author: SUSAN M. CHEHARDY, Chief Judge.

text:
    WESTCHESTER SURPLUS LINES INSURANCE COMPANY as Subrogee to the Rights of Transportation Consultants, Inc. and Edwards Avenue Partners v. PACORINI METALS, USA, L.L.C.
    No. 13-CA-288.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.

      A. Edward Cangelosi, Attorney at Law, Pensacola, FL, for Plaintiff/Appellant, Westchester Surplus Lines Insurance Company.
    Mark A. Cunningham, Attorney at Law, New Orleans, LA, for Defendant/Appellee, Pacorini Metals, USA, L.L.C.

      Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

[2The plaintiff appeals a judgment that granted the defendant’s exceptions of no right of action and no cause of action. We reverse and remand.

STATEMENT OF THE CASE

In July 2011, Westchester Surplus Lines Insurance Company (“Westchester”) filed suit against Pacorini Metals, USA, L.L.C. (“Pacorini”), for damage to a warehouse owned and managed by Westchester’s insureds, Edwards Avenue Partners (“EAP”) and Transportation Consultants, Inc. (“TCI”). Westchester alleged that Pacorini damaged the property through intentional fault or gross negligence and that Westchester, after having paid TCI and EAP for their damages, was conventionally subrogated to the insureds’ rights against Pacorini. The petition alleged as follows:

TCI is a trucking and warehousing business in Jefferson Parish. EAP is a company formed to be a holding entity for a warehouse located at 1000 Edwards Avenue, Harahan, Louisiana. EAP leases portions of the warehouse to TCI, in which TCI’s offices are located, and TCI manages the warehouse from those offices.

On January 29, 2010, EAP entered into a Net Commercial Lease Agreement with Pacorini for 111,033 square feet of space at the Edwards Avenue warehouse. |sPacorini intended to use the space to store bulk aluminum. Among the provisions in the lease was a section titled “Floor Load Limit” that required Pacorini to limit its storage of bulk aluminum to 1,250 pounds per square foot of building area. That provision stated further that “in the event the slab subsides solely as a result of LESSEE’S exceeding the Established Floor Load Limit, LESSOR may require that LESSEE, at LESSEE’S expense, make necessary repairs to the building slab.”

On July 24, 2010, a below-ground sprinkler system in the portion of the warehouse leased to Pacorini broke as a result of overloading of the floor and foundation by Pacorini -with its aluminum ingots and bars. The petition alleged that Pacorini had placed a load on the floor that exceeded 2,475 pounds per square foot.

At all times pertinent, Westchester had in effect an insurance policy issued to TCI, under which EAP was an additional loss payee as owner of the warehouse. West-chester paid to or on behalf of TCI and EAP $1,852,209.80, representing the cost of repairing the damage to the warehouse caused by the overloading of the floor by Pacorini.

Westchester asserted that under the terms of the insurance contract between it and TCI, and the principles of conventional subrogation, Westchester is entitled to recover from Pacorini all sums it paid to or on behalf of TCI and EAP.

The petition asserted claims against Pa-corini for breach of lease, and for gross negligence and intentional fault. West-chester subsequently filed a supplemental and amending petition that added a cause of action for legal subrogation.

Pacorini answered Westchester’s suit and filed a third-party demand against TCI, seeking to have TCI and EAP hold harmless, defend, and indemnify Pacorini against Westchester’s claims. Pacorini also sought rescission of the lease and 14refund of all lease payments, alleging that the warehouse was not suitable for the storage of bulk metals with a maximum floor load of 1,250 pounds per square foot, as promised in the lease.

Pacorini filed combined exceptions of no right of action and no cause of action to Westchester’s petition. Pacorini asserted that Westchester “has no right or cause of action” to pursue a breach of contract and gross negligence claim as subrogee of TCI and EAP because the lease contained a waiver of subrogation clause, “and West-chester specifically authorized and approved the waiver of subrogation clause in the insurance policy under which it claims subrogation rights in this case.” Pacorini asserted that in the waiver of subrogation clause, both parties agreed to waive liability to each other for losses arising from damage to the leased premises, and they agreed that their insurance carriers would not be entitled to subrogation under any circumstances against any party to the lease.

That clause states:

22. WAIVER OF SUBROGATION: Neither the LESSOR nor the LESSEE shall be liable to the other for the loss arising out of the damage to or destruction of the Leased Premises, or the building or improvements of which the Leased Premises are a part thereof, when such loss is caused by any of the perils which are or could be included within or are insured against by a standard form of fire insurance with extended coverage, including sprinkler leakage insurance, if any. All such claims for any and all such loss, however caused, hereby are waived. Said absence of liability shall exist whether or not the damage or destruction is caused by the negligence of either LESSOR or LESSEE or by any of their respective agents, servants or employees. It is the intention and agreement of the LESSOR and the LESSEE that the rentals reserved by this Lease have been fixed in contemplation that each party shall fully provide his own insurance protection at his own expense and that each party shall look to his respective insurance carriers for reimbursement of any such loss, and further, that the insurance carriers shall not be entitled to subrogation under any [ ¡¡circumstances against any party to this Lease. Neither the LESSOR nor the LESSEE shall have any interest or claim in the other’s insurance policy of policies, or the proceeds thereof, unless specifically covered therein as a joint assured. [Emphasis added.]

In support of its argument that West-chester has no cause of action or right of action, Pacorini relies on Lifecare Hospitals of New Orleans, L.L.C. v. Lifemark Hospitals of Louisiana, Inc., 07-914 (La.App. 5 Cir. 4/15/08), 984 So.2d 894. In Lifecare Hospitals, this Court dismissed on summary judgment an intervention by a tenant’s property insurer who claimed subrogation rights. The dismissal was based on a lease between the insured tenant and the landlord that contained a waiver of subrogation clause.

In this ease, after a hearing, the trial court took the matter under advisement and later rendered judgment in favor of Pacorini, granting both exceptions. The court did not issue reasons for the judgment. During the hearing, however, the judge mentioned the Lifecare Hospitals case.

ARGUMENTS AND ANALYSIS

No Cause of Action

On appeal, Westchester argues, “The waiver of subrogation is nothing more than an affirmative defense to Westchester’s claim, and the mere existence of an affirmative defense has no bearing on the question of whether the petition states a cause of action. The district court’s decision to sustain Pacorini’s exception of no cause of action must therefore be reversed.”

The function of the exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Comm’n, 94-2015, p. 5 n. 3 (La.11/30/94), 646 So.2d 885, 888 n. 3. The exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993).

“No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La. C.C.P. art. 931.

“The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true.” Fink v. Bryant, 2001-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349.

“The burden of demonstrating that no cause of action has been stated is upon the mover or exceptor. In deciding the exception of no cause of action, the court must presume all factual allegations of the petition to be true and all reasonable inferences are made in favor of the non-moving party.” City of New Orleans v. Bd. of Comm’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253.

In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court should subject the case to de novo review because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition. Id.

“[A]n exception of no cause of action must be overruled unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based; that is, unless plaintiff has no cause of action under any evidence admissible under the pleadings.” Haskins v. Clary, 346 So.2d 193, 195 (La.1977).

Pacorini argues that the waiver of subrogation in the lease between Pacorini and TCI/EAP should prevent Westches-ter’s recovery. This argument impermissi-bly relies on extrinsic evidence, and thus it fails. The waiver of 17subrogation is an affirmative defense to Westchester’s claim and, as such, it cannot determine whether the petition states a cause of action.

Confining our de novo review to the original petition and the supplemental and amending petition, we see that West-chester alleged its subrogation rights arose through both conventional and legal subrogation. Its conventional subrogation rights arose pursuant to the terms of the insurance policy between Westchester and TCI, and its legal subrogation rights arose when Westchester paid the debt it owed along with Pacorini (Westchester owed the debt pursuant to its insurance policy issued to TCI to cover damage to its warehouse, and Pacorini owed the debt because it caused the damage to TCI’s warehouse).

If we assume the truth of these facts as pleaded, and consider no extrinsic evidence — as we must — it is clear that West-chester’s petition is sufficient as a matter of law to state a cause of action in subrogation against Pacorini. The district court’s decision to sustain Pacorini’s exception of no cause of action must therefore be reversed.

No Right of Action

Appellate courts review an exception of no right of action de novo. First Bank and Trust v. Duwell, 10-481 (La. App. 5 Cir. 12/14/10), 57 So.3d 1076, 1078, writ denied, 2010-2826 (La.2/11/11), 56 So.3d 1005; 3218 Magazine, L.L.C. v. Lloyds of London, 08-727 (La.App. 5 Cir. 2/25/09), 10 So.3d 242, 243.

“[A]n action can only be brought by a person having a real and actual interest which he asserts.” La. C.C.P. art. 681. The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. La. C.C.P. art. 927(5). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972).

The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Louisiana Paddlewheels, 94-2015 at 4-5, 646 So.2d at 888.

Under the facts asserted in Westchester’s petition as recited above, Westchester, as subrogee of its insureds, clearly has a right of action against Pacori-ni. Pacorini’s exception of no right of action merely states a defense to enforcement of the right. “An exception of no right of action may not be brought to urge a defense to the effect that the plaintiff is without an interest because the defendant has a defense to the plaintiffs action.” Pinegrove Elec. Supply Co., Inc. v. Cat Key Const., Inc., 11-660, p. 7-8 (La.App. 5 Cir. 2/28/12), 88 So.3d 1097, 1102.

Without expressing any opinion as to the merits of Westchester’s' claim against Pa-corini or Pacorini’s defenses thereto, we find that Westchester has a right of action against Pacorini pursuant to the laws of subrogation.

Accordingly, the trial court erred in granting the exception of no right of action.

DECREE

For the foregoing reasons, the judgment granting the exceptions of no cause of action and no right of action is reversed. The matter is remanded for further proceedings. Costs of this appeal are assessed against the appellee, Pacorini Metals, USA, L.L.C.

REVERSED AND REMANDED.


source: Caselaw Access Project

license: Public Domain

text:
    Gustavo REYES v. SOUTHERN ENVIRONMENTAL OF LOUISIANA. Mr. Gustavo Reyes v. Joaquin and Stacey Roque, Individually and as Members of Southern Labor Services, LLC.
    Nos. 13-CA-380, 13-CA-381.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.

      Stephen W. Brooks, Jr., Richard J. Voelker, Attorneys at Law, Covington, Louisiana, for Plaintiff/Appellee, Louisiana Construction & Industry, Self Insurers’ Fund.
    Cade A. Evans, David J. Ayo, Attorneys at Law, Lafayette, Louisiana, for Defendant/Appellee-2nd Appellant, Southern Environmental of Louisiana, L.L.C., Joaquin Roque and Stacey Roque.
    Gregory E. Bodin, Mackenzie S. Ledet, Attorneys at Law, Baton Rouge, Louisiana, for DefendanVAppellant, Louisiana Workers’ Compensation Corporation.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   SUSAN M. CHEHARDY, Chief Judge.

13This matter involves two consolidated workers’ compensation cases. The various defendants and their insurers dispute which of them employed the claimant at the time of his injury. There is also a dispute about the applicability of one insurer’s policy. The trial court granted judgment in favor of one defendant, finding it did not employ the claimant, and also found in favor of the insurer who contested coverage. The other defendants appeal. We reverse and remand.

FACTS

On May 27, 2010, Gustavo Reyes (“Reyes”) filed a Disputed Claim for Compensation with the Office of Workers’ Compensation (“OWC”), alleging that he was entitled to workers’ compensation benefits, medical benefits, penalties and attorneys’ fees. Reyes v. Southern Environmental of Louisiana, LLC (No. 10-04814 in the Office of Workers’ Compensation; No. 13-CA-380 on the docket of this Court). Reyes stated he was working on scaffolding on October 26, 2009, when he fell off, striking his head and back, while working for Southern Environmental of Louisiana LLC (“Southern Environmental”).

Reyes amended his compensation claim to add Southern Labor Services, Inc. (“Southern Labor”) as an employer and Louisiana Construction & Industries, Self Insurers’ Fund (“LCISIF”) as an insurer. According to Reyes, he worked for [4both Southern Environmental and Southern Labor on the date of his alleged accident.

Reyes amended his claim a second time to add Asbestos Abatement Contractors, Inc. (“Asbestos Abatement”) as his “borrowing and/or statutory” employer. He amended the claim a third time to add Louisiana Workers’ Compensation Corporation (“LWCC”) as insurer of both Southern Environmental and Asbestos Abatement.

Southern Labor filed an answer admitting that Reyes was its employee at the time of the alleged injury.

Asbestos Abatement and Southern Environmental both denied that they were Reyes’ employer on October 26, 2009. LWCC admitted that it insured Southern Environmental and Asbestos Abatement on the date of Reyes’ accident, but denied that Southern Environmental and/or Asbestos Abatement were Reyes’ employers. Instead, LWCC alleged that Southern Labor was Reyes’ employer on October 26, 2009.

LCISIF filed Exceptions of No Cause of Action and Insufficiency of Citation and Service of Process, alleging that a direct cause of action was not permitted against a self-insurer’s fund under Louisiana law. Over opposition, the OWC court sustained the exceptions and dismissed LCISIF from No. 10-94814 on May 7, 2012.

On April 25, 2012, LCISIF filed a separate Disputed Claim for Compensation with the Office of Workers’ Compensation, against Joaquin Roque and Stacey Roque, individually and as members/owners of Southern Labor. Louisiana Construction & Industry, Self-Insurers Fund v. Roque (No. 12-02894 in the Office of Workers’ Compensation; No. 13-CA-381 on the docket of this Court). LCISIF disputed that Southern Labor employed Gustavo Reyes on October 26, 2009; that Reyes sustained injury in an accident arising out of and during the course of employment with Southern Labor on October 26, 2009; and that there was an indemnity agreement and/or policy of workers’ compensation insurance in effect between LCI-SIF and Southern Labor on that day.

The Roques filed an answer denying that they employed Reyes in their individual capacity, but alleging that Reyes was “employed by Southern Environmental of Louisiana, LLC on October 26, 2009” and that “that issue is the primary issue in dispute in matter # 10-04814 of this Court.”

The OWC court consolidated Reyes’ suit (No. 10-04814) with LCISIF’s suit (No. 12-02894) to prevent conflicting decisions regarding the same facts and issues.

Subsequently LCISIF amended its Disputed Claim for Compensation to add as defendants Southern Environmental, Gulf Coast Services of Bridge City, LLC and Asbestos Abatement. LCISIF alleged that on October 26, 2009, Southern Environmental and/or Gulf Coast were direct or borrowing employers of Reyes; that Asbestos Abatement was a statutory or borrowing employer of Reyes; and that LWCC was the insurer of both Southern Environmental and Asbestos Abatement.

LCISIF then filed a Motion for Judgment on the Pleadings or Alternatively, Motion for Declaratory Judgment, asking the OWC court to declare at a summary proceeding that Southern Labor was not Reyes’ employer on October 26, 2009, and that LCISIF did not provide workers’ compensation coverage to Southern Labor on October 26, 2009 due to cancellation of coverage. LCISIF also requested a ruling on whether LCISIF owed a contractual obligation to defend and/or 1 (¡indemnify Southern Labor for the claim asserted by Reyes. In connection with this request for a declaratory judgment, LCISIF submitted various items of evidence.

In response LWCC filed a Memorandum in Opposition, arguing that at the very least, there were too many issues of material fact as to whether Southern Labor, not Southern Environmental, was one of Reyes’ employers on October 26, 2009. Alternatively, LWCC argued that, according to deposition testimony and business records obtained during discovery, Southern Labor, not Southern Environmental, was Reyes’ employer on October 26, 2009.

The OWC court held hearings on LCI-SIF’s Motion for Judgment on the Pleadings or Alternatively, Motion for Declaratory Judgment, over the course of two days, September 13 and October 26, 2012. The court handled LCISIF’s request for declaratory judgment in a summary proceeding, considering memoranda filed by the parties, deposition transcripts, affidavits, business records, and oral argument by counsel.

The OWC court rendered judgment on November 13, 2012, declaring that Reyes was not an employee of Southern Labor on the date of his accident, and that there was no workers’ compensation coverage in place between LCISIF and Southern Labor on October 26, 2009. The court did not provide written reasons for judgment.

LWCC, Southern Environmental, and the Roques filed timely Motions for Devol-utive Appeal on December 17, 2012.

ASSIGNMENTS OF ERROR

On appeal, LWCC makes two assignments of error: (1) The OWC court erred by relying upon documents beyond the pleadings to grant a motion for judgment on the pleadings; and (2) the OWC court erred when it rendered a declaratory judgment at a summary proceeding, while ignoring an abundance of 17material issues of fact in dispute that prohibited that decision even on a summary judgment standard.

Southern Environmental and the Ro-ques also make two assignments of error on appeal: (1) The OWC court committed legal error when it treated LCISIF’s request for declaratory judgment as a summary proceeding; (2) The OWC court committed error when it ruled that there existed no genuine issue of material fact concerning the existence of LCISIF’s coverage for Southern Labor on the date of Reyes’ accident. Southern Environmental and the Roques do not challenge the OWC court’s determination that Reyes was not an employee of Southern Labor on the date of his accident.

In response, LCISIF asserts the OWC court was correct in finding that Reyes was not employed by Southern Labor on October 26, 2009, and also correct in finding that there was no workers’ compensation coverage agreement between LCISIF and Southern Labor in effect on October 26, 2009. LCISIF also contends the appellants are precluded from protesting the use of summary proceedings because they failed to object in the court below.

LAW AND ANALYSIS

Judgment on the Pleadings

La. C.C.P. art. 965 states,

Any party may move for judgment on the pleadings after the answer is filed, or if an incidental demand has been instituted after the answer thereto has been filed, but within such time as not to delay the trial. For the purposes of this motion, all allegations of fact in mover’s pleadings not denied by the adverse party or by effect of law, and all allegations of fact in the adverse party’s pleadings shall be considered true.

In considering a motion for judgment on the pleadings, nothing beyond the pleadings may be considered; supporting evidence may not be considered. Daigre v. Int’l Truck & Engine Corp., 2010-1379, p. 5 (La.App. 4 Cir. 5/5/11), 67 So.3d 504, 508, writ denied, 2011-1099 (La.9/16/11), 69 So.3d 1144; Gibbens v. Wendy’s Foods, Inc., 31,487, pp. 3-4 (La.App. 2 Cir. 1/20/99), 729 So.2d 629, 631-632; Thomas v. Allstate Ins. Co., 367 So.2d 1300, 1301 (La.App. 4th Cir.1979).

A motion for judgment on the pleadings neither requires nor permits supporting affidavits, and on such a motion a trial court is not at liberty to consider any matter not within the pleadings. Daigre, supra; Hygrade Inv., Inc. v. Leonard, 197 So.2d 702, 704 (La.App. 4th Cir.1967).

In support of its Motion for Judgment on the Pleadings, LCISIF submitted the deposition transcript of Stacey Roque from another suit, including documents attached to that deposition, the deposition transcript of Joaquin Roque, documents from the Secretary of State, an affidavit of an LCISIF employee, an affidavit of LCI-SIF’s attorney, discovery responses, and unauthenticated check stubs from Southern Environmental’s bank account. In addition, LCISIF offered the answer filed by Joaquin Roque and Stacey Roque in response to the Disputed Claim for Compensation filed by LCISIF in docket number 12-02894.

The OWC judge allowed and considered multiple types of documents beyond the pleadings. That was clear error. Accordingly, we are required to reverse the judgment on the pleadings.

Declaratory Judgment

La. C.C.P. art. 1871 provides for declaratory judgments, as follows:

Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for |9decIaratory relief in cases where it is appropriate. The declaration shall have the force and effect of a final judgment or decree.

“[I]t is fundamental to Louisiana law that a declaratory judgment can be rendered only after the holding of a trial on the merits if the determination involves an issue of fact. LSA-C.C.P. art. 1879.” Thompson v. Copolymer Intern. Inc., 446 So.2d 1339, 1341 (La.App. 1st Cir.1984), writ denied, 449 So.2d 1041, 449 So.2d 1344, and 449 So.2d 1347 (La.1984).

A claim for declaratory relief is not a summary proceeding; it requires a trial on the merits where each party has an opportunity to present evidence in a form other than verified pleadings and affidavits. La. C.C.P. arts. 1879 and 2592. Therefore, a merits trial as to whether the appellants are entitled to the [relief] they seek is required.

Apasra Properties, LLC v. City of New Orleans, 2009-0709, p. 18 (La.App. 4 Cir. 2/11/10), 31 So.3d 615, 626-627.

In the instant matter, the issue of whether LCISIF’s policy remained in effect at the time of Reyes’ accident was a factual issue that was disputed by the parties. There was evidence before the OWC court that indicated that LCISIF’s coverage remained in effect at the time. There clearly were issues of fact to be determined. Even if the OWC court wanted to consider the declaratory action as a motion for summary judgment, as opposed to an ordinary proceeding, it could not ignore these material issues of fact.

Accordingly, the matter should not have been handled in a summary proceeding, but rather in an ordinary proceeding, where the evidence could be properly presented. This issue should have been decided at a trial on the merits. Failure of the court to recognize that a factual dispute existed, and that a summary proceeding was an inappropriate vehicle for the issue’s determination, is reversible 110error. Therefore, we reverse the declaratory judgment and remand for further proceedings.

Finally, we find no merit to LCISIF’s contention that none of the other parties opposed the use of summary proceedings. In fact, LWCC did state opposition to decision of the issues by summary proceedings in its argument, as well as asserting there are too many genuine issues of material fact regarding Reyes’ employers on October 26, 2009, to grant the motion for declaratory judgment.

DECREE

For the foregoing reasons, the judgment is reversed and the matter is remanded for further proceedings in accordance with this opinion. Costs of this appeal are assessed against the appellee, Louisiana Construction & Industries, Self Insurers’ Fund.

REVERSED AND REMANDED.

      . LWCC and Gustavo Reyes entered into a consent judgment on October 26, 2012 in which LWCC admitted that it had in force and effect a workers’ compensation policy in favor of Southern Environmental and Asbestos Abatement. By entering into the consent judgment, LWCC acknowledged that either Southern Environmental and/or Asbestos Abatement were liable to Reyes for his October 26, 2009 accident, whether classified as a statutory employer, borrowing employer, joint employer and/or lending employer. However, LWCC reserved its rights to pursue contribution from Southern Labor as either Reyes' lending or joint employer, and/or LCISIF, Southern Labor’s insurer.


author: JUDE G. GRAVOIS, Judge.

text:
    Dean E. STIPP v. METLIFE AUTO AND HOME INSURANCE AGENCY, INC. and/or Metlife Auto and Home, Metropolitan and Casualty Insurance Company, Mercedes-Benz, USA, LLC, Benson Motor Company d/b/a Mercedes-Benz of New Orleans and ABC Insurance Company.
    No. 13-CA-507.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.

      Robert B. Evans, III, Cesar R. Burgos, Gabriel 0. Mondino, Robert J. Daigre, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    H. Minor Pipes, III, Kristin L. Beck-man, David A. Becker, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges FREDERICKS. HOMBERG WICKER, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

12Plaintiff, Dean Stipp, has appealed a trial court judgment granting defendant’s motion for summary judgment in this motor vehicle insurance policy coverage suit. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

In March 2008, plaintiff purchased a new Mercedes Benz SL550 roadster from Benson Motor Company (“Benson”) for approximately $91,000. This vehicle was covered under an insurance policy issued by Metropolitan Property and Casualty Insurance Company (“Metropolitan”). On November 9, 2008, plaintiff was involved in a collision in which the vehicle was damaged. The vehicle was taken to Benson for repairs, where it remained until August 2009, when plaintiff picked it up after being told that it was repaired.

On November 6, 2009, plaintiff filed suit against Metropolitan and Benson, alleging that the vehicle had not been fully repaired. Plaintiff alleged that Metropolitan’s policy provided coverage for the actual cash replacement value of Rthe vehicle and that Metropolitan had breached the insurance contract by failing to pay the actual cash replacement value of the vehicle. Plaintiff also alleged that Metropolitan had breached its duty of good faith to plaintiff under Louisiana Civil Code articles 1759, 1983, 1996, and 1997 by failing to pay the covered losses under the policy.

On May 18, 2011, Metropolitan filed a motion for summary judgment, contending that neither of plaintiffs claims against Metropolitan had any factual support. In its motion, Metropolitan admitted that the policy issued to plaintiff covered the payment of losses to an insured’s covered vehicle caused by a collision, and stated that there is no dispute as to the terms of the policy. Metropolitan stated that upon receiving estimates for repairs, payments were promptly made. Metropolitan contended that the policy does not require that it pay the cost of replacing the vehicle; rather, the policy gave Metropolitan the option of either paying the cost to repair the vehicle or the cost to replace the vehicle. In support of this position, Metropolitan pointed to the following pertinent language contained in the policy, to-wit:

“ACTUAL CASH VALUE” means the amount that it would cost to repair or replace damaged property, less allowance for physical deterioration and depreciation.
* * *
MAXIMUM AMOUNT WE WILL PAY

Our payments will not exceed the lesser of:

1. the actual cash value of the property at the time of the loss; or
|42. the cost to repair or replace the property with other like kind and quality.
If the loss is only to a part of the property, our responsibility extends to that part only.
(Emphasis in original.)

Metropolitan argued that the policy did not require Metropolitan to declare plaintiffs vehicle a total loss. It concluded that plaintiff cannot show that Metropolitan breached a specific policy provision. In support of this argument, Metropolitan pointed to plaintiffs deposition testimony wherein he admitted that he was not aware of anything that Metropolitan did in violation of the insurance contract, and that he had no reason to believe that any of the bills for repairs to the vehicle that had been submitted to Metropolitan had not been paid.

With regards to plaintiffs bad faith claim, Metropolitan noted that plaintiff did not allege any violations of La. R.S. 22:1220, which imposes upon Metropolitan “a duty of good faith and fair dealing.” Rather, plaintiff referred to the above-noted Louisiana Civil Code articles dealing with general duties of good faith. Metropolitan admitted that it has a duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured pursuant to La. R.S. 22:1220. Metropolitan contended that plaintiffs claims should be dismissed because plaintiff does not allege an act prohibited by that statute. Instead plaintiff claimed that Metropolitan failed to pay the “actual cash value” for the vehicle, which is not recoverable under the statute. Metropolitan further pointed to plaintiffs deposition testimony wherein plaintiff stated that he admitted that he had no evidence of arbitrary and capricious behavior by Metropolitan.

In opposition to Metropolitan’s motion, plaintiff essentially reiterated the allegations contained in his petition. He argued that the policy defined total loss as a loss in which the cost to replace or repair the vehicle to its “pre-loss” condition Rplus the salvage value equals or exceeds the actual cash value of the vehicle. Plaintiff contended that despite this provision, the vehicle has not been repaired to its pre-loss condition, nor has Metropolitan paid for the vehicle to be repaired to its pre-loss condition, nor has plaintiff received the actual cash value of the vehicle at the time of the loss. In support of this position, plaintiff points to his answers to interrogatories in which he “notified” Metropolitan and expressed his belief that the vehicle had further hidden damage and should be declared a total loss. Plaintiff concluded that whether the vehicle will ever be returned to its pre-loss condition or whether it should be declared a total loss, and whether Metropolitan violated its policy provisions by failing to pay plaintiff the actual cash value of the vehicle at the time of the loss, are all genuine issues of material fact precluding summary judgment.

With regards to his claim for bad faith, plaintiff averred that he communicated his concerns to Metropolitan regarding the safety of the vehicle, his belief that the damage to the vehicle was beyond repair, and that the vehicle should be considered a total loss. Metropolitan failed to pay him the actual cash value of the vehicle at the time of the loss. He contended, therefore, that whether Metropolitan acted in bad faith is an issue of material fact, thereby precluding summary judgment.

In its reply to plaintiffs opposition, Metropolitan contended that plaintiff simply reiterated his pleadings, which was insufficient to meet his burden on summary judgment. Metropolitan explained that plaintiff failed to come forward with any evidence that the vehicle is a total loss and acknowledged in his deposition that no one ever told him that the vehicle could not be repaired or was a total loss. Metropolitan further argued that even if the vehicle were a total loss, the policy affords it the option of repairing the vehicle, which it has done, rather than [¿paying the actual cash value thereof. Metropolitan further argued that plaintiffs admission that he did not allege any statutory bad faith claims is sufficient to grant summary judgment on the bad faith claims.

On November 15, 2011, the trial court rendered judgment granting Metropolitan’s motion for summary judgment. The trial court further found that there was no just reason for delay and the judgment was declared final and appealable pursuant to La. C.C.P. art. 1915(B)(1). This timely appeal followed.

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. Bell v. Parry, 10-369 (La.App. 5 Cir. 11/23/10), 61 So.3d 1, 2. The summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2). The burden of proof is on the mover to show that he is entitled to judgment as a matter of law. La. C.C.P. art. 966(C)(2). When the mover will not bear the burden of 17proof at trial on the issue that is before the court on the motion for summary judgment, the mover need only show that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Subsequently, if the adverse party fails to come forth with factual evidence sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment. Id.

In determining whether summary judgment is appropriate, the appellate court reviews evidence de novo. Under this standard, the appellate court looks at pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, in making an independent determination that there is no genuine issue of material fact and that movant is entitled to judgment as a matter of law. Bell v. Parry, supra.

In support of its argument that it was entitled to summary judgment, Metropolitan submitted the insurance policy, portions of plaintiffs deposition, and plaintiffs answers to interrogatories. The language cited by Metropolitan in the insurance policy (quoted supra) gives Metropolitan the option of repairing the vehicle or paying the insured the value of the vehicle. In his deposition, plaintiff testified that he was never told that Metropolitan would not pay for repairs and he did not know of any repair bills that were not paid by Metropolitan. Plaintiff testified that he did not have any reason to believe that Metropolitan failed to pay the bills in a timely manner. Plaintiff further testified that he was not aware that Metropolitan had done anything intentionally wrong in handling his claim. Plaintiff also testified that no one had told him that the vehicle was a total loss, and as far as he knew, no one had told Metropolitan that the vehicle was a total loss. Additionally, Metropolitan submitted an affidavit from an employee attesting that a |8total of $33,979.15 had been paid to date to repair plaintiffs vehicle, and that these payments represented all repair estimates submitted to Metropolitan.

In his opposition to Metropolitan’s motion for summary judgment, plaintiff restated the allegations in his petition verbatim. He argued that despite the policy provision stating that Metropolitan will pay the full cost of repair or of replacement of the vehicle and that total loss is defined as “a loss in which the cost to replace or repair the vehicle to its ‘pre-loss’ condition plus the salvage value equals or exceeds the ‘actual cash value’,” he had not been paid for the value of the vehicle. He attached his answers to interrogatories stating that he spoke with his Metropolitan insurance agent and expressed his concern over the safety of the vehicle, and told him that the vehicle should be declared a total loss as a result of the damage to the vehicle. Plaintiff attached estimates of the damage prepared by an adjuster working on behalf of Metropolitan which initially estimated the cost to repair the vehicle to be $27,760.62, noting that there were “possible hidden damages.” Plaintiff attached an additional estimate showing additional cost to repair the vehicle was $8,927.38.

On appeal, plaintiff argues that the trial court erred in granting summary judgment in favor of Metropolitan. Upon our de novo review, we disagree. Clearly, plaintiff presented no factual evidence to support his contention that the vehicle was: (1) a total loss; or (2) had not or could not be repaired to its pre-loss condition; or (8) that Metropolitan had failed to pay invoices for any repairs. In the absence of factual support to show that the vehicle was a total loss or had not or could not be repaired to its pre-loss condition or that Metropolitan had failed to pay the cost of repair, plaintiff has not shown that he will be able to carry his evidentiary burden at trial. Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to [¡¡produce evidence of a material factual dispute mandates the granting of the motion. Babin v. Winn-Dixie Louisiana, Inc., 00-0078 (La.6/30/00), 764 So.2d 37, 40. Thus, Metropolitan was entitled to summary judgment as a matter of law. This finding pretermits a discussion of plaintiffs bad faith claim.

CONCLUSION

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

AFFIRMED.

      . This appeal only involves plaintiff's claims against Metropolitan.

      . La. C.C. art 1579 provides: "Good faith shall govern the conduct of the obligor and the obligee in whatever pertains to the obligation."

      . La. C.C. art 1983 provides: "Contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. Contracts must be performed in good faith.”

      . La. C.C. art 1996 provides: "An obligor in good faith is liable only for the damages that were foreseeable at the time the contract was made.”

      . La. C.C. art 1997 provides: "An obligor in bad faith is liable for all the damages, foreseeable or not, that are a direct consequence of his failure to perform."

      . According to plaintiff’s brief, Metropolitan's motion for summary judgment was argued on June 23, 2011, and the trial court deferred ruling on the merits of Metropolitan’s motion until it heard the arguments on Benson's motion for summary judgment. The transcript of the argument on Metropolitan's motion for summary judgment was not included in the appellate record.

      . La. C.C.P. art. 1915(B)(1) provides: "When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.”

      . La. C.C.P. art. 966 was amended effective August 1, 2013 to remove the requirement of formal introduction of evidence at the hearing on the motion for summary judgment. The article now states, in subparagraph (F)(2), in pertinent part, that "[ejvidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with Subparagraph (3) of this Paragraph.” Subparagraph F(3) of this article states that “Mbjections to evidence in support of or in opposition to a motion for summary judgment may be raised in memorandum or written motion to strike stating the specific grounds therefor.” This amendment to Article 966 is procedural and therefore applies retroactively. La. C.C. art. 6.


text:
    CLAIBORNE MEDICAL CORPORATION (A Professional Medical Corporation) and Dr. Fiaz Afzal v. Gulnaz Q. SIDDIQUI.
    No. 13-CA-460.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, 2013.

      Bruce M. Danner, Attorney at Law, Madisonville, Louisiana, for Plaintiffs/Appellants.
    Kurt C. Garcia, Attorney at Law, Ken-ner, Louisiana, and Eric Carter, Attorney at Law, Gretna, Louisiana, for Defendants/Appellees.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON, and ROBERT M. MURPHY.
   JUDE G. GRAVOIS, Judge.

12Plaintiffs, Claiborne Medical Corporation and Dr. Fiaz Afzal, have appealed a trial court judgment which granted some of the relief requested by plaintiffs and denied some of the relief requested by plaintiffs. For the reasons that follow, we affirm the judgment of the trial court under review.

PROCEDURAL HISTORY AND FACTS

This matter has a rather convoluted procedural history. On February 18, 2010, plaintiffs, Claiborne Medical Corporation (“Claiborne Medical”) and Dr. Fiaz Afzal, filed a “Petition for Injunctive and Incidental Relief,” seeking to enjoin Gul-naz Siddiqui, Dr. Afzal’s sister-in-law and former employee of Dr. Afzal’s medical practice (Claiborne Medical), from entering the premises of Claiborne Medical or disrupting its business in any manner. Ms. Siddiqui filed an Answer, Reconven-tional Demand, and Shareholder’s Derivative Action on February 25, 2010, in which she sought a judicial declaration that she held a 50 percent ownership interest in Claiborne Medical. She sought damages for emotional trauma and distress, as well as physical trauma caused when she was arrested after Dr. Afzal called the police to remove her from the medical clinic. Additionally, she sought economic damages based on income of Claiborne Medical allocated to her. Plaintiffs responded by filing an amended petition on April 19, 2012, naming as additional defendants Ahmad Siddiqui, Ms. Siddiqui’s husband (also a former employee of Claiborne Medical), Siddiqui and Af-zal, L.L.C., and Days Inn of Kenner, L.L.C. The amended petition alleges that certain business transactions and property transfers were confected by Dr. Afzal under duress as a result of threats and/or misrepresentations made by the Siddiquis surrounding Dr. Afzal’s immigration status. In the amended petition, plaintiffs seek: (1) a judicial declaration that Dr. Afzal is the sole owner of Claiborne Medical; (2) a judicial declaration that Claiborne Medical is the sole owner of two parcels of property in Kenner, Louisiana; (3) reimbursement of nonwage amounts paid to the Siddiquis; (4) judgment against Mr. Siddiqui in the amount of $50,000 for repayment of a previous loan; (5) the dissolution of certain transfers of property from Claiborne Medical to Afzal and Siddiqui, L.L.C. and Days Inn of Kenner, L.L.C.; (6) damages relating to payments made by Claiborne Medical in connection with investment loans not related to its medical practice; (7) reimbursement of $230,000 paid by Claiborne Medical on behalf of defendants for arehi-tectural and other services; and (8) damages for Dr. Afzal’s emotional distress resulting from the Siddiquis’ intimidating actions.

Plaintiffs filed a motion for partial summary judgment on the issue of Ms. Siddi-qui’s alleged ownership interest in Claiborne Medical. On January 3, 2011, the trial court granted plaintiffs’ motion, declaring that the purported transfer of 50 ^percent ownership interest in Claiborne Medical to Ms. Siddiqui was an absolute nullity, and that Ms. Siddiqui, as a non-physician, is prohibited by law from holding an ownership interest in any medical corporation. Ms. Siddiqui sought review of that ruling in this Court, which denied relief, holding that La. R.S. 12:901, et seq., prohibits ownership of stock in a medical corporation by a person not licensed to practice medicine; thus the contract to transfer ownership of Claiborne Medical to Ms. Siddiqui, a non-physician, was an absolute nullity. Claiborne Medical Corporation v. Gulnaz Q. Siddiqui, 11-234 (La.App. 5 Cir. 4/27/11) (unpublished writ disposition).

The matter eventually proceeded to a three-day judge trial. At trial, Dr. Afzal testified that he is a medical doctor, that he came to the United States from Pakistan, that he is licensed to practice medicine in Louisiana, and that he is married to Shahida Shuja, Ms. Siddiqui’s sister. In 1996, Dr. Afzal began practicing medicine in Louisiana in association with Dr. Robert Lesser. In 1998, he left Dr. Lesser’s practice and began practicing at one of Dr. Lesser’s former offices on Claiborne Avenue in New Orleans.

Prior to coming to Louisiana, Dr. Afzal had applied for and was denied political asylum in this country. He then sought an H1B visa, which is a non-immigrant visa which allows United States employers to employ workers in specialty occupations, including physicians. According to the testimony adduced at trial, this visa must be renewed every three years. In order to continue his H1B visa status in 2000, Dr. Afzal formed Claiborne Medical, by whom he was employed. He had previously hired Ms. Siddiqui, who holds a master’s degree in public health, as the medical director of his clinic. Ms. Siddiqui signed certain documents in connection with Dr. Afzal’s visa application, stating therein that he was employed by Claiborne Medical. Dr. Afzal’s H1B visa was approved in 2002 Rand extended to March 2005. Dr. Afzal received permanent residency status in the United States in 2007.

Admitted into evidence were documents dated May 28, 2005, which include a corporate resolution making Ms. Siddiqui a 50 percent co-owner of Claiborne Medical. Ms. Siddiqui was also listed as the registered agent of Claiborne Medical.

In August of 2005, Claiborne Medical’s building was destroyed by Hurricane Katrina. Shortly thereafter, Dr. Afzal purchased a home in Lafayette, Louisiana, and began practicing medicine there with another doctor. In November 2005, he moved to Kenner, Louisiana, and resumed practicing medicine under Claiborne Medical, in a building located at 1000 Veterans Blvd., which was owned by Mr. Siddiqui and his relatives (under the name of Siddi-qui Group Investments). Claiborne Medical eventually purchased the building and Dr. Afzal continued his medical practice at that location. Ms. Siddiqui continued her employment with Claiborne Medical.

Ms. Siddiqui came to the United States in 1984 and became a United States citizen in 1990. She testified that in 1998, when she went to work for Claiborne Medical, her salary was about $28,000 per year. Throughout her employment, she worked 40 hours per week and her duties included taking heights, weights, and blood pressures, listing patient complaints, and conducting birth control counseling.

Ms. Siddiqui testified that in 2000, Dr. Afzal’s visa had expired and he was issued “deportation orders” from a New York court. At that time, Dr. Afzal asked her to sign documents for his immigration. In 2002, she signed documents on behalf of Claiborne Medical as Dr. Afzal’s employer for Dr. Afzal’s H1B visa | ^application. This visa was granted in 2002. In 2005, Dr. Afzal transferred a 50 percent ownership interest in and to Claiborne Medical to Ms. Siddiqui.

Ms. Siddiqui testified that Mr. Siddiqui (her husband) owned a Thrifty car rental franchise in Kenner. In April of 2005, he had to sell the franchise because the Thrifty and Dollar car rental companies merged, terminating Mr. Siddiqui’s franchise agreement. Ms. Siddiqui did not recall receiving a $50,000 loan from Claiborne Medical in April of 2005. Ms. Siddi-qui admitted that she and Mr. Siddiqui had financial difficulties after Hurricane Katrina.

Ms. Siddiqui testified that Dr. Afzal had to move back to the New Orleans area to work after Hurricane Katrina because of his “immigration status.” She explained that he was prohibited from working for anyone other than Claiborne Medical. The building located at 1000 Veterans Blvd. was leased prior to Hurricane Katrina, but was vacant after the hurricane. In order for a medical clinic to be operated in that building, it had to be renovated. The renovations were paid for by Mr. Siddiqui and Dr. Afzal. Ms. Siddiqui continued her employment with Claiborne Medical after the practice moved to Kenner.

Ms. Siddiqui explained that certain loans were available to Claiborne Medical after Hurricane Katrina, which Dr. Afzal applied for and received. She denied that Mr. Siddiqui assisted Dr. Afzal in applying for the loans. She stated that in order to obtain those loans, the owner of Claiborne Medical had to be a United States citizen.

Sometime in 2007, Mr. Siddiqui decided to build a hotel adjacent to the medical clinic. Numerous documents were admitted into evidence showing that the Siddi-quis and Claiborne Medical purchased numerous parcels of land adjacent to the medical clinic. These documents show that in April 2006, the Siddiquis purchased a lot next to the clinic for $85,000. Ms. Siddiqui was not sure where |7they obtained the funds for this purchase. In September 2006, ownership of this lot was transferred to Claiborne Medical. Several other adjacent lots were purchased by Claiborne Medical in 2006 and 2007. Ms. Siddiqui admitted that all funds to purchase these lots came from Claiborne Medical, but she contends that since she was a 50 percent owner of Claiborne Medical, she actually paid 50 percent of the purchase price. She explained that Dr. Afzal had complete control of the checking account of Claiborne Medical; she did not have any access to Claiborne Medical’s financial records or checking accounts.

On March 28, 2007, Siddiqui and Afzal, LLC was formed to develop the hotel. All of the property that had been purchased by Claiborne Medical was transferred to this LLC. The Siddiquis and Dr. Afzal and his wife each had a 50 percent ownership interest in this LLC. The property of Sid-diqui and Afzal, LLC was later transferred to a new entity, Days Inn of Kenner, LLC. Documents introduced into evidence show that the Siddiquis had a 60 percent ownership interest in this LLC, while Dr. Afzal and his wife had a 40 percent ownership interest in this entity.

In 2007, Mr. Siddiqui started working for Claiborne Medical at a salary of $2,000 per month. Documents were admitted into evidence showing that Claiborne Medical paid Mr. Siddiqui $78,000 in 2008 and $93,000, in 2009. Ms. Siddiqui. testified that sometimes Dr. Afzal wrote checks out to Mr. Siddiqui which included a portion of Ms. Siddiqui’s salary. She claims that after the medical office moved to Kenner, Dr. Afzal agreed to pay her a salary of $4,000 per month. Mr. Siddiqui stopped working for Claiborne Medical in December 2009. Ms. Siddiqui stopped working for Claiborne Medical in February 2010 when Dr. Afzal summoned the police and had her -arrested for being on the clinic premises. Ms. | sSiddiqui testified that she “may have” signed a complaint with the Justice Department regarding Dr. Afzal several months after her discharge.

Ahmad Siddiqui testified that he was born in Pakistan and had been a United States citizen since 1988. He holds degrees in political science and law and was a lawyer and a university professor in Pakistan. From 1987 until 1991, he owned a gift shop in the French Quarter. In 1991, he bought a Shell gas station which he operated until Shell Oil Company bought it from him in 1998. In 1996, he purchased the Thrifty car rental franchise which he sold in 2005. He explained that he, five of his brothers, and two of his nephews formed Siddiqui Group Investors (“SGI”) on December 21, 1995. As executive vice president of SGI, he operated some businesses, including the Shell station and the Thrifty car rental agency, on behalf of SGI.

In March of 2001, SGI purchased lots 89 and 98 of a subdivision in Kenner. These lots were sold to Claiborne Medical in 2006. In August 2001, SGI purchased lots 15 and 16 of a subdivision in Kenner. This is the property which contains the clinic building for Claiborne Medical. These lots were re-subdivided into one lot in March of 2004.

Mr. Siddiqui testified that Ms. Siddiqui went to work for Claiborne Medical in 2000 and signed documentation for Dr. Afzal’s visa application stating that Dr. Afzal was employed by Claiborne Medical. According to Mr. Siddiqui, Dr. Afzal could have been deported without Ms. Siddiqui’s signature.

At trial, Mr. Siddiqui testified that after the Thrifty franchise was bought out, he and SGI received money and rent for their property. Mr. Siddiqui explained that his deposition testimony wherein he stated that he did not receive any money from the sale of the Thrifty franchise was not accurate. He admitted that he received a check for $50,000 from Claiborne Medical on April 6, 2005, and that |9this check was deposited into his personal checking account. He explained that this was a deposit for a hotel that he and Dr. Afzal planned to purchase in Slidell. He denied that there was an agreement for him to pay this money back. He then testified that “after some time,” he considered this money to have been a loan, but he had not repaid any of this money. He then claimed that since his wife owned 50 percent of Claiborne Medical, he did not owe the money back to Claiborne Medical.

Mr. Siddiqui testified that in order for Dr. Afzal to move his practice to 1000 Veterans Blvd., the property had to be renovated. Although he did not have documentary proof, Mr. Siddiqui testified that he received a check for approximately $17,000 for damage to the building and these funds were used for the renovation. Claiborne Medical also paid for renovations to the property.

Mr. Siddiqui explained that he became employed by Claiborne Medical in the middle of 2007. He worked at the “window” in the office as a receptionist. All the documents that were needed to work on the hotel project were also kept at the medical clinic. His salary was $2,000 per month and he worked Mondays through Fridays from 9:00 a.m. to 5:00 p.m. and on Saturdays from 9:00 a.m. to 1:00 p.m. When questioned as to amounts paid to him by Claiborne Medical in excess of his salary, Mr. Siddiqui testified that these amounts sometimes included his wife’s salary. Mr. Siddiqui claimed that Dr. Afzal wrote the checks this way so that Claiborne Medical would not have to pay payroll taxes on these amounts. He also stated that although these checks were deposited into his personal checking account, some of these funds were used to pay expenses of the hotel project. Mr. Siddiqui admitted that Dr. Afzal paid the private school tuition for Mr. Siddiqui’s son in August of 2009 because Mr. Siddi-qui was in a “financial crisis” at that time.

| U|Mr. Siddiqui testified that Claiborne Medical purchased several lots adjacent to the clinic building. He assisted Dr. Afzal and Claiborne Medical in negotiating the purchase price and obtaining loans to purchase these properties.

Mr. Siddiqui identified several documents which showed that Siddiqui and Af-zal, LLC was formed in March 2007 showing 50 percent ownership interest in the Siddiquis and 50 percent ownership interest in Dr. Afzal and his wife. Siddiqui and Afzal, LLC purchased additional adjacent lots for the hotel project. All of this property was re-subdivided into one lot and all of the property previously purchased by Claiborne Medical was transferred to Sid-diqui and Afzal, LLC. The property was once again re-subdivided to exclude lot 15A (formerly lots 15 and 16), which is the property where the medical clinic is located. All of the property owned by Siddiqui and Afzal, LLC was then transferred to Days Inn of Kenner, LLC. The operating agreement for Days Inn of Kenner, LLC shows that the Siddiquis owned 60 percent of that entity and that Dr. Afzal and his wife owned 40 percent of that entity. Mr. Siddiqui explained that the 60/40 percent split was done because the majority owner of the entity had to be a United States citizen in order to obtain loans for the hotel project. He claimed that Dr. Afzal agreed to this split even though a 51/49 percent split would have accomplished the majority citizen interest for the purpose of obtaining loans.

Mr. Siddiqui admitted that all of the mortgages on these properties were in the name of Claiborne Medical and there was a verbal agreement for Dr. Afzal to pay the mortgages. He told Dr. Afzal that once the hotel was up and running, he would pay the notes on the mortgages. Mr. Siddiqui also admitted that Claiborne Medical paid all of the expenses for the hotel project, including architectural and engineering fees which amounted to approximately $230,000. Mr. Siddiqui testified that he did not intend to reimburse Claiborne Medical for these expenses. In Rather, Dr. Afzal agreed to pay all of the expenses and they would split the profits of the hotel.

Dr. Afzal testified that he hired Mr. Siddiqui as a receptionist for Claiborne Medical in 2007 at a salary of $2,000 per month. Due to threats made by Mr. and Ms. Siddiqui, he paid Mr. Siddiqui amounts in excess of this salary, which were recorded as miscellaneous salary in his accounting system. Mr. Siddiqui threatened that if he was not given additional money, Ms. Siddiqui would withdraw her sponsorship for Dr. Afzal’s visa and he would be deported within 24 hours. In addition, Dr. Afzal also paid $29,000 in income taxes for the Siddiquis and private school tuition for their son. Dr. Afzal denied that checks made out to Mr. Siddi-qui also included a portion of Ms. Siddi-qui’s salary, or that amounts were paid to Mr. Siddiqui to avoid paying payroll taxes. Rather, checks were made payable to Mr. Siddiqui because Mr. Siddiqui was the one who demanded money. In 2005, in exchange for Ms. Siddiqui signing his immigration documents, he agreed to give the Siddiquis a $50,000 loan. Dr. Afzal had to obtain a loan in order to make this loan to the Siddiquis.

After Hurricane Katrina, Dr. Afzal moved to Lafayette and began practicing medicine there. He was told by Mr. Siddi-qui that he could not work for anyone other than Claiborne Medical or he would be deported. Additionally, Ms. Siddiqui needed a job, so he agreed to move his practice to the building on Veterans Blvd. Mr. Siddiqui coordinated the renovations on the property. The property was owned by SGI, who was having difficulty making the mortgage payments on the property. Dr. Afzal purchased the property from SGI in June of 2006.

After Mr. Siddiqui brought to his attention that he was eligible for disaster loans, Dr. Afzal filled out and presented the required paperwork to the Small Business Administration and the New Orleans Regional Business Development |12Loan Corporation. Dr. Afzal obtained $230,000 in loans from the New Orleans Regional Business Development Loan Corporation.

Dr. Afzal filed an affidavit with the Louisiana Secretary of State attesting that Claiborne Medical had a change of officers in that Ms. Siddiqui was now a partner with a 50 percent ownership interest in Claiborne Medical. Dr. Afzal testified that he was not aware that a non-physician was not able to have an ownership interest in a medical corporation. Dr. Afzal testified that Mr. Siddiqui told him that the transfer of ownership was done solely to obtain the loans, and that the Siddiquis would not ask for 50 percent ownership of Claiborne Medical.

Dr. Afzal stated that the Siddiquis started reminding him that his immigration status was in their control in 2000. In 2005, after the Siddiquis’ Thrifty franchise was sold, the Siddiquis began making threats to him regarding his immigration status. Claiborne Medical purchased additional adjacent property on December 26, 2006. In order to purchase this property, Mr. Siddiqui set up a loan for Claiborne Medical from Gulf Coast Bank. This money was needed for the hotel project. Dr. Afzal testified that he purchased this property because he was constantly being reminded of his immigration status by the Siddiquis. In 2008 and 2009, the Siddiquis made reports to immigration officials which caused a delay in Dr. Afzal obtaining his “green card.”

Dr. Afzal was aware that Siddiqui and Afzal, LLC was a 50/50 percent ownership split and was formed for the development of a hotel. He stated that he was forced to sign the document transferring all property from Claiborne Medical to Siddiqui and Afzal, LLC because of threats to his immigration status. When Dr. Afzal received $67,000 from insurance due to his New Orleans office having been destroyed by Hurricane Katrina, he gave $35,000 to the Siddiquis because “they demanded it.” Because the Siddiquis continued to demand additional money, Dr. |13Afzal borrowed from his life insurance policy, his retirement account, and his credit cards. By 2009, he could no longer continue giving the Siddiquis money because he was maxed out on loans and had no more resources.

When Days Inn of Kenner, LLC was formed, Dr. Afzal thought the ownership interest was still 50/50. When the property was transferred from Siddiqui and Af-zal, LLC to Days Inn of Kenner, LLC, he thought the split was still 50/50. Dr. Afzal testified that when he signed the operating agreement for Days Inn of Kenner, LLC, the split was 50/50 and the document was later altered to reflect the 60/40 split. When all of the documents creating the LLCs and transferring the various properties were signed, Dr. Afzal was not represented by independent counsel. He admitted that he did not attempt to obtain independent legal counsel, and although he had an attorney who had helped him with his immigration process, he did not seek assistance from an immigration attorney when the Siddiquis threatened him regarding his immigration status. Dr. Afzal stated that he did not hire an attorney because he was threatened that if he hired an attorney, there would be more consequences for him regarding his immigration status.

Dr. Afzal paid all of the expenses for the hotel project which amounted to approximately $280,000. The Siddiquis told him that they would repay him once the hotel was up and running. He denied that he paid the expenses for the hotel in exchange for an interest in the hotel.

In 2010, the Siddiquis made complaints to the Louisiana Attorney General and the Internal Revenue Service regarding Dr. Afzal. As a result of these complaints, at the time of trial, Dr. Afzal had Medicare fraud charges pending against him. This drastically reduced his income since the majority of his patients were on Medicare.

|14At the conclusion of the trial, the trial judge allowed the parties to submit post-trial memoranda. The judge then rendered judgment in favor of plaintiffs against defendants for $50,000 plus interest, declaring that Dr. Afzal is the sole owner of Claiborne Medical, and denying all claims in defendants’ reconventional demand. Although plaintiffs appealed this judgment, the appeal was dismissed and the matter was remanded because the judgment appealed from was not a valid, final judgment. Claiborne Med. Corp. v. Siddiqui, 12-759 (La.App. 5 Cir. 2/28/13), 113 So.3d 1109. On remand, a supplemental judgment was issued which provides: (1) an award in favor of plaintiffs for $50,000 plus interest against Mr. Sid-diqui; (2) finding Claiborne Medical is the sole owner of Lot 15-A and “denying all other requests for judicial recognition of ownership”; (3) denying and dismissing plaintiffs’ requests for reimbursement of nonwage amounts paid to defendants; (4) denying and dismissing plaintiffs’ requests to “dissolve certain transfers of immovable property from Claiborne Medical to Afzal and Siddiqui, LLC and Days Inn of Ken-ner, LLC”; (5) denying and dismissing all requests for damages “relating to payments made by Claiborne Medical Center in connection with investment loans”; (6) denying and dismissing “Claiborne Medical’s request for reimbursement of $230,000 allegedly paid for architectural services”; and (7) denying and dismissing Dr. Afzal’s request for damages for emotional distress. This appeal by plaintiffs followed.

ASSIGNMENTS OF ERROR

On appeal, plaintiffs/appellants assign the following errors, to-wit:

1. The trial court committed manifest error when determining that appellants were not entitled to any relief as provided by La. C.C. article 2033.
11fi2. The trial court committed manifest error when denying appellants’ request for reimbursement of non-wage amounts paid to appellees.
3. The trial court committed manifest error when denying appellants’ request for damages related to payments/loans made by Claiborne Medical Corporation and Judgment rendered against it in connection with investment loans.
4. The trial court committed manifest error when denying Claiborne Medical Corporation’s request for reimbursement of $230,000 paid for architectural and other professional services.

LAW AND ANALYSIS

Because plaintiffs submitted one combined argument on their specific assignments of error, these assignments will be addressed together. In these assignments of error, plaintiffs contend that since the transfer of ownership of Claiborne Medical to Ms. Siddiqui was an absolute nullity, the trial court erred in determining that Claiborne Medical was not entitled “to be restored to the situation that existed before the contract was made” or for damages. In support of this position, plaintiffs cite to the trial court’s reasons for judgment stating that “Dr. Afzal should have known of the defect making the contract [to transfer 50 percent of Claiborne Medical] null.” Plaintiffs also point out that both Dr. Afzal and the Siddiquis testified that they were unaware that a non-physician may not own any interest in a medical corporation. Plaintiffs contend that the trial court’s failure to recognize these admissions is manifest error. Plaintiffs admit, however, that the articles of incorporation for Claiborne Medical state that only a person licensed to practice medicine shall be entitled to participate in the corporation’s earnings, but contend that this was not sufficient for Dr. Afzal to be aware that transfer of an interest in the corporation to a non-physician is an absolute nullity. Plaintiffs then point to numerous exhibits in support of their proposition that these transfer documents, which were prepared by an attorney at the request of the Siddiquis, are difficult to understand. Specifically, plaintiffs point to one document which | ^transfers property from the Siddiquis to Claiborne Medical “as contribution of capital to the company and in return for Siddi-qui’s receipt of additional membership interest of the Company,” noting that this document was signed only by the Siddiquis and not by Dr. Afzal. They then point to another document prepared by an attorney retained by the Siddiquis which transfers property to Siddiqui and Afzal, LLC as capital contribution which was accepted as a distribution from Claiborne Medical property. They also point to additional documents to conclude that these documents endorse the proposition that a non-physician may own an interest in a professional medical corporation, and thus these documents represent an “intricate tangle of prohibited acts.” Plaintiffs contend that since these documents were prepared by an attorney, Dr. Afzal was allowed a “certain confidence” that these documents were legally enforceable.

Plaintiffs go on to argue that because the trial court erred in stating that the transfer of a 50 percent ownership interest in Claiborne Medical to Ms. Siddiqui was a “sham”, this presumes that the Siddiquis did not believe that any transfer was valid, because the Siddiquis have continued to claim ownership of Claiborne Medical throughout these proceedings. Plaintiffs contend that the trial court’s finding that Dr. Afzal admits that no “strings” were attached to Ms. Siddiquis’ agreement to sponsor his H1B application in 2000 and 2005, and then finding that there was no connection between the transfer and Dr. Afzal’s H1B status, is contradictory.

Plaintiffs further argue that they are entitled to recover damages from defendants because such recovery would “further the interest of justice.” In support of this position, plaintiffs cite to the alleged disparity in business and education between Mr. Siddiqui (an attorney) and Dr. Afzal, the fact that the documents were prepared by an attorney on behalf of the Siddiquis and Dr. Afzal’s |17lack of legal representation, and that the net effect of the transactions was to allocate a 60 percent ownership in an LLC to the Siddiquis with the Siddiquis incurring no liability.

Finally, plaintiffs contend the trial court erred in determining that Louisiana Civil Code article 2033 (quoted infra) cannot apply because Dr. Afzal failed to establish that revenues of the clinic were wrongly diverted to the Siddiquis and that there was no evidence of revenue sharing. Plaintiffs contend that documents were introduced showing that Claiborne Medical paid for architectural, engineering and consultation services for Days Inn of Ken-ner, LLC, Claiborne Medical paid for real estate which was transferred to Days Inn of Kenner, LLC, and payments were made to the Siddiquis over and above their respective salaries. Plaintiffs contend that the Siddiquis used their claim to the net profits of Claiborne Medical as constituting their contribution to the investment venture of Days Inn of Kenner, LLC.

Defendants respond that plaintiffs simply did not prove their case. They contend that Dr. Afzal willingly entered into certain contracts and incurred certain debts in order to build a hotel. They point out that Dr. Afzal had complete and total control of the checking account and accounting books of Claiborne Medical. They conclude that plaintiffs are not entitled to any restoration payments under Article 2033.

Louisiana Civil Code article 2033 provides:

An absolutely null contract, or a relatively null contract that has been declared null by the court, is deemed never to have existed. The parties must be restored to the situation that existed before the contract was made. If it is impossible or impracticable to make restoration in kind, it may be made through an award of damages.
Nevertheless, a performance rendered under a contract that is absolutely null because its object or its cause is illicit or immoral may not be recovered by a party who knew or should have known of the 118defect that makes the contract null. The performance may be recovered, however, when that party invokes the nullity to withdraw from the contract before its purpose is achieved and also in exceptional situations when, in the discretion of the court, that recovery would further the interest of justice. Absolute nullity may be raised as a defense even by a party who, at the time the contract was made, knew or should have known of the defect that makes the contract null.

Plaintiffs reason that because the contract giving Ms. Siddiqui a 50 percent ownership interest in Claiborne Medical is an absolute nullity, then all of the subsequent contracts which plaintiffs entered into are also null. They contend that the end result was that the Siddiquis own 60 percent of Days Inn of Kenner, LLC for which they incurred no liability. For the following reasons, we find this argument to be without merit.

In Louisiana, appellate courts review both law and facts. La. Const, art. 5, § 10(B). The applicable standard of review for a factual finding is the manifestly erroneous or clearly wrong standard. In order for an appellate court to reverse a factfinder’s determination under this standard of review, an appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact, and that the record establishes the finding is clearly wrong. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). The ultimate issue to be resolved by the appellate court is not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. Accordingly, where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Id. at 883. However, where documents or objective evidence so contradict a witness’s story, | t9or if the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story, then an appellate court may find manifest error. Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989). In the absence of such factors, however, and when a factfinder’s determination is based on its decision to credit the testimony of the witnesses, that factfinder’s finding can virtually never be manifestly erroneous or clearly wrong. Id.

Additionally, “[i]n applying the manifestly erroneous — clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.” Id. The credibility determinations of the trier of fact are subject to the strictest deference under the manifest error — clearly wrong standard. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305. The rule of falsus in uno falsus in omnibus provides that if one element of a witness’s testimony is proved to be untrue, the entirety of that witness’s testimony may be rejected by the factfinder. Karagiannopoulos v. State Farm Fire & Cas. Co., 94-1048 (La.App. 5 Cir. 11/10/99), 752 So.2d 202, 210, writ denied, 99-2866 (La.12/10/99), 752 So.2d 165, and writ denied, 1999-3474 (La.2/11/00), 754 So.2d 940. This doctrine does not require rejection of the entirety of a witness’s testimony. Id. The weight to be given the remainder of the witness’s testimony is to be determined by the trier of fact, given the circumstances of each case. Id.

This matter was tried over a three-day period. Except for the short testimony of the notary to some of the documents at issue, the only witnesses were Ms. Sid-diqui, Mr. Siddiqui, and Dr. Afzal. Each party testified extensively as to their version of the events that took place between and among themselves. In its reasons for judgment, the trial court found that plaintiffs failed to prove that Dr. Afzal entered into any of the business agreements with the Siddiquis under force or |20duress. The court found that Dr. Afzal’s testimony regarding force and duress was not credible. Significantly, the court noted that Dr. Afzal was free to seek sponsorship for his immigration from someone other than Ms. Siddiqui. Most importantly, the court noted that since Dr. Afzal’s H1B visa was approved on March 15, 2005, the Siddiquis “had no real leverage over Dr. Afzal at any time relevant to this litigation.” The trial court concluded that “Dr. Afzal willingly took certain business risks and is now looking to minimize his losses through this lawsuit.” Upon review, we find that the evidence clearly supports this conclusion by the trial court.

While the Siddiquis adamantly testified that Dr. Afzal gave Ms. Siddiqui a 50 percent ownership interest in Claiborne Medical, Dr. Afzal testified that the Siddi-quis told him that they knew this was for immigration purposes only and they were not going to claim that they actually owned 50 percent of the medical practice. The testimony clearly demonstrated that Dr. Afzal had complete control of Claiborne Medical, including the company’s checkbook and finances.

Dr. Afzal’s testimony that he paid money to the Siddiquis and signed various documents due to threats and intimidation by the Siddiquis was simply not believed by the trial judge. Dr. Afzal testified that he did not seek the advice of an immigration attorney because if he had, the consequences he would have suffered regarding his immigration status at the hands of the Siddiquis would be increased. The trial judge clearly rejected this testimony. As the trial judge found, at the time Dr. Afzal entered into the agreements at issue, his H1B visa had already been approved.

Although Dr. Afzal testified that he was not represented by legal counsel when he signed various documents, he presented no evidence showing that he was prevented from seeking legal counsel. In fact, the articles of incorporation for |21 Claiborne Medical prepared in 2000 show that the agent for service of process was the same attorney who represented Dr. Afzal throughout these proceedings. Further, Dr. Afzal testified that the same law firm that prepared all of the documents setting up the two LLCs and the numerous property transfers represented Dr. Afzal in his claim against his insurer for damage to his New Orleans clinic building after Hurricane Katrina.

Throughout their testimony Dr. Afzal, Ms. Siddiqui, and Mr. Siddiqui all referred to assisting each other because they were family. Indeed, the testimony at trial bears out that Ms. Siddiqui assisted with Dr. Afzal’s immigration because he was married to her younger sister. Mr. Siddi-qui testified that he did not have knowledge that Dr. Afzal had given Ms. Siddiqui a 50 percent ownership interest in Claiborne Medical at the time the transfer was made because “Dr. Afzal was family.” Dr. Afzal testified that he transferred the 50 percent ownership interest in Claiborne Medical to Ms. Siddiqui because due to immigration requirements, he could not be sole owner of the corporation that employed him. He testified that the Siddi-quis told him that they did not actually expect to receive 50 percent ownership of Claiborne Medical.

After Hurricane Katrina, Dr. Afzal’s office was destroyed. He relocated to Lafayette, but then was made aware that the building owned in part by Mr. Siddiqui was available to relocate his medical practice. In addition, Ms. Siddiqui, an employee of the medical clinic, was available to continue working at the clinic. Further, the testimony indicates that after Mr. Sid-diqui sold the Thrifty car rental agency, he suffered financial hardship. The testimony is clear that Dr. Afzal loaned him $50,000. Dr. Afzal hired Mr. Siddiqui to work in his medical clinic. Thus, the testimony indicates that Dr. Afzal was assisting the Siddiquis, who were his wife’s family members, through a financial hardship.

^Further, the testimony indicates that Dr. Afzal and Mr. Siddiqui agreed to develop a hotel on the property adjacent to the clinic building. Mr. Siddiqui had knowledge that disaster loans were available to Claiborne Medical. Mr. Siddiqui and Dr. Afzal obtained these loans through Claiborne Medical in order to purchase property on which to construct a hotel. The testimony indicates that these monies were to be repaid once the hotel was up and running. Thus, the evidence supports the trial court’s conclusion that Dr. Afzal failed to establish that any revenues were wrongly diverted to the Siddiquis. Further, the trial court did not err in denying plaintiffs’ request for damages related to the investment loans. The evidence indicates the Dr. Afzal willingly made loans to finance the construction of a hotel in which he was to be a part owner.

With regard to the ownership of Lot 15-A (the location of the clinic building), the evidence shows that when the multiple parcels of land were re-subdivided into Lot 95-D, Lot 15-A was carved out of the re-subdivision. Mr. Siddiqui explained that this was done so that the clinic could operate separately from the hotel. This was discussed among himself, Dr. Afzal, and “attorneys.” They did not want anyone who may have had some type of claim against the clinic to be able to also go against the hotel and visa versa. Based on Mr. Siddiqui’s testimony and Exhibit 38, Lot 15-A was transferred to Claiborne Medical on May 28, 2008. Thus, the evidence supports the trial court’s ruling that Lot 15-A is owned by Claiborne Medical. Plaintiffs’ argument that the trial court made this award “in kind” because it felt that plaintiffs were entitled to some damages is thus without merit.

Finally, we find no error with regards to the trial court’s denial of plaintiffs’ request of reimbursement of architectural and other professional services for the hotel project. Mr. Siddiqui testified that Claiborne Medical was involved in the | gjhotel project because it was an established business that earned money, making it able to secure loans for the hotel project. He further explained that it was Dr. Af-zal’s idea for Dr. Afzal to pay for all of the expenses and the property for the hotel project and they would split the profits of the hotel. Dr. Afzal used the monies received from the disaster loans to finance the hotel project. Further, Dr. Afzal acknowledged he gave 50 percent ownership of Claiborne Medical to Ms. Siddiqui because this was needed to get the loans— there had to be an owner who was a United States citizen. Additionally, Mr. Siddiqui testified that Days Inn of Kenner, LLC had to have a majority owner who was a United States citizen to obtain additional loans for construction of the building. We reject plaintiffs’ contention that it was illogical that the Siddiquis owned 60 percent of an entity for which they incurred no debt. The testimony indicates that the Siddiquis were to repay plaintiffs once the hotel was up and running. Unfortunately, the project apparently never came to fruition.

Based on our review of the record as a whole, for the reasons set forth herein, we find that a reasonable factual basis does in fact exist for all of the particular findings of the trial court in this case, and that the record establishes that all of the particular findings of the trial court in this case are not clearly wrong. Accordingly, plaintiffs’ assignments of error are without merit.

CONCLUSION

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

AFFIRMED.

      . The trial court issued a temporary restraining order; a preliminary injunction was subsequently ordered by consent of the parties. As reflected in the trial court’s May 31, 2012 judgment, plaintiffs’ request for a permanent injunction was denied.

      . Defendants have not appealed this ruling.