author: WILLIAMS, J.

text:
    ARK-LA-TEX SAFETY SHOWERS, LLC, Plaintiff-Appellants v. Tony JORIO, Defendant-Appellee.
    No. 48,478-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 18, 2013.

      Henry M. Bernstein, for Appellants, Ark-La-Tex Safety Showers, LLC and Robert J. Levendikis.
    Tony Jorio, In Proper Person.
    Before WILLIAMS, LOLLEY and PITMAN, JJ.
   WILLIAMS, J.

| plaintiffs, Robert Levendikis and Ark-La-Tex Safety Showers, LLC, appeal the denial of their motion for a judgment declaring that defendant, Tony Jorio, had withdrawn as a member of the LLC. Plaintiffs also appeal the court’s award of attorney fees to both parties. For the following reasons, we affirm in part and reverse in part.

FACTS

Plaintiff, Robert Levendikis, a resident of the state of Texas, and defendant, Tony Jorio, a resident of the state of Louisiana, were acquaintances who formed the limited liability company, Ark-La-Tex Safety Showers, LLC. The LLC was in the business of supplying mobile safety showers and eyewash equipment to the oilfield drilling and production industry. The showers and eyewash equipment were constructed on trailers which were transported and used onsite at oil drilling locations.

On October 27, 2009, Levendikis and Jorio entered into an operating agreement, whereby they agreed that they would be the sole members of the LLC. Levendikis owned 51% interest and Jorio owned the remaining 49%.

Soon after the first few trailers were constructed, Levendikis formed the belief that Jorio was not shouldering his share of responsibility for the business. According to Levendikis, Jorio was not fully contributing to the construction and/or servicing of the trailers and was not committed to the ^growth of the business. Levendikis testified that Jorio approached him in March 2011, asking for a distribution of the LLC’s assets; Levendikis refused to allow the distribution. Soon thereafter, Jorio approached him again, asking for his share of the funds in the company’s bank account, as well has his share of the equipment. Again, Levendikis refused.

On March 24, 2011, Jorio unilaterally withdrew $25,000 from the LLC’s bank account. According to Levendikis, the funds were withdrawn for Jorio’s personal use and the withdrawal was made without Levendikis’s knowledge or consent. Jorio maintained that Levendikis had made similar withdrawals from the company’s bank account.

On May 24, 2011, Levendikis and Ark-La-Tex Safety Showers, LLC (collectively “plaintiffs”) filed a “petition for damages and declaratory relief and application for injunctive relief;” Jorio was named the sole defendant. Plaintiffs alleged that Jorio had withdrawn as a member of the LLC; therefore, his actions constituted a breach of his duties as a member and a breach of the operating agreement. Plaintiffs also alleged that Jorio was liable “for all monetary damages as a result of the breach.” Plaintiffs sought a judgment declaring that Jorio had withdrawn as a member of the LLC; Isplaintiffs also sought to enjoin Jo-rio from, inter alia, withdrawing any funds or taking possession of any assets belonging to the LLC; from making disparaging remarks about plaintiffs; and from engaging in any conduct harmful to the company. Additionally, plaintiffs sought attorney fees and court costs.

On June 9, 2011, Jorio filed an answer to plaintiffs’ petition, a reconventional demand, petition for declaratory relief and an application for injunctive relief. Jorio alleged, inter alia, (1) Levendikis withdrew funds from the company’s accounts without his (Jorio’s) consent, thereby breaching his duties as a member and manager of the LLC and the operating agreement; (2) Levendikis had damaged his reputation by disparaging him to current and former customers of the business and to potential employers; (3) he is entitled to receive the fair market value of his 49% ownership interest; and (4) he is entitled to have an audit of the company’s books conducted. Jorio also sought injunctive relief to enjoin Levendikis from making derogatory comments about him. Additionally, he sought a declaratory judgment to Levendikis to deliver copies of the LLC’s books and records to him and attorney fees and costs.

A hearing was held on June 15, 2011. Thereafter, the parties entered into “Stipulated Preliminary Injunctions,” in which they agreed that Jorio would be enjoined as follows:

a) From withdrawing funds or transferring or taking possession of any assets belonging] to Ark-La-Tex Safety Showers, LLC, or rented, leased, or loaned to Ark-La-Tex Safety Showers, LLC;
b) Prom making any disparaging, negative, or deleterious comments concerning Ark-La-Tex Safety Showers, LLC, |4or Robert J. Levendikis;
c) From maintaining possession, custody, or control of any property of Ark-La-Tex Safety Showers, LLC, or rented, leased, or loaned to Ark-La-Tex Safety Showers, LLC[.]

The parties also agreed that Jorio would “transfer to Ark-La-Tex Safety Showers, LLC, the possession, custody, or control of any property which is owned by, leased or rented to Ark-La-Tex Safety Showers, LLC[.]” Further, the parties agreed that Levendikis would be enjoined from “making any disparaging, negative, or deleterious comments concerning [Jorio].”

A trial was held on May 31, 8012, during which the bulk of the testimony centered around the value of the LLC’s assets. Le-vendikis and Jorio provided conflicting testimony. For example, Levendikis testified that the company had six 16-foot trailers that were “workable” as of March 24, 2011; Jorio testified that the company had eight operating trailers. Levendikis testified that the value of each trailer was approximately $14,500; Jorio estimated that value to be $27,000. Jorio testified that the LLC had approximately $85,000 in outstanding invoices to be billed as of March 24, 2011; Levendikis testified that he did not know the value of the outstanding invoices.

At the conclusion of the trial, the trial court concluded that the LLC did not have any outstanding liabilities and valued the company’s assets at $133,608.60. The court also concluded that Levendikis’s monetary interest |ain the company was $68,140.39 (51% of the total assets) and Jorio’s interest was $65,468.21 (49% of the total assets). The court reduced Jorio’s interest by $25,000, the amount he withdrew from the company’s bank account in March 2011. Additionally, the court concluded that “all other alleged claims should be dismissed for lack of proof by a preponderance of evidence.” The court scheduled a hearing “for presentation of evidence and/or arguments of Counsel,” noting that any evidence and/or arguments shall be limited to the following issues:

A.) Permanent injunctive relief.
B.) Future participation in the LLC by Plaintiff and Defendant.
C.) Dissolution of the LLC.
D.) Attorney fees.
E.) Assessment of Court costs.

During the evidentiary hearing, counsel for both parties conceded that neither party desired to continue working together because they were unable to “get along.” However, counsel for Levendikis opposed dissolution of the LLC. Counsel for plaintiffs continued to argue that Jorio had withdrawn as a member of the LLC, while counsel for Jorio stated, “We are still a member of the LLC 49 percent[.]”

At the conclusion of the hearing, the court denied plaintiffs’ claim for |fidamages based upon Jorio’s alleged withdrawal as a member of the LLC. The court concluded that plaintiffs failed to prove that Jorio withdrew as a member of the LLC, noting that Jorio expressly denied that he intended to do so. The court also noted that although Levendikis testified that Jorio was not doing his share of the work in constructing the showers/trailers, Levendi-kis failed to provide any specific examples of conduct suggesting that Jorio had withdrawn from the LLC.

Additionally, citing the LLC’s operating agreement, the court concluded that both parties were “prevailing parties” and awarded attorney fees to each party, to be paid from the assets of the LLC. The court awarded attorney fees in the amount of $7,672.10 to plaintiffs and $10,020 to defendant. The court also ordered court costs to be paid from the company’s assets.

Plaintiffs appeal.

DISCUSSION

Plaintiffs contend the trial court erred in denying their motion for a judgment declaring that Jorio had withdrawn as a member of the LLC. Plaintiffs argue that counsel for both parties stipulated that Jorio had withdrawn as a member of the LLC. According to plaintiffs, during the entire trial, both sides operated under the assumption that Jorio had indeed withdrawn; therefore, all of the evidence centered around the assets of the LLC.

A declaratory judgment is one that simply establishes the rights of the parties or expresses the opinion of the court on a question of law, without ordering anything to be done, and its distinctive characteristic is that the ^^declaration stands by itself, with no executory process following as a matter of course, so that it is distinguished from a direct action in that it does not seek execution or performance from the defendant or the opposing litigants. Billingsley v. City of Baton Rouge, 95-2162 (La.App. 1st Cir.4/30/96), 673 So.2d 300, writ denied, 96-1490 (La.9/20/96), 679 So.2d 439. Appellate courts review a district court’s decision to grant or deny a declaratory judgment using the abuse of discretion standard. Mai v. Floyd, 2005-2301 (La.App. 1st Cir.12/6/06), 951 So.2d 244, writ denied, 2007-0581 (La.5/4/07), 956 So.2d 619.

A stipulation has the effect of binding all parties and the court. A trial court is bound to render judgment in accordance with the stipulations between the parties where the stipulations are not in derogation of the law. Such agreements are the law of the case. Becht v. Morgan Building & Spas, Inc., 2002-2047 (La.4/23/03), 843 So.2d 1109; R.J. D’Hemecourt Petroleum, Inc. v. McNamara, 444 So.2d 600 (La.1983).

In the instant case, plaintiffs contend the parties entered into a stipulation during the trial that Jorio had withdrawn as a member of the LLC, effective March 24, 2011; however, defendant denies that claim. The record does not contain any evidence which clearly establishes that the parties entered into a stipulation during the trial that Jorio had withdrawn. The record contains the following colloquy:

[Plaintiffs’ Counsel]: At the time this lawsuit was filed, there was not a formal withdrawal by Mr. Jorio from the LLC and so what I am proving is that Mr. Jorio did not carry his weight in the businesses; that Mr. Jorio at some point, I believe the evidence will show, that he made a demand for his share of the equity in the business. When 18that was refused, he, without authority, withdrew a specific fraction of the bank account, and that that constitutes his withdrawal from the LLC. If counsel is willing to stipulate that on March 24, 2011, Mr. Jorio withdrew from the LLC, that would shorten the case.
[Defendant’s Counsel]: Well, your pleadings allege [Jorio] withdrew] on April 7th. Counsel[,] Mr. Jackson[,] said he’d withdrawn. We’re agreeable to valuing his business, the ownership of his 49 percent on 24 March 11. And we’re going to present testimony [concerning] the value of his business — his ownership interest was on that date. Does that help? Are you agreeable with the fact that we should value his business ownership 24 March 11?
[Plaintiffs’ Counsel]: Yes.
[Defendant’s Counsel]: Okay. We are agreeable to what you say withdrew or was expelled, we want to value his interest on 24 March 11.
s¡; # *

However, during the hearing conducted on September 12, 2012, counsel for Jorio stated that Jorio was “still a member of the LLC.” Plaintiffs’ counsel stated, “As I understand what the Court has said this afternoon, it’s dealt with the issue of valuation of Mr. Jorio’s shares, or 49 percent interest in the LLC, that the Court has not ruled with regard to the issue of the withdrawal or not.”

After reviewing the transcript, we find that there was no express stipulation that Jorio had withdrawn as a member of the LLC. Counsel for both parties mentioned the term “stipulation” during their arguments to the court. However, it was unclear what the purported “stipulation” entailed. On at least one occasion, the trial court allowed a recess to give the parties the opportunity to reach an agreement regarding the matters to which they would stipulate and which matters would be presented to the court at the |9trial. However, the parties were unable to reach an agreement.

Thereafter, unpersuaded that the parties had entered into a stipulation, the court afforded the parties the opportunity to present evidence as to whether Jorio had withdrawn. During the hearing, Le-vendikis testified with regard to his and Jorio’s ownership interests in the LLC and the amount of money left in the LLC’s account at the time Jorio withdrew $25,000. He stated that Jorio approached him and expressed his desire to withdraw money from the LLC’s bank account because the money in the account was “building up.” Levendikis testified that he told Jorio that he did not feel comfortable withdrawing money from the account at that time. Thereafter, Jorio approached him again, wanting to withdraw “his part of the money that was in the account.” Levendi-kis testified as follows:

He wanted his half of what was in the account. He wanted to take half the equipment that we had operating at that time, and he wanted to run his half of the business the way he wanted to run it and I could run my half the way I wanted to run it. And I told him there was no way that that could ever work.

According to Levendikis, Jorio “got pretty hostile” and informed him that “he was going to take it or if I didn’t give it to him he was going to, you know, get a lawyer and come after me.” Regarding this conversation, Levendikis further testified that he informed Jorio that if he withdrew any funds from the account, then he would consider that action as Jorio’s withdrawal from the company. In response, Jorio informed him that he was not withdrawing; he just wanted money from the company’s account. Levendikis also testified that Jo-rio stopped participating in the business after he withdrew the $25,000.

[ inJorio testified that he did not withdraw from the business. Rather, he stated that Levendikis “locked [him] out of the business” in March 2011, and he was no longer able to participate as a member. Jorio maintained that he did not intend to withdraw from the LLC and he continued to consider himself a 49% owner of the business.

In his closing remarks, counsel for plaintiffs re-urged his contention that the parties had stipulated that Jorio had withdrawn from the business as of March 24, 2011. Counsel directed the court to specific pages of the transcript which, according to him, proved that the parties had stipulated that Jorio had withdrawn. Counsel for Jorio characterized plaintiffs’ counsel’s remarks as a “misrepresentation.” Jorio’s counsel also argued that his comments on the transcript indicated that Jorio had not voluntarily withdrawn from the LLC; rather, he had been “expelled.” In response, plaintiffs’ counsel stated, “[P]er-haps I will withdraw my statement that it was a stipulation.” However, counsel continued to make references to the portions of the transcript which “indicated” that Jorio withdrew as of March 24, 2011. Jo-rio’s counsel again denied that Jorio had withdrawn, and he denied entering into a stipulation.

After hearing the testimony and counsel’s arguments, the court concluded that plaintiffs failed to meet their burden of proving that Jorio had withdrawn from the business. In its findings of fact, the court stated:

After weighing the totality of the evidence, this Court finds no affirmative action on the part of [Jorio] to substantiate the allegation that [Jorio] intended to withdraw from the LLC. Additionally, this Court cannot derive that [Jorio] tacitly withdrew from the LLC as a result of [Jorio’s] failure or lack of certain activities.

|uWe agree. At trial, Levendikis testified that Jorio was unsatisfied with the way the distribution of the company’s profits was handled. He stated that shortly after both parties had received a distribution, Jorio approached him about receiving another distribution. Levendikis stated that he denied Jorio’s request because he “did not feel comfortable, at that time, taking a distribution of that amount each out of the account” because the accountant had not “done the numbers.” He also testified that he informed Jorio that if he (Jorio) withdrew the funds from the account, then he (Levendikis) would consider that action as a withdrawal from the LLC. He stated that Jorio replied, “I’m not withdrawing. I’m not withdrawing.”

Jorio unequivocally testified that he had not withdrawn as a member of the LLC. He stated that he considers himself a 49% owner of the business.

Accordingly, we find that the record supports the trial court’s conclusion that plaintiffs failed to meet their burden of proving that Jorio had withdrawn as a member of the LLC. Consequently, we find that the court did not abuse its discretion in denying plaintiffs’ request for a declaratory judgment. This assignment lacks merit.

Plaintiffs also contend the trial court erred in concluding that both parties were “prevailing parties” and, as such, were both entitled to an award of attorney fees and costs, payable from the assets of the LLC. Plaintiffs allege that both parties waived all claims, with the exception of a determination of the value of the LLC’s assets. They argue that neither party should have been deemed a prevailing party, and consequently, the award of attorney fees was erroneous.

Lilt is well-settled that the operating agreement of a limited liability company is contractual in nature; thus, it binds the members of the limited liability company as written and is interpreted pursuant to contract law. Risk Mgmt. Services, L.L.C. v. Moss, 2009-632 (La.App. 5th Cir.4/13/10), 40 So.3d 176, writ denied, 2010-1103 (La.9/3/10), 44 So.3d 683; Kinkle v. R.D.C., LLC, 2004-1092 (La.App. 3d Cir.12/8/04), 889 So.2d 405. Contracts have the effect of law for the parties and the interpretation of a contract is the determination of the common intent of the parties. LSA-C.C. arts.1983 and 2045; Clovelly Oil Co., LLC v. Midstates Petroleum Co., LLC, 2012-2055 (La.3/19/13), 112 So.3d 187; Marin v. Exxon Mobil Corp., 2009-2368 (La. 10/19/10), 48 So.3d 234; RJAM, Inc. v. Miletello, 45,176 (La.App.2d Cir.4/14/10), 44 So.3d 283, writ denied, 2010-1127 (La.9/17/10), 45 So.3d 1049.

It is also well-settled that attorney fees are not allowed except where specifically authorized by statute or contract. Sher v. Lafayette Ins. Co., 2007-2441 (La.4/8/08), 988 So.2d 186; Rivet v. State, Dept. of Transp. & Dev., 96-0145 (La.9/5/96), 680 So.2d 1154.

In the instant case, Section 14.7 of the operating agreement provides:

Attorneys Fees. In the event of any litigation, arbitration, or other dispute arising as a result of or by reason of this Agreement, the prevailing party in any such litigation, arbitration, or other dispute shall be entitled to, in addition to any other damages assessed, its reasonable attorneys’ fees, and all other costs and expenses incurred in connection with settling or resolving such dispute.

Levendikis and the LLC filed the initial petition, seeking a preliminary injunction, damages and a declaration that Jorio had withdrawn [ isas a member of the LLC. The parties entered into stipulations with regard to the injunction. Concerning damages and the declaratory judgment, Jorio was the prevailing party, as the trial court denied plaintiffs’ claim for damages, finding that Jorio had not withdrawn as a member of the LLC.

Additionally, Jorio filed a recon-ventional demand, alleging that he was entitled to the fair market value of his 49% ownership of the business and damages for Levendikis’s alleged breach of the operating agreement. However, prior to trial, Jorio agreed to waive all claims, with the exception of a valuation of the assets of the LLC. The trial court valued the assets of the LLC and distributed the parties’ proportionate shares accordingly. Thus, neither party was the “prevailing party” as stated in the operating agreement.

However, since Jorio was the prevailing party with regard to plaintiffs’ initial petition, we affirm the trial court’s award of attorney fees to Jorio, and we reverse the award of attorney fees to plaintiffs.

CONCLUSION

For the reasons set forth herein, we affirm the trial court’s denial of the motion for a declaratory judgment filed by plaintiffs, Robert Levendikis and Ark-La-Tex Safety Showers, LLC. We also affirm the court’s award of attorney fees, in the amount of $10,020, to defendant, Tony Jo-rio. Costs of this appeal are assessed to plaintiffs, Robert Levendikis and Ark-LaTex Safety Showers, LLC.

AFFIRMED IN PART; REVERSED IN PART.

      . Neither Levendikis nor Jorio had the resources to finance the cost of constructing the trailers. Consequently, they sought and obtained an investor who financed the costs associated with the construction of the safety showers and eyewash equipment trailers. Once each trailer was constructed, Levendikis and Jorio would lease it from the investor and supply it for use by area oilfield drilling and production companies. Over a five-year timetable, the investor would receive a sliding-scale percentage of the profits received. According to Levendikis, the first trailer went into operation onsite in April 2010, and by March 2011, six trailers were in operation at various oilfield drilling locations.

      . Pursuant to the operating agreement, neither Levendikis nor Jorio could withdraw from the LLC "except as provided in the Agreement.” The Operating Agreement further provided:
      [Section] 3.5 Withdrawal. [A] Member has the power to withdraw but such withdrawal shall be deemed a breach of this Agreement. If a Member does exercise such power of withdrawal in breach of this Agreement, the Member shall be liable to the LLC and the other Members for all monetary damages as a result of the breach, including but not limited to direct, indirect, incidental, and consequential damages. The LLC and the other Members shall not have the right to prevent the withdrawing Member from withdrawing through the use of an injunction or otherwise.

      . The court valued the assets as follows:

        $80,000 Bank account balance:
      $10,000 Value of each trailer:
      $ 4,800 Value of two spare generators:
      $ 1,000 Value of two tool boxes:
      $37,808.60 Accounts receivable from leased interest in six trailers (one year)


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    Bruce FEINGERTS v. AMERICAN CASUALTY COMPANY OF READING.
    No. 2013-CA-0701.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 23, 2013.

      Michael C. Darnell, Edwin R. Murray, Murray, Darnell & Associates, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    James A. Babst, Wegmann & Babst, LLC, New Orleans, LA, Defendant Appellant/Pro Se.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

hThe Appellant, James Babst, Esq., seeks review of the nullification of an attorneys’ fee award and being ordered to pay thé Appellee, Bruce Feingerts, $5,000 and costs by the Office of Workers’ Compensation Administration. Finding that the Office of Workers’ Compensation Administration did not abuse its discretion in annulling its prior judgment and awarding attorneys’ fees, we affirm the judgment of the Office of Workers’ Compensation Administration.

Facts and Procedural History

This appeal involves an attorneys’ fee dispute stemming from Mr. Babst’s representation of Mr. Feingerts before the Office of Workers’ Compensation Administration (“OWCA”). Mr. Feingerts was severely injured in a car accident in Orleans Parish in February 2001. He pursued damages by filing a lawsuit in the Civil District Court and filing a claim in the OWCA.

Mr. Feingerts initially retained the law firm of Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C. (“the Gains-burgh Firm”), to represent him in his personal injury suit, which was filed in the district court in December 2001. The Gainsburgh Firm also filed the claims form that initiated Mr. Feingerts’ workers’ compensation claim related to the 2001 accident. The instant appeal does not involve Mr. Feingerts’ civil claims.

|gThe Gainsburgh Firm later withdrew as counsel for the workers’ compensation portion of Mr. Feingerts’ claim. The following law firms and attorneys represented Mr. Feingerts before the OWCA in the order listed: 1.) Favret Demarest Firm; 2.) Dwight W. Norton; 3.) Manard & May-eaux Firm, and 4.) Wegmann & Babst, LLC, specifically Mr. Babst.

Mr. Feingerts workers’ compensation matter went to trial before the OWCA while he was represented by the Manard & Mayeaux Firm. At trial, Mr. Feingerts was awarded medical benefits in the amount of $187,661.95, as well as related mileage costs he incurred while receiving medical treatment against American Casualty Company of Reading, PA (“American”), the workers’ compensation insurer of Mr. Feingerts’ law firm. See Feingerts v. Am. Cas. Co. of Reading, 09-1209, p. 3 (La.App. 4 Cir. 3/10/10), 34 So.3d 358, 361.

Both parties filed cross-appeals. Mr. Babst began representing Mr. Feingerts post-trial during his appeal of the workers’ compensation claim before our Court, which affirmed in part the judgment of the OWCA, reversed the mileage award, and reduced the award of medical benefits to $141,276.07. Feingerts, 09-1209, p. 18, 34 So.3d at 369.

Subsequently, in March 2010, Mr. Fein-gerts’ civil suit was settled for approximately $785,000. Mr. Babst allegedly advised Mr. Feingerts that such a large civil settlement would adversely affect the resolution of Mr. Feingerts’ workers’ compensation claim because American would have both a lien against the | ¡¡settlement that would be satisfied in full and a credit against any claims that Mr. Feingerts might have for future medical treatments.

American and Mr. Feingerts eventually reached an agreement whereby American consented to the settlement of the personal injury matter and waived its lien against Mr. Feingerts’ civil settlement. Additionally, American agreed to pay $50,000 in cash to Mr. Feingerts. In exchange, Mr. Feingerts consented to releasing American from all further workers’ compensation liability stemming from the 2001 accident.

The parties executed and filed a joint petition to approve the workers’ compensation settlement in September 2010, which was approved by the OWCA on October 7, 2010. Subsequently, American submitted its $50,000 check, waived its lien on the personal injury settlement, and consented formally to the settlement. As a result of the workers’ compensation settlement, Mr. Feingerts did not receive the $141,276.07 award of medical expenses rendered by our Court.

After the workers’ compensation settlement, a dispute arose between Mr. Fein-gerts and Mr. Babst regarding the correct computation of the workers’ compensation fee. Mr. Babst’s position is that the aggregate workers’ compensation fee is not based upon the $50,000 sum paid by American, rather the total legal fee should be the statutorily-set 20% of the amount of the $141,276.07 judgment rendered on appeal by our Court, plus $27,000 in interest. Thus, Mr. Babst maintains that the workers’ compensation fee is approximately 20% of 14$168,276.07, or $33,655.21. However, Mr. Feingerts opines that the workers’ compensation fee should be calculated based upon the $50,000 amount, and, thus, is $10,000, or 20% of $50,000.

Mr. Babst had 30 days from the settlement of the claim or until November 7, 2010, to apply to the OWCA for the approval of his attorney fees. On November 8, 2010, Mr. Babst filed a “Motion for Approval of Attorney Fees and Costs” (“motion for approval”) with a proposed order in the OWCA, which signed the order on the same day. The order approved a $33,655.21 fee, of which Mr. Babst’s share was $12,076.05.

There is disagreement between the parties as to whether Mr. Babst sufficiently made efforts to contact Mr. Feingerts to discuss the subject motion prior to filing it; however, it is clear that Mr. Feingerts was unaware that said motion was going to be and/or was filed.

Upon learning, through an e-mail from Mr. Babst, of the motion and the OWCA’s award of attorneys’ fees made by the OWCA, Mr. Feingerts expressed his dissatisfaction with the award and informed Mr. Babst that he [Mr. Feingerts] wanted the motion for approval to be withdrawn. Mr. Babst, however, refused to withdraw his motion and advised Mr. Feingerts to file an opposition to the motion “as soon as possible”. Mr. Babst did not advise Mr. Feingerts on taking any further action to oppose the OWCA judgment setting the workers’ compensation attorneys’ fees, nor did he terminate their attorney-client relationship.

|fiMr. Feingerts did not file an opposition to the motion for approval, nor did he seek an appeal or other relief. On November 8, 2011, Mr. Feingerts filed a petition for annulment of the approval on attorneys’ fees in the OWCA. The OWCA granted said motion and awarded Mr. Feingerts $10,000 in fees on November 15, 2011; nevertheless, this order was set aside on the motion of Mr. Babst, who had not been served with the petition for annulment.

Mr. Feingerts’ petition for annulment was reset. In response, Mr. Babst filed the following exceptions to the petition: res judicata, no cause of action, lack of jurisdiction, failure to join necessary parties, and that the procedure was unauthorized by applicable procedural rules. These exceptions were overruled by the OWCA, which also dismissed the petition for annulment finding that Mr. Feingerts failed to seek review of the fee order via an appeal or a motion for new trial.

Mr. Feingerts subsequently filed a motion for new trial from the denial of the petition for annulment, which was granted by the OWCA. The matter was retried resulting in the OWCA reversing itself and annulling the prior attorneys’ fee order. The OWCA rendered judgment on October 10, 2012, holding: 1.) that there was sufficient fraud and ill practice on the part of Mr. Babst to justify the nullification of the prior judgment; 2.) the OWCA reduced the fee award to the workers’ compensation lawyers to 20% of $50,000; and 3.) Mr. Babst was ordered to pay Mr. Feingerts $5,000 in attorneys’ fees plus costs.

| ¿Thereafter, Mr. Feingerts filed a Motion for Clarification of Judgment on or about October 22, 2012, to rectify an ambiguity regarding the OWCA’s award of costs and attorney fees for the necessity having had to file the Petition for Annulment. The OWCA granted said motion on October 25, 2012, rescinded its October 10, 2012 judgment and issued a revised judgment that clarified the issue of costs and fees.

Mr. Babst timely filed the instant appeal seeking review of the October 25, 2012 judgment, and raises three (3) assignments of error:

1. The OWCA erred in exercising jurisdiction over the action to annul the fee order of November 8, 2010;
2. The OWCA erred in overruling the objection that Mr. Feingerts failed to join parties needed for the just adjudication of the action to annul; and
3. The OWCA erred in annulling the fee award of November 8, 2010.

Standard of Review

Appellate courts defer to a district court’s exercise of discretion in determining whether a judgment should be annulled. Duckworth Properties, L.L.C. v. Williams, 10-0244, p. 2 (La.App. 4 Cir. 11/24/10), 52 So.3d 287, 289. Thus, in our review of the OWCA’s judgment, we analogize the standard to be deference to the OWCA’s exercise of discretion.

The OWCA Lacked Jurisdiction to Annul the Fee Order

The first assignment of error raised by Mr. Babst is that the OWCA did not have jurisdiction to annul its November 8, 2010 order, and, thus, the OWCA erred in overruling his exception regarding the OWCA’s lack of jurisdiction. Mr. Babst avers that the OWCA is an administrative tribunal that solely has to the power to |7adjudicate claims or disputes that arise out of the Workers’ Compensation Act under La.Rev.Stat. 23:1310.3(E), namely disputed claims for benefits.

Mr. Babst alleges that the OWCA lacks jurisdiction over petitions for annulment for three (3) main reasons:

1. The OWCA’s exercise of jurisdiction over the petition for annulment encroaches upon the original jurisdiction of the district courts under La. Const. Art. V, § 16(A)(1). Furthermore, exception to the general rule that district courts are vested with original jurisdiction in civil matters must be narrowly construed. Taylor v. Hanson N. Am., 08-1182 [08-2282] (La.App. 1 Cir. 8/04/09), 21 So.3d 963. The mere involvement of the workers’ compensation statute or a workers’ compensation claim does not automatically subject the entire matter to the jurisdiction of the OWCA. Id. [citation omitted].
2. There is not explicit grant of jurisdiction to the OWCA to consider a petition for annulment an earlier OWCA judgment or order. When neither party appeals an OWCA judgment, the judgment “shall be final.” La. R.S. 23:2310.5(B). Furthermore, he contends that the continuing jurisdiction that the OWCA would have to modify an earlier judgment on benefits when a showing of changed circumstances has been made, is precluded, under La. R.S. 23:1310.8(A)(3), wherein the settlement of the underlying claim has been approved because an award approving a settlement is “final as to the rights of all parties to said petition and thereafter the workers’ compensation judge shall have not jurisdiction over any claim for the injury or any results arising from same.”
3. An appeal was required for post-judgment relief under La.Code Civ. Proc. art. 2083(A). The OWCA was granted the authority by our state legislature to modify a new trial motion or a motion to amend to correct simple errors and corrects while the OWCA still had jurisdiction and prior to the passing of the delays of an appeal passing. There is no legislative provision to annul orders and judgments over which the OWCA no longer has jurisdiction.

We disagree. When a dispute “arises out” of the Workers’ Compensation Act, and the procedure for resolving that dispute is not delineated in the Hearing Rules, the OWCA has the authority to apply the provisions of the Code of Civil Procedure. See Martin v. Red Simpson, Inc., 96-1177, p. 3 (La.App. 3 Cir. 3/12/97), 692 So.2d 635, 637. As the Third Circuit reasoned, if the OWCA were only empowered to modify, but not vacate judgments an aggrieved party would |Rhave no recourse by which to avoid the res judicata effects of the prior judgment. Id., 96-1177, p. 5, 692 So.2d at 638. The Third Circuit in Martin upheld the power of workers’ compensation tribunals to nullify its prior judgments. In doing so, the Third Circuit relied in part upon the Supreme Court case of Williams v. Area Wholesale Tire Co., Inc., 95-2273, p. 2 (La.1/26/96), 666 So.2d 285, 286, wherein the Louisiana Supreme Court remanded a' matter to an appellate court to determine if a OWCA hearing officer should have granted a nullity action. The Martin Court explained that the “supreme court would not remand a case for a determination of whether the hearing officer should have granted a nullity action if the hearing officer was without jurisdiction to grant a nullity action.” Id. Similarly, the Second Circuit has also held that workers’ compensation judges “have the power to annul prior judgments which are based on fraud or misrepresentation,” Brown Radiator & Frame v. Kidd, 44,354, p. 15 (La.App. 2 Cir. 6/24/09), 13 So.3d 1244, 1252.

Relying upon Martin, we find that the OWCA had jurisdiction to consider the petition for annulment because the OWCA has the authority to apply the provisions of the Louisiana Code of Civil Procedure in instances, such as this, where a dispute “arises out” of the Workers’ Compensation Act, but the procedure for resolving said dispute is not delineated in the OWCA Hearing Rules. The correct computation of attorneys’ fees in a case adjudicated before the OWCA, which also rendered judgment on the attorneys’ fees owed, is a matter that “arises out of’ the Workers’ Compensation Act. Thus, we find that this assignment of error is without merit.

The OWCA Erred in Overruling the Joinder Exception

Mr. Babst’s second assignment of error is that Mr. Feingerts’ prior workers’ compensation attorneys should have been joined to the action to annul because Mr. |flFeingerts sought to annul the entire November 8, 2010 judgment, which, awarded fees to those attorneys as well as to Mr. Babst. He maintains that the other attorneys were needed for the just adjudication of the matter under La. Code Civ. Proc. art. 641(2)(1).

Pursuant to La.Code Civ. Proc. art. 641, a person shall be joined as a party in the action when:

(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

A party should be deemed indispensable only when his joinder in the litigation is absolutely necessary to protect substantial rights. Terra Development Corp. v. Southland Dragway, 442 So.2d 587 (La.App. 1st Cir.1983), writ denied, 444 So.2d 1225 (La.1984). Additionally, in State Dept. Of Highways v. Lamar Advertising Company of Louisiana, 279 So.2d 671 (La.1973), the Supreme Court considered the resulting consequences of holding that a party is indispensable. The Supreme Court reasoned that “[tjhese differences in the way the absent party affects the case, and the possible harsh result if the party is ruled indispensable, mandate that such classification be applied to a party only after the facts clearly establish that no complete and equitable adjudication of the interest can be made in his absence.” Id. The court stated that “great care must be exercised to insure a proper factual analysis of the party’s interest in the case before a determination of 110the party’s classification is made.” Id. at 675. The Supreme Court concluded that parties should be deemed indispensable only when that result is absolutely necessary to protect substantial rights.

Considering their past representation of Mr. Feingerts, we recognize that his prior workers’ compensation attorneys had a fee interest in the November 8, 2010 judgment rendered by the OWCA. Moreover, Mr. Babst, admittedly and allegedly, only has an approximate 36% interest in the workers’ compensation attorneys’ fees. Nevertheless, under the unique facts of this matter, where the allegations of fraud and ill practices are levied solely against Mr. Babst, who is the sole mover of the motion for approval, we do not find that the other attorneys are indispensable parties to this matter. Pursuant to art. 641(A), complete relief could be provided between Mr. Babst and Mr. Feingerts by having the judgment Mr. Babst confected and acquired through alleged fraud and ill practices annulled. The fee issue could be resolved in either a separate proceeding before the OWCA, or within the annulment action, as the OWCA chose to proceed herein.

Lastly, we note that none of Mr. Fein-gerts’ prior workers’ compensation attorneys contested the modification of the November 8, 2010 judgment or sought to intervene in the nullity action, which ultimately reduced their fees. Based upon the foregoing, we do not find that Mr. Feingerts prior workers’ compensation attorneys needed to be joined in the petition for annulment because their joinder is not absolutely necessary to protect substantial rights. This assignment of error is without merit.

The OWCA Erred in annulling the November 8, 2010 Fee Award

Lastly, Mr. Babst argues that the OWCA erred in annulling the November 8, 2010 judgment for two (2) reasons: 1) Mr. Feingerts failed to demonstrate that he ¿¿was prevented or excused from filing a motion for new trial or an appeal by Mr. Babst’s alleged fraud or ill-practice; and 2) the fee award of November 8, 2010 was statutorily computed, and therefore, enforcing the award would not be inequitable or unconscionable.

Mr. Babst’s first argument is that Mr. Feingerts waited too long to file a motion for new trial or a motion for a suspensive or devolutive appeal. He further avers that Mr. Feingerts, as an attorney himself, should have been aware of the deadlines to file the aforementioned motions, but inexcusably missed all procedural deadlines to contest the November 8, 2010 judgment. He also argues that Mr. Feingerts even consulted with the attorneys who were representing him in his civil suit, on the issue of the correct calculation of attorneys’ fee in the workers’ compensation matter, but Mr. Feingerts did not act. His alleged negligence in failing to act, argues Mr. Babst, precludes his action to annul.

Additionally, Mr. Babst avers that the attorney-client relationship between he and Mr. Feingerts terminated in October 7, 2010, when the workers’ compensation settlement was approved by the OWCA. Mr. Babst maintains that in his first conversation with Mr. Feingerts, following the filing of the motion for approval, he informed Mr. Feingerts that: he [Mr. Babst] no longer represented Mr. Feingerts; they were adverse to each other on the fee issue, and advised Mr. Feingerts to promptly file an opposition to the motion for fee approval.

Furthermore, Mr. Babst contends that there is no evidence of egregious conduct on his part that was intended to or did deprive Mr. Feingerts of his legal rights. He avers the fee order was not obtained by methods viewed with disdain by the judiciary. There is an absence of collusion and of concealed facts. He alleges that he did not continue to act as Mr. Feingerts’ attorney after November 8, 2010, |12and in no way hindered Mr. Feingerts from seeking post-judgment relief, as evidenced by e-mails exchanged between the parties as well as related testimony.

Mr. Babst’s second argument is that the fee award was statutorily computed and, therefore, there is no inequity or uncon-scionability in enforcing it. Mr. Babst avers that the statutory limit that is set on workers’ compensation attorneys fees is 20% of the amount recovered under La. R.S. 23:1141(B), and that said compensation is based upon compensation that is “payable or awarded” under section 1141(A). Mr. Babst avers that he calculated the attorneys’ fees based upon this Court’s award of $141,276.07, plus $27,000 in interest [or $168,276.07 total], under the unique facts of this case where Mr. Fein-gerts workers’ compensation claim was both adjudicated and affirmed prior to the time Mr. Feingerts’ tort claim was settled.

The purpose of an action for nullity is to prevent injustice which cannot be corrected through new trials and appeals. Gladstone v. American Auto. Ass’n, Inc., 419 So.2d 1219, 1222 (La.1982) [citation omitted]. It is essential that courts review a petition for nullity closely, as an action for nullity based on fraud or ill practices is not intended as a substitute for an appeal or as a second chance to prove a claim that was previously denied for failure of proof. Belle Pass Terminal, Inc. v. Jolin, Inc., 800 So.2d 762 (La.2001). In making its determination, a trial court must view each case according to its own peculiar circumstances. Id.

Furthermore, Louisiana Code Civ. Proc. art. 2004(A) provides that a “final judgment obtained by fraud or ill practices may be annulled.” Trial courts are permitted discretion in deciding when a judgment should be annulled because of fraud or ill practices, to which discretion reviewing courts will defer. Wright v. Louisiana Power & Light, 06-1181, p. 12 (La.3/9/07), 951 So.2d 1058, 1067 [citations omitted].

The Supreme Court set forth two (2) criteria necessary for establishing an action in nullity under art. 2004: (1) that the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) that the enforcement of the judgment would have been unconscionable and inequitable. Id.

Moreover, the Supreme Court has further held that article 2004 is not limited to cases of actual fraud or intentional wrongdoing:

... the article is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable.

Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983).

Additionally, a court may look to equity to examine if a litigant was prevented or excused from asserting any claims or defenses. Succession of Blackwell, 713 So.2d 625 (La.App. 3 Cir.1998). “[T]he defendant must bring an action for nullity when the basis of her or his attack on the judgment does not appear in the record and therefore cannot be corrected by appeal.” 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 12.6 (1999).

In the instant matter, the district court was presented with evidence that Mr. Babst was aware that a disagreement existed between himself and his client as to the correct calculation of the workers’ compensation attorneys’ fees prior to his | ufiling of the motion for approval. The record reflects that, from just prior to Mr. Babst filing the motion for approval until Mr. Feingerts filed his petition for annulment, the parties exchanged e-mails reflecting disagreement over attorneys’ fees. The e-mails do not reflect that either party terminated the attorney-client relationship.

The OWCA was also presented with evidence that Mr. Feingerts urged Mr. Babst to rescind the motion for approval, but to no avail. Additionally, the OWCA considered that, based upon e-mails the parties exchanged, Mr. Babst misrepresented to Mr. Feingerts that he [Mr. Babst] would resolve the fee dispute issue by scheduling a conference with Judge Varnado. Mr. Feingerts neither pursued a suspensive nor a devolutive appeal from the judgment at issue because of Mr. Babst’s representations that he was resolving the issue with the OWCA.

The OWCA opined on the record that some of the remedies that Mr. Feingerts would have necessarily been afforded by law were obviated or information was not timely provided to Mr. Feingerts by Mr. Babst. The OWCA reasoned that the prior award was acquired partially via fraud, “but mostly through ill practice.”

In light of the instant facts, we find that the OWCA did not err in holding that both criteria required to annul a judgment were present. First, the circumstances under which the November 8, 2010 judgment was rendered evidence that Mr. Feingerts was deprived of legal rights as a litigant seeking relief. Furthermore, the OWCA’s finding that the enforcement of the judgment would have been unconscionable and inequitable in this instance has merit because Mr. Babst blind-sighted Mr. Fein-gerts with the filing of the motion for approval when their attorney-client relationship had not been severed. Mr. Fein-gerts was also |ir,unaware that Mr. Babst was going to move for approval of attorneys’ fees based upon a calculation Mr. Babst knew Mr. Feingerts opposed.

Moreover, it would be unconscionable and inequitable to uphold the November 8, 2013 judgment in this instance because even after Mr. Feingerts became aware of the November 8, 2010 judgment, he was dissuaded from pursuing an appeal by Mr. Babst’s representations that the fee dispute would be rectified. The OWCA could have easily determined that Mr. Feingerts was prevented from attacking the fee judgment by Mr. Babst.

Lastly, the petition for annulment was the correct action for Mr. Feingerts to assert because any alleged proof of Mr. Babst’s fraudulent actions would not have been contained in a record on appeal. Mr. Babst has not established that the OWCA erred in exercising its discretion to annul the November 8, 2010 judgment. Thus, we find that this assignment of error is without merit.

DECREE

For the foregoing reasons, the October 25, 2012 judgment of the Office of Workers’ Compensation Administration, is affirmed.

AFFIRMED

      . Mr. Babst avers that at the time of this Court's decision interest on the reduced award was approximately $27,000.

      . Mr. Babst explains that the insurer paying compensation, such as American, has a first-dollar lien against any recovery made in a related third-party or tort suit. American filed such a lien in Civil District Court. Insurers must approve a tort settlement, if a tort defendant wants to secure the protection of the workers’ compensation statute under La. Rev.Stat. 23:1102(C)(1). The tort defendants sought the protection of the workers’ compensation statute in Mr. Feingerts' case.

      .According to Mr. Babst, the $50,000 is currently in his trust account.

      . The motion for approval was timely filed, as November 7, 2010, was a Sunday.

      . Judge Gwendolyn F. Thompson, of the OWCA, presided over Mr. Feingerts’ workers’ compensation trial; however, she was later re-assigned. As a result, the instant matter was then assigned to Judge Robert Vamado, Jr., who approved the workers’ compensation settlement on October 7, 2010, and signed the order approving the motion for approval of attorneys' fees. The signature lines on Mr. Babst’s motion for approval indicated that he was "Attorney for Employee”.

      .In the meantime, in July 2011, Mr. Fein-gerts and the attorneys who represented him in his civil suit mediated their dispute over the amount of attorneys’ fees due in the civil suit. Mr. Babst was not a participant in said mediation.


author: PITMAN, J.

text:
    Virgil MASON, et al, Plaintiffs-Appellees v. EXCO OPERATING COMPANY, LP, and Ozark Properties, LLC, Defendants-Appellees.
    No. 48,713-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.
    Rehearing Denied Feb. 19, 2014.

      Gary D. Nunn, for Defendants in Con-cursus/Appellants, R. Kenneth Jeane & Suzanne W. Jeane.
    Culpepper & Carroll, PLLC, Jonesboro, by: Bobby L. Culpepper, for Plaintiffs/Ap-pellees, Virgil Mason, et al.
    Hargrove, Smelley, Strickland & Langley, by: Glenn L. Langley, Shreveport, Meagan Lynn Miller, for Defendant/Appel-lee, Exco Operating Co., LP.
    Douglas L. Stokes, Jr., Jonesboro, for Defendant/Appellee, Ozark Properties, LLC.
    Before STEWART, MOORE & PITMAN, JJ.
   PITMAN, J.

| Appellants, R. Kenneth Jeane and Suzanne W. Jeane (“the Jeanes”), appeal the trial court’s granting of a motion for summary judgment filed by Appellees, Virgil Mason, Clarece Mason Brown, Vergia Mason, Tommie Ann Mason Mims, Bettie Gail Mason, Onteryl Mason and Chuncy Mason (collectively, “the Masons”), and denial of a motion for summary judgment filed by the Jeanes. For the following reasons, we reverse the judgment of the trial court and grant summary judgment in favor of the Jeanes.

FACTS

Virgil Mason inherited a 1/125 interest and a 1/880 interest from his father, Willis Mason, in a piece of immovable property located in Jackson Parish. Virgil Mason also inherited a 3/880 interest in the property from his sister, Mary Mason.

On August 4, 1988, Virgil Mason, married to Mattie Mason, signed a cash sale deed conveying to James Leonard, married to Martha Leonard, and Gentry Leonard (“the Leonards”):

all of Virgil Mason’s undivided interest in and to the following described property, to wit:
East ten (10) acres of SE of SW, SW of SE, Section 28, Township 16 North, Range 3 West, Less undivided 1/11 Interest to Morgan R. and Mrs. Videll Robinson, Less fifteen (15) acres to V.C. Harvey for 1968, Less an undivided two (2) acres sold to V.C. Harvey for 1970, Less an undivided two (2) acres sold to V.C. Harvey for 1971, less two (2) acres to V.C. Harvey for 1969.
This is the separate property of Virgil Mason inherited from Willis Mason’s Estate.

The Jeanes subsequently purchased the Leonards’ interest in the property.

On June 3, 2010, the Masons filed a petition against Exco Operating | ¡¡.Company, LP (“Exco”), and Ozark Properties, LLC (“Ozark”). The Masons alleged that they are the owners of an undivided interest, including an undivided mineral interest, in the property. The Masons further alleged that they leased the property to Ozark, Ozark assigned the lease to Exco and Exco began production on the property. The Masons state that Exco and Ozark failed and refused to pay royalties to them for their mineral interests in the property and, therefore, breached their contractual obligations.

Exco filed a peremptory exception of nonjoinder and alleged that the Masons claim ownership of property and mineral interests that have been attributed to the Jeanes, but that the Jeanes had not been made parties to the suit. Exco also filed a reconventional demand for concursus and named as defendants in reconvention the Masons and the Jeanes, all of whom had asserted a claim to proceeds from oil, gas and mineral production from the property. Exco explained that there is a dispute as to the ownership of the 3/880 interest Virgil Mason inherited from his sister, Mary Mason. Exco suspended payments of proceeds attributable to the disputed 3/880 interest and requested that these payments be deposited with the court until ownership rights are determined by judgment.

The Masons filed a motion for summary judgment arguing that the cash sale deed is clear on its face that the only property conveyed to the ¡.¡Leonards was the separate property of Virgil Mason inherited from the Willis Mason estate.

The Jeanes filed a motion for summary judgment arguing that the cash sale deed clearly transferred all of the interest in the property owned by Virgil Mason to the Leonards.

Exco filed a motion for summary judgment and argued that its records show that the current owners of the disputed 3/880 interest in the property are the Je-anes. Exco alleged that the cash sale deed at issue is unclear on its face, but that there are no material facts in dispute as to its meaning.

The Masons, the Jeanes and Exco filed an agreement stating that they agreed and consented to presenting the three motions for summary judgment to the trial court based upon the record and memoranda filed by the parties.

On March 27, 2013, the trial court signed a judgment and written reasons for judgment on motions for summary judgment filed by the Masons, the Jeanes and Exco. The trial court found that the Masons’ motion should be granted, the Je-anes’ motion should be denied and Exco’s motion should be granted. The trial court explained that all parties agreed that the issue for summary disposition is a matter of law only and that the trial court’s decision is based on the record and motion papers filed by the parties. The trial court stated that at issue is the meaning of the property description of the 1988 cash sale deed and that the “description is disputed because it declares that Virgil Mason is conveying all of his undivided interest and that he is conveying only that interest he inherited from Willis Mason’s estate.” The trial court wrote:

In this contract, the initial phrase in the property description |4is that it is all of the seller’s undivided interest in the property. The concluding phrase is that the undivided interest conveyed is that which the seller inherited from his father.
Based on the deed’s language, the court finds that the description is neither unclear nor ambiguous. Given the plain meaning of the language, the court finds that the concluding phrase, that it is the interest the seller inherited from his father, limits the undivided interest conveyed to that which the seller inherited from his father, the 1/125 and 1/880 interest. Thus, the court concludes that the undivided 8/880 interest the seller inherited from his sister was not conveyed in the 1988 cash sale deed and that plaintiffs motion for summary judgement should be granted with the Jeanes’ motion denied.

The trial court determined that the Masons are the owners of the 3/880 interest Virgil Mason inherited from his sister, Mary Mason.

On April 29, 2013, the Jeanes filed a motion and order for suspensive appeal.

DISCUSSION

First Assignment of Error

In their first assignment of error, the Jeanes argue that the trial court erred in finding that the cash sale deed did not convey all of Virgil Mason’s undivided interest in and to the property to the Leon-ards. The Jeanes contend that the trial court erred in granting summary judgment in favor of the Masons and erred in finding that the Masons are to be recognized as owners of the 3/880 interest Virgil Mason inherited from his sister.

|fiThe Jeanes allege that, on the face of the deed, it is clear that Virgil Mason intended to convey “all of [his] undivided interest” in the property to the Leonards. The Jeanes contend that a deed cannot convey all of one’s undivided interest in property and, at the same time, convey only a portion of one’s undivided interest in that property. The Jeanes argue that the provision stating that the property being conveyed is what Virgil Mason inherited from his father’s estate was included to clarify that Virgil Mason was conveying his separate property — not his interest in community property owned with his wife.

The Masons agree with the Jeanes that the words of the deed are clear and explicit, but the Masons argue the clear meaning is that only the undivided interest in the portion inherited from Willis Mason was conveyed to the Leonards. The Masons contend that the phrase “This is the separate property of Virgil Mason inherited from Willis Mason’s Estate” was included in the property description to clarify that the deed only conveys a portion of Virgil Mason’s interest in the property.

An appellate court reviews a trial court’s granting of summary judgment de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Moreno v. Entergy Corp., 12-0097 (La.12/4/12), 105 So.3d 40; Will-Drill Resources, Inc. v. Huggs Inc., 32,179 (La.App.2d Cir.8/18/99), 738 So.2d 1196, writ denied, 99-2957 (La.12/17/99), 751 So.2d 885 [citing Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, and Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991)].

|fiThe interpretation of a contract is a question of law and is subject to a de novo review on appeal. Total Minatome Corp. v. Union Texas Products Corp., 33,433 (La.App.2d Cir.8/23/00), 766 So.2d 685 (citing Will-Drill Resources, Inc., supra). When a contract can be construed from the four corners of the document without the necessity of extrinsic evidence, the question of contractual interpretation is answered as a matter of law. Prejean v. Guillory, 10-0740 (La.7/2/10), 38 So.3d 274 (quoting Sims v. Mulhearn Funeral Home, Inc., 07-0054 (La.5/22/07), 956 So.2d 583).

Louisiana Civil Code articles 2045-2057 govern the interpretation of contracts. The interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. The words of a contract must be given their generally prevailing meaning. La. C.C. art. 2047. Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. La. C.C. art. 2048. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050.

The cash sale deed is unambiguous and clearly conveys all of Virgil Mason’s interest in the property to the Leonards. The deed explicitly states that “all of Virgil Mason’s undivided interest” in the property was conveyed to the Leonards. The property description does include specific exceptions to what was conveyed, i.e.:

17Less undivided 1/11 Interest to Morgan R. And Mrs. Videll Robinson, Less fifteen (15) acres to V.C. Harvey for 1968, Less an undivided two (2) acres sold to V.C. Harvey for 1970, Less an undivided two (2) acres sold to V.C. Harvey for 1971, less two (2) acres to V.C. Harvey for 1969.

The deed does not include as an exception the property inherited from Mary Mason. The phrase “This is the separate property of Virgil Mason inherited from Willis Mason’s Estate” clarifies that the property being conveyed is Virgil Mason’s separate property, not community property shared with his wife. This phrase does not limit the conveyance to that property inherited from Willis Mason. Although the trial court correctly determined that the deed is clear and unambiguous, the trial court erred in finding that Virgil Mason did not convey all of his interest in the property to the Leonards. Therefore, the trial court also erred in granting the Masons’ motion for summary judgment.

Accordingly, this assignment of error has merit.

Second Assignment of Error

In their second assignment of error, the Jeanes argue that the trial court erred in not granting their motion for summary judgment. The Jeanes contend that, for the reasons set forth in their first assignment of error, the trial court should have granted their motion and ruled that the Masons own no interest in the property because Virgil Mason conveyed all of his interest to the Leonards.

Considering this court’s foregoing determination that the cash sale deed is unambiguous and clearly conveyed all of Virgil Mason’s undivided interest in the property to the Leonards, we find that the trial court erred in denying the Jeanes’ motion for summary judgment.

|sAn appellate court shall render any judgment which is just, legal and proper upon the record on appeal. La. C.C.P. art. 2164. Finding that there are no genuine issues of material fact and that a de novo review of the deed demonstrates that Virgil Mason conveyed all of his interest in the property to the Leonards, this court grants the Jeanes’ motion for summary judgment.

Accordingly, this assignment of error has merit.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court in favor of Appellees, Virgil Mason, Clarece Mason Brown, Vergia Mason, Tommie Ann Mason Mims, Bettie Gail Mason, Onteryl Mason and Chuncy Mason, and grant summary judgment in favor of Appellants, R. Kenneth Jeane and Suzanne W. Jeane. Costs of this appeal are assessed to Appellees Virgil Mason, Clarece Mason Brown, Ver-gia Mason, Tommie Ann Mason Mims, Bettie Gail Mason, Onteryl Mason and Chuncy Mason.

REVERSED AND RENDERED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, MOORE, LOLLEY & PITMAN, JJ.

Rehearing denied.

      . Exco stated that the Jeanes were included as owners of the property in a September 17, 2008 title opinion.

      . Ozark filed an answer and stated that it has never received any royalties from the mineral interests at issue and makes no claim for any funds deposited into the registry of the court by Exco.

      . The trial court also summarily dismissed the Masons’ claim for attorney fees. Because it was a concursus proceeding, the trial court found that the court costs attributable to the motions for summary judgement should be taxed to the Masons and the Jeanes and paid out of the monies deposited by Exco into the registry of the court. If the monies in the registry were not sufficient, the court ordered that the Masons and the Jeanes should be taxed equally for the costs. The trial court summarily granted Exco’s claim to offset any royalty payments it may owe to the Masons against future royalty payments to the Jeanes.

      . The Jeanes do not appeal the trial court’s granting of Exco’s motion for summary judgment. Exco filed a brief stating that it takes no position in the appeal because the appeal involves only the determination of ownership.


author: LOLLEY, J.

text:
    Clara WILKS, Plaintiff-Appellee v. RAMSEY AUTO BROKERS, INC., Defendant-Appellant.
    No. 48,738-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 15, 2014.

      Albert W. Block, Jr., West Monroe, for Appellant.
    Anthony J. Bruscato, Monroe, for Appel-lee.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   LOLLEY, J.

| j Ramsey Auto Brokers, Inc. (“Ramsey Auto”) appeals a judgment from the Monroe City Court, Parish of Ouachita, State of Louisiana, granting Clara Wilks (‘Wilks”) rescission of the sale of a used vehicle and damages in the amount of $7,000.00, plus $2,500.00 in attorney fees. For the following reasons, we amend the judgment to decrease the amount of damages to that of the purchase price, and affirm the judgment as amended.

Facts

On September 14, 2011, Wilks purchased a 2003 Pontiac Grand Am GT with 146,045 miles on the odometer for $4,958.00 from Ramsey Auto. Instead of paying the full amount for the vehicle, Wilks traded in a Lincoln LS for $3,250.00, and paid the remaining balance of $1,745.00 by check. She also paid various fees in the amount of $45.00 for a total price of $5,003.00.

Wilks testified that she went to Ramsey Auto to purchase a vehicle for her niece to commute to and from college. Wilks’ niece had been using the Lincoln, but due to the price of gasoline, Wilks was interested in buying a car that was more economical. Chris Martin (“Martin”), a salesman at Ramsey Auto, approached Wilks and showed her a Honda and the Pontiac described above. At some point during the sale, Martin falsely informed Wilks that the car had been inspected by the dealership’s mechanic who stated that the car was in good condition. Wilks then test drove the Pontiac for two blocks and noted no mechanical issues.

Prior to the completion of the sale, representatives from Ramsey Auto presented Wilks with two forms: a bill of sale and a buyer’s guide. The bill of sale outlined the terms of the sale and contained an “as is” disclosure. 12That statement is found in the middle of the page, with a signature line underneath, and provides:

THIS VEHICLE IS BOUGHT AS IS. EVEN AS TO HIDDEN, UNKNOWN, AND UNDISCOVERED DEFECTS. I HAVE READ THIS AND UNDERSTAND IT.
SIGNED: Clara F. Wilks
Additionally, the following statement appears on the front page of the buyer’s guide:
X AS IS-NO WARRANTY YOU WILL PAY ALL COSTS FOR ANY REPAIRS. The dealer assumes no responsibility for any repairs regardless of any oral statements about the vehicle.
X WARRANTY NOT AVAILABLE

David Green, the dealership’s manager, presented this paperwork to Wilks and informed her that she was buying the car “as is,” but offered no further explanation. However, Wilks testified that despite being informed that the sale was “as is,” she was also told that if something went wrong with the motor, she could bring the car back to the dealership for repair. There was no further discussion relating to warranties or the quality of the vehicle, and Wilks signed both the bill of sale and the buyer’s guide, purchased the car, and drove it-home.

Wilks testified that the car began to have mechanical problems as soon as it left the lot. Specifically, she stated that the coolant light came on shortly after leaving the dealership and the car was running hot. Wilks immediately notified Martin that her car was losing coolant, and he instructed her to simply add coolant. She did as instructed, but to no avail; the coolant light came back on before arriving home. Wilks continued this ^process for some time, and even reached a point where she was having to add coolant to the vehicle every other day.

Eventually, Ramsey Auto asked Wilks to bring the car in for an inspection by Professional Auto Service, the dealership’s contractual mechanical shop. Professional Auto Service’s initial inspection of the vehicle revealed that there was no leak. However, Wilks continued to have car trouble, and over a one-year period, Wilks brought the car back to Professional Auto Service approximately four times, as well as to other mechanics of her own choosing. During this back and forth, Wilks placed approximately 15,000 miles on the car. However, despite multiple attempted repairs, the vehicle’s coolant problem remained unresolved, and ultimately, Ramsey Auto informed Wilks they would provide no further assistance. Wilks responded by demanding that the dealership take back the car and refund her money. However, Ramsey Auto refused and this litigation ensued.

Wilks filed suit against Ramsey Auto in Monroe City Court seeking relief under redhibition, rescission of the sale, refund of the purchase price and associated costs, damages for mental anguish resulting from unfair trade practice, and attorney fees. After hearing testimony and considering the evidence, the trial court found the car to have redhibitory defects and that Wilks was entitled to rescission of the sale. The trial court also held the purported waiver of warranty to be ineffective. As a result, Wilks was Rawarded damages in the amount of $7,000.00 plus $2,500.00 in attorney fees. In deciding damages, the trial court determined that Wilks was entitled to rescission of the sale and return of the purchase price which the court established as $7,000.00 representing the value of the Lincoln used as trade-in.

Ramsey Auto appealed, and also filed an exception of no cause of action which will be considered together with the merits of this appeal. Wilks answered the appeal seeking an increase in attorney fees.

Discussion

We first note that Ramsey Auto’s appellate brief is not in compliance with Uniform Rules-Courts of Appeal, Rule 2-12.4 due to Ramsey Auto’s failure to specify or assign any alleged error by the trial court. Nonetheless, from the argument made from Ramsey Auto’s appeal brief, we will address what we consider to be the issues of its appeal.

Redhibition

Ramsey Auto maintains that the trial court erred in finding redhibitory defects in the automobile purchased by Wilks. According to Ramsey Auto, any defect that existed in the engine was caused by normal wear and tear, running the vehicle hot for an extended period of time, or the introduction of stop leak — not vices or defects which would warrant the rescission of the sale. |BWe disagree.

A seller warrants the buyer against red-hibitory defects, or vices, in the thing sold. A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed the buyer would not have bought the thing if he had known of the defect. The existence of such defect gives a buyer the right to obtain rescission of the sale. La. C.C. art. 2520.

The implied warranty against redhibitory defects covers only hidden defects, not defects that were known to the buyer at the time of the sale, or defects that should have been discovered by a reasonably prudent buyer. La. C.C. art. 2521. To prevail in such a proceeding, the plaintiff must also prove that the defect existed at the time of the sale, and that he afforded the seller an opportunity to repair the thing. Gaston v. Bobby Johnson Equip. Co., Inc., 34,028 (La.App.2d Cir.11/03/00), 771 So.2d 848. Proof that a redhibitory defect existed at the time of the sale can be made by direct or circumstantial evidence giving rise to a reasonable inference that the defect existed at the time of the sale. Berney v. Rountree Olds-Cadillac Co., 33,388 (La.App.2d Cir.06/21/00), 763 So.2d 799; Royal v. Cook, 2007-1465 (La.App. 4th Cir.04/23/08), 984 So.2d 156, writ denied, 2008-1133 (La.09/19/08), 992 So.2d 941. The buyer of an automobile who asserts a redhibition claim need not show the particular cause of the defects making the vehicle unfit for the intended purposes, but rather must simply prove the actual existence of such defects. Young v. Ford Motor Co., 595 So.2d 1123 (La.1992).

Although the warranty against redhibi-tory defects regarding used products does not apply as extensively as with new products, it requires that |fieven used equipment operate reasonably well for a reasonable period of time. Bemey, supra. Inherent in the sale of an older car is the knowledge that the machinery and parts are worn and subject to breakdown and that the vehicle will require mechanical work from time to time to keep it in good running condition. Burch v. Durham Pontiac Cadillac, Inc., 564 So.2d 380 (La.App. 1st Cir.1990), writ denied, 569 So.2d 968 (La.1990).

The existence of a redhibitory defect is a question of fact which should not be disturbed in the absence of manifest error. Bemey, supra. An appellate court may not set aside a trial court’s finding of fact absent manifest error or unless the factfinder is clearly wrong. Stobart v. State, Through Dept. of Transp. and Dev., 1992-1328 (La.04/12/93), 617 So.2d 880.

In the instant case, the trial court fully considered the evidence concerning the alleged defects in the vehicle and made a specific finding of fact, ultimately accepting Wilks’ contentions. The testimony presented at trial established that the car began to have coolant problems as soon as it left the lot. Although Ramsey Auto made multiple assorted repairs at no cost to Wilks, the principal problems, overheating and a leaking gasket, were never resolved. These problems resulted in Wilks being unable to rely on the automobile for fear that it would cease operating properly. Accordingly, based upon the record before this Court, we find that the trial court was not manifestly erroneous or clearly wrong in its conclusion that there were redhibitory defects in the vehicle.

Waiver of Warranty

It is well established that parties are free to limit or diminish, by |7express agreement, the warranty imposed by law. La. C.C. art. 2458. To be effective, a waiver of warranty must: (1) be written in clear and unambiguous terms; (2) be contained in the contract; and (3) either be brought to the attention of the buyer or explained to him. Prince v. Paretti Pontiac Co., 281 So.2d 112 (La.1973); Royal, supra. The seller has the burden of proving that the buyer waived the warranties, and such waivers are strictly construed against the seller. Boos v. Benson Jeep-Eagle, Inc., 1998-1424 (La.App. 4th Cir.06/24/98), 717 So.2d 661, writ denied, 1998-2008 (La.10/30/98), 728 So.2d 387; Berney, supra.

In support of its contention that Wilks waived the warranty against redhi-bitory defects, Ramsey Auto relies on the printed language found in both the bill of sale as well as the buyer’s guide. Ramsey Auto maintains that both of these documents were presented to Wilks prior to purchasing the car, Wilks was informed that the purchase was “as is” and with no warranty, and Wilks acknowledged the waivers by signing both documents. Here, although the language in the bill of sale and the buyer’s guide states that the purchase was being made “as is” and with no warranty, it does not contain language sufficient to make it clear and unambiguous. The language specifically fails to state that the purchaser waives both express and implied warranties, including the warranty of fitness for a particular purpose and the warranty against redhibitory vices. As a result, given the statutory requirement of unambiguous notice to the consumer and considering this record, we conclude that the trial court was not manifestly erroneous or clearly wrong in finding the waiver to be ineffective.

Nevertheless, a sale made “as is” is not a waiver of all warranties. Ross v. Premier Imports, 1996-2577 (La.App. 1st Cir.11/07/97), 704 So.2d 17, writ denied, 1997-3035 (La.02/13/98), 709 So.2d 750; Berney, supra. The vendor is not relieved of the implied warranty under La. C.C. art. 2520 that the thing must be fit for its intended use. Id. The intended use of an automobile is transportation. Stuck v. Long, 40,034 (La.App.2d Cir.08/17/05), 909 So.2d 686, writ denied, 2005-2367 (La.03/17/06), 925 So.2d 546.

Here, the automobile purchased by Wilks was undoubtedly a lemon. The evidence and testimony on the record reflects that Wilks was constantly having to take the car to Professional Auto Service for varying mechanical issues. In fact, Wilks stated that the car became so unreliable that her niece had to stop using it for its intended use — transportation to and from college. In opposition, Ramsey Auto makes much of the fact that Wilks placed approximately 15,000 miles on the car in six months. However, the facts and testimony at trial established that any value derived from the use of the car purchased by Wilks was greatly outweighed by the inconvenience caused by the damaged vehicle.

Even more, it is uneontested that Martin personally assured Wilks that the dealership’s mechanic had inspected the vehicle and declared it to be in good condition. La. C.C. art. 2548 provides, in pertinent part that “[a] buyer is not bound by an otherwise effective exclusion or limitation of the warranty when the seller has declared that the thing has a quality that he knew it did not have.” Even if the language waiver requirements were met, the personal assurance of the seller that the car was in good condition qualified the written waiver, rendering its language ambiguous. See Ford New Holland Credit Co. v. McManus, 36,567 (La.App.2d Cir.12/11/02), 833 So.2d 1130.

Damages

We next turn to the issue of damages. According to Ramsey Auto, the award of damages in excess of the sales contract was in error. Instead of damages in the amount of $7,000.00 awarded by the trial court, Ramsey Auto avers that if any damages are warranted, the correct amount would be is $5,003.00, or the purchase price of the vehicle. We agree.

Liability, or damages owed of a seller in redhibition cases is addressed in La. C.C. arts. 2531 and 2545. Louisiana C.C. art. 2531 provides that:

[a] seller who did not know that the thing he sold had a defect is only bound to repair, remedy, or correct the defect. If he is unable ... he is then bound to return the price to the buyer with interest from the time it was paid, and to reimburse him for the reasonable expenses occasioned by the sale ... less the credit to which the seller is entitled if the use made of the thing ... were of some value to the buyer ... (Emphasis added).

On the other hand, La. C.C. art. 2545 provides that:

[a] seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale ... and also for damages and attorney fees. If the use made of the thing ... were of some value to the buyer, such a seller may be allowed credit for such use ... (Emphasis added).

In both scenarios, when the trial court finds that the buyer is entitled to rescission of the sale, the baseline award of damages is a return of the price with interest from the time it was paid, and a reimbursement of the reasonable expenses occasioned by the sale. Guided by the language set forth in La. C.C. arts. 2531 and 2545, we conclude that the trial court erred |inin awarding damages in excess of the sales contract. Therefore, we amend the award of damages from $7,000.00 to $5,003.00, which includes the purchase price of the Pontiac plus reasonable expenses occasioned by the sale.

Attorney Fees

A trial court has great discretion in awarding attorney fees in redhibition cases. Jones v. Winnebago Indus., Inc., 47,137 (La.App.2d Cir.05/16/12), 92 So.3d 1113. Attorney fees in redhibition cases are specifically allowed under La. C.C. art. 2545. Before an attorney fee award will be disturbed on appeal, the record must reveal that the trial court abused its discretion in making the award. Smith v. Acadiana Mortg. of La., Inc., 42,795 (La.App.2d Cir.01/30/08), 975 So.2d 143.

Here, we find that the trial court did not abuse its discretion in awarding Wilks attorney fees. While we recognize that the trial court did not expressly state reasons for awarding attorney fees, the record clearly provides evidence sufficient to support the trial court’s decision. As noted above, there is testimony on the record that Martin misled Wilks and declared that the dealership’s mechanic had inspected the car and declared that it was good condition. This evidence was uncon-tradicted, and was ultimately accepted by the trial court in its factfinding capacity. Accordingly, Ramsey Auto’s contention that the trial court erred in awarding attorney fees is without merit.

Furthermore, Wilks answered this appeal, seeking an increase in attorney fees for costs and work performed in connection with this appeal. It is within the appellate courts discretion to award or increase attorney fees for depending an appeal. Nesbitt v. Nesbitt, 46,514 (La.App.2d Cir.09/21/11), 79 So.3d 347, writ denied, 2011-2301 (La.12/02/11), 76 So.3d 1178. The skill exercised by the attorney and the time and work done on the appeal are factors considered in determining the amount of the award for attorney fees. Id.

Considering our affirmation of the trial court in respect to liability, we find that an additional award of $1,500.00 is appropriate to compensate Wilks’ counsel for costs associated with this appeal.

Exception of No Cause of Action

As a final matter, we will address Ramsey Auto’s peremptory exception of no cause of action which was filed for the first time in this Court pursuant to La. C.C.P. art. 2163, which provides the appellate court with the discretion to consider a peremptory exception filed for the first time in that court, “if pleaded prior to the submission of the case, and if proof of the ground of the exception appears in the record.” In bringing this exception of no cause of action, Ramsey Auto alleges that La. R.S. 32:783(F)(3) acts as an absolute bar to redhibition claims arising from the sale of a used motor vehicle with a bill of sale containing warranty exclusions and sold “as is.” Louisiana. R.S. 32:783(F)(3) provides, in pertinent part:

F. The commission’s powers and duties shall include but are not limited to the following:
3. Requiring all dealer sales to have a condition of sale, such as warranty disclaimer, implied or written warranty, or a service contract. If a sale of a used motor vehicle is “as-is” and with a waiver 11gof all warranties, the bill of sale shall include a notice which clearly and unambiguously states that the terms of the sale are “as-is” and with a waiver of all warranties, including any claim for redhibition or reduction of or return of the purchase price. The customer shall acknowledge the terms of the sale. An acknowledgment of the terms of the sale via acceptance of an electronic notice at any time prior to or as part of the transaction shall constitute compliance with this Section. If a used motor vehicle dealer complies with the provisions of the Section, the purchaser shall not be entitled to a return of the purchase price, a reduction of the purchase price, or a repair of the vehicle without payment of the cost of repair.

The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Bogues v. La. Energy Consultants, Inc., L.L.C., 46,434 (La.App.2d Cir.08/10/11), 71 So.3d 1128. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 2000-2882 (La.05/15/01), 785 So.2d 803. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Bogues, supra.

According to the statute outlined above, to be effective, the bill of sale must include a notice which clearly and unambiguously states that the terms of the sale are “as is” and waives all warranties, including any claim for redhibition or reduction of or return of the purchase price. Here, the purported waiver relied on by Ramsey Auto only recites that the sale is “as | iais” and without warranty. However, it does not make any reference to claims for red-hibition or return of the purchase price as required by La. R.S. 32:783(F). Therefore, because the waivers contained in the bill of sale and the buyer’s guide do not meet the requisite language found in the statute, we find this provision to be ineffective and not applicable to the present case. As a result, we conclude find that the facts alleged in the petition clearly state a cause of action under redhibition. Ramsey Auto’s exception of no cause of action is denied.

Conclusion

For the reasons stated above, we find that the trial court was not manifestly erroneous or clearly wrong in concluding that defects existed in the vehicle which rendered the car useless, or its use so inconvenient that it must be presumed that Clara Wilks would not have bought the ear had she known of the defect. Additionally, we conclude that the trial court was not manifestly erroneous or clearly wrong in finding the purported waiver of warranty to be ineffective. However, we do conclude that the trial court erred in awarding damages in excess of the purchase price of the vehicle. Therefore, the judgment of the trial court is amended to reduce the award of damages from $7,000.00 to $5,003.00. As amended, the judgment is affirmed. We also award an additional $1,500.00 in attorney fees to Clara Wilks for the costs of this appeal. Furthermore, Ramsey Auto Brokers Inc.’s exception of no cause of action is hereby denied. All costs of this appeal are assessed to Ramsey Auto Brokers, Inc.

AMENDED, AND AS AMENDED, AFFIRMED; EXCEPTION DENIED.

      . Initially, Wilks filed her petition for damages pro se, seeking damages totaling $5,003.00 "or car heads/motor repaired at defendant's expense." Wilks then retained counsel who filed a supplemental and amending petition for damages, which reaffirmed the allegations and demands of the original petition and further sought rescission of the sale, damages for mental anguish and associated costs, attorney fees, and an unfair trade practices claim.

      . During trial, Wilks, seeking to support her unfair trade practices claim, attempted to offer evidence that Ramsey Auto grossly undervalued the Lincoln LS used as trade-in. Ramsey Auto properly objected, and complained that this evidence was an attempt to expand the pleadings, which did not assert that the Lincoln had been undervalued. Wilks argued as an alternative ground for admittance that the evidence is relevant to rescission of the sale because if rescission of the sale were to be granted, she would be entitled to receive the Lincoln back. However, since the dealership had already disposed of the Lincoln, she should instead be awarded the fair market value. The trial court agreed, and admitted the NADA blue book value of the Lincoln into evidence as relevant to the rescission of the sale.