author: JUDE G. GRAVOIS, Judge.

text:
    Harold E. MOLAISON and David C. Loeb v. David J. LUKINOVICH and David J. Lukinovich (A Professional Corporation).
    No. 13-CA-781.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2014.

      William W. Hall, Attorney at Law, William W. Hall, L.L.C., Metairie, LA, Jack E. Morris, Attorney at Law, Metairie, LA, for Plaintiffs/Appellees.
    James H. Gibson, Charles M. Kreamer, Sr., David J. Ayo, Attorneys at Law, Lafayette, LA, E. John Litchfield, Attorney at Law, New Orleans, LA, for Defendants/Appellants.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and HANS J. LILJEBERG.
   JUDE G. GRAVOIS, Judge.

| sDefendants/appellants, David J. Luki-novich (“Mr. Lukinovich”) and David J. Lukinovich (A Professional Corporation) (collectively, “defendants”), appeal a trial court judgment that found Mr. Lukinovich breached his fiduciary duties to his former clients, Harold E. Molaison (“Mr. Molai-son”) and David C. Loeb (“Mr. Loeb”) (collectively, “plaintiffs”) by submitting to an interview with the IRS criminal division’s special agent and by testifying in front of a federal grand jury, both pursuant to subpoenas. Plaintiffs alleged that Mr. Lukinovieh’s testimony before the grand jury resulted in their indictments for criminal tax evasion and conspiracy to commit tax evasion. After plaintiffs were acquitted in a jury trial, and after the government’s subsequent unsuccessful civil action against plaintiffs for tax evasion was completed, plaintiffs sued defendants for damages, arguing that defendants were liable to plaintiffs for damages resulting from plaintiffs’ indictments.

14A bench trial in this matter occurred over the course of two calendar years, on April 26-28, June 13-16, and November 28-December 1, 2011, and on March 19-23, and April 16-18, 2012. Judgment was rendered on December 3, 2012, finding defendants liable to plaintiffs and awarding each of them damages.

On appeal, defendants raise the following assignments of error:

I. The trial court erred in failing to find that Mr. Lukinovich was absolutely immune from liability arising out of his IRS interview and federal grand jury testimony.
II. The trial court erred in failing to find that plaintiffs’ claims against Mr. Lukinovich are perempted.
III. The trial court erred in failing to find that plaintiffs’ claims are speculative and that they failed to satisfy their burden of proof (assuming they even have claims).
IV. The trial court erred in failing to find that plaintiffs’ claims were barred by their unclean hands as a result of their acquisition of an interest in the subject matter of the taking cases and/or misrepresentations made to their tax advisors and the IRS.
V. The trial court erred in its allocation of fault.
VI. The trial court erred in its award of damages for attorneys’ fees, mental anguish, and lost income.
VIL The trial court erred in admitting the expert testimony of Messrs. Riess, Ciolino, Tizzard, and Re-bowe.

After thorough consideration of this extensive record and the applicable law, we find merit to defendants’ first assignment of error, and thus, for the following reasons, find that as a fact witness before the federal grand jury, Mr. Lukinovich enjoyed absolute immunity from civil suit for damages by plaintiffs, the target of the grand jury’s investigation, based on any testimony Mr. Lukinovich gave before the grand jury and in the IRS interview, the admitted bases for their suit against defendants. Accordingly, we reverse the judgment of the trial court under review and render judgment dismissing plaintiffs’ suit with prejudice at plaintiffs’ costs.

J¿'ACTS AND PROCEDURAL HISTORY

Mr. Lukinovich was retained by plaintiffs in 1996 to advise them in connection with their 1996 and 1997 income tax returns relative to the tax treatment of monies plaintiffs received from representing a group of landowners in what was known as the “Bayou aux Carpes” takings litigation. After successfully settling the case with the federal government for approximately $8.25 million, plaintiffs collectively received approximately $2 million in compensation for representing the landowners.

A mutual friend recommended Mr. Luk-inovich, a board certified tax attorney, to plaintiffs, who asked him to prepare a proposal directed to their landowner-clients offering his services in assisting them with their income tax returns, and specifically regarding the tax treatment of their proceeds from the takings litigation. Mr. Lukinovich was retained by one landowner, Mrs. Pat Morrow, to assist her in preparing her 1996 tax returns. He advised her that as a landowner whose land was subject to an involuntary taking by the government, she could use the “Section 1033” election, a provision of the tax code that allows such landowners the ability to defer taxes on the proceeds of the sale in the takings litigation if the proceeds were “rolled over” into another qualifying piece of real property within a certain time frame.

In July of 1996, plaintiffs asked Mr. Lukinovich if they, too, could use the Section 1033 election to defer the taxes on the fees they earned in the takings litigation. Plaintiffs gave Mr. Lukinovich copies of their representation contracts with the landowners, which he opined looked like standard contingency fee contracts. Mr. Lukinovich researched the matter and memorialized his research in a letter to plaintiffs dated August 21, 1996 (hereinafter, the “hurdles” letter), advising plaintiffs that it did not appear to him, based on the contingency fee | (¡contracts, that they had the requisite ownership interest in the land to take the Section 1033 election. He identified two hurdles that needed to be overcome: first, the law partnership Mr. Molaison and Mr. Loeb were supposedly operating under at the time appeared to be the contracting party in some of the representation contracts, rather than plaintiffs individually, and second, the contracts as written were contingency fee contracts that did not support the conclusion that plaintiffs had an ownership interest in and to the land itself.

The parties met on September 4,1996 to discuss the matter further. Present were Mr. Lukinovich, Mr. Molaison, Mr. Loeb, Gerald Duhon (Mr. Loeb’s longtime CPA) and Shannon Chabaud (Mr. Molaison’s CPA). At that meeting, plaintiffs advised Mr. Lukinovich that neither issue contained in the hurdles letter would be an obstacle to their taking the Section 1033 election. They advised Mr. Lukinovich that they as individuals, not the law partnership, had entered into the representation. They also advised Mr. Lukinovich that the landowners had indeed transferred an undivided 25% ownership interest in and to the land itself to them at the time they agreed to hire plaintiffs to represent them in 1991; however, such language was “inadvertently omitted” from the contingency fee contracts due to the need for haste to execute the contracts. Mr. Lukinovich stated that plaintiffs would need a “writing” to clarify the owners’ intent to transfer an ownership interest in and to the land itself to them, so that they could support their position to the IRS.

As recalled by Mr. Lukinovich and Mr. Duhon, at that meeting, it was agreed that Mr. Loeb, with input from Mr. Lukinovich, would draft the “writing” |7for the landowners to sign. Mr. Loeb proposed entitling it an “act of correction,” according to Mr. Lukinovich, who stated that he had not heard that term before. Mr. Molaison and Mr. Loeb would be responsible for getting the landowners to execute the acts of correction, as well as recording them in the public records, a step that Mr. Lukino-vich recommended. Mr. Lukinovich also recommended recording the original contingency fee contracts as well. A few hours after the meeting, Mr: Loeb faxed Mr. Lukinovich a draft of an act of correction. Mr. Lukinovich reviewed the draft and recommended making one change regarding the words “contingency fee contract,” which Mr. Loeb subsequently made. Thereafter, Mr. Lukinovich did not provide any other edits to the act of correction.

One of the landowners, Mrs. Pat Morrow, who as noted had hired Mr. Lukino-vich to prepare her 1996 tax returns, called Mr. Lukinovich to ask him if she would have any personal tax consequences if she signed the act of correction which had been presented to her by plaintiffs for her signature. Her brother, Jacques Creppel, also a landowner, had the same question. Mr. Lukinovich advised them that they would not have any personal tax consequences to their own tax returns by signing the acts of correction as requested by Mr. Loeb and Mr. Molaison. Mrs. Morrow and Mr. Creppel did not ask Mr. Lukinovich any other questions about the acts of correction. No other landowners contacted Mr. Lukinovich to ask questions about the acts of correction.

In late 1999, the IRS notified plaintiffs that it would be conducting audits of their 1996 and 1997 federal income tax returns.

It appears that the audits were initiated in part by repeated complaints made to the IRS by the Goldmans, a group Rof landowners who told the IRS that the acts of correction plaintiffs asked them to sign were incorrect in that the parties thereto never intended that an ownership interest in and to the land would be transferred to plaintiffs as compensation for representing them in the takings litigation; the payment was to be made in money, not land. The audits occurred separately: Mr. Loeb’s was done first in January of 2000; Mr. Molaison’s followed a few months later. Mr. Lukinovich represented plaintiffs before the IRS in the audits.

The audits resulted in the denial of deferral of taxes on Mr. Loeb’s and Mr. Molaison’s fees in the takings litigation. Thereafter, the Criminal Investigation Division of the IRS commenced a criminal investigation into Mr. Loeb’s and Mr. Mo-laison’s tax returns. Special Agent Craig Knippenberg of the IRS interviewed many witnesses, including the aforementioned accountants and many of the landowners, and questioned them regarding the contingency fee contracts and the acts of correction. By now, plaintiffs and Mr. Lukinovich had engaged their own separate criminal counsel. Mr. Lukinovich was issued a summons by the IRS, to which he responded by invoking the attorney-client privilege and producing redacted documents. Agent Knippenberg then told Mr. Lukinovich that he was considering referring Mr. Lukinovich for indictment for aiding and abetting plaintiffs in their conspiracy to commit tax evasion. Agent Knippenberg summoned Mr. Luki-novich to submit to an interview in 2003. Mr. Lukinovich advised plaintiffs, through letters to their criminal counsel, that in order to defend himself to the IRS, he might have to divulge matters covered by the attorney-client privilege. Plaintiffs’ counsel asked Agent Knippenberg that they be allowed to attend Mr. Lukino-vich’s interview “to protect work-product and attorney-client 19privilege issues.... ” Agent Knippenberg refused this request. Plaintiffs took no further action to stop Mr. Lukinovich’s interview with Agent Knippenberg. Mr. Lukinovich’s interview with Agent Knippenberg was memorialized in a “memorandum of interview” prepared by Agent Knippenberg.

A grand jury was convened, which collected evidence, including the memoranda of interviews taken by the IRS as noted above, and subpoenaed multiple witnesses to testify. Mr. Lukinovich was subpoenaed to testify before the grand jury in 2004. Mr. Molaison and Mr. Loeb then moved to quash or limit the scope of Mr. Lukinovich’s subpoena. The federal district court conducted an evidentiary hearing on the matter and issued a written ruling denying the motion to quash. In so doing, the court found the issue to be whether the government could use privileged communications exchanged by and between defendants (Mr. Loeb and Mr. Molaison), their attorney (Mr. Lukinovich), and their accountants in presenting the case to the grand jury. The court found that the attorney-client privilege was not absolute and was subject to the crime-fraud exception, which holds that clients are not entitled to the privilege to protect communications made to their attorneys in contemplation or furtherance of a crime or fraud. The court examined the government’s basis for a showing of probable cause to believe that plaintiffs attempted to or did commit a crime and whether the communications to Mr. Lukinovich and the accountants were in furtherance of such crime or fraud. In so doing, the court closely examined the affidavit of Agent Knippenberg submitted by the government in its opposition to the motion to quash. The affidavit was a compilation of the evidence gathered by Agent Knippen-berg against plaintiffs |inthrough the IRS interviews. The court excluded from its consideration of probable cause those paragraphs of the affidavit that contained facts obtained by Agent Knippenberg’s 2003 interview with Mr. Lukinovich, because the court specifically declined to condone “the coercive manner in which the information was obtained under threat of indictment of the attorney who properly asserted the attorney-client privilege on behalf of his clients.” Examining only the non-privileged information contained in the affidavit (evidence that came from other sources, including the landowners’ interviews with the IRS), the court found that the evidence presented by the government established a prima, facie case that plaintiffs sought legal advice from Mr. Lukino-vich in order to further a conspiracy to evade taxes. Therefore, it concluded that the crime-fraud exception applied to the privileged communications, declared that the privilege no longer existed between plaintiffs’ and Mr. Lukinovieh’s communications, and denied the motion to quash. Afterwards, Mr. Lukinovich testified before the grand jury in June of 2004.

Ultimately, on July 29, 2004, plaintiffs were indicted for criminal tax evasion and fraud; they were later acquitted following a jury trial. The government also filed a civil action against plaintiffs in U.S. Tax Court for tax evasion; plaintiffs were found not liable in said action. Thereafter, plaintiffs sued Mr. Lukinovich in this suit, arguing that his interview with the IRS and his testimony before the federal grand jury violated his fiduciary duties to his former clients and resulted in their indictments.

The trial court found in the instant case, in its judgment, that Mr. Lukinovich breached the fiduciary duties of care and loyalty owed to plaintiffs during his interview with representatives from the IRS and during his grand jury testimony in both the civil and criminal proceedings brought by the government against plaintiffs. The trial court specifically found that Mr. Lukinovich’s failure to_J_y defend the tax strategy that he, as plaintiffs’ tax expert, had previously recommended and “defendant’s lack of forthcoming testimony” to the grand jury were a breach of his fiduciary duties.

FIRST ASSIGNMENT OF ERROR— witness immunity

In their first assignment of error on appeal, defendants argue that as a fact witness who was subpoenaed to testify before a grand jury, Mr. Lukinovich enjoyed absolute immunity from civil suit arising from his testimony, citing Rehberg v. Paulk, — U.S. —, 132 S.Ct. 1497, 182 L.Ed.2d 593 (2012), and cases cited therein, and Lauga v. McDougall, 463 So.2d 754 (La.App. 4th Cir.1985). Accordingly, they argue, that Mr. Lukinovich is immune from suit stemming from his interview with the IRS in 2003, and from his grand jury testimony in 2004, and as such, plaintiffs have no cause of action against him.

Plaintiffs, on the other hand, argue that the exception to the rule of witness immunity carved out by the Louisiana Supreme Court in Marrogi v. Howard, 01-1106 (La.1/15/02), 805 So.2d 1118, applies in this case, because Mr. Lukinovich was hired by plaintiffs as an expert witness, an expert in tax law.

In Rehberg v. Paulk, supra, the United States Supreme Court held that a grand jury witness was entitled to absolute immunity from claims made against him in a Section 1983 action by the grand jury target who was indicted by the grand jury, the same absolute immunity afforded to witnesses at trial. In so doing, the high court noted that: “Grand juries, by tradition, statute, and sometimes constitutional mandate, have a status and entitlement to information that absolute | ^immunity furthers.” The court held that such absolute immunity is critical to the functioning of the grand jury system, the importance of which system “cannot be underestimated.”

In Lauga v. McDougall, supra, the Louisiana Fourth Circuit Court of Appeal held that a non-party witness who testified (allegedly falsely) against the plaintiffs in grand jury proceedings and at two trials (wherein the plaintiffs were ultimately acquitted) was nonetheless entitled to absolute immunity in a defamation action brought against him by the plaintiffs.

The Marrogi court did not consider the testimony of a witness subpoenaed to testify in front of a grand jury. There, the Louisiana Supreme Court was called upon specifically to decide whether:

Under Louisiana law, does witness immunity bar a claim against a retained expert witness, asserted by a party who in prior litigation retained that expert, which claim arises from the expert’s allegedly deficient performance of his duties to provide litigation services, such as the formulation of opinions and recommendations, and to give opinion testimony before or during trial?

Marrogi, 805 So.2d at 1120.

In answering this question in the negative, our high court recognized that the privilege of witness immunity was itself an exception to general tort liability. The court traced the development of the exception to tort liability of witness immunity in Louisiana in order to discern the underlying policy reasons that gave birth to the privilege. The court found that an important policy behind the immunity was “so that witnesses, bound by their oaths to tell the truth, may speak freely without fear of civil suits for damages” provided that the “testimony given by a non-party witness in a judicial proceeding ... is pertinent and material to the issue.” Id. at 1124-1125. The court then concluded that these policy reasons “do not justify | ^protecting a retained expert from malpractice liability in this case where the expert was hired to assist his client in a judicial proceeding by reviewing medical billing reports and making certain calculations, but made errors in performing these services.” IcL at 1124. As the court stated:

In Louisiana, the affirmative defense of witness immunity or privilege has evolved from the jurisprudence. Since the 1800s, this court has recognized the rule that, at least in the context of defamation suits against adverse witnesses, immunity from a civil action attaches to a witness in judicial or quasi-judicial proceedings. Oakes v. Walther, 179 La. 365, 154 So. 26, 27 (1934); Burke v. Ryan, 36 La.Ann. 951 (1884); Terry v. Fellows, 21 La.Ann. 375 (1869). The policy basis for this rule has been explained as follows: “The administration of justice requires the testimony of witnesses to be unrestrained by liability to vexatious litigation. The words they utter are protected by the occasion, and cannot be the foundation for an action for slander.” Terry v. Fellows, 21 La.Ann. at 376. More recently, in Knapper v. Connick, 96-0434, p. 3 (La.10/15/96), 681 So.2d 944, 946, we stated that “communications made in judicial or quasi-judicial proceedings carry an absolute privilege so that witnesses, bound by their oaths to tell the truth, may speak freely without fear of civil suits for damages.”
The court in the 1869 Louisiana Supreme Court decision, Terry v. Fellows, further explained that “[witnesses, like jurors, appear in court in obedience to the authority of the law, and therefore may be considered as well as jurors to be acting in the discharge of a public duty, and though [they are liable to prosecution for perjury or for conspiracy to give false testimony], they are not responsible in a civil action for any reflections thrown out in delivering their testimony.” 21 La.Ann. at 376-77, quoting Thomas Starkie, A Treatise on the Law of Slander and Libel, and Incidentally of Malicious Prosecutions, vol. II, p. 242 (2d English Ed. 1830) hereinafter Starkie on Slander. The court stated that “an action of slander does not lie for anything said or done in the course of a judicial proceeding.” 21 La.Ann. at 377, citing Starkie on Slander, vol. II, p. 254.
In general, witness immunity is an “absolute privilege” because the privilege protects the witness from civil suit regardless of malice or falsity. See Burke v. Ryan, 36 La.Ann. at 951-52; see also Lauga v. McDougall, 463 So.2d 754 (La.App. 4th Cir.1985) (police officer who testified against the plaintiff at grand jury proceedings and trials was absolutely immune from prosecution for a defamation action even if his testimony were false). At English common law, absolute witness immunity required no showing that the allegedly defamatory statements were relevant to the proceeding. See Briscoe v. LaHue, 460 U.S. 325, 331 n. 11, 103 S.Ct. 1108, 1113 n. 11, 75 L.Ed.2d 96, 104 n. 11 (1983). In Louisiana, the rule of witness immunity is 114somewhat narrower, to the extent that the witness’s declarations “cannot serve as the foundation for a civil suit when they are pertinent and material.” Oakes v. Walther, 154 So. at 27, citing Burke v. Ryan, supra.
In Burke v. Ryan, the plaintiff sued the defendants, who had, under threat of subpoena, signed affidavits in an earlier case to the effect that the plaintiff had a poor reputation for truth and veracity. These affidavits, procured by an attorney representing a criminal defendant in the earlier case in which the plaintiff had apparently testified, were filed in support of a motion for new trial in that case based on newly discovered evidence. In reversing the jury’s award for the plaintiff in the subsequent libel case, the court stated:
It needs no elaborate reference to authorities to establish the proposition of law; that as witnesses, who appear in a court of justice, discharge a public duty; that, though they be liable to a prosecution for perjury, should they commit such, they are not responsible, in a civil action, for any reflection thrown out in delivering their testimony, or for anything said or published by them in the course of a judicial proceeding, even if the statement be false, malicious and without probable cause. There is put this qualification, however: that statements thus made, in the course of an action, must be pertinent and material to the issue.
The authorities are also to the effect that every affidavit sworn to in the course of a judicial proceeding in a court of competent jurisdiction is absolutely privileged and no action lies therefor, however false and malicious may be the statement therein contained.
36 La.Ann. at 951-52 (citations omitted). The court in Burke v. Ryan reasoned that the affidavits were legal evidence and that they were applicable, pertinent, and material to the issue raised by the motion for new trial. Accordingly, the affidavits were protected communications, and the affiants were absolutely immune from civil liability.
In short, our courts have long recognized the general rule that there is absolute immunity from civil liability for testimony given by a non-party witness in a judicial proceeding, so long as that testimony is pertinent and material to the issue. See Oakes, supra. Thus, as in a number of other American jurisdictions, once the threshold showing is made that the allegedly defamatory statements were relevant to the judicial proceeding, the privilege of absolute immunity protects the witness from civil liability regardless of malice or falsity. See Briscoe v. LaHue, 460 U.S. at 331 n. 11, 103 S.Ct. at 1113 n. 11; see also Murphy v. A.A. Mathews, 841 S.W.2d 671, 675-77 (Mo.Sup.Ct.1992).

| vJd. at 1124-1126, footnotes omitted.

As noted therein, Mr. Howard was hired by Dr. Marrogi as an expert witness to assist Dr. Marrogi in preparing his case against Tulane Hospital for breach of contract and damages. Mr. Howard was to provide litigation support services, which services included analyzing records, preparing a report containing his calculations of plaintiffs damages, and providing testimony about his conclusions both before and during trial. Mr. Howard’s report contained numerous errors in calculations, which were pointed out by Tulane in pretrial proceedings, and which Mr. Howard did not rectify. Additionally, Mr. Howard terminated his own deposition at which his other mistakes were noted, and terminated his employment with Dr. Marrogi before providing all of the services for which he had been paid. After Dr. Marrogi sued Mr. Howard for breach of contract and professional malpractice, which Dr. Marro-gi alleged resulted in the dismissal of his case against Tulane, Mr. Howard filed an exception of no cause of action, attempting to cloak the deficient performance of his contractual duties to Dr. Marrogi under the exception of witness immunity to civil suit. The supreme court found, however, that the policy considerations behind witness immunity were not furthered by extending that immunity to a suit against a “friendly” expert witness hired to formulate opinions and testify regarding those opinions, when that expert witness breaches his contractual duties to the plaintiff to provide those very services, only part of which was to testify regarding those opinions.

The facts in the instant case are starkly distinguishable from those in Marrogi and clearly implicate the policy considerations stated in Marrogi favoring witness immunity. While Mr. Lukinovich was hired by plaintiffs to assist them in preparing their tax returns because of his expertise in tax law, he was not hired by plaintiffs as an “expert witness” as that term is defined and understood by |1fiLouisiana Code of Evidence art. 702, et seq., and Marrogi. Mr. Lukinovich, a non-party, was subpoenaed to testify before the grand jury as a fact witness. His testimony was pertinent and material to the issue the grand jury was investigating. Thus, the exception of witness immunity applies, and applies regardless of any alleged malice or falsity in Mr. Lukinovich’s testimony, as noted in Lauga, supra.

The fact that Mr. Lukinovich had previously been retained by plaintiffs to provide professional services, or that he answered a hypothetical question posed to him by the grand jury, does not make him a “retained expert witness” before the grand jury as per the rules of evidence or Marrogi. No person, not even the target of a grand jury investigation, has the right to call any witnesses, expert or fact, to testify in front of a grand jury. “Prospective indictees may not, as a matter of constitutional right, attend the proceeding personally or through counsel, cross-examine witnesses, introduce evidence or compel the introduction of exculpatory evidence at the proceeding.” U.S. v. Tallant, N.D.Ga.1975, 407 F.Supp. 878, 883. Thus, Mr. Lukinovich could not and did not appear before the grand jury as plaintiffs’ advocate.

A witness has a duty to testify if called before the grand jury, conditioned only upon his privilege against self-incrimination. In re Grand Jury Subpoenas, 387 So.2d 1140, 1142 (La.1980), citing United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976). As a witness, Mr. Lukinovich’s only duty before the grand jury was to answer the questions posed by the grand jury 117truthfully. As the Court stated U.S. v. Sells Engineering, Inc., 463 U.S. 418, 423-424, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983):

The grand jury has always occupied a high place as an instrument of justice in our system of criminal law — so much so that it is enshrined in the Constitution. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240, 3 L.Ed.2d 1323 (1959); Costello v. United States, 350 U.S. 359, 361-362, 76 S.Ct. 406, 407-408, 100 L.Ed. 397 (1956). It serves the “dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal prosecutions.” Branzburg v. Hayes, 408 U.S. 665, 686-687, 92 S.Ct. 2646, 2659, 33 L.Ed.2d 626 (1972) (footnote omitted). It has always been extended extraordinary powers of investigation and great responsibility for directing its own efforts:
“Traditionally the grand jury has been accorded wide latitude to inquire into violations of criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may determine alone the course of its inquiry. The grand jury may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials. ‘It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime.’” United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974), quoting Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919).
These broad powers are necessary to permit the grand jury to carry out both parts of its dual function. Without thorough and effective investigation, the grand jury would be unable either to ferret out crimes deserving of prosecution, or to screen out charges not warranting prosecution. Branzburg, 408 U.S. at 688, 92 S.Ct. at 2660; Calandra, 414 U.S. at 343, 94 S.Ct. at 617. See also United States v. Dionisio, 410 U.S. 1, 12-13, 93 S.Ct. 764, 770-771, 35 L.Ed.2d 67 (1973); United States v. Johnson, 319 U.S. 503, 510-512, 63 S.Ct. 1233, 1236-1237, 87 L.Ed. 1546 (1943); Hale v. Henkel, 201 U.S. 43, 59-66, 26 S.Ct. 370, 372-375, 50 L.Ed. 652 (1906).

As noted, the rules of evidence that apply to trials do not apply in grand jury proceedings. Fed.R.Evid. 1101(d)(2); La. C.E. art. 1101(C)(6); United States v. McKenzie, 678 F.2d 629, 632 (5th Cir.1982). Expert witnesses are a construct of the rules of evidence. Marrogi’s holding, declining to extend witness immunity to |,¡¡hired expert witnesses when sued by the party who hired them for negligence in performance of their contractual duties, does not apply to a fact witness subpoenaed to testify before a grand jury, notwithstanding the fact that plaintiffs had once employed Mr. Lukinovich because of his expertise in a particular field.

The same reasoning applies to find Mr. Lukinovich immune from civil suit as a result of his interview before the IRS in 2003. This interview was a quasi-judicial proceeding that invokes the same policy considerations, witness candor freed from the threat of retaliatory litigation, that provide absolute immunity to witnesses testifying before a grand jury and at trial. In any event, in declining to quash Mr. Lukinovich’s grand jury subpoena, the federal district court omitted from its consideration information given by Mr. Lukino-vich to Agent Knippenberg at his 2003 interview when determining whether the government had shown the requisite probable cause to believe that a crime had been committed. In other words, the court found the requisite probable cause to believe that a crime had been committed without considering Mr. Lukinovich’s IRS interview testimony.

Accordingly, finding merit to defendants’ first assignment of error, we hold that Mr. Lukinovich is absolutely immune from suit by plaintiffs stemming from his 2003 interview with the IRS and his 2004 grand jury testimony, plaintiffs’ admitted bases for their suit against defendants. Because the trial court committed clear legal error in its decision on this issue, although harsh, we are constrained to reverse the judgment of the trial court under review and render judgment dismissing plaintiffs’ suit with prejudice at plaintiffs’ costs. Because we reverse the trial court’s judgment on our determination of this legal issue, consideration of the remaining assignments of error asserted by defendants is pretermitted.

\ ^CONCLUSION

For the foregoing reasons, the trial court judgment under review in favor of plaintiffs is hereby reversed. Plaintiffs’ suit is hereby dismissed with prejudice at plaintiffs’ costs. All costs of this appeal are taxed to appellees.

REVERSED AND RENDERED.

      . The trial court awarded Mr. Molaison $2,660,641.00 in damages and awarded Mr. Loeb $2,017,917.50 in damages, together with legal interest from date of judicial demand until paid and for all costs of the proceedings.

      . Mr. Loeb testified at trial that at no time did he tell Mr. Lukinovich, at this meeting or otherwise, that the landowners transferred an "ownership interest” in and to the property, but rather a "possessory interest” that was necessary to protect their fee, as the federal Court of Claims, where the Bayou aux Carpes litigation took place, does not enforce contingency fee contracts. However, Mr. Duhon, who was also present at the meeting and who also testified before the grand jury, specifically concurred with Mr. Lukinovich’s recollections regarding this issue. This issue, however, is not germane to our analysis that follows.

      . Mr. Loeb testified at the trial of this matter that plaintiffs did record the original contingency fee contracts at Mr. Lukinovich's recommendation, but did not follow through on his recommendation to record the acts of correction that were signed by the landowners, because they “ran out of money.” The evidence at trial revealed that acts of correction were not in fact prepared for all of the landowners, and not all of the landowners who were presented with acts of correction agreed to sign them.

      . The Goldmans also sued plaintiffs under the original contingency fee contract, disputing how the fees were calculated.

      . Defendants moved for summary judgment in this case regarding the attorney-client privilege. The trial court granted defendants' motion for summary judgment after plaintiffs specifically stated that they had no objection to granting it for the limited purpose of dismissing any cause of action for breach of attorney-client privilege against Mr. Lukino-vich.

      .In addition to Mr. Lukinovich, the accountants who prepared plaintiffs’ income tax returns for years in question were also summoned to the IRS and subpoenaed to the grand jury.

      . Defendants raised the issue of witness immunity at several points in the litigation. This issue was first raised as an affirmative defense in defendants’ Supplemental and Amending Answer. It was next raised in defendants’ Exception of No Cause of Action, filed on February 3, 2011, which was denied without reasons. The issue was again raised by defendants in a pleading entitled "Uniform Local Rule 9.10(2)(a) List of Legal Elements” and in a memorandum in support of a motion for summary judgment filed on February 16, 2011. The motion was denied without reasons. Defendants also raised the issue in their second supplemental and amending answer.

      . Rehberg v. Paulk, 132 S.Ct. at 1508, n. 3.

      . Id.

      . Louisiana Code of Evidence art. 702, et seq., generally provide for the admissibility of testimony by expert witnesses.

      . While a witness before a grand jury is absolutely immune from civil suit as a result of that testimony, regardless of any alleged falsity or malice in that testimony, a witness who testifies falsely in a court proceeding (which includes grand juries and petit juries) may be charged with the crime of perjury. La. R.S. 14:123. See also 18 U.S.C.A. § 1621. Mr. Lukinovich has not been charged with perjury as a result of his testimony before the grand jury or any testimony he has given in these and related proceedings. Because witness immunity from civil suit applies regardless of any alleged falsity or malice in the testimony, we need not reach the issue of whether Mr. Lukinovich’s grand jury testimony was "not forthcoming” as found by the trial court in die judgment.

      . Plaintiffs’ petition does not allege any alleged wrongful acts committed by Mr. Luki-novich until his IRS interview in July of 2003 and his grand jury testimony in 2004. Defendants have never claimed that Mr. Lukinovich committed any legal malpractice when preparing their tax returns in 1996 and 1997 or in representing them during the audits of those returns.


source: Caselaw Access Project

author: STEPHEN J. WINDHORST, Judge.

license: Public Domain

text:
    BOARD OF TRUSTEES OF the LOUISIANA ANNUAL CONFERENCE OF the UNITED METHODIST CHURCH, SOUTHERN CENTRAL JURISDICTION v. REVELATION KNOWLEDGE OUTREACH MINISTRY, LLC.
    No. 13-CA-814.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2014.

      George K. Anding, Jr., Attorney at Law, Baton Rouge, Louisiana, Charles E. McHale, Jr., Attorney at Law, New Orleans, Louisiana, for PlaintiffAppellant.
    Abril B. Sutherland, Geraldine Brous-sard-Baloney, Attorneys at Law, Laplace, Louisiana, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT M. MURPHY and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

^Appellant, Board of Trustees of the Louisiana Annual Conference of the United Methodist Church, South Central Jurisdiction (“Louisiana Annual Conference”), appeals the trial court’s judgment finding that appellee, Revelation Know!edge Outreach Ministry, LLC (“Revelation Knowledge”), is the lawful possessor of the property at issue and is maintained in possession of the property. For the following reasons, we reverse the trial court’s judgment.

Facts and Procedural History

The property at issue was originally donated to St. George Methodist Episcopal Church (“St. George”) in 1887. From 1887 to 1974, St. George maintained possession of the property. St. George donated the property to “the Congregation of Ninde Chapter United Methodist Church” (“Ninde”) on October 10, 1974. Following the donation, Ninde took possession of the property.

Ninde was part of the connectional structure of the United Methodist Church. The United Methodist Church is a connec-tional church wherein the local church is part of a multi-tier organizational structure which is governed by representatives from each tier. Ninde was part of the New Orleans District, the | slocal governing body. Louisiana Annual Conference is the state-level governing body and is part of the national organization, the General Conference of the United Methodist Church. The law and polity of the United Methodist Church are delineated by the General Conference in a publication called the Book of Discipline of the United Methodist Church (hereafter “the Discipline”). The Discipline specifically sets forth the rules and regulations which pertain to all churches and all aspects of church life, including the acquisition, transfer, and ownership of church property.

It is undisputed that Ninde, as part of the connectional structure of the United Methodist Church, was subject to and complied with the law and polity of the general church as set forth in the Discipline. During the time Ninde was a local United Methodist Church, it accepted pastors appointed by the Louisiana Annual Conference, paid apportionments to the organization, sent delegates each year to the annual conference meeting, and functioned as a United Methodist Church congregation.

Ninde continued to utilize the property and function as a United Methodist Church until June 3, 2008, when the Louisiana Annual Conference passed “Resolution Seven,” which discontinued and abandoned Ninde as a United Methodist Church. The Discipline, paragraph 2548, dictates that when a local church is discontinued or abandoned, title to and control of church property is vested in the Board of Trustees of the Louisiana Annual Conference with jurisdiction over the local church. Louisiana Annual Conference argues that after the resolution was passed, it commenced possession of the property as the successor in title and interest to Ninde.

| ¿Shortly after the resolution, Reverend Ramonalynn Bethley, District Superintendent in the New Orleans District, was provided a key to the church building. Reverend Bethley gained access to the building and removed all United Methodist Church insignia from the premises, can-celled the existing insurance on the property, placed the property on the Louisiana Annual Conference’s insurance policy, removed a fallen tree on the property, and had someone periodically check on the property. In the summer of 2009, Reverend Bethley recommended to Louisiana Annual Conference that the property be sold. A verbal marketing agreement was entered into with a real estate agent and “For Sale” signs were placed on the property.

In December 2009, Theresa Martin, member and former trustee of Ninde, executed an Act of Donation which purported to donate the property in question from Ninde to Revelation Knowledge. Although the specific date Revelation Knowledge took possession of the property is not clear, sometime between December 2009 and April 2010, Revelation Knowledge entered the church building, turned on the utilities, changed the locks on the building and decorated the outside of the church property.

In April 2010, Reverend Bethley discovered that the property was occupied. She went to the property with a St. John the Baptist Sheriffs Deputy to secure the property. Reverend Bethley secured the building by placing a padlock on the outside of the front door of the building after discovering the locks had been changed and she was unable to access the building. She left a note stating that the building was owned by the United Methodist Church and the occupants could not remain in the property. Several days later, a member of Revelation Knowledge | ¿went to the St. John the Baptist Sheriffs Office with the Act of Donation and re-gained possession of the property.

Louisiana Annual Conference filed this possessory action alleging that it had uninterrupted possession of the property from June 3, 2008 to April 6, 2010, and thus, acquired the right to possess the property. The petition further alleged that an unauthorized Act of Donation was effected by Ninde to Revelation Knowledge and this possession of the property by Revelation Knowledge has caused a disturbance in law and in fact adverse to the possessory rights of Louisiana Annual Conference. Louisiana Annual Conference requested that the trial court render judgment recognizing and maintaining its possession of the property and ordering Revelation Knowledge to assert any claim of ownership to the property by a petitory action within 60 days of said judgment. Revelation Knowledge filed an answer and general denial, but admitted that an Act of Donation was passed between Ninde and Revelation Knowledge.

After a trial on the merits, the trial court rendered judgment finding that Revelation Knowledge is the lawful possessor of the property and is maintained in possession of the property. The trial court further ordered that Louisiana Annual Conference assert any claim of ownership to the property by petitory action within 60 days of the judgment. This appeal followed.

Neutral Principles of Law

The First Amendment severely circumscribes the role that civil courts may utilize in resolving church property disputes. Presbyterian Church v. Hull Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969). The First Amendment prohibits civil courts from resolving church property disputes on the basis of religious doctrine and practice. Id.; Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710, 96 S.Ct. 2372, 2381, 49 L.Ed.2d 151 (1976); Fluker Community Church v. Hitchens, 419 So.2d 445, 446 (La.1982).

However, where the property issue does not involve doctrinal controversy, courts are entitled to utilize a “neutral principles of law” analysis involving consideration of the deeds, state statutes governing the holding of church property, the local church’s charter, and the general church’s constitution and law. Fluker, 419 So.2d at 447. This analysis requires a court to examine certain religious documents, such as a church constitution, with an attitude of neutrality and non-entanglement and apply the principles in examination in purely secular terms. Id.; African Methodist Episcopal Church, Inc. v. Stewart, 09-0405 (La.App. 1 Cir. 9/17/09), 28 So.3d 1044, 1046, writ denied, 09-2276 (La.12/18/09), 28 So.3d 943.

Discussion

On appeal, Louisiana Annual Conference contends that the trial court erred by viewing Ninde as a secular unincorporated association at the time of its donation of the property to Revelation Knowledge. Pursuant to the Discipline, Ninde had ceased to exist as an entity and thus, Ninde did not have capacity to transfer the property because ownership and possession were vested in the Louisiana Annual Conference after Resolution Seven. Louisiana Annual Conference further contends that even with its erroneous view of Ninde as a viable unincorporated association on December 16, 2009, the trial court erred in giving legal effect to Revelation Knowledge’s donation deed executed by one former member of the church, when the deed was invalid under both secular and church law.

La. C.C.P. art. 3658 provides that in a possessory action, the plaintiff must allege and prove that:

|7(1) He had possession of the immovable property or real right therein at the time the disturbance occurred;
(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
(3) The disturbance was one in fact or in law, as defined in Article 3659; and
(4) The possessory action was instituted within a year of the disturbance.

A person is in possession of immovable property when he has corporeal possession or civil possession preceded by corporeal possession by him or his ancestors in title. La. C.C.P. art. 3660. The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession. La. C.C.P. art. 3442. The parties do not contest that Ninde took corporeal possession of the property in 1974. Ninde’s possession was uninterrupted and peaceable until Resolution Seven was passed. The issue in this case involves who possessed the property after the resolution. Louisiana Annual Conference contends that it acquired possession of the property after the resolution, and therefore Ninde did not have possession of the property at the time of the donation. Revelation Knowledge concedes that Ninde was a United Methodist Church subject to the law and polity set forth in the Discipline, but possession of and title to the property was retained by Ninde until the 2009 donation and possession was transferred to Revelation Knowledge.

A person loses the right to possess immovable property either voluntarily, by transferring or abandoning the property, or involuntarily, by being evicted or expelled for more than a year or by acquiescing in a third-party’s usurpation for more than a year. Evans v. Dunn, 458 So.2d 650, 652-653 (La.App. 3 Cir.1984) (citing La. C.C. articles 3447, 3448, 3449, now La. C.C. art. 3433); See also Mire v. Crowe, 439 So.2d 517 (La.App. 1 Cir.1983); Pitre v. Tenneco Oil Co., 385 So.2d 840 (La.App. 1 Cir.1980).

|sAt the time of the resolution, Ninde was classified as an unincorporated non-profit association under Louisiana law and Ninde was also governed by the Discipline. La. R.S. 9:1051 provides the statutory requirements for the alienation and transfer of immovable property owned by an unincorporated non-profit association. La. R.S. 9:1051A provides in part that “[a]ny such transaction shall be authorized by resolution adopted by a majority of the members of the association who vote on the resolution at a special meeting called and held for that purpose.” Louisiana has therefore legislatively adopted a presumptive rule of majority representation with respect to alienation or encumbrance of an unincorporated non-profit association’s immovable property. Fluker, 419 So.2d at 447-448. This presumption may be rebutted by a showing of a contrary intention in its constitution, charter, by-laws, rules or regulations under which it is organized, governed, and exists. Id. at 448.

On appeal, Louisiana Annual Conference argues that after the dissolution of Ninde, pursuant to La. R.S. 12:516, the net assets of Ninde must be disposed of to Louisiana Annual Conference, a nonprofit corporation affiliated with the dissolved association. Additionally, the rules for succession of church property set forth in the Discipline governed the association between Ninde and the Louisiana Annual Conference and no particular title between them under La. R.S. 9:1051 was required.

La. C.C. art. 3441 requires either a particular title or a universal title for the transfer of possession. During the trial, Louisiana Annual Conference presented two documents, a “Trust Agreement and Perpetual Mortgage” and a “Declaration of Interest” to establish that its’ right to possession of the property was derived 19from the placement of the property in trust for the benefit of the United Methodist Church. The trial court found that neither document established that title to the property was transferred into a trust pursuant to the rule of majority representation in La. R.S. 9:1051.

We conclude that La. R.S. 12:516 is inapplicable to this proceeding. La. R.S. 12:514 provides the grounds for dissolution of an unincorporated association and the assets liquidated by a court-appointed liquidator. La. R.S. 12:516 sets forth the disposition of assets by the court-appointed liquidator. Ninde was not dissolved pursuant to La. R.S. 12:514, et seq. Accordingly, this argument is without merit.

Local congregations submit to a greater or lesser degree to the authority of the general church. Louisiana Dist., Church of the Nazarene v. Church of the Nazarene, 132 So.2d 667, 680 (La.App. 1 Cir.1961). The constitution, rules, regulations, and discipline of the general church which the local church has accepted and embraced willingly are utilized to determine the extent of authority of the local church to control church property. Id. Louisiana Annual Conference must show a Disciplinal rule which overrides the presumptive rule of majority representation, establish Ninde’s compliance with the rule, and show that compliance with the rule effectively placed Louisiana Annual Conference in possession of the property. Louisiana Annual Conference contends that it obtained possession of the property through paragraphs 2503(1), 2503(6), and 2548 of the Discipline.

| inLouisiana Annual Conference argues since the 1974 donation from St. George to Ninde does not contain a trust clause provision, paragraph 2503(6) of the Discipline is applicable. Paragraph 2503(6) provides that the absence of a trust clause:

... in deeds and conveyances executed previously or in the future shall in no way exclude a local church or church agency, or the board of trustees of either, from or relieve it of its connectional responsibilities to The United Methodist Church. Nor shall it absolve a local church or church agency or the board of trustees of either, of its responsibility and accountability to The United Methodist Church, including the responsibility to hold all of its property in trust for The United Methodist Church; provided that the intent of the founders and/or a later local church or church agency, or the board of trustees of either, is shown by any or all of the following:
a) the conveyance of the property to a local church or church agency (or the board of trustees of either) of the United Methodist Church or any predecessor to The United Methodist Church;
b) the use of the name, customs, and polity of The United Methodist Church or any predecessor to The United Methodist Church in such a way as to be thus known to the community as a part of such denomination; or
c)the acceptance of the pastorate of ordained ministers appointed by a bishop or employed by the superintendent of the district or annual conference of The United Methodist Church or any predecessor to The United Methodist Church. (Emphasis added).

The title owner of the property as listed in the 1974 Act of Donation is “the Congregation of the Ninde Chapter United Methodist Church.” The trial court reviewed paragraph 2305(6)(a) and relied on dicta in African Methodist Episcopal Church, Inc. v. Stewart, 09-0405 (La.App. 1 Cir. 9/17/09), 28 So.3d 1044, writ denied, 09-2276 (La.12/18/09), 23 So.3d 943, to find that the title owner was “the Congregation” of Ninde, not the United Methodist Church. Without discussing ^whether Louisiana Annual Conference satisfied the requirements of paragraph 2503(6)(b) or (c), the trial court found that Louisiana Annual Conference failed to establish Ninde’s compliance with paragraph 2503(6). The trial court concluded that because Louisiana Annual Conference did not show that the property was subject to the control of the United Methodist Church, it failed to establish its possession of the property.

A review of the 1974 Act of Donation to Ninde reveals that the property was donated to the United Methodist Church. Therefore, Louisiana Annual Conference showed Ninde’s compliance with paragraph 2503(6)(a). Even assuming arguendo that the property was donated to the congregation, not the hierarchical organization, Louisiana Annual Conference established through undisputed facts Ninde’s compliance with paragraph 2503(6)(b) and (c). Ninde used the name, customs, and polity of the United Methodist Church in such a way to be known to the community as a part of such denomination and it accepted ordained ministers appointed by the Louisiana Annual Conference.

The trial court committed manifest error in finding Louisiana Annual Conference did not overcome the presumption of majority representation. Paragraph 2503(6) of the Discipline is disjunctive and only requires Louisiana Annual Conference to prove one of the provisions set forth therein to show that it possessed the property. The trial court did not look at each provision in paragraph 2503(6) independently, and it also did not examine the remaining two provisions which had previously been established by the parties. Louisiana Annual Conference proved all three of the provisions set for in paragraph 2503(6), even though it was not required to by the disciplinal rule. Louisiana Annual | ^Conference established Ninde’s compliance with the disciplinal rule and showed that possession of the property was vested in Louisiana Annual Conference.

Additionally, Louisiana Annual Conference argues that paragraph 2548 rebuts the rule of majority representation and placed it in possession of the property. Paragraph 2548 of the Discipline provides for disposition of local church property if the local church is discontinued or abandoned. The provision establishes that the “annual conference trustees may assume control of the real and personal, tangible and intangible property ...” Louisiana Annual Conference contends that it was placed in possession of the property with the passing of Resolution Seven in June of 2008.

At trial, Reverend Ramonalynn Bethley and Bishop William Hutchinson each testified that control of local church property is transferred to the Louisiana Annual Conference upon the local church’s discontinuation or abandonment. A review of the evidence as stated above reveals that Louisiana Annual Conference established that the “absence of trust” provision applied to place it in possession and control of the property after Resolution Seven was passed.

Applying the neutral principles of law in the examination of the documents and disciplinal rules, we find the trial court was manifestly erroneous in finding that Louisiana Annual Conference failed to establish that Resolution Seven had the effect of placing Louisiana Annual Conference in possession and control of the property. Ninde did not retain the right to possess the property following the passing of Resolution Seven, and therefore Ninde did not possess the property at the time of the donation to Revelation Knowledge. Thus, we find that Louisiana 11sAnnual Conference has satisfied the requirements of La. C.C.P. art. 3658 and is the possessor of the property.

Louisiana Annual Conference further argues that the trial court erred in giving legal effect to the 2009 Donation by Ninde to Revelation Knowledge because the donation is legally defective and null. Louisiana Annual Conference claims that Ninde lacked capacity to donate and the Certificate of Authority failed to comply with the mandatory provisions of La. R.S. 12:505C and D, La. R.S. 9:1051, and with the Discipline paragraph 2539.

In a possessory action, the ownership or title of the parties to immovable property is not at issue. La. C.C.P. art. 3661; Page v. Wise, 10-1273 (La.App. 3 Cir. 3/9/11), 58 So.3d 1062, 1066. La. C.C.P. art. 3661 provides in pertinent part:

No evidence of ownership or title to immovable property or real right therein shall be admitted except to prove:
(1) The possession thereof by a party as owner;
(2) The extent of the possession thereof by a party; or
(3) The length of time in which a party and his ancestors in title have had possession thereof.

In a possessory action, the court “cannot go into an investigation of the title” of the parties. Producers’ Oil Co. v. Hanszen, 132 La. 691, 61 So. 754, 757 (1913). “A possessory suit to try the right to possession is not converted into a petitory action to try title by incidental allegations of ownership by a party, where the pleadings as a whole and especially the prayer show that possessory and not petitory relief is what is sought.” Haas Land Co. v. O’Quin, 187 So.2d 208, 211 (La.App. 3 Cir.1966). A party’s deeds of title are relevant in a possessory action only for the limited purposes enumerated under La. C.C.P. art. 3661 to show the extent of the party’s possession. Hollenshead v. Dominick, 43, 933, 43,934 (La.App. 2 Cir. 4/8/09), 9 So.3d 1051, 1057; See also Hirschfeld v. St. Pierre, 577 So.2d 747, 750 (La.App. 1 Cir. 1991).

| uBased on our review of the record, evidence of Revelation Knowledge’s title falls within the exceptions enumerated in La. C.C.P. art. 3661. The title corroborated the testimony given on behalf of Revelation Knowledge to show its intent to possess as owner and the extent of that possession. According to the limitations set forth in La. C.C.P. art. 3661, this Court cannot investigate the validity of Revelation Knowledge’s title. Whether or not such title is good and valid as against Louisiana Annual Conference is not material because the only issue before this Court is possession.

Conclusion

Based on the above stated reasons, we reverse the judgment of the trial court and find that Louisiana Annual Conference is the lawful possessor of, and is maintained in possession of, the property. We further order appellee, Revelation Knowledge Outreach Ministry, LLC, to assert any claim of ownership to the property by petitory action within 60 days of the date of the judgment or otherwise be precluded from asserting any ownership claims thereafter.

REVERSED.

      . Ninde is also referred to as "Ninde Chapel United Methodist Church.”

      . In the record, Reverend Bethley is referred to as "Ramonalynn,” "Ramona Lynn," or "Ramona.”

      . Throughout the judgment and appellant's brief, La. R.S. 9:1051 is referred to incorrectly as La. R.S. 9:1051.4.

      . The Discipline, paragraph 2503(1), mandates that immovable property belonging to local churches is held in trust for the benefit of the United Methodist Church by virtue of a trust clause. A trust clause is required to be included in all written conveyances of local church property. It is undisputed that the 1974 donation of the property from St. George to Ninde does not include a trust clause. Thus, the trial court did not err in finding that this disciplinal rule did not rebut the presumption of majority representation.

      . In Stewart, supra, the First Circuit decided a property dispute over ownership of property between a local church, Rising Star A.M.E., and Annual Conference of African Methodist Episcopal Church in Louisiana and Mississippi ("L & M A.M.E.”). Stewart, 28 So.3d at 1045. The court reviewed an "absence of in trust clause” in the church’s Discipline in which all five provisions must be met to vest control of the property to the L & M A.M.E. Id. at 1045-1046. Rising Star A.M.E. conceded that four of the five provisions were satisfied. Id. at 1047 Rising Star A.M.E. argued that there was no evidence that it complied with provision 2 which required ”[c]on-veyance of said property to the trustees of a local church or agency to the A.M.E. Church, Inc.” Id. The court found that this provision's language was ambiguous and that nothing in the act of sale could be interpreted to convey the property "to the A.M.E. Church, Inc.” Id. Accordingly, the trial court found that Rising Star A.M.C. was the owner of the property. Id. (Emphasis added).

      . Stewart is factually and legally distinguishable from this case. In Stewart, supra, the court was determining ownership of the property, whereas here, the court was determining possession of the property. Additionally, in Stewart, the court examined an absence of trust provision that was conjunctive and in this case, paragraph 2503(6) absence of in trust provision is disjunctive. Paragraph 2503(6) provides that the property is vested in Louisiana Annual Conference if "any or all of the following” are shown, thus, Louisiana Annual Conference is only required to establish one of the above provisions for it to be vested in the possession of the property.


author: DREW, J.

text:
    Lola J. COLEMAN v. Stephanie P. STEPHENS, Stephens Fish, Inc., and Farm Bureau Insurance Company, Defendants-Appellants. Vincent Coleman and Sue Ann Coleman v. Louisiana Farm Bureau Casualty Insurance Company, et al., Plaintiffs-Appellees. Kallie Bennett, on behalf of the Minor Child, Damion Bennett v. Stephanie P. Stephens, Stephens Fish, Inc., and Farm Bureau Insurance Company, Defendants-Appellants.
    No. 48,993-CA, 48,994-CA, 48,995-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 4, 2014.
    Cotton, Bolton, Hoychick & Doughty, L.L.P., Rayville, by John Hoychick, Jr., for Appellants, Stephanie P. Stephens, Stephens, Fish, Inc., and Louisiana Farm Bureau Casualty Insurance Co.

      Bolen, Parker, Brenner, Lee & Engels-man, by Daniel G. Brenner, Christina S. Slay, Alexandria, for Appellees, Lola J. Coleman and Illinois National Insurance Co.
    James Ray Herron, Monroe, for Appel-lees, Vincent Coleman and Sue Ann Coleman.
    Myrt T. Hales, Jr., Rayville, for Appel-lee, Lola J. Coleman.
    Samuel Talmadge Singer, Winnsboro, for Appellee, Kallie Bennett, on Behalf of the Minor Child, Damion Bennett.
    Before DREW, MOORE and GARRETT, JJ.
   DREW, J.

|, These are three consolidated suits arising from an unusual intersectional motor vehicle accident in rural Franklin Parish.

This appeal stems from the grant of summary judgment dismissing certain claims against one party.

La. Highways 128 and 4 run very roughly east and west. Highway 128 travels northwest from St. Joseph to this intersection, while Highway 4 runs southwest from Newellton to the inter section, at which point the two roads actually join and continue to the west.

A quick glance at a map of North Louisiana shows the intersection to be a fork with two tines pointing eastward. Immediately before the intersection, however, Highway 128 bends due north, forming a T with Highway 4, which runs east and west at that precise point. The intersection is controlled by a stop sign requiring drivers on Highway 128 to yield to drivers on Highway 4.

MOVEMENT OF THE VEHICLES

On August 13, 2009, three vehicles were involved in this single-car accident, though they did not strike each other:

¡,* Glen Gossett, accompanied by his wife, Melissa, was west of the intersection, driving east in his blue truck on the combined La. Highways 4 and 28, heading from Winnsboro toward Newellton;

• a few car lengths behind Gossett, Lola J. Coleman was also driving her brown truck east on the combined highways, with two guest passengers, Vincent Coleman and Damion Bennett; and

• proceeding north on Highway 128 toward the intersection was a 2009 white Hummer HU3 driven by Stephanie Stephens.

MOTION FOR SUMMARY JUDGMENT

Coleman and Illinois National Insurance Company, in their capacities as defendants, filed a motion for summary judgment asserting that:

• Stephens ran the stop sign and drove directly into Coleman’s path on Highway 4, creating a sudden emergency;

• Coleman swerved to avoid a head-on collision and flipped her vehicle, injuring herself and her occupants;

• Coleman was not negligent in any way and thus could not be liable to her two guest passengers for their injuries suffered in the accident;

• Coleman was traveling east when Stephens suddenly ran the stop sign and drove into her path in the eastbound lane of Highway 4; and

• consequently, Coleman was not responsible for the accident.

SUDDEN EMERGENCY

Our law provides guides for analyzing situations where a person is faced with a sudden emergency. Our jurisprudence reveals that:

[;• if an involved motorist has exercised ordinary care (or the highest degree of care required by law) but nevertheless causes injury, the accident is said to be inevitable and no liability attaches;

• a person confronted with imminent peril lacks sufficient time to carefully consider and weigh all circumstances;

• a person faced with a sudden emergency bears no liability unless her negligence brought on the emergency; and

• when faced with a sudden emergency, a person must choose a reasonable option, even if hindsight shows that a better course of action may have existed.

DEPOSITION TESTIMONY

Coleman contends her choices were to hit the Stephens vehicle head-on or attempt to avoid a collision by pulling onto the right shoulder or ditch. In a split-second decision, she chose the latter course of action.

Gossett testified that he saw Stephens approaching the intersection and could tell that she was not going to stop. He drove to the left and into a ditch on the northwest side of Highway 4. He stated that he did so because Stephens had entered his lane of travel and was about to “T-bone” him. When he returned to the roadway, he was stunned that Stephens had not hit him. He saw in his rear view mirror that Coleman’s vehicle was airborne.

Gossett’s wife testified in basic conformity with her husband.

The investigating state trooper, Nicholas Gee:

• confirmed that Gossett said he swerved to avoid the Stephens vehicle, which did not stop at the stop sign and came into his lane of travel;

• cited Stephens for running the stop sign;

• noted that only Stephens alleged that she stopped at the stop sign;

[• noted that Stephens said she saw no stop sign, though she still stopped, as she was unfamiliar with the intersection;

• noted that Stephens said she saw the Coleman truck slowing and signaling an imminent turn to the right onto Highway-128; and

• noted that Stephens thought she could safely pull out, which she did, on her way to Winnsboro, at which time she noticed the Coleman truck losing control, leaving the roadway and flipping.

Stephens contends there is a genuine issue of material fact as to whether she blocked the intersection, making summary judgment inappropriate. She also alleges that this is a case of comparative negligence and a fair disposition requires assessing credibility and weighing evidence at trial, not by summary judgment.

TRIAL COURT RULING

The trial court found that:

• the sudden emergency was caused by the entry of the Stephens vehicle onto Highway 4, rendering the accident unavoidable;

• nothing reflects that Coleman was speeding or inattentive;

• Coleman did not have reasonable time to react to the imminent peril caused by the Stephens vehicle entering Highway 4;

• the opponents of the motion for summary judgment offered no evidence to show Coleman had sufficient time to consider and weigh all circumstances and choose the best way to avoid the imminent danger caused by Stephens;

• Coleman testified that she had to swerve right to avoid a head-on collision;

• nothing indicated that Coleman’s evasive action was negligent;

• Coleman faced a sudden emergency and chose to steer onto the shoulder to avoid the collision with the Stephens vehicle; and

• there was no possible finding of liability against Coleman.

| ¡¡The trial court granted judgment to Ms. Coleman and her insurer, certifying the judgment as final, with no just reason to delay an appeal.

ARGUMENTS OF THE STEPHENS DEFENDANTS

Stephens urges that many genuine issues of material fact exist as to whether her vehicle actually impeded the travel lane of Coleman, arguing:

• she knew the intersection was tricky, though she seldom drove there;

• she intended to take a left onto Highway 4, heading to Winnsboro;

• upon seeing the Gossett blue truck, she came to a “slightly abrupt” complete stop, which may have startled the driver of the truck;

• on stopping, she saw the Coleman vehicle’s right turn signal indicating an impending turn to the south onto Highway 128;

• since Coleman was turning, she moved forward into the intersection;

• she told the trooper that she fully stopped, at which point the first vehicle passed, and only then did she pull onto Highway 4, at which point the second vehicle passed, swerved, over corrected, and flipped;

• both Coleman and her passenger admitted that they saw the Stephens vehicle only when it was right in front of them; and

• the trial court inappropriately weighed testimony and made a credibility finding against her in order to grant summary judgment.

The Stephens defendants urge that the trial court improperly applied the burden of proof on the issue of “sudden emergency,” inappropriately shifting the burden of proof to Stephens to avoid summary judgment.

ARGUMENTS OF LOLA J. COLEMAN AND ILLINOIS NATIONAL INSURANCE COMPANY

Coleman and her insurer moved for summary judgment, urging that:

k* She and her occupants gave consistent testimony that a sudden emergency was caused by Stephens driving into Coleman’s lane of travel on Highway 4, resulting in Coleman swerving to the right;

• she was not speeding and the Hummer was squarely in her lane;

• the burden of proof was not on her, as their summary judgment motion was filed against her in her capacity as a defendant;

• she, in her capacity as a plaintiff, has a separate attorney;

• she filed this motion for summary judgment as a defendant, which requires those making claims against her to bear the burden of proof;

• there is no legal basis for the argument that Coleman’s dual capacity imposes upon her a greater burden of proof;

• the doctrine of sudden emergency is not an affirmative defense and does not increase her burden of proof;

• the actions of Stephens in failing to stop or in abruptly stopping caused Gossett to swerve left in order to avoid being struck by Stephens; and

• summary judgment was properly granted as there was no dispute as to a material fact and Stephens clearly created a sudden emergency.

Stephens replies that summary judgment is inappropriate here because to reach this decision, the trial court would have to totally reject her version of the facts, which could occur only by assessing witness credibility and weighing evidence, which is properly a trial function.

IvStephens argues that Coleman was at least comparatively negligent, pointing out these genuine issues of material fact, inter alia:

• whether or not Coleman was driving in a safe and prudent manner, as evidence showed she was speeding;

• whether Stephens improperly pulled into Coleman’s lane of travel;

• whether or not Stephens came to a full stop; and

• whether the stop sign was in place before the wreck.

OUR ANALYSIS

While we very much appreciate the thorough efforts of the trial court, we find, in our de novo review, that the plethora of intertwined issues extant here preponderates that summary judgment is improper. To reach the finding that it did, the trial court would have had to totally reject the deposition testimony of Stephens. This would necessarily require credibility assessments at this level of the litigation, which we have expressly refused to approve. Debrun v. Tumbleweeds Gymnastics, Inc., 39,499 (La.App.2d Cir.4/6/05), 900 So.2d 253.

Also troubling in this context is that granting of summary judgment in favor of one party in these consolidated cases would arguably be res judicata, potentially adversely disposing of the rights of other parties in other capacities in these lawsuits.

This matter needs to be litigated, with the trier of fact having all issues, all parties, and all witnesses before it. At that point, weighing evidence and assessing credibility will be appropriate and necessary.

|8We accordingly reverse the grant of summary judgment, at the cost of Ms. Coleman and her insurer, and remand for further proceedings.

DECREE

The summary judgment is REVERSED at the cost of its proponents and REMANDED for further proceedings.

      . Lola J. Coleman and her insurer, Illinois National Insurance Company, were granted summary judgment as to her guest passengers.

      . A few miles further west of the intersection, the two roads split again, with Highway 4 leading northwest to Winnsboro, and Highway 128 leading southwest to Gilbert.

      . Put another way: driving northwest on Highway 128 from St. Joseph to the intersection in question, a traveler’s route would be along the southern tine of the fork. A motorist driving southwest on Highway 4 from Newellton would form the northern tine of the fork.

      . One disputed fact is whether the stop sign was actually in place immediately before the accident.

      . In Franklin Parish suit # 41,579-C, Lola J. Coleman sued Stephanie P. Stephens, Stephens Fish, Inc., and their insurer. This appeal is indexed in our court as # 48,993-CA.

        . Vincent Coleman was a minor on the day of the wreck. In Franklin Parish suit # 41,582-A, his parents sued on his behalf Stephanie P. Stephens, Stephens Fish, Inc., Lola J. Coleman, and their insurers. This appeal is indexed in our court as # 48,995-CA.

      . Damion Bennett was a minor at the time of the accident. In Franklin Parish suit #41,-583-B, his mother filed suit on his behalf against Stephanie P. Stephens, Lola J. Coleman, and their insurers. This appeal is indexed in our court as # 48,994-CA.

      . See Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94), 646 So.2d 318; Keeth v. State Through Dept. of Public Safety & Transp., 618 So.2d 1154 (La.App. 2d Cir.1993); and Dupree v. Sayes, 42,792 (La.App.2d Cir.12/5/07), 974 So.2d 22.

      . The Hummer was owned by Stephens Fish, Inc., and driven by Stephanie Stephens.

      . For three reasons, defendants claim the trial court improperly applied the burden of proof. First, there was no "sudden emergency.” Second, Coleman was a plaintiff in one suit and a defendant in two of the three consolidated cases. Third, Coleman failed to show the absence of factual support for one or more elements of the claims made by her adverse parties.

      . Stephens argues that since Gossett admitted he was driving around 60 mph, and Coleman agreed that she had been following Gossett for some time, then it follows that Coleman was speeding in this 55 mph speed zone. Gossett’s wife admitted in her deposition that her husband was speeding. Coleman claims to have been driving only 45 mph before the wreck.

      . Coleman urges that the sudden emergency doctrine is simply an element of the law of negligence which must be considered when determining the negligence of a party.

      . Coleman argues that Stephens' claim that she stopped at the stop sign is immaterial because the evidence established she entered Highway 4 before it was safe to do so. In other words, Coleman posits that Stephens caused the accident by failing to yield to oncoming traffic with the right of way. Any remaining questions of fact which may exist are immaterial to the resolution of this dispute, in Coleman’s view.

      . We find that at least these issues should be resolved at trial:
      (1) Did Stephens come to a full stop and was the stop sign standing?
      • Gossett said that Stephens never hit her brakes:
      • the nose of her Hummer never dipped;
      • Stephens said that she completely stopped, even drough the stop sign was not up;
      • Gossett said the stop sign was up until he saw Coleman's vehicle roll over it;
      • Stephens said she and her father saw dead grass under the felled stop sign; and
      • Trooper Gee said that the stop sign had been up, judging from debris at the scene.
      (2) Did Stephens cause the accident?
      • Trooper Gee said that even if the stop sign had been down, Stephens should not have pulled onto Highway 4 until she made certain that the roadway was clear;
      • Gossett said that Stephens was looking down before the wreck, using a cell phone;
      • One of Coleman's passengers agreed, alleging that Stephens "never saw us”; and
      • Stephens denied looking down or using any electrical apparatus before the wreck.
      (3)Do the other parties have comparative fault?
      • Gossett’s wife said that Stephens was already out in their lane of Highway 4, about half a car length, before her husband swerved to the left to avoid a collision;
      • Two young men at the scene reported that Gossett's vehicle caused the accident;
      • One of Coleman’s guest passengers initially said that Coleman was on Highway 128 at the time of the accident, a statement later retracted;
      • Coleman denied turning onto Highway 128, saying she had to swerve to the right off Highway 4, so as to avoid a head-on collision with the Stephens vehicle; and
      • Stephens said Coleman's right blinker was on, and Coleman admitted that she intended to turn right onto Highway 128.


author: CARAWAY, J.

text:
    Holly D. SWAYZE, et al, Plaintiff-Appellee v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al, Defendant-Appellant.
    No. 49,079-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 4, 2014.
    Rehearing Denied Aug. 7, 2014.
    Davenport, Files & Kelly, L.L.P., Monroe, by M. Shane Craighead, Counsel for defendant-appellant, Shelter Mutual Insurance Co.

      Anthony J. Bruscato, Monroe, Counsel for plaintiff-appellee, Holly D. Swayze.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

_JjThe victim of an automobile accident originally filed suit against the tortfeasor and the liability insurer in Monroe City Court. Subsequently, the victim added her underinsured motorist (UM) carrier. Before trial, the victim settled with the tortfeasor and her liability insurer for the policy limits of $25,000, reserving rights against the UM carrier. By summary judgment, the UM sought to have the claims against it dismissed on the grounds that the trial court lacked subject matter jurisdiction based upon the jurisdictional amount in controversy. The trial court rejected these arguments and rendered a judgment of $5,000 against the UM after crediting the settlement amount. Thereafter, the court granted the victim’s request for a new trial after determining that the UM was subject to the full $30,000 jurisdictional amount of Monroe City Court. Accordingly, the court vacated its earlier judgment and rendered judgment against the UM in favor of the victim in the amount of $22,700.04. This appeal by the UM ensued. Finding that the Monroe City Court lacked subject matter jurisdiction, we vacate the judgment and remand with instructions for transfer of the case to a court of proper jurisdiction.

Facts

On April 18, 2011, Holly Swayze (“Swayze”) filed suit against Brittany Miles and her liability insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), seeking damages for personal injuries sustained by Swayze in an April 21, 2010 automobile accident. The suit|gwas filed in Monroe City Court which under La. C.C.P. 4843(F) has a jurisdictional limit for civil disputes up to $30,000.

In the accident, Miles crossed a travel lane as she exited a shopping center parking lot and struck the passenger side of Swayze’s vehicle. Swayze claimed to have sustained neck and back injuries as a result of the accident. On February 14, 2012, Swayze named her UM insurer, Shelter Mutual Insurance Company (“Shelter”), as an additional defendant specifically alleging that:

Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, on behalf of Defendant, BRITTANY I. MILES, carries a policy limit of liability of $25,000.00, which is insufficient to cover the entire claims of Plaintiffs.

On April 2, 2012, Swayze filed an Ex Parte Unopposed Motion to Transfer the case to the Ouachita Parish Fourth Judicial District Court. The motion sought transfer because “the claims Plaintiffs allege against Shelter Mutual Insurance Company now present an amount in dispute which exceeds this Court’s jurisdiction.” The order transferring the case was signed on April 3, 2012.

The motion to transfer also alleged that a settlement had been reached between Swayze and defendants, Miles and State Farm. The settlement agreement, which was executed on April 10, 2012, contained the following reservation of rights: “Ap-pearer reserves all rights against all other responsible parties, including but not limited to all claims against Shelter Mutual Insurance Company.”

IsApparently as a result of the settlement and reconsideration of the matter, Swayze submitted to the court a Motion to Vacate Transfer Order on April 16, 2012, and the city court granted the request, allowing the matter to continue in Monroe City Court.

After the dismissal of Miles and State Farm, Shelter filed a Motion for Summary Judgment seeking dismissal of the action based upon lack of subject matter jurisdiction. Shelter argued that the $25,000 settlement amount and its medical payment of $5,000 served to exhaust the jurisdictional limit of city court. The trial court denied the Motion for Summary Judgment on December 17, 2012.

The case went to trial against Shelter on March 26, 2013. After hearing testimony from Swayze and her treating physician, the parties submitted post-trial memoran-da to the court. Swayze argued that the settlement amount did not count toward the jurisdictional amount of the court and that the Shelter claim was subject to the full jurisdictional amount of $30,000. Nevertheless, the trial court cast judgment in favor of Swayze against Shelter in the amount of $5,000.

In written Reasons for Judgment, the court explained its ruling as follows:

The issue is whether this court has jurisdiction to award any additional amount to her. In its ruling on the Motion of Summary Judgment which was deemed an exception to the court’s jurisdiction there was no clear indication as to the allocation of $30,000.00 that had been paid and that lack of clarity left open the possibility of each defendant being able to recover $30,000.00. The evidence shows that Holly Swayze settled her claim with State Farm for $25,000.00 and |4executed a release of all claims against State Farm resulting [in] its dismissal from this lawsuit. (Defendant’s Exhibit D2). State Farm was a party before the court when the settlement with Holly Swayze was effectuated and therefore, Shelter Mutual as solidary ob-ligor with State Farm is entitled to a $25,000.00 credit.
Considering the medical payment made by Shelter to be separate coverage not encompassed under the uninsured motorist coverage, the most exposure Shelter has in this court for Holly Swayze’s damage is $5,000.00 after taking into account the $25,000.00 paid by State Farm. The medical records and the testimony provide justification for an award of $5,000.00 in general damages to Holly Swayze. Any amount above that is outside the court’s jurisdiction and would dictate that the matter be transferred to district court. Plaintiff is entitled to all costs associated with this litigation and legal interest as provided by law.

Subsequently, however, Swayze sought a new trial arguing that the settlement amount should not be considered in determining the jurisdictional amount against Shelter. The court agreed with Swayze and vacated its original judgment, concluding as follows:

Defendant State Farm had been the named insurer of the defendant at fault in the accident and Shelter had been added as a defendant being plaintiffs underinsured motorist carrier. Plaintiff settled with State Farm prior to this matter being presented for trial and was released from the lawsuit through a judgment of dismissal with reservation of rights against Shelter. The settlement by Holly Swayze "with State Farm was for its policy limit of $25,000.00. A voluntary settlement is not an award by the court. Shelter’s insurance’s maximum exposure in Monroe City Court would be $30,000.00.

Thus the court ruled that Shelter was subject to the court’s full jurisdictional amount of $30,000, and awarded Swayze a judgment of $22,700.04 including $7,700.04 medical expenses and $15,000 general damages.

Shelter has appealed the judgment.

Discussion

|fiSubject matter jurisdiction is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. The subject matter jurisdiction of parish and city courts is limited by the amount in dispute and by the nature of the proceeding. La. C.C.P. art. 4841(A). The amount in dispute is determined by the amount demanded, including damages pursuant to Civil Code Articles 2315.3 and 2315.4, or value asserted in good faith by the plaintiff. La. C.C.P. art. 4841(B). If the demand asserted in an amended or supplemental pleading exceeds the jurisdiction of the court, the court shall transfer the action to a court of proper jurisdiction. La. C.C.P. art. 4841(C). The amount demanded by the plaintiff is the test for the subject matter jurisdiction of a city court. Thompson v. State Farm Mut. Auto. Ins. Co., 10-1244 (La.11/19/10), 50 So.3d 1271.

In the City Court of Monroe, the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed thirty thousand dollars. La. C.C.P. art. 4843(F).

No specific amount of damages shall be included in the allegations or prayer for relief of any original, amended, or incidental demand. The prayer for relief shall be for such damages as are reasonable in the premises except that if a specific amount of damages is necessary to establish the jurisdiction of the court, the right to a jury trial, the lack of jurisdiction of federal courts due to insufficiency of damages, or for other purposes, a general allegation that the claim exceeds or is less than the requisite amount is required. By | (¡interrogatory, an opposing party may seek specification of the amount sought as damages, and the response may thereafter be supplemented as appropriate. La. C.C.P. art. 893.

When a plaintiff reduces his claim on a single cause of action to bring it within the jurisdiction of a court and judgment is rendered thereon, he remits the portion of his claim for which he did not pray for judgment, and is precluded thereafter from demanding it judicially. La. C.C.P. art. 5. A plaintiff may explicitly limit the jurisdictional amount via the pleadings. Thompson, supra.

If the plaintiff demands an amount in excess of the jurisdictional amount, the court lacks subject matter jurisdiction. The court may not cure the defect by subsequently reducing its judgment to an amount below the limit. However, the plaintiff may amend the petition before judgment and avoid dismissal by reducing the claim to an amount below the jurisdictional limit. The plaintiff may also make a good faith amendment of the claim to an amount in excess of the jurisdictional limit and have the case transferred to the district court. Frank L. Maraist, Civil Procedure § 2:6, in 1 Louisiana Civil Law Treatise (2d ed.2008).

From these recognized principles governing a city court’s limited jurisdiction, Shelter argues that the “amount in dispute” limitation of Article 4841 must include the amount of Swayze’s settlement with State Farm for Miles’s total tort damages inflicted. From the same statute, Swayze asserts that the “amount demanded” is the more controlling phrase for the jurisdictional measure under Article 4841, and that she demanded and received no more than $80,000 from Shelter. A resolution of the parties’ |7competing views of Article 4841 is aided by our consideration of the requisite proof for a UM claim and the solidary relationship of Shelter and Miles for the tort damages.

The burden is on the plaintiff in an action on an insurance policy to prove every fact essential to establish that his claim is within the policy coverage. One essential element of a UM claim is proof that the negligent motorist was uninsured or an underinsured. The UM insurer is liable only when the insured’s damages exceed the liability coverage of the negligent motorist. Thus, the UM insurer is entitled to a credit for the full liability policy limits, even if the insured settles with the tortfeasor’s insurer for less than the liability policy limits. William Shelby McKenzie and H. Alston Johnson, Insurance Law and Practice § 4:12, 4:33, in 15 Louisiana Civil Law Treatise (4th Ed.2012).

By effect of law and the terms of the insuring agreement, both the UM insurer and the tortfeasor are obligated for the same thing and are therefore solidary obligors. Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982); Fertitta v. Allstate Ins. Co., 462 So.2d 159 (La.1985); Dark v. Marshall, 41,711 (La.App.2d Cir.12/13/06), 945 So.2d 246. On the contrary, the primary insurer and the UM insurer are not solidary obligors. Rizer v. American Sur. & Fidelity Ins. Co., 95-1200 (La.3/8/96), 669 So.2d 387; Dark, supra.

From our review of these principles, Miles’s obligation as tortfeasor, the negligent breach of that obligation, and the total amount of damages caused by her negligence remained central to this dispute from the suit’s inception and even after the dismissal of the liability insurer, State Farm. |sThe fact that Shelter may be liable for only a portion of the total damages after the establishment at trial of the liability carrier’s obligation does not reduce our assessment of the amount in dispute in this case. The trial court ultimately determined that Swayze’s general damages were $40,000, an amount in excess of the $30,000 jurisdictional limit of the city court. The effect of the reduction of that award by $25,000 for the State Farm settlement under the uninsured motorist law does not change our assessment of the total amount in dispute in this case. Because Miles’s obligation as tortfeasor remained relevant in the UM claim and exceeded $30,000, the amount in dispute exceeded the limited jurisdiction of the city court.

Accordingly, the judgment of the lower court was void under La. C.C.P. art. 3. We vacate the judgment and remand to Monroe City Court for transfer of the action to a court of proper jurisdiction. Costs of this appeal are assessed to Swayze.

JUDGMENT VACATED; REMANDED WITH INSTRUCTIONS.

APPLICATION FOR REHEARING

Before BROWN, STEWART, CARAWAY, MOORE and LOLLEY, JJ.

Rehearing denied.

      . In the petition, Maxie Swayze also sought consortium damages although this claim was apparently abandoned.

      . Shelter provided $50,000 UM coverage.

      .On March 13, 2012, Shelter tendered $5,000 in medical payments coverage to Swayze which do not form a part of the jurisdictional amount.

      . The judgment on the summary judgment indicates that at the December 10, 2012 hearing, the parties stipulated that the motion should be deemed a declinatory exception of lack of subject matter jurisdiction.