ injuries and disabilities; (3) the facts surrounding the plaintiffs’ past, present and future medical expenses; (4) the facts surrounding the plaintiffs’ past, present and future lost wages; (5) the defendants’ liability for negligence in causing the collision; (6) the causal connection between the collision and the resulting injuries to the plaintiffs; (7) the law related to the defendants’ negligence and fault in causing this collision.

The defendants framed the contested issues for trial as (1) whether Cody King was negligent in causing the accident; (2) whether Lynn Waguespack is comparatively at fault in causing the accident; (3) whether the accident was of sufficient force and magnitude to impart personal injuries; (4) whether Lynn Waguespack may assert a claim for lost wages between the date of the subject accident and the date of trial, because there is no documentation of her earnings prior to the accident date; (5) whether Lynn Waguespack may demonstrate a loss of future earnings or diminution of her earning capacity; (6) whether Lynn Waguespack is entitled to future medical expenses.

Prior to trial, the plaintiffs dropped the lost earnings claims. The plaintiffs also stipulated (1) that Sentry has a liability policy covering Frazier and King; (2) that King was in the course and scope of his employment, and/or on an errand and/or mission for Frazier at the time of the collision.

The defendants stipulated (1) that Sentry had a liability policy that afforded coverage to Frazier and King; (2) that King was employed by and under the dispatch of Frazier; (3) that Lynn Waguespack’s 2006 Nissan Altima was driven from the scene and never repaired following the accident.

After a four-day trial, on September 1, 2011, the jury returned a verdict finding that Cody King was not negligent in this accident. In a judgment signed on | a September 14, 2011, the trial court dismissed all claims asserted by the plaintiffs against the defendants.

Subsequently the plaintiffs moved for judgment notwithstanding the verdict (“JNOV”) or for new trial. The plaintiffs argued that the jury was clearly erroneous in finding that Cody King was not at fault in causing the collision. They contended the record is replete with testimony and evidence that King rear-ended Lynn Wag-uespack’s vehicle, including the contemporaneous 911 calls placed by Ms. Wagues-pack providing a description of King’s 18-wheeler; the police report; the eyewitness testimony of Ms. Waguespack, her son, and her daughter; the expert testimony of accident reconstructionist Michael Gillen; the photographs depicting damage to the Waguespack vehicle; and Lynn Wagues-pack’s injuries. They also pointed out that the record is devoid of any testimony from King denying that he rear-ended the Wag-uespack vehicle, and he testified at trial that he may have struck her vehicle. He admitted he never saw Ms. Waguespack, but was certain she did not “cut him off.”

The plaintiffs further argued that Lynn Waguespack’s injuries were caused by the March 19, 2009 collision, that Lynn Wag-uespack should be awarded damages of $1,221,988.00, that her husband should be awarded damages of $75,000.00, and that her son should be awarded damages of $8,485.00. The plaintiffs asked the court to grant a JNOV or, alternatively, a conditional order for a new trial if the entry of JNOV is later vacated or reversed.

In opposition to the motion, the defendants argued that the jury verdict should stand. They contended the jury was not clearly erroneous in determining that Cody King was not at fault in connection with the accident on March 19, 2009; that the facts and inferences from the testimonial and documentary evidence are of such quality and weight that reasonable and fair-minded persons in the | f,exercise of impartial judgment might reach different conclusions on the subject of liability; that regardless of whether the record is replete with testimony and evidence that Cody King’s tractor-trailer rear-ended the vehicle operated by Lynn Waguespack, the credibility of the witnesses, physical evidence presented at trial, and the determination of liability remain within the sound discretion and province of the jury; that neither entry of judgment notwithstanding the verdict nor an order for new trial are appropriate; and, because entry of JNOV is not provided for under these facts, discussion of plaintiffs’ general and special damage claims is unwarranted.

The defendants asserted that the jury concluded the accident resulted from a lane change conducted by Lynn Wagues-pack, based on the testimony presented by Brian Clement, who testified as an expert in property damage, appraisal, and photography. They also argued that the jury rejected Lynn Waguespack’s explanatory trial argument that the minor property damage on her bumper cover, consisting of horizontal (lateral or side-to-side) gouge marks and scratches from the center to the left side of the bumper cover, resulted from post-contact movement of her vehicle.

After a hearing the district court denied the motion for judgment notwithstanding the verdict and/or for new trial. The district court stated,

I guess what the whole thing boils down to is ... Did she move from one lane to another, or was she going straight ahead and was rear-ended through no fault of her own? I guess that’s the whole ... If you want to buy Mr. Ponder’s version, then she pulled in front of him.
I don’t think Mr. Ponder is saying that the accident didn’t occur. It is just that the jury bought his version or his theory that she moved in front of him.
Since I’ve been here for a little over five years, this is probably one of the toughest decisions I have to make. You’re asking me to go ahead and basically substitute my |7opinion for that of 11 people who ... sat here throughout this trial and heard exactly the same things that I heard and you all heard....
The plaintiffs appeal.

ASSIGNMENTS OF ERROR

The plaintiffs assert the jury erred in finding that Cody King was not negligent, when the totality of the uncontroverted positive evidence and positive testimony presented at trial establish that Mr. King rear-ended Ms. Waguespack’s vehicle in the March 19, 2009 collision.

LAW AND ANALYSIS

Factual determinations of the trier of fact will not be set aside by the reviewing court unless they are manifestly erroneous or clearly wrong in light of the entire record. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); see also, Foley v. Entergy Louisiana, Inc., 06-0983, p. 10 (La.11/29/06), 946 So.2d 144, 158.

In assessing the factfinder’s determination, an appellate court’s inquiry is whether a reasonable factual basis exists for the finding of the trier of fact and whether the finding is not clearly wrong. Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880, 882 (La.1993). The issue to be resolved is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id.

A determination that the factual finding was reasonable precludes the reviewing court from reversing the decision of the fact trier, even though the reviewing court is convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.; Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099, pp. 8-9 (La.7/5/94), 639 So.2d 216, 221; Kraemer v. Joseph, 04-270, p. 6 (La.App. 5 Cir. 9/28/04), 885 So.2d 22, 25; Aleman v. Allstate Ins. Co., 04-948, p. 5 (La.App. 5 Cir. 1/11/05), 894 So.2d 382, 384.

|sWhere there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Desselle v. Jefferson Hosp. Dist. No. 2, 04-455, p. 4 (La.App. 5 Cir. 10/12/04), 887 So.2d 524, 528. The reason for this principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973). The manifest error standard therefore demands great deference to the trier of fact because it is the trier of fact who is aware of variations in demeanor and tone of voice that bear considerably on the listener’s understanding of what is stated. Rosell, supra.

Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Augillard v. Gaspard, 01-1333, p. 6 (La.App. 5 Cir. 5/30/02), 820 So.2d 1177, 1180. It is only where or objective evidence so contradicts a witness’s testimony, or the testimony itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit it, that the court of appeal may find manifest error even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-845 (La.1989). Where such factors are not present and a factfinder’s determination is based upon a decision to credit the testimony of one or more witnesses, the decision can virtually never be manifestly erroneous or clearly wrong. Id.

Ms. Waguespack testified she was returning home from picking her daughter up from school. In the Nissan Altima sedan with her were her daughter, her son, and her elderly aunt, Frances Catala-no, who had Alzheimer’s disease. Ms. Waguespack testified she got onto 1-10 westbound at the Bonnabel entrance, where she had to merge across two entrance lanes to get into the right-hand lane of | fltravel. She said the traffic was stop- and-go, and she was travelling at five to ten miles per hour.

She testified that due to the traffic, she came to a stop between Causeway Boulevard and the Cleary Avenue underpass, when she was struck from behind by an 18-wheeler tractor trailer truck. She said it felt like the truck hit her car four or five or six times. She immediately called 911 on her cell phone. She spoke to a state police trooper and gave a description of what had happened, what the truck looked like, the appearance of the driver, and the truck’s license plate number. The trooper advised her to pull off the road and go to the Clearview Shopping Center parking lot to wait for assistance.

The truck continued driving westbound after Ms. Waguespack got off the highway.

Trooper Samuel Boyd was dispatched to meet Ms. Waguespack to report on the accident. Ms. Waguespack told him her back and neck hurt, but she declined an ambulance. Trooper Boyd noted in his report that Ms. Waguespack’s vehicle sustained “minor to moderate” damage. After interviewing Ms. Waguespack, the trooper left to search for the truck in the area west of the scene, to no avail.

Trooper Boyd testified he later was able to trace the license plate and determined it was registered to Frazier Trucking Company in Kentwood, Louisiana. He phoned the company and spoke to Lynn Frazier about the accident. She admitted the company had a truck that was in the Metairie area on the date of the accident, but told him the driver was out of state, but that she would have him |1flcontact Trooper Boyd when he returned. Trooper Boyd said he never heard from the driver, and he did not pursue the case further.

Cody King, the driver of the truck, admitted that he was driving on I — 10 in Metairie on the date and time of the accident, as was borne out by his logbook. He testified, however, that he never saw Ms. Waguespack’s car and he was unaware of any collision. He admitted the traffic was heavy, stop-and-go, and said in heavy traffic he tries to maintain a distance between his vehicle and any forward vehicle such that he can see the brake lights of the vehicle in front. He admitted the rule is to maintain a seven-second following distance, but stated it was not feasible in congested traffic because cars constantly try to slip in front of his truck.

The visible damage to Ms. Waguespack’s Nissan Altima sedan consisted of several horizontal scratches across the rear bumper, extending from approximately the center toward the left side. By the time counsel was able to examine the defendants’ truck, months after the accident, it had been washed repeatedly and there were no signs of damage on its front bumper.

The plaintiffs’ accident reconstruction expert, Michael Gillen, testified the damage on the Altima’s rear bumper lines up with the license plate frame on the defendants’ truck. He theorized that the reason the damage is on the left side was that the car may have shifted during impact, or because the car was not squarely in front of the truck in the driving lane. Gillen never examined the vehicles directly, but only reviewed photographs of them.

In contrast, the defense’s expert property damage appraiser, Brian Clement, testified the damage on the bumper of the Altima was inconsistent with the contention that the Waguespack vehicle was struck directly from the rear. Clement also inspected the truck and found no indication of damage on its front bumper.

| nThe Waguespack children testified slightly differently. They both were in the back seat of the car and were unaware of the truck until they felt a bump. They turned and saw the grill of the truck behind the car. Both of them said they were hit several times.

Taylor Waguespack testified the bumping of the truck pushed them in a straight line and they were jerked forward repeatedly. She did not know if their car was stopped or moving when it was hit. Taylor said she was “fine” after the accident.

Timothy Jr. — “T.J.”—testified the bumping caused his mother to lose control of the car. T.J. said he hit his knee on the console and hurt his back. He later was treated by Dr. Kang for back pain for three months.

Ms. Waguespack suffered back and neck pain radiating into her shoulders, with intermittent headaches. She was initially treated by Dr. Gloria Kang for a few months for her neck pain. Eventually she underwent an MRI, which showed herniated discs at three levels. Dr. Kang referred her to a neurosurgeon, Dr. Bradley Bartholomew, who treated her conservatively at first, but eventually recommended surgery. In January 2010, she underwent two-level disc replacement and a cervical fusion with implants. She thereafter underwent a lengthy course of physical therapy. Both Dr. Kang and Dr. Bartholomew related Ms. Waguespack’s injuries to the March 19, 2009 collision.

On appeal the plaintiffs argue that they introduced positive evidence in support of their claims, while the defendants introduced no positive evidence at all in support of their defense that Mr. King was not negligent. The plaintiffs point out that Mr. King, in fact, conceded that he could have impacted Ms. Waguespack and he never rebutted the presumption of his negligence.

| igThe plaintiffs cite the principle that “[p]ositive testimony on a given point must be given greater weight than negative testimony on the same point.” La. R.S. 15:440; Collins v. City of Shreveport, 35,-172, p. 5 (La.App. 2 Cir. 10/31/01), 799 So.2d 630, 633; Kerrigan v. Imperial Fire & Cas. Ins. Co., 99-603, p. 11 (La.App. 3 Cir. 11/3/99), 748 So.2d 67, 75, writ denied, 1999-3410 (La.2/4/00), 754 So.2d 236, and writ not considered, 1999-3569 (La.2/4/00), 754 So.2d 219.

In opposition, the defendants point out that this rule is premised upon the evidence or testimony of the opposing sides being of equal credibility. While as a general rule positive evidence is superior to negative evidence, the resolution of conflicting evidence is still to be made by the trial court. Smith v. State Through Dept. of Health & Hospitals, 94-871, p. 8 (La. App. 3 Cir.2/15/95), 650 So.2d 450, 455, unit denied, 95-0693 (La.4/28/95), 653 So.2d 596. In other words, the trier of fact still has the prerogative to decide what evidence, positive or negative, it accepts on a given issue of fact.

The defendants assert the rule of La. R.S. 15:440 has no application to the evidence presented at trial here. They assert they put on positive evidence on the issue of whether Mr. King was even involved in the accident. He testified he knew of no accident, that based upon the claimed time of the accident, and his records, he was in the general area of the Orleans-Jefferson Parish line. He likewise testified he operated his vehicle a distance behind forward vehicles such that he could see their rear taillights. The defendants also presented the expert testimony of Brian Clement that the Waguespacks were involved in a lane-change accident, not a rear-end accident. They argue,

This positive testimony and physical evidence, if accepted by the jury, supported a finding King was not involved in Appellants’ accident.
half the jury decided King was involved in the accident, but not negligent, Appellees presented positive evidence. Again, through testimony and physical evidence of gouge marks on the bumper, Clement opined the accident the Appellants were involved in occurred when Mrs. Waguespack changed lanes enter-, ing the right travel lane of 1-10. Appellants’ expert opinion was premised upon the testimony of Mrs. Waguespack that she was stopped when rear ended. Ap-pellees showed, exactly how the accident occurred was in dispute, as Mrs. Wag-uespack had reported to one of her doctors that the accident occurred when her vehicle was moving. Acceptance of Clement’s expert opinion or rejection of Appellants’ expert opinion based upon a false premise clearly would be supported by the evidence.

The defendants argue further that reliance on the positive evidence rule assumes that the jury found Ms. Waguespack equally credible as Mr. King. However, the jury also heard evidence that Ms. Waguespack denied having prior neck complaints in giving her medical history to her doctors, when she in fact had neck complaints following a 2002 slip-and-fall accident, and the jury also learned she had misrepresented her earnings history in information she gave to Bobby Roberts, an expert vocational evaluation specialist who tested her to see if she is able to work.

The jury returned a verdict finding that Mr. King was not negligent in the accident. We find this verdict may reasonably be interpreted as the jury’s determination that the plaintiffs failed to meet their burden of proof that Mr. King was even involved in their accident or, alternatively, that the jury believed the accident resulted from a lane-change maneuver by Ms. Wag-uespack.

Although Mr. King acknowledged he was in the general area, he testified that he had no knowledge of the accident. He was not stopped at the scene or followed by Ms. Waguespack, so as to conclusively establish his involvement in the accident. Examination of his vehicle did not reveal evidence of involvement in the accident. The only evidence the jury had to link Mr. King to the accident was 114the testimony of Ms. Waguespack and her family members, which contained inconsistencies. Ms. Waguespack has presented different versions of the accident at different times. Her credibility was impeached on her medical and economic history, as reviewed below.

Alternatively, if the jury concluded that Mr. King was involved, it was instructed relative to the defendants’ alternative contention that a lane change maneuver at Ms. Waguespack’s entry point onto 1-10 westbound from the Bonnabel Boulevard access lanes was the cause-in-fact of this accident, based upon the physical evidence and inconsistencies in Ms. Waguespack’s version of the accident.

Although a presumption of negligence generally arises when a following motorist is involved in a rear-end collision, the following motorist may escape liability for the collision by establishing the unpredictable driving of the preceding motorist created a sudden emergency that the following motorist could not have reasonably anticipated. Brewer v. J.B. Hunt Transp., Inc., 2009-1408, p. 14 (La.3/16/10), 35 So.3d 230, 241. Equally important, the jury was empowered to determine, based upon its analysis of the testimony and physical evidence in this case, that a driver such as Waguespack, who changes lanes without first determining that the move can be completed safely and who is then struck from the rear by a following vehicle, cannot rely upon the rear-end presumption to shift the burden to the following driver.

The defendants point out further that Ms. Waguespack’s accident reconstruction expert, Michael Gillen, acknowledged Mr. King’s driving practice of stopping behind a preceding vehicle in congested driving situations where he could see the taillights of the vehicle, whether or not illuminated. Mr. King admitted his probable speed of 10-15 miles per hour in heavy traffic such as that 115which existed on March 19, 2009. As stated, he explicitly rejected the notion of being able to maintain a following distance of seven seconds, which would be the rule in over-the-road driving conditions that did not exist under these facts. He acknowledged the existence of a “blind spot” of an unknown distance over the extended hood of his Peterbilt tractor. The physical evidence reviewed below supported the reasonable conclusion the jury in this case may have made, that if the accident occurred as the plaintiffs contend, it resulted from a merging lane change.

Although we might not have decided this way had we been the trier of fact instead of the jury, we are unable to say they were clearly wrong. The factor of credibility is too great in this case to overlook. The jury’s decision was eleven to one. Clearly, reasonable minds could differ here, and they did. They were entitled to weigh the expert opinions as they wished, and to accept or discard portions of the expert opinions.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the appellants.

AFFIRMED

      . The plaintiffs also alleged that Sentry is subject to penalties and attorney's fees for arbitrary and capricious refusal to comply with the provisions of its property damage coverage.

      . She described the truck as golden-brown in color. The children told her the license plate number, P179256. There was a sticker that said "Grumpy” on the rear window of the truck cab, and there were spikes on the outer front wheel hubs. They described the driver as white, with short brown hair, wearing sunglasses and a tan cap with a fish on it.

      . She testified at trial she had refused to go to the hospital because she had her elderly aunt with her, who had advanced Alzheimer's disease and could not be left alone. Ms. Wag-uespack's children, who were young teenagers, also were with her. Ms. Waguespack’s aunt, Ms. Catalano, died prior to trial, of causes unrelated to this accident.


text:
    NEW ERA DEVELOPMENT CORPORATION v. Soniya Dumas ROBERT in her Capacity as Administratrix of the Succession of Joseph Farley Dumas, Sr.
    No. 12-CA-304.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 13, 2012.
    John A.E. Davidson, Christopher J. Davidson, Attorneys at Law, Metairie, LA, for PlaintiffAppellant.'
    Harold E. Molaison, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

|2New Era Development Corporation (“New Era”) brought the instant petition for partition by licitation against Soniya Dumas Robert, the administratrix of the Succession of Joseph Farley Dumas, Sr. Defendant responded with an answer, re-conventional and third party demand, and then brought a motion for summary judgment which was granted by the trial court, dismissing plaintiffs petition. New Era now appeals from this judgment. We affirm.

In its petition, New Era alleged that Joseph Farley Dumas, Sr. died intestate on October 27, 2007, leaving two children: Joseph Farley Dumas, Jr. (hereinafter referred to as “Junior Dumas”) and Soniya Dumas Robert. At the time of his death, Mr. Dumas owned a piece of property in Jefferson Parish. The petition alleges that in 2008, prior to the opening of a succession and while representing himself to be Joseph Dumas, Sr., Junior Dumas executed a cash sale of this property to Tina and Tuan Dinh. The title closing agency, Southern Title, later learned of the misrepresentation and that Junior Dumas had no authority to sell a full interest in the subject property. Junior Dumas’ sister, Soniya Dumas Robert, [.¡subsequently opened succession proceedings in this matter in her capacity as administratrix.

Thereafter, on July 18, 2008, Tina and Tuan Dinh executed a Quitclaim Deed in favor of New Era Development Corporation in exchange for $38,881.50, thereby transferring their interest in the subject property to New Era. New Era alleges that following Mr. Dumas Sr.’s death, Junior Dumas had the authority to sell his undivided interest in the subject property and that as a result of this transaction, New Era by virtue of the Quitclaim Deed now owned the portion of the property that was lawfully sold by Junior Dumas. New Era sought a judgment to partition the subject property.

In response to this petition, Soniya Dumas Robert, in her capacity as adminis-tratrix of the Succession, filed a general answer to the allegations as well as a re-conventional and third party demand against several defendants: New Era, Southern Title, Joseph Farley Dumas, Jr., and Tina and Tuan Dinh. By this pleading, the Succession sought to have both the sale of the property from Junior Dumas to the Dinhs and the Quitclaim Deed executed by the Dinhs to New Era declared absolute nullities. The administra-trix also asked that the ownership of the property be returned to the Succession of Joseph Farley Dumas, Sr. The Succession also sought attorney’s fees and damages based on third party defendants’ acts of bad faith and negligence.

In September of 2011, the Succession brought a motion for summary judgment, seeking a declaration that both the May 16, 2008 sale of property and the July 18, 2008 Quitclaim Deed are absolute nullities, and a return of the property to its rightful owner, the Succession of Joseph Farley Dumas, Sr. New Era Development Corporation opposed this motion, and the matter was heard by the trial court on October 31, 2011. By judgment rendered the same day and ^signed on January 10, 2012, summary judgment was granted in favor of Soniya Dumas Robert, and the petition for partition filed by New Era was dismissed with prejudice, reserving the rights of all other parties. Further, the judgment declared that the May 16, 2008 Act of Sale and the July 18, 2008 Quitclaim Deed were absolute nullities and without civil effect.

New Era Development now suspensively appeals from this judgment, arguing that the trial court erred in declaring the Act of Sale and the subsequent Quitclaim Deed to be null, where Junior Dumas was legally authorized to sell his own interest in the subject property. Further, New Era contends that as it had no knowledge of the misrepresentations made by Junior Dumas, the sale was nevertheless enforceable to transfer Junior Dumas’ undivided interest.

Relying on La. C.C. art. 938, New Era argues that Junior Dumas could exercise his rights of ownership prior to the qualification of the succession representative, and that such an exercise cannot be an absolute nullity. New Era argues that based on the principles of seizin, Junior Dumas acquired ownership of his share of his father’s estate at the death of Mr. Dumas, Sr., and that portion was lawfully sold to the Dinhs, notwithstanding Junior Dumas’ misrepresentation of his identity.

A copy of the Cash Sale at issue in this case was attached to the original petition brought by New Era. The document is dated May 16, 2008 and indicates a transfer of Lot 1, SQ1, Kings Manor S/D, 1101 Martin Drive, Marrero, LA 70072 by Joseph Farley Dumas, Sr. to Tina Dinh and Tuan Dinh for the contract price of $38,000.00. The signature of the seller appearing on the document is Joseph Farley Dumas, Sr. and the signature of the buyer is Tuan Dinh. The document was witnessed and notarized by George S. Ruppenicker of Southern Title.

| ¿Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046.

Although New Era argues that the contract should be interpreted to transfer only Joseph Dumas, Jr.’s interest in the property, we find no merit in this argument. New Era contends that even assuming Junior Dumas masqueraded as his father in signing the act of sale to the Dinhs, his signature is effective as his own and this was binding on him. We disagree.

A review of the Cash Sale clearly states that the seller is Joseph Farley Dumas, Sr., and does not indicate that the undivided interest of Junior Dumas was being transferred. The intent of the parties as determined on the face of the Cash Sale was to transfer Dumas, Sr.’s title and ownership of the property for the stated value, and no further interpretation may be made in search of the parties’ intent. We fail to find that the Cash Sale can be interpreted to transfer only an undivided interest in a subject property.

New Era next argues that the trial court’s ruling nullifying both transactions in this ease operates as a windfall for Junior Dumas and a detriment to New Era in the execution of the Quitclaim Deed. However, our review of the record supports the trial court’s ruling finding that both the Act of Sale and the Quitclaim Deed are absolute nullities.

A transfer of immovable property must be made by authentic act or by act under private signature. La. C.C. art. 1839. An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. La. C.C. art. R1833. An authentic act constitutes full proof of the agreement it contains, as against the parties, their heirs, and successors by universal or particular title. La. C.C. art. 1835.

There is no dispute in this ease that the signature affixed to the execution by the seller was a forgery and is by definition not authentic. The record indicates that the purported seller, Joseph Farley Dumas, Sr. died on October 27, 2007 and was not alive at the time of the execution of the sale of his immovable property on May 16, 2008. As such, the Cash Sale cannot qualify as an authentic act, and does not constitute full proof of the agreement it contains to transfer the immovable property. Because of the forgery, the Cash Sale likewise does not qualify as an act under private signature, and thus the sale did not operate to transfer the immovable property to the Dinhs. The Act of Sale executed on May 16, 2008 between Joseph Farley Dumas, Sr. and Tina and Tuan Dinh is therefore an absolute nullity.

As the transfer of the immovable property was without effect, the Dinhs did not attain any ownership rights or subsequently have the ability to sell, transfer or assign any rights or interest to the subject property to New Era in the Quitclaim Deed executed on July 18, 2008. Although New Era may have given consideration for this deed, the act is nevertheless a nullity as the Dinhs obtained no right or title to the property in the original Cash Sale. Thus, as the Quitclaim Deed is hereby found to be null and unenforceable, New Era will need to address its right to seek redress from any party or parties in a separate proceeding.

After review of the record herein, we find no error in the ruling of the trial court that the Act of Sale executed on May 16, 2008 and the Quitclaim Deed executed on July 18, 2008 are absolute nullities. Accordingly, the judgment of the trial court is hereby affirmed. New Era must bear all costs of this appeal.

AFFIRMED