author: CRAIN, J. THERIOT, J.,

text:
    Charles A. CIOLINO and Gertrude K. Ciolino v. FIRST GUARANTY BANK and Capital One, N.A. Estate of Joseph Perricone, Sr., et al. v. First Guaranty Bank and Capital One, N.A.
    Nos. 2012 CA 2079, 2012 CA 2080.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 30, 2013.

      Ashley L. Belleau, Dorothy L. Tarver, New Orleans, Louisiana, for Defendant/Appellant, First Guaranty Bank.
    Thomas J. Lutkewitte, Conor T. Lut-kewitte, New Orleans, Louisiana, for Defendant/Appellant, Capital One, N.A.
    Duncan S. Kemp, III, Hammond, Louisiana, for Plaintiffs/Appellees, Charles A. Ciolino and Gertrude K. Ciolino.
    Before GUIDRY, PETTIGREW, WELCH, CRAIN, and THERIOT, JJ.
   CRAIN, J.

12In this suit to enforce a lease, the defendants, First Guaranty Bank and Capital One, N.A., appeal a partial summary judgment rendered in favor of the plaintiffs, Charles A. Ciolino and Gertrude K. Ciolino. We affirm.

FACTS AND PROCEDURAL HISTORY

The property at issue was leased by Mike and Rose Ciolino to M.D. Evans pursuant to a lease agreement dated September 7, 1973. The lease contained a fifty-year term that will expire on September 30, 2023. A summary of the lease was recorded in the public land records on December 10, 1973. Using the lease as security, the original lessee secured financing from First Guaranty Bank and Hibernia National Bank in New Orleans to improve the property as a parking lot for a motel facility located on an adjacent tract being developed by the same party. Both the lease and the property have been the subject of transfers over the last four decades, and the rights and obligations that flow from those transfers form the crux of the issues presented by this appeal.

The lease permitted assignments but provided that in “the event that Lessee should assign this Lease, Lessee shall not be personally released from any responsibilities contained in this lease but shall remain completely liable for all of the terms and conditions hereof.” On January 5, 1977, the original lessee executed a dation en paiement that included an assignment of the lease to the banks. In connection with that transaction, the original lessee and the banks executed an act of assignment dated February 20, 1977, whereby First Guaranty acquired a three-fifths interest in the lease and | ¡¡Hibernia acquired a two-fifths interest. The banks agreed that they were “binding themselves to perform all of the conditions and obligations of said lease in the respective proportions thereof as though original lessees under the lease.” Mike and Rose Ciolino appeared as intervenors in that assignment to consent to the transaction and to expressly release the original lessee from any further liability under the lease. Approximately seven months later, the banks transferred the lease to another assignee on September 14, 1977. Mike and Rose Ciolino did not appear in that act and did not consent or agree to the transfer.

On December 30, 1987, Mike and Rose Ciolino donated the property to their son, Charles Ciolino, and his wife, Gertrude, by an act of donation that was recorded in the public land records shortly after it was signed. Charles and Gertrude Ciolino received rental payments pursuant to the lease until February of 2010 when they received a letter forwarded on behalf of the current lessee advising that it would be unable to continue to honor its lease obligations due to the decline of the business on the adjacent tract. The motel subsequently closed, and the building is now abandoned.

Charles and Gertrude Ciolino (collectively, the “Ciolinos”) filed suit against the banks for the unpaid rent accruing after February of 2010 based upon allegations that the banks remain liable for the rental obligation pursuant to the assumption of liability in the act of assignment whereby they acquired the lease. After the banks filed answers denying any liability and asserting third-party demands against subsequent assignees of the lease, the Ciolinos moved for a partial summary judgment against the banks for the unpaid rent accruing through the date of the motion and for an order requiring the banks to comply with all terms and conditions of the lease, including the payment of future rent. The motion was supported by the |4CioIinos’ affidavits and related documents establishing the history of the relevant transactions involving the lease and the property and the default of the rental obligation.

The banks countered that the Ciolinos had released them from liability in an act of acknowledgment signed by the Ciolinos on December 3, 2001 in connection with another assignment of the lease. In that document, the Ciolinos confirmed information about the status of the lease and the holders of the lease at that time, referred to in the document as the “Current Lessees.” The banks assert that the following statement in that act constituted a novation that released them from liability under the lease:

The Original/Current Lessors are the only persons with any interest in the Lease and there are no other persons (including firms, corporations, associations or any other legal entities) that have any right or interest in the Lease, other than the Current Lessees.

An officer of First Guaranty, Stanley M. Dameran, signed the act of acknowledgment on behalf of that bank, who appeared as an intervenor to consent to the transfer and acknowledge the separate ownership of the improvements on the property. Dameran’s affidavit offered in opposition to the motion for summary judgment provided that “First Guaranty Bank’s only intent [in executing the document] was to acknowledge that it previously had an interest in the property at issue, and that First Guaranty Bank no longer had any interest in said property and no longer held any security interest in the property.”

The banks also argued that the Ciolinos never acquired any rights in the lease and therefore lacked contractual privity with the banks. Although | sthe banks recognized that the Ciolinos acquired the property subject to the lease through the act of donation, the banks argued that the lease was a personal right that was not transferred by the donation because it was silent as to the lease. Finally, the banks argued that the Ciolinos failed to mitigate their damages by not re-leasing the property.

The Ciolinos responded by asserting that the act of acknowledgment did not contain any language establishing a “clear and unequivocal” release of the banks by a novation. As to their privity of contract, the Ciolinos argued that the language of act of donation was sufficiently broad to include their vendors’ interest in the lease. Alternatively, the Ciolinos maintained that the lease was a heritable right and presented evidence that Charles Ciolino was the only heir of Mike Ciolino, one of the original lessors, who died in 1996. In response to the claim that they failed to mitigate their damages, the Ciolinos asserted that the condition of the property, a parking lot serving a vacant motel on adjacent property, limits the market for releasing it, and that the banks did not meet their burden of proof for that defense.

After taking the matter under advisement, the trial court issued written reasons for judgment finding that the language in the act of acknowledgment was not a novation because “[o]ne would be constrained to conclude the cited language evidenced an intent to release any prior lessee from any obligation created under the 1973 lease.” Noting that the 1977 assignment whereby the banks acquired their interest in the lease contained specific language releasing the original lessee from any further liability under the lease, the trial court observed, “Surely, two sophisticated financial lending institutions which had previously entered into an Assignment specifically releasing a lessee would have included similar specific language [in the act Rof acknowledgment] if their intent was to be released from any contractual obligations as lessees from the 1973 lease.” The trial court found no merit in the lack of privity argument and did not address the defense of failure to mitigate damages.

A judgment was signed thereafter in favor of the Ciolinos and against the banks that quantified and awarded unpaid rental amounts for the lease years prior to judgment and ordered the banks to specifically perform under the terms of the lease by paying rent and other sums due for the remainder of the lease term. The banks suspensively appealed the judgment.

LAW AND ANALYSIS

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116 (La.App. 1 Cir. 9/10/10), 47 So.3d 1024, 1027, writ denied, 10-2227 (La.11/19/10), 49 So.3d 387. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ. Pro. art. 966B(2). Summary judgment is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. Pro. art. 966A(2).

The burden of proof is on the mover; however, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. La. Code Civ. Pro. art. 966C(2). Instead, the mover must point out to the court that there is an 17absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La.Code Civ. Pro. art. 966C(2); All Crane, 47 So.3d at 1027.

Appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. All Crane, 47 So.3d at 1027. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. All Crane, 47 So.3d at 1027.

The banks assert multiple assignments of error, including the trial court’s failure to find an issue of fact regarding whether a novation occurred, the trial court’s finding that the Ciolinos have contractual privity and therefore a right to enforce the lease, a purported finding by the trial court that the lease was a real right, the granting of summary judgment without considering the application of equitable es-toppel, and the granting of the summary judgment where the Ciolinos presented no evidence of any steps to mitigate their alleged damages. We find no merit in the assignments of error.

A. Novation

Novation is the extinguishment of an existing obligation by the substitution of a new one. La. Civ.Code art. 1879. The banks claim a novation occurred when the Ciolinos acknowledged that only the “Current ¡^Lessees ... have any right or interest in the Lease.” This claim is governed by Louisiana Civil Code article 1882, which provides:

Novation takes place when a new obligor is substituted for a prior obligor who is discharged by the obligee. In that case, the novation is accomplished even without the consent of the prior obligor, unless he had an interest in performing the obligation himself.

However, under Article 1886, a delegation of performance by an obligor to a third person effects a novation only when the obligee expressly discharges the original obligor. The determining factor is the intention of the parties. GE Commercial Finance Business Property Corp. v. Louisiana Hospital Center, L.L.C., 10-1838 (La.App. 1 Cir. 6/10/11), 69 So.3d 649, 656. The intention to extinguish the original obligation must be clear and unequivocal. La. Civ.Code art. 1880; GE Commercial Finance, 69 So.3d at 656. Novation may not be presumed, and the burden of proving novation falls on the party who seeks its protection. La. Civ.Code art. 1880; Pike Burden Printing, Inc. v. Pike Burden, Inc., 396 So.2d 361, 366 (La.App. 1 Cir.1981). This is so because a novation results in the discharge of a debtor, and the court will not presume that a creditor in the course of his business affairs released a debtor; creditors are not in the business of releasing debtors who have not paid. Pike Burden Printing, 396 So.2d at 366. The intention to novate may be shown by the character of the transaction, the facts and circumstances surrounding it, as well as by the terms of the agreement itself. GE Commercial Finance, 69 So.3d at 656.

The banks rely on the language in the act of acknowledgment and argue that it reflects the parties’ intent to novate. We find the language of the act of acknowledgment does not establish a clear and unequivocal intention to extinguish the banks’ liability under the lease. The act of acknowledgment does not state that another party has been substituted for |athe banks, that the banks have been discharged from the lease, or that the banks’ obligations have otherwise been extinguished as a result of the assignment that is the subject of the acknowledgment. The language merely provides that the “Current Lessees” were the only parties with any “right or interest” in the lease. That provision contains no express release of the banks nor does it represent that the “Current Lessees” were the only parties obligated by the lease. Rather, the acknowledgment confirms that the Current Lessees, as the assignees of the lease at that time, and the Ciolinos, as the owners, were the only parties who had any rights under the lease. The banks had previously assigned their rights under the lease, but that divestiture of their rights did not terminate their obligations under the lease absent an express release from the lessors, a result that is mandated by the terms of the lease and Louisiana Civil Code articles 1821 (assumption of an obligor’s debt by a third party does not release obligor) and 1886 (delegation of performance to a third person effects a novation only when the obligee expressly discharges original obli-gor).

The banks argue that the court is required to consider facts and circumstances surrounding the execution of the act of acknowledgment to determine whether the parties intended a novation and that such a determination involves issues of material facts. The evidence before the court fails to present any such factual issues. In their affidavits, the Ciolinos deny that they released or intended to release the banks from their obligations under the lease when they signed the act of acknowledgment. The defendants rely on Dameran’s affidavit, but he does not claim or suggest in his affidavit that the parties intended a novation in the act of acknowledgment. Rather, Dameran attested that First Guaranty’s “only intent was to acknowledge that it previously had an interest in the property at |inissue and that First Guaranty no longer had any interest in the said property.” He further confirmed that “he had no familiarity with the document or any discussions with anyone concerning the document or lease” prior to the date he signed the acknowledgment. These statements do not contradict the Ciolinos’ representations that they did not intend to release the banks from liability by signing the document.

As the trial court observed, if the parties had intended a release of the banks to result from the act of acknowledgment, the instrument would have contained language similar to that used in the assignment whereby the banks acquired their interests in the lease, which contained a clear and unequivocal “release” by the lessors of the prior lessees “from any obligations or liability under said lease.” No similar language appears in the act of acknowledgment relied upon by the banks as releasing them from their obligations under the lease.

We find that the terms and character of the agreement, as well as the relevant uncontested facts and circumstances surrounding it, do not reflect a clear and unequivocal intent by the Ciolinos to release the banks from liability through a novation in the act of acknowledgment. Therefore, the banks failed to produce factual evidence sufficient to establish that they will be able to satisfy their evidentia-ry burden of proof at trial to prove a novation, and the trial court did not err in rejecting that defense. See La. Civ.Code art. 1880; City of Donaldsonville v. Thiac, 542 So.2d 1111, 1116 (La.App. 1 Cir.1989) (original lessee failed to prove novation where evidence did not show clear and unequivocal intent by lessor to release original lessee by accepting rent from new lessee); Bradford v. Onshore Pipeline Construction Company, Inc., 37,421 (La.App. 2 Cir. 8/22/03), 853 So.2d. 756, 767, writ denied, 03-2887 (La.1/9/04), 862 So.2d 986 (original! ^obligor failed to prove novation resulted from assignment of gas purchase contract in absence of evidence that obligee released or discharged original ob-ligor); Bayou Acceptance Corp. v. Superior Hydraulics, Inc., 446 So.2d 558, 561 (La.App. 3 Cir.1984) (original lessee failed to prove novation where lessor acknowledged assignment of the lease but never explicitly released original lessee from lease obligations). This assignment of error is without merit.

B. Right to Enforce Lease

The banks assert that the Ciolinos do not have the right to enforce the lease because they are not parties to the lease and did not acquire any rights in the lease through the donation or any other transaction. Although the banks recognize that the original lessors donated the leased property to the Ciolinos, the banks contend that the original lessors’ rights in the lease were personal rights that were not transferred with the property because they were not identified in the act of donation.

The banks are correct that a lease of immovable property is a personal right and not a real right. See Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267 (La.10/25/11), 79 So.3d 246, 262; Prados v. South Central Bell Telephone Co., 329 So.2d 744, 749 (La.1975) (on rehearing). However, we find that the classification of the right is not dispositive of whether the Ciolinos can collect rent from parties liable under the lease.

The rights and obligations that flow from a transfer of immovable property that is the subject of a lease are addressed by a number of articles in the Louisiana Civil Code and a revised statute. Pursuant to Article 2711, the transfer of the property does not terminate the lease unless the parties have l12agreed otherwise. However, the ability to enforce the lease against the transferee of the property, absent an assumption or acknowledgment of the lease by that party, turns on whether the lease was recorded prior to the transfer of the property. In that regard, Louisiana Revised Statute 9:2721C provides:

Anyone who acquires immovable property in this state ... which property is subject to a recorded lease agreement that is not divested by the acquisition, shall take the property subject to all of the provisions of the lease, including any provision for the payment of a commission to a leasing agent or other third party, provided that the lease was recorded prior to the recordation of the document which establishes the rights of the person who acquires the property....

Similarly, Louisiana Civil Code article 2681 mandates that a “lease of an immovable is not effective against third persons until filed for recordation in the manner prescribed by legislation,” and Article 3338 provides that the “rights and obligations established or created” by a lease of an immovable “are without effect as to a third person unless the instrument is registered by recording it in the appropriate mortgage or conveyance records.” In contrast, if the lease is not recorded, Article 2712 declares that a “third person who acquires an immovable that is subject to an unrecorded lease is not bound by the lease.”

In Prados the Louisiana Supreme Court summarized the law as follows:

In recent years, we have consistently classified predial leases as involving personal rights, rather than real rights.... When, however, the lessor sells property during the term of a recorded lease, the purchaser in the absence of a contrary stipulation is bound by the obligations of the lessor.... In the absence of a contrary stipulation, the new owner is likewise entitled to the rent accruing subsequent to his acquisition[.]

Prados, 329 So.2d at 749 (citations omitted); see also Page v. City of Winnfield, 40,747 (La.App. 2 Cir. 3/10/06), 925 So.2d 683, 690 (holding [^that a purchaser of property subject to a recorded lease had the right to collect rent from the lessee).

According to Professor A.N. Yiannopou-los, the provisions of the Louisiana Civil Code governing lease derive from the French Civil Code which likewise provides that the acquirer of a thing subject to a lease assumes the position of the lessor and is subrogated to his rights and duties “for reasons of social and economic utility.” See 2 A.N. Yiannopoulos, Louisiana Civil Law Treatise, PropeHy, § 226 (4th ed.2001). With respect to the law of Louisiana, Professor Yiannopoulos explained:

The Code indicates that, although the acquirer of a thing subject to a lease is subrogated to the rights and duties of the former owner, the contract of lease generates personal rights. According to Article 2733 [now Article 2711], the acquirer is bound to respect the term of the lease and occupies vis-a-vis the lessee the same position as the former owner. He and his successors are entitled to collect the rent, and are bound to maintain the lessee in undisturbed enjoyment. But they are not bound by personal obligations that the former owner assumed with respect to the property, even vis-a-vis the lessee.

Yiannopoulos, at § 226 (citations omitted).

The social and economic utility of a transferee of immovable property being bound by a previously recorded lease while also having the right to collect rent is readily apparent. If the transferee is obligated by the lease to maintain the lessee in peaceful possession of the property, then it is reasonable that the transferee likewise have the corresponding right to receive the rent set forth in the lease.

The banks argue that Prados was limited by Eagle Pipe, wherein our supreme court characterized a statement in Prados as “widely misinterpreted.” However, a review of Eagle Pipe confirms that the court’s reference was to a statement made in another portion of the Prados opinion 114that has no application to the present case, while the court appeared to approve of the statements in Prados that are relevant to this case.

The Eagle Pipe court reviewed Prados at length and summarized the relevant portion of Prados as follows:

On original hearing, this court affirmed, finding the lease provisions imposed real obligations on the property which were consistent with the provisions of the Civil Code regarding a lessee’s obligation to restore property. Upon re-examination, the court found it had erroneously considered the matter in its original opinion as though the property had been sold during an existing lease. Under those circumstances, the new owner would have been bound to perform the obligations of the lessor stated in the lease in the absence of a contrary stipulation, and would have been entitled to receive the benefit of the obligations of the lessee (such as rent) from the time of his acquisition of the property.... Here, however, the lease between the former owner and Bell expired before the property was sold to the new owner, and the seller conveyed the property free of any lease.

Eagle Pipe, 79 So.3d at 269-270 (citation omitted).

The court did not indicate any change of position in its analysis of the rent issue. The only portion of Prados that the Eagle Pipe court described as “widely misinterpreted” concerned the “subsequent purchaser rule,” a jurisprudential rule that holds that an owner of property has no right or actual interest in recovering from a third party for damage that was inflicted on the property before his purchase, in the absence of an assignment or subrogation of the rights belonging to the owner of the property when the damage was inflicted. Eagle Pipe, 79 So.3d at 254-255, 272. Prados suggested that that doctrine barred claims only for an “overt condition” of the property at the time of the sale, while Eagle Pipe extended the prohibition to claims for damages that are not apparent at the time of the sale. Eagle Pipe, 79 So.3d at 272, 275.

The subsequent purchaser rule is not applicable to the present case. This case does not involve previously inflicted property damage, but |1Binvolves a property owner’s ability to collect rent on an existing lease that was recorded prior to his acquisition of the property. The supreme court in Eagle Pipe reviewed the portion of Prados that confirmed that an owner under such circumstances has the right to collect rent and did not opine or otherwise suggest that that was no longer the law.

The banks also rely upon Official Revision Comments (b) and (c) of Article 2711 for the proposition that the transfer of the property, alone, does not vest the Ciolinos with the original lessors’ rights and obligations under the lease. Comment (c) provides that a “transferee does not, by virtue of the transfer alone, become the lessor and does not assume the lessor’s obligations ... [nor become] subrogated to the lessor’s rights.... ” This statement neglects to consider the legal consequences that flow from the recordation of the lease prior to the transfer of the property. Upon recordation of the lease, anyone who acquires the property thereafter “shall take the property subject to all of the provisions of the lease,” including the right to collect rent under the lease. See La. R.S. 9:2721C; La. Civ.Code arts. 2681, 2711, 3338(2); Prados, 329 So.2d at 749; City of Winnfield, 925 So.2d at 690. This statutory law of Louisiana, as interpreted by our courts, provides the controlling law to be. applied to the facts of this case. While comments to the Civil Code articles are helpful in determining legislative intent, they are not the law. See Arabie v. CITGO Petroleum Corp., 10-2605 (La.3/13/12), 89 So.3d 307, 312; see also La. Civ.Code art. 1.

The uncontested facts establish that the lease was executed on September 7, 1973; the lease contains a term that extends through September 30, 2023; and a summary of the lease was recorded in the public land |1firecords on December 10, 1973. The lease was transferred to the banks by an assignment wherein the banks agreed they were bound “to perform all of the conditions and obligations of said lease in the respective proportions thereof as though original lessees under the lease.” The banks thereafter transferred the lease to another assignee; however, pursuant to the terms of the lease and Louisiana Civil Code articles 1821 and 1886, the banks remained liable for the performance of all obligations under the lease, including the payment of the rent. Neither the original lessors nor the Ciolinos ever released the banks from that liability. The Ciolinos acquired ownership of the subject property on December 30, 1987. Under these circumstances, the Ciolinos have the right to collect rent from the banks in accordance with the terms and conditions of the lease. See La. R.S. 9:2721C; La. Civ.Code arts. 2681, 2711, 3.388(2); Prados, 329 So.2d at 749; City of Winnfield, 925 So.2d at 690. The trial court did not err in finding that the Ciolinos have the right to maintain this action against the banks.

In a final argument under this assignment of error, First Guaranty evokes a provision in the lease which it contends compels mandatory arbitration of any dispute under the lease. First Guaranty initially raised this defense in a dilatory exception; but the bank later voluntarily dismissed that exception, filed responsive pleadings that included third party demands against numerous parties, and engaged in discovery, all over the course of approximately twenty months leading to the hearing of the subject motion h7for summary judgment and without ever advancing the purported arbitration provision again until its brief filed with this court. Under these circumstances, we find that First Guaranty waived any right to arbitration that may be set forth in the lease. See Hospital Service District No. 3 of Parish of Lafourche v. Fidelity & Deposit Company of Maryland, 99-2773 (La.App. 1 Cir. 1/16/01), 809 So.2d 145, 149, writ denied, 01-0679 (La.4/27/01), 791 So.2d 639.

C. Equitable Estoppel

The banks also argue that the trial court erred in granting the summary judgment without considering the application of equitable estoppel. They contend that the execution of the act of acknowledgment by the Ciolinos, wherein they acknowledge an assignment of the lease, together with their receipt of rent from subsequent assignees estopps the Ciolinos from now enforcing the banks’ obligation to pay rent under the lease. We find no error in the trial court’s rejection of this defense.

Equitable estoppel is a jurisprudential doctrine involving the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct. MB Industries, LLC v. CNA Insurance Co., 11-0303 (La. 10/25/11), 74 So.3d 1173, 1180. The party invoking the doctrine of equitable estoppel must prove the facts upon which the estop-pel is based and must establish all three elements of estoppel: (1) a representation by action or word; (2) justifiable reliance on the representation; and (3) a detrimental change in one’s position because of the reliance. In re Ourso, 05-0543 (La.App. 1 Cir. 6/9/06), 938 So.2d 748, 753-54, writ denied, 06-2205 (La.11/17/06), 942 So.2d 542. Estoppel is not favored in our law, and any claim of estoppel must be examined carefully and strictly. May v. Harris Management Corp., 04-2657 (La.App. 1 Cir. 12/22/05), 928 So.2d 140,145.

The record contains no evidence that the banks made a “detrimental change” in their position in reliance upon a representation by the Ciolinos. The banks were obligated under the lease before and after the execution of the act of acknowledgment. They have identified no change, detrimental or otherwise, that was made in reliance upon that document. The same is true for any asserted reliance upon the Ciolinos’ receipt of rent from subsequent lessees. The trial court did not err by failing to apply the doctrine of equitable estoppel because an essential element, a change in one’s position to his detriment because of reliance, is totally lacking in this case. See Wilkinson v. Wilkinson, 323 So.2d 120,126 (La.1975).

D. Mitigation of Damages

In their final assignment of error, the banks assert that the trial court erred in granting the summary judgment because the Ciolinos failed to offer any proof that they mitigated their damages. Pursuant to Louisiana Civil Code article 2002, an obligee must make reasonable efforts to mitigate the damage caused by the obli-gor’s failure to perform. When an obligee fails to make these efforts, the obligor may demand that the damages be accordingly 11flreduced. La. Civ.Code art, 2002. The scope of a party’s duty to mitigate depends on the particular facts of the individual case, and a party is not required to take actions which would likely prove unduly costly or futile. MB Industries, LLC, 74 So.3d at 1181.

Citing jurisprudence for the proposition that a lessor’s recovery is either, denied or reduced by the failure to make reasonable efforts to re-lease the premises after a default, the banks argue that the Ciolinos were not entitled to a summary judgment because they presented no evidence of efforts to re-lease the property. However, the failure to mitigate damages is an affirmative defense, and the burden of proof is on the party asserting the defense. MB Industries, LLC, 74 So.3d at 1181. In opposition to the motion for summary judgment, the banks were obligated to produce factual support sufficient to establish that they will be able to satisfy their burden of proof at trial that the Ciolinos failed to make reasonable efforts to mitigate their damages together with proof of the amount of any reduction in the award resulting from that failure. La.Code of Civ. Pro. art. 966C(2). The banks did not offer any evidence in support of this defense. The record is silent as to whether any efforts were made to re-lease the property; or, equally important, whether any such efforts would have been unduly costly or futile given the unique nature of the property. The banks therefore failed to satisfy the burden of proof necessary to preclude a summary judgment based on this defense.

First Guaranty additionally contends that the Ciolinos are obligated to mitigate their damages by first pursuing recovery from the current lessee |20before pursuing the banks. Under the terms of the lease and Article 1821, the banks, to the extent of their respective shares of the obligation, and the current lessee are soli-dary obligors for the rent. The law of mitigation of damages does not require that an obligee pursue recovery from one particular solidary obligor in preference to another. Rather, the Ciolinos have the right to enforce the lease against all parties liable thereunder. See La. Civ.Code arts. 1795,1800.

CONCLUSION

For the reasons set forth herein, we affirm the trial court’s granting of a summary judgment in favor of Charles A. Ciol-ino and Gertrude K. Ciolino against First Guaranty Bank and Capital One, N.A. All costs of this appeal are assessed to First Guaranty Bank and Capital One, N.A.

AFFIRMED.

THERIOT, J., Dissents with reasons.

WELCH J., concurs without reasons.

GUIDRY, J., Dissents.

THERIOT, J.,

dissents and assigns reasons.

_JjI respectfully disagree with the findings of the majority as it pertains to the issue of novation.

The Louisiana Civil Code provides for two varieties of novation. In an objective novation, the parties agree that a new performance or cause is substituted for the previous one. La. C.C. art. 1881. In a subjective novation, a new obligor is substituted for a prior obligor who is discharged by the obligee. This can be accomplished without the consent of the pri- or obligor, unless the prior obligor still had an interest in performing the obligation. La. C.C. art. 1882. The banks never agreed with the Perricones or Cioli-nos to extinguish their obligations under the lease in favor of a new obligor; therefore, an objective novation never occurred, However, a subjective novation may have occurred. The intention to extinguish the original obligation must be clear and unequivocal, and cannot be presumed, ULa.C.C. art. 1880. However, even if an obligee does not expressly declare in a written act that his original obligor is to be released, a novation may nonetheless be found if all the circumstances surrounding the transaction show that a no-vation was clearly intended by the obligee. Pike Burden Printing, Inc. v. Pike Burden, Inc., 396 So.2d 361, 366 (La.App. 1 Cir.1981).

In his deposition testimony, Charles A. Ciolino claimed he had no knowledge of the banks’ assignment of the leasehold interests. However, his testimony contradicts the acknowledgement of assignment of lease he signed on December 6, 2001. This contradiction of sworn statements raises a credibility issue. This issue goes to the crux of the case, the intention of the obligee. The obligee’s true intentions are best established at a trial with examination and cross examination of witnesses. The trier of fact must look at the circumstances surrounding the 2001 acknowledgment in addition to the terms of the agreement itself. See GE Commercial Finance Business Property Corp. v. Louisiana Hospital Center, L.L.C., 10-1838 (La.App. 1 Cir. 6/10/11), 69 So.3d 649, 656; Schillace v. Channell Shopping Partnership and Robin W. Poirier, 623 So.2d 45, 47 (La.App. 1 Cir.1993). The presence of a genuine issue of material fact precludes the granting of summary judgment. Therefore, I respectfully dissent.

      . The original lessee was M.D. Evans, who assigned the lease to 55 & 12, Inc., a company he directed as president. Evans and 55 & 12, Inc. are collectively referred to herein as the "original lessee.” Hibernia National Bank subsequently changed its name to Capital One, and First Guaranty Bank and Capital One are sometimes collectively referred to hereinafter as the "banks.”

      . The Ciolinos filed a motion to strike Damer-an's affidavit, arguing that it contained opinions that were not based on personal knowledge. The trial court granted the motion, in part, “to the extent that the affidavit contains opinions;” however, the trial court did not specify which portions of the affidavit constituted opinions. The banks did not appeal that ruling.

      . The summary judgment was signed on October 3, 2012 and is therefore governed by the version of Article 966 in effect after its amendment by Acts 2012, No. 257.

      . The banks assigned as error the trial court’s purported finding that the lease was a real right; however, we find no merit in that assignment of error because the trial court’s written reasons and judgment do not express such a finding.

      . The recordation of a summary or "extract” of the lease containing the essential terms was authorized by Louisiana Revised Statute 9:2721.1 (repealed by Acts 2005, No. 169). Section 9 of Acts 2005, No. 169 provides, in part, "Nothing in. this Act shall be deemed to diminish the effect of, or render ineffective, the recordation of any instrument that was filed, registered, or recorded in the conveyance or mortgage records of any parish before the effective date of this Act.” See now La. R.S. 9:2742.

      . In light of our holding recognizing that the Ciolinos have a right of action to collect rent from the banks, we do not consider and express no opinion on the Ciolinos’ alternative arguments that the act of donation was sufficiently broad to expressly transfer the lease rights to them, or that Charles Ciolino, as the sole heir of Mike Ciolino, acquired the lease rights in accordance with the laws of succession. See La. Civ.Code arts. 888, 935, 937 and 938.

      . The trial court's reasons and judgment were silent with respect to the defense of equitable estoppel, however silence in a judgment as to any issue that was placed before the trial court is deemed a rejection of the claim. Hayes v. Louisiana State Penitentiary, 06-0553 (La.App. 1 Cir. 8/15/07), 970 So.2d 547, 554 n. 9, writ denied, 07-2258 (La. 1/25/08), 973 So.2d 758.

      . See American Leasing Company of Monroe, Inc. v. Lannon E. Miller & Son General Contracting, Inc., 493 So.2d 764, 765 (La.App. 2 Cir.1986); Dixie Services, L.L.C. v. R & B Falcon Drilling USA, Inc., 05-1212 (La.App. 4 Cir. 3/21/07), 955 So.2d 214, 219, writ denied, 07-0801 (La.6/1/07), 957 So.2d 182.

      . Any satisfaction of the rental obligation by the banks will give rise to statutory rights of contribution from other solidary obligors under the lease, including the current lessee. See La. Civ.Code art. 1804.


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    Alice GARRISON. v. OLD MAN RIVER ESPLANADE, L.L.C., d/b/a The Esplanade at City Park, Chubb America Service Corporation and Jerry Schiffmann d/b/a Bayou Grocery.
    No. 2013-CA-0869.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 18, 2013.
    Laurence David Cohen, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.

      Brant J. Cacamo, Sidney J. Angelle, Lobman Carnahan Batt Angelle & Nader, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

11 Alice Garrison appeals a summary judgment granted in favor of The Esplanade at City Park and its insurer, Chubb America Service Corporation. For the following reasons, we affirm.

BACKGROUND:

Ms. Garrison initially filed suit against Old Man River Esplanade, L.L.C. d/b/a The Esplanade at City Park (The Esplanade), Chubb America Service Corporation, and Jerry Schiffmann d/b/a Bayou Grocery (Bayou Grocery). The Esplanade is a 441-unit apartment building located near Bayou St. John in New Orleans. Bayou Grocery is a small convenience store located on the first floor of the building, which leases the space from the building’s owner. Ms. Garrison, who worked as a sitter for a resident at The Esplanade, alleged that on September 12, 2010, she slipped and fell inside of Bayou Grocery, severely injuring herself.

Ms. Garrison alleged that her fall was caused by a broken pipe in a paint room located across the hall from Bayou Grocery that had occurred the day before her fall. She argues that “circumstantial evidence” demonstrates that water from |2the paint room soaked the hallway between the paint room and Bayou Grocery, and was likely tracked into the grocery causing Ms. Garrison’s fall. It is not disputed that the paint room was under the control of The Esplanade.

Ms. Garrison further alleged that her fall was caused by the negligence of The Esplanade and its employees, as well as the negligence of Bayou Grocery and its employees, for their failure to inspect the premises, provide a safe premises, and to warn of the dangerous condition.

The Esplanade and Bayou Grocery both moved for summary judgment, and after hearing both motions contemporaneously, the trial court granted summary judgment as to The Esplanade and denied summary judgment as to Bayou Grocery.

DISCUSSION:

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880; Duncan v. USAA Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material facts and that the movant is entitled to summary judgment as a matter of law. La.Code Civ. Proc. art. 966B.

The burden of proof on a motion for summary judgment remains with the movant to point out to the court that there is no factual support for an essential element in the opponent’s case. Thereafter, if the adverse party fails to produce ^factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and summary judgment is appropriate. La.Code Civ. Proc. art. 966 C(2), also see, Hutchinson v. Knights of Columbus, Council No. 5717, 03-1533, p. 7 (La.2/20/04), 866 So.2d 228, 233; Estate of Alix v. Wells, 07-0503, p. 2 (La.App. 4 Cir. 12/12/07), 974 So.2d 63, 64.

An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.Code Civ. Proc. art. 967 B; Townley v. City of Iowa, 97-493, p. 5 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Quantum Resources Mgmt., L.L.C. v. Pirate Lake Oil Corp., 12-1472, p. 5 (La.3/19/13), 112 So.3d 209, 214; Serou v. Touro Infirmary, 12-0089, p. 48 (La.App. 4 Cir. 1/9/13), 105 So.3d 1068, 1100; La.Code Civ. Proc. art. 966.

The Esplanade maintained that La. Civ. Code art. 2317.1 is the applicable law because it is an apartment complex/landlord that rents space to residential and commercial lessees.

Louisiana Civil Code art. 2317.1 provides that:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only |4upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitor in an appropriate case.

Ms. Garrison agrees that La. Civ.Code arts. 2317.1 and 2322 are the applicable statutes to determine liability in this case.

The Esplanade further asserted that although normally a lessor warrants a premises against vices or defects, such warranty may be waived by the lessee. La. Civ. Code arts. 2696, et seq. The Esplanade attached to its motion an affidavit of Christina Pascal, the property manager for The Esplanade, which included a copy of the lease agreement between The Esplanade and Bayou Grocery.

The lease agreement provided that The Esplanade did not maintain any insurance policy to cover Bayou Grocery for personal injuries sustained within its premises. Specifically, the lease provided that The Esplanade was “not responsible for any resident, guest or occupant for damages or loss of personal property or personal injury (including but not limited to) fire, smoke, rain, flood, water and pipe leaks, hail, ice, snow, lightning, wind, explosions, earthquake, interruption of utilities, theft, hurricane, negligence of other residents, occupants, or invited/uninvited guests or vandalism unless otherwise required by law.” The lease also confirmed that Bayou Grocery accepted the property “as is” except for conditions materially affecting the health or safety of ordinary persons. The Esplanade disclaimed all implied warranties except those required by law.

Further, The Esplanade asserted in its motion for summary judgment that Ms. Garrison has no evidence to prove an essential element of her claim, i.e., that | sThe Esplanade had notice of an unreasonably dangerous condition on the premises prior to her accident.

To prove premises liability under La. Civ.Code art. 2317. 1, a plaintiff must prove: 1) that the defendant knew or should have known of the vice or defect; 2) that the damage could have been prevented by the exercise of reasonable care; and, 3) that the defendant failed to exercise such reasonable care. Greenhouse v. C.F. Kenner Associates, Ltd. P’ship, 98-0496 (La.App. 4 Cir. 11/10/98), 723 So.2d 1004. Inherent in these elements is that the vice or defect (in this case water leaking) causes the injury.

Ms. Garrison filed oppositions to the subject motion for summary judgment and to the one filed on behalf of Bayou Grocery. In it she cited to deposition testimony of Jerry Schiffman wherein he testified that on the day before Ms. Garrison’s fall, there was a leak in a room across the hall from Bayou Grocery, that the room was “flooded,” and that the carpet in the direction from which Mr. Schiffman entered the building was visibly wet. She also cited testimony of The Esplanade’s maintenance man, Andrew Tyler. Mr. Tyler admitted that the leak occurred in the paint room of the Esplanade, that the carpet outside of the paint room was wet, that he placed blowers in the hallway to dry the carpet, and that the blowers remained in the hallway until he returned to work on Monday.

Also, in her opposition, Ms. Garrison asserted that La. Civ.Code art. 660 applied to The Esplanade because it failed to keep its building in good repair.

Ms. Garrison argued that The Esplanade had notice of the defective and dangerous condition of its premises. A photo attached to The Esplanade’s motion for summary judgment indicated that a “wet floor” sign and a blower was in the hallway outside of Bayou Grocery on the date of Ms. Garrison’s fall. She argued | fithat both Jerry Schiffman, the owner of Bayou Grocery, and his son, Jason, who worked in the store on the day of the accident, testified that they knew about the water leak in the hallway that occurred the day before the accident.

In summary, Ms. Garrison argued that because water was leaking in a room across the hall from Bayou Grocery on the day before Ms. Garrison’s alleged fall, which The Esplanade and Bayou Grocery knew about, and the carpet in the hallway was wet on the day before as evidenced by a “wet floor” sign and a blower, this was sufficient circumstantial evidence to prove that the water from the paint room leak made its way across the hall and into Bayou Grocery, and that the Esplanade had notice of the leak and wet carpet.

We find Ms. Garrison’s argument lacking. She has offered no proof that a leak in a room across the hallway from Bayou Grocery on the day before the alleged accident caused the floor in Bayou Grocery to become wet. Ms. Garrison’s speculation that water from the hallway was tracked into Bayou Grocery from the wet carpet is insufficient to defeat summary judgment.

Ms. Garrison testified that she walked into the Bayou Grocery from the opposite direction of the wet carpet and that the carpet she traversed was not wet. Further, Ms. Garrison testified that the tile floor in Bayou Grocery was not wet when she entered the store. She walked into the store, selected a drink from a cooler, and slipped as she made her way back to the checkout at the counter near the door. Ms. Garrison stated that it appeared that water was coming from under the checkout counter, not from the hallway. She testified that she had “no idea” how long the water was on the floor before her fall and “no clue” where the water came from. Bayou Grocery employee Jason Schiffman testified that he came from behind the counter to attend to Ms. Garrison after her fall. He did not detect any 17liquid on the floor, nor did he have to mop or clean the floor after the fall. Another employee of Bayou Grocery, Mabel MacCash, testified that she entered the store while Ms. Garrison was still on the floor after her fall. She did not note any water on the floor. Esplanade property manager, Christina Pascal testified she had no knowledge of water being on the floor of Bayou Grocery, nor were there any reports of spills or water leaks in the grocery prior to the alleged fall. In short, Ms. Garrison’s entire case against the Esplanade is based upon supposition that the water leak across the hall somehow made its way inside of the grocery store across the hall the following day. In fact, the uncontro-verted testimony of The Esplanade maintenance technician, Andrew Tyler, was that the water leaked into about a one foot area from the wall of the paint room, some six feet away from the entrance to the grocery. After wet vacuuming the area he placed a “Wet Floor” sign in the area where the carpet was wet. Ms. Garrison testified that as she approached the entrance to the grocery she noticed that the carpet in the hallway appeared wet, but she did not have to step in the wet area before entering the grocery.

There was no testimony or evidence presented that indicated the water from the prior day’s pipe leak in the paint room found its way across the hall into Bayou Grocery.

We acknowledge that circumstantial evidence may establish the existence of a genuine issue of material fact to defeat summary judgment; however, the response of the adverse party must set forth specific facts showing a genuine issue of fact exists. Florane v. Pendleton Memorial Methodist Hosp., 02-0165 (La.App. 4 Cir. 5/29/02), 822 So.2d 642. Ms. Garrison has not set forth any specific facts in her opposition that would show a genuine issue of fact exists.

IrOut de novo review of the record confirms that summary judgment in favor of The Esplanade was proper. Ms. Garrison has not refuted The Esplanade’s motion with any evidence or testimony which relates the water from the paint room leak which occurred the day before to her fall. There is nothing in the record to indicate that The Esplanade had actual or constructive notice of water on the floor of Bayou Grocery on the date of her fall.

Accordingly, we affirm the summary judgment of the trial court.

AFFIRMED.


author: EDWIN A. LOMBARD, Judge. TOBIAS, J.,

text:
    STATE of Louisiana v. Bernard W. NOBLE.
    No. 2013-KA-1109.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 12, 2014.
    Rehearing Denied March 17, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appel-lee/State of Louisiana.
    Jee Park, Orleans Public Defenders, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROSEMARY LEDET).
   EDWIN A. LOMBARD, Judge.

[,The defendant, Bernard W. Noble, appeals his sentence, arguing that thirteen and one-third years in prison for possession of a small amount of marijuana is constitutionally excessive. After review of the record in light of the applicable law and arguments of the parties, the defendant’s sentence is affirmed.

Relevant Facts and Procedural History

In May 2011, the defendant was convicted of a fourth offense possession of marijuana, a violation of La.Rev.Stat. 40:966(E)(3), and then adjudicated as a third felony offender. Although the mandatory minimum sentence under the Habitual Offender Law for a third offense is thirteen and one-third years, in a downward departure from the sentencing guidelines, the trial judge (Judge Terry Alar-con) sentenced the appellant to serve five years. Pursuant to the State’s writ application, this court found that the trial judge failed to articulate sufficient reasons to justify for the downward departure and the matter was remanded to the trial court to amplify its reasons.

In April 2012, newly elected Judge Franz Zibilich adopted the reasoning of retired Judge Alarcon and again sentenced the defendant to a five year term of imprisonment. The State filed another writ application in this court, arguing that | ?the trial court had again failed to articulate sufficient reasons for the downward departure from the statutory minimum sentence as required by State v. Dorthey, 623 So.2d 1276 (1993). This court denied the State’s writ application, finding that the defendant “made a sufficient showing that the mandatory minimum sentence [applicable to him under Rev. Stat. 15:529.1] was constitutionally excessive.” State v. Noble, unpub., 2012-0850 (La.App. 4 Cir. 7/26/12). The Louisiana Supreme Court subsequently reversed that decision and vacated the five year sentence imposed by the trial court, stating:

In the present case, the district court noted that defendant supports several children, who would also be punished by incarcerating him, and that defendant’s criminal history consists of non-violent but repeated possession of small quantities of cocaine and marijuana. Neither factor individually or in combination defines a class of offender sufficiently narrow to qualify as exceptional.

State v. Noble, 2013-1928, p. 3 (La.4/19/13), 114 So.3d 500, 501. Accordingly, the matter was remanded the matter to the trial court for resentencing to the mandatory minimum sentence of thirteen and one-third years. Noble, 2013-1923, pp. 3-4, 114 So.3d at 501. Shortly thereafter, as mandated by the Louisiana Supreme Court, the trial court reluctantly sentenced the appellant to serve the mandatory minimum of thirteen and one-third years.

The defendant filed this timely appeal, arguing that this sentence for simple possession of a small amount of marijuana is in violation of the Louisiana Constitution, Article I, Section 20 which prohibits imposition of excessive punishment.

Applicable Law

A sentence is unconstitutionally excessive if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the | ¡^purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. State v. Telsee, 425 So.2d 1251 (La.1983).

Discussion

The defendant points out six mitigating factors which he believes should be given consideration in arriving at an appropriate sentence in his case:

1. He was convicted of possessing less than three grams of marijuana (two hand rolled marijuana cigarettes) and fully cooperated with the police when arrested.
2. His adjudication as a third felony offender is based on a 1991 possession of cocaine and a 2003 possession of cocaine.
3. The defendant is the father of seven children between the ages of four and eighteen who he supports financially (making regular child support payments in full and on time) and emotionally, maintaining regular contact with his children who live with their mother.
4. The defendant is a high school graduate, has a commercial driver’s license, and a business license he used to start two businesses, a janitorial service and a restaurant.
5. The defendant has an extensive work history, being gainfully employed for over twenty years as both skilled and unskilled labor for various employers including a city sanitation and sewerage department; a mail/package delivery company; a towing company; an airport shuttle bus company; and a company delivering medical services to nursing homes. In addition, he has worked as a cook, a janitor, and laborer.
6. The sentencing range for possession of marijuana third offense is zero to twenty years. See La.Rev.Stat. 40:966(E)(3).

Thus, the defendant asserts that his circumstances are exceptional, meeting the criteria set forth in State v. Johnson, 97-1906, p. 7 (La.3/4/98), 709 So.2d 672, 676 and makes no measurable contribution to acceptable goals of punishment. In addition, the defendant points out that the only possible victim underlying this conviction is himself as the user of an illegal substance so that any harm suffered is by himself and his family. Finally, the defendant points out that his three drug possession convictions were approximately ten years apart (1991, 2002, 2009) and, | therefore, it is reasonable to conclude that a sentence of five years is sufficient to successfully deter future drug involvement.

Although both trial judges clearly found that the mandatory minimum sentence in this case (thirteen and a half years) is grossly disproportionate to the crime in this case (possession of two marijuana cigarettes), particularly when compared to other jurisdictions, at the resen-tencing hearing the trial judge was unable to articulate additional reasons beyond those already found insufficient by the Louisiana Supreme Court to support a downward departure in this case. Accordingly, as mandated by the Louisiana Supreme Court, the trial judge sentenced the defendant to the statutory minimum sentence. Under these circumstances, we cannot find that the trial judge abused his discretion.

Conclusion

The defendant’s sentence is affirmed.

AFFIRMED.

TOBIAS, J., concurs.

TOBIAS, J.,

concurs.

|,I respectfully concur only because it is my understanding that this court is, and therefore I am, obligated to follow the 4-3 per curiam opinion of the Supreme Court in this case; State v. Noble, 12-1923 (La.4/19/13), 114 So.3d 500.

Nevertheless, I do note that the Supreme Court has apparently and recently called into question the appropriateness of citing one of their per curiam opinions as precedent for a proposition of law. See State v. Tate, 12-2763, p. 4 n. 1 (La.11/5/13), 130 So.3d 829, 833 n. 1. This creates uncertainty for the courts of appeal, trial courts, lawyers, and others in trying to ascertain what is precisely the law of Louisiana. In the case at bar, certainly a reasonable argument can be made that how the Supreme Court ruled in Noble, supra, need not be strictly adhered to in light of Tate, supra.

If State v. Dorthey, 623 So.2d 1276 (La.1993) means anything, in this case it certainly was followed by Judge Alarcon before his retirement from the bench when he found that Mr. Noble should only be sentenced to five years imprisonment for the possession of a minimal amount (less than three grams) of | {.marijuana instead of the statutory thirteen and one-third years. A three-judge panel of this court, three of the seven justices of the Supreme Court, and Judge Zibilich (the judge who replaced Judge Alarcon on the trial bench) have concluded that a downward departure is warranted from the mandatory sentence formulated by the legislature. The majority herein accurately articulates many of the reasons why the lengthier sentence is out of proportion to the severity of the crime and imposes needless and purposeless pain on the defendant, aside from imposing upon the state the added cost of housing the defendant for potentially eight and one-third more years than it needs to.

The facts in this case are simple. The middle-aged defendant has no history of violence. He has an excellent work history and record of supporting his seven children. The trial judge reluctantly imposed the draconian (as it applies to this defendant and this offense) sentence mandated by the multiple offender statute. I point out (as did the trial judge at the resentenc-ing hearing) that the per curiam issued in this case by the Louisiana Supreme Court implicitly ignored or overruled its own precedent in Dorthey, supra, thus leaving this court and the trial court without guidance as to what, if anything, remains of the discretionary authority of the trial and intermediate appellate courts to determine whether a sentence is constitutionally excessive as to a particular defendant or whether such judicial authority is now totally subsumed by the state’s discretionary authority to multiple bill a defendant.

| sThis is not to say that I approve of the use or distribution of marijuana, but, like the majority notes, the crimes of which Mr. Noble has been convicted have been related to harm that he primarily and directly has caused to himself.

In my view, this is not the case that our courts should be using as the poster child for harsh sentencing.

      . See Ryan S. King & Marc Mauer, The War on Marijuana: The Transformation of the War on Drugs in the 1990s, The Sentencing Project, 2 (2005), (according to the Bureau of Justice Statistics, in 2000 there were 734,000 arrests for possession of marijuana and approximately 41,000 convictions; of those convicted of a felony possession offense for marijuana, less than one third were sentenced to jail or prison; the average sentence for people convicted of a marijuana possession felony (including possession with intent to distribute) in state courts was 31 months and the median was 16 months).

      . Parenthetically, I am reminded of La. Const, art. X, § 30, which states in pertinent part, "I, ..., do solemnly swear (or affirm) that I will support the constitution and laws of the United States and the constitution and laws of this state and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ..., according to the best of my ability and understanding, so help me God.” As I understand the oath, my first duty is to the constitution and laws of the United States and next to the constitution and laws of Louisiana.

      . The state chose to exercise its discretion to multiple bill the defendant based upon two convictions from his youth, possession of cocaine in 1991 and 2003.

      . State v. Noble, 12-0186, unpub (La.App. 4 Cir. 3/9/12).

      .I thought that severe sentences were directed at violent offenders, not milquetoast offenders.


author: SAUNDERS, Judge.

text:
    George Raymond WILLIAMS, M.D., et al. v. SIF CONSULTANTS OF LOUISIANA, INC., et al.
    No. 13-972.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 26, 2014.
    Rehearing Denied April 9, 2014.

      John Stanton Bradford, William B. Monk, Stockwell, Sievert, Viccellio, Clements, & Shaddock, L.L.P., Lake Charles, LA, for Plaintiff/Appellee, George Raymond Williams, M.D., Orthopaedic Surgery, A ProfessionalMedical, L.L.C.
    Charles Thach Curtis Jr., Gerard George Metzger, Attorney at Law, New Orleans, LA, for Defendant/Appellee, Med-Comp USA, Inc.
    Harry Alston Johnson, III, Phelps, Dunbar, L.L.P., Baton Rouge, LA, for Defendant/Appellant, Executive Risk Specialty Ins. Co.
    Patrick Craig Morrow, Sr., James P. Ryan, Morrow, Morrow, Ryand, & Bassett, Opelousas, LA, for Plaintiff/Appellee, George Raymond Williams, M.D., Ortho-paedic Surgery, A ProfessionalMedical, L.L.C.
    Randall Kurt Theunissen, Michael Edward Parker, D. Paul Gardner, Jr., Allen & Gooch, Lafayette, LA, for Defendant/Appellee, Homeland Ins. Co. of New York.
    Steven William Usdin, Edward R. Wicker, Jr., Stephen L. Miles, Barrasso, Usdin, Kupperman, Freeman, & Sarver, New Orleans, LA, for Defendant/Appellant, Executive Risk Specialty Ins. Co.
    Michael Kevin Cox, Thomas Allen Filo, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Plaintiff/Appellee, George Raymond Williams, M.D., Orthopaedic Surgery, A ProfessionalMedieal, L.L.C.
    Stephen B. Murray, Stephen B. Murray, Jr., Arthur M. Murray, Nicole A. Ieyoub-Murray, Murray Law Firm, New Orleans, LA, for Plaintiff/Appellee, George Raymond Williams, M.D., Orthopaedic Surgery, A ProfessionalMedieal, L.L.C.
    Michael J. Rosen, Boundas, Skarzynksi, Walsh, & Black, L.L.C., Chicago, IL, for Defendant/Appellee, Homeland Ins. Co. of New York.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   SAUNDERS, Judge.

| ¶ This is a class action wherein the plaintiff class was granted a partial motion for summary judgment on the issue of coverage. After a de novo review of the record, we find that policy issuer’s appeal is without merit and affirm the trial court’s judgment that the plaintiff class is entitled to its motion for partial summary judgment that the policy provides coverage to the claims asserted by the plaintiff class.

FACTS AND PROCEDURAL HISTORY:

The plaintiff class of medical providers filed suit against Executive Risk Specialty Insurance Company (Executive Risk) and Homeland Insurance Company of New York (Homeland) under the direct action statute. Executive Risk and Homeland had each issued a claims-made errors and omissions policy to CorVel, Corp. (CorVel) during consecutive time periods. Executive Risk issued policies to CorVel for annual periods from October 31, 1999, to October 31, 2005. Homeland issued policies for annual periods from October 31, 2005, to present. CorVel settled with the plaintiff class for failure to comply with the mandatory notice provisions of billing discounts in the Louisiana PPO Act, La.R.S. 40:2203.1.

After the trial court certified the plaintiff class, a partial motion for summary judgment was filed by the plaintiff class on the issue of coverage by the Executive Risk policies. The trial court granted the motion.

Executive Risk appealed the judgment. They alleged that the trial court’s grant of partial summary judgment was premature because it had outstanding discovery propounded to the plaintiff class. Further, Executive Risk alleged that the trial court’s grant of partial summary judgment was improper because: it was based entirely on an untested document never before produced in this case; the trial court incorrectly found that a claim existed against CorVel during Executive Risk’s 12policy period; the trial court never made a necessary determination that any claim against CorVel relates to any other later claims; the trial court improperly found that the relief sought by the plaintiff class under Title 40 was not a penalty, and; the trial court failed to give full faith and credit to a Delaware judgment. Finally, Executive Risk alleged that the trial court improperly found coverage under Executive Risk’s policy where CorVel failed to notify Executive Risk of any claim under Title 40 and where CorVel settled its alleged liability with the plaintiff class without ever notifying or obtaining consent from Executive Risk.

ASSIGNMENTS OF ERROR:

1. The trial court improperly granted summary judgment before there was any discovery on insurance coverage issues — e.g., the types of any “Claims,” the dates of any “Claims,” and whether a “Claim” even exists under the Policy. Indeed, the plaintiff class failed and refused to respond to discovery requests issued by Executive Risk on the disputed factual issues, and instead on summary judgment ambushed Executive Risk with evidence that requires full and complete discovery. Summary judgment was premature.

2. The trial court improperly granted summary judgment based solely on argument by the plaintiff class. The plaintiff class failed to present any competent evidence — whether through an affidavit or other sworn testimony — to prove coverage. The plaintiff class presented no evidence that a Title 23 or other action against CorVel ever truly existed during the Policy period, and presented no evidence that any “Claim” against CorVel related to another later “Claim.” In fact, the trial court never made a determination that any “Claim” against CorVel related to another later “Claim.”

3. The trial court improperly determined that the relief sought by the plaintiff class under Title 40 is not a penalty, and instead constitutes covered statutory damages covered under the Policy. The trial court’s holding is out of step with Louisiana appellate courts, including the Third Circuit, and federal courts which repeatedly and consistently have characterized the relief under Title 40 as an uninsured penalty. It also directly contradicts the earlier-rendered Delaware Action Opinion, which has preclusive effect here, involving the very same issues, policies, and parties.

4. The trial court erred in finding coverage because CorVel failed to notify Executive Risk of any “Claim” under Title 40. It is a condition precedent to coverage that a “Claim” be made within the Policy period and reported to Executive Risk no later than 90 days after the pend of the Policy period. It is undisputed that CorVel failed to satisfy this condition, and thus under Louisiana Supreme Court jurisprudence, there is no coverage under the Policy.

5.Even if a “Claim” exists, the trial court erred in finding coverage because CorVel settled its alleged liability with the plaintiff class without ever notifying or obtaining the consent of Executive Risk, in clear violation of the terms of the Policy. As a result, there is no coverage.

DISCUSSION OF THE MERITS:

Executive Risk presents various arguments in its five assignments of error as to why the plaintiff class’ partial summary judgment should not have been granted. We will address these arguments under one heading as each issue raised is subject to the same standard of review and requests the reversal of the trial court’s grant of the plaintiff class’ motion for partial summary judgment.

The standard of review applicable when an appeal is taken from a granted motion for summary judgment is de novo. Covington v. McNeese State Univ., 08-505 (La.App. 3 Cir. 11/5/08), 996 So.2d 667, writ denied, 09-69 (La.3/6/09), 3 So.3d 491. Louisiana Code of Civil Procedure Article 966(A)(2) states that “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” Under La.Code Civ.P. art. 966(B)(2), a motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Louisiana Code of Civil Procedure Article 966(C)(2) outlines the burden of proof that a party must carry in order to have a motion for summary judgment granted. It states:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s Rburden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2).

Here, the plaintiff class was granted a motion for partial summary judgment against Executive Risk on the issue of coverage. The trial court found that the Executive Risk errors and omissions policies provided coverage for the plaintiff class’ claims which it asserted. As such, we will review whether that policy does provide for coverage of the claims asserted by the plaintiff class.

An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. If the words of the policy are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent and the agreement must be enforced as written. An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. The policy should be construed as a whole and one portion thereof should not be construed separately at the expense of disregarding another. If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of the insured.

Crabtree v. State Farm Ins. Co., 93-509, p. 6 (La.2/28/94), 682 So.2d 736, 741 (citations and footnotes omitted). Contrarily, a policy’s exclusionary provisions are strictly construed and the burden to prove that a loss comes within an exclusion is on the insurer. Bennett v. State Farm Ins. Co., 03-1195 (La.App. 3 Cir. 3/24/04), 869 So.2d 321.

Louisiana Revised Statutes 40:2203.1, entitled Prohibition of certain practices by preferred provider organizations, states:

15A. Except as otherwise provided in this Subsection, the requirements of this Section shall apply to all preferred provider organization agreements that are applicable to medical services rendered in this state and to group purchasers as defined in this Part. The provisions of this Section shall not apply to a group purchaser when providing health benefits through its own network or direct provider agreements or to such agreements of a group purchaser.
B. A preferred provider organization’s alternative rates of payment shall not be enforceable or binding upon any provider unless such organization is clearly identified on the benefit card issued by the group purchaser or other entity accessing a group purchaser’s contractual agreement or agreements and presented to the participating provider when medical care is provided. When more than one preferred provider organization is shown on the benefit card of a group purchaser or other entity, the applicable contractual agreement that shall be binding on a provider shall be determined as follows:
(1) The first preferred provider organization domiciled in this state, listed on the benefit card, beginning on the front of the card, reading from left to right, line by line, from top to bottom, that is applicable to a provider on the date medical care is rendered, shall establish the contractual agreement for payment that shall ap-piy-
(2) If there is no preferred provider organization domiciled in this state listed on the benefit card, the first preferred provider organization domiciled outside this state listed on the benefit card, following the same process outlined in Paragraph (1) of this Subsection shall establish the contractual agreement for payment that shall apply.
(3) The side of the benefit card that prominently identifies the name of the insurer, or plan sponsor and beneficiary shall be deemed to be the front of the card.
(4) When no preferred provider organization is listed, the plan sponsor or insurer identified by the card shall be deemed to be the group purchaser for purposes of this Section.
(5) When no benefit card is issued or utilized by a group purchaser or other entity, written notification shall be required of any entity accessing an existing group purchaser’s contractual agreement or agreements at least thirty days prior to accessing services through a participating provider under such agreement or agreements.
|fiC. A preferred provider organization agreement shall not be applied or used on a retroactive basis unless all providers of medical services that are affected by the application of alternative rates of payment receive written notification from the entity that seeks such an arrangement and agree in writing to be reimbursed at the alternative rates of payment.
D. In no instance shall any provider be bound by the terms of a preferred provider organization agreement that is in violation of this Part.
E. Any claim submitted by a provider for services provided to a person identified by the provider and a group purchaser as eligible for alternative rates of payment in a preferred provider agreement shall be subject to the standards for claims submission and timely payment according to the provisions of Sub-part B of Part II of Chapter 6 of Title 22 of the Louisiana Revised Statutes of 1950.
F. A group purchaser establishing a preferred provider organization shall be prohibited from charging a credentialing fee or any other type of monetary fee, when no access to a group purchaser is provided. Any provider who participates in a preferred provider organization may be charged a reasonable fee either on a periodic basis or based on the tangible benefits received from continued participation in a preferred provider organization. Such fees may be based on actual utilization of alternative rates of payment by group purchasers or other authorized entities or other reasonable basis other than membership.
G. Failure to comply with the provisions of Subsection A, B, C, D, or F of this Section shall subject a group purchaser to damages payable to the provider of double the fair market value of the medical services provided, but in no event less than the greater of fifty dollars per day of noncompliance or two thousand dollars, together with attorney fees to be determined by the court. A provider may institute this action in any court of competent jurisdiction.

Executive Risk’s policy that it issued to CorVel includes the following definitions:

“Claim” means any written notice received by any Insured that a person or entity intends to hold an Insured responsible for a Wrongful Act.... [s]uch notice may be in the form of an arbitration, mediation, judicial, declaratory or injunctive proceeding. A Claim will be deemed to be made when such written notice is first received by any Insured. “Loss” means Defense expenses and any monetary amount which an Insured is legally obligated to pay as a result of a Claim.... This paragraph shall be construed under the applicable law most favorable |7to the insurability of such fines, penalties, and punitive, exemplary or multiplied damages. Loss — shall not include:
1. except as expressly set forth above, fines, penalties, taxes, and punitive, exemplary or multiplied damages;
2. fees, amounts, benefits or coverage owed under any contract, health care plan or trust, insurance or workers’ compensation policy or plan or program of self-insurance;
3. non-monetary relief or redress in any form, including without limitation the cost of complying with any injunc-tive, declaratory or administrative relief; or
4. matters which are uninsurable under applicable law.
“Related Claims” means all Claims for Wrongful Acts based on, arising, out of, directly or indirectly resulting from, in consequence of, or in any way involving the same or related facts, circumstances, situations, transactions or events, whether related logically, causally or in any other way.

Executive Risk’s first contention is that the language of its policy excludes La.R.S. 40:2203.1(G) damages as sought by the plaintiff class. We find no merit to this contention.

The language of Executive Risk’s policy clearly excludes “fines, penalties, taxes, and punitive, exemplary or multiplied damages.” It is equally clear that the policy does not exclude statutory damages. The plaintiff class asserts that the damages in La.R.S. 40:2203.1(G) are statutory damages while Executive Risk asserts that the damages are punitive in nature.

A statute is first interpreted according to its plain language. Cleco Evangeline, L.L.C. v. La. Tax Comm’n, 01-2162 (La.4/3/02), 813 So.2d 351. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. Civ. Code art. 9.

The language of La.R.S. 40:2203.1(G) denotes that a violator is subject to pay “damages” and includes no language regarding penalties. Further, the | slanguage of Executive Risk’s policy is that it will pay “any monetary amount which an Insured is legally obligated to pay as a result of a Claim.” While there are exclusions listed thereafter, those exclusions do not include a monetary amount that is a statutory damage or a damage punitive in nature. Accordingly, we find no merit to Executive Risk’s first contention and find that its policy covers the damages and attorney’s fees sought by the plaintiff class.

Second, Executive Risk asserts that the plaintiff class failed to show that any claim, as defined by its policy, was made against CorVel during the time its policy was in effect. Executive Risk issued policies to CorVel for annual periods from October 31,1999, to October 31, 2005. A claim under those policies is defined as “any written notice received by any Insured that a person or entity intends to hold an Insured responsible for a Wrongful Act.”

The plaintiff class submitted into evidence, without objection, a letter dated May 17, 2005, addressed to CorVel’s district manager from the State of Louisiana’s Office of Risk Management (ORM). The following is written in that letter:

The ORM is now on notice that certain claims have been filed against this agency as a direct result of actions and recommendations by CorVel to the ORM, all of which actions and recommendations are contemplated and covered by the captioned contracts. To date, and to the best knowledge of the ORM, there are a total of eighty-one (81) such claims. The ORM is informed, and thus states and believers [sic], that an unknown number of such additional and similar claims have been or may be filed.
The ORM now therefore calls upon CorVel for an immediate defense, and for indemnity in these matters, including claims made, and those yet to be filed, and for CorVel to hold harmless the ORM and the State of Louisiana in all respects. In that regard, demand is further made for reimbursement for all costs and expenses, including attorney’s fees, expended to date by the ORM.

The plain language in Executive Risk’s policy necessitates that letter fits under the definition of a claim. It is written notice received by an insured, CorVel, 19that an entity, the State of Louisiana through the ORM, intended to hold an insured, CorVel, responsible for a wrongful act.

Executive Risk asserts that this letter is insufficient to be considered a claim under its policy because the letter is unauthenticated and it references claims filed under Title 23 rather than under Title 40. We are not persuaded by these two assertions.

“The general rule is that a rule of evidence not invoked is waived, and, hence, a failure to object to evidence waives the objection to its admissibility.” Ratcliff v. Normand, 01-1658, pp. 6-7 (La.App. 3 Cir. 6/5/02), 819 So.2d 434, 439. “To preserve an evidentiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence or testimony, and state the reasons for the objection.” La-Haye v. Allstate Ins. Co., 570 So.2d 460, 466 (La.App. 3 Cir.1990), writ denied, 575 So.2d 391 (La.1991) (citing Pitts v. Bailes, 551 So.2d 1363 (La.App. 3 Cir.), writs denied, 553 So.2d 860 (La.1989), 556 So.2d 1262 (La.1990)).

Executive Risk did not object to the letter being entered into evidence. Thus, they have waived any objection to the letter’s authenticity.

Further, there is no language in the letter indicating whether the claims filed against the ORM are under Title 23 or Title 40. Regardless, the plain and unambiguous language of Executive Risk’s policy in defining a claim does not indicate that this distinction is relevant. While Executive Risk points out that the plaintiff class admits that CorVel was named in error in the actions under Title 23, the policy’s definition of claim only requires that “a person or entity” have intent to hold CorVel responsible. That “person or entity” in the letter was the State of Louisiana through the ORM, not the plaintiff class.

| inExecutive Risk also argues that its policy doesn’t provide coverage because CorVel did not timely notify it of the claim and CorVel settled with the plaintiff class without getting consent. These are potential defenses of Executive Risk against CorVel and cannot defeat claims brought via La.R.S. 22:655, Louisiana’s direct action statute, such as done by the plaintiff class. Murray v. City of Bunkie, 96-297 (La.App. 3 Cir. 11/6/96), 686 So.2d 45, writ denied, 97-514 (La.5/9/97), 693 So.2d 767; Gorman v. City of Opelousas, 12-1468 (La.App. 3 Cir. 5/1/13), 111 So.3d 1195 (unpublished opinion).

Given the above, we find no merit to Executive Risk’s second assertion that the plaintiff class failed to show that any claim, as defined by its policy, was made against CorVel during the time its policy was in effect. The evidence in the record indicates that the damages under La.R.S. 40:2203.1 were covered by Executive Risk’s policy and that notice of a claim against CorVel was received by CorVel while Executive Risk’s policy was in effect.

Finally, Executive Risk argues that the partial summary judgment was granted prematurely. We do not agree.

Executive Risk raised and successfully argued an argument for summary judgment in a Delaware proceeding on whether it owed coverage to CorVel. That proceeding dealt with nearly identical issues. Thus, we agree with the trial court that the plaintiff class’ motion for partial summary judgment was ripe for adjudication.

CONCLUSION:

After a de novo review of the record, we find that Executive Risk’s appeal is without merit. As such, we affirm the trial court’s judgment that the plaintiff class is entitled its partial motion for summary judgment that Executive Risk’s policy |nprovides coverage to the plaintiff class’ claims. We cast Executive Risk with all costs of this proceeding.

AFFIRMED.

PETERS, J., concurs in the result.