author: BROWN, Chief Judge.

text:
    Floyd WALSWORTH, Jr., Plaintiff-Appellant v. CHESAPEAKE LOUISIANA, L.P. and Chesapeake Operating, Inc., Defendants-Appellees.
    No. 48,588-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.

      Ryan E. Gatti, Bossier City, Rudolph Estess, Jr., Dodson, Hooks, & Frederick, APLC by Kenneth H. Hooks, III, H. Price Mounger, III, Baton Rouge, Steven Irving, LLC, Baton Rouge, by Stephen M. Irving, for Appellant.
    Jones Walker LLP, Baton Rouge, by Michael B. Donald, Joshua A. Norris, Nicole M. Duarte, for Appellees.
    Before BROWN, WILLIAMS, and DREW, JJ.
   BROWN, Chief Judge.

11 Plaintiff, Floyd Walsworth, Jr., appeals from the trial court’s granting of summary judgment in favor of defendant, Chesapeake Louisiana, L.P., and Chesapeake Operating, Inc. For the reasons stated herein, we affirm.

Facts and Procedural Background

The summer of 2008 was an extraordinary time for Northwest Louisiana, which was experiencing something akin to a modern day gold rush due to development of the Haynesville Shale. In the summer of 2008, landowners in South Caddo Parish began to organize into groups to negotiate mineral leases. Two groups, the Go Get-ters and the Graham Group, joined together and represented hundreds of small landowners with a total ownership of more than 800 acres. Plaintiff, Floyd Wals-worth, Jr., was a member of the Go Get-ters. To help their negotiations, the groups retained oil and gas attorney A.L. “Lang” Wedgeworth.

On July 8, 2008, defendant, Chesapeake (“CHK”), proposed and delivered to the combined group an “Agreement to Lease” setting forth the basic terms of CHK’s offer — $20,000 per acre signing bonus, three (3) year term, and 1/4 (25%) royalty. The Agreement to Lease included a provision stating:

Chesapeake’s offer is subject to the execution of a mutually agreed upon paid up form of Oil and Gas Lease, in the form as attached herein as Exhibit “A.” (Emphasis added).

Attorney Wedgeworth revised the proposed Agreement to Lease by replacing the provision quoted above with the sentence “Chesapeake’s offer is subject to the execution of a mutually agreed upon paid up form of Oil Land Gas Lease.” The change deleted the phrase concerning the form attached thereto.

On September 10, 2008, Wedgeworth forwarded to CHK an extensive lease form containing lessor-friendly obligations, including provisions that would: (1) subordinate the lease to a mortgage; (2) require CHK to drill an offset well within 120 days of completion of a competing well located within 330 feet of the leased property and not included in a pooled unit; (3) render CHK liable for surface damages unlimited by the fair market value of the leased property; (4) require CHK to use certain “hospital-grade mufflers” on its equipment; and (5) prevent CHK from recovering any overpaid royalties except out of future royalties due. These terms were essentially the same as previously approved by CHK on behalf of a separate group Wedgeworth represented.

On or about September 18, 2008, the members of group executed Wedgeworth’s revised Agreement to Lease.

On October 8, 2008, Wedgeworth wrote CHK asking whether it “had finalized its response to the proposed form of lease and the rider?” Wedgeworth then followed up a week later asking, “Does Chesapeake have any proposed revisions to the lease form ... ?” CHK formally responded to the group on October 17, 2008, informing them that:

... after careful examination of the form of Mineral Lease and Rider provided CHK in connection with said Agreement, CHK must reject your proposed form. Further, given the state of the economy and dramatically reduced gas prices and lease values, we do not believe we could agree on a mutually acceptable form of lease at this time. Therefore, CHK must regretfully withdraw its offer to lease as outlined in said Agreement. (Emphasis added).

|sTwo years later, on October 10, 2010, plaintiff filed the instant action claiming that CHK repudiated the Agreement to Lease, thereby breaching the contract in bad faith. Plaintiff sought a declaratory judgment finding the Agreement to Lease to be a valid, binding, and enforceable contract and ordering specific performance or, alternatively, damages. On July 19, 2012, defendant filed a motion for summary judgment seeking a dismissal of plaintiffs claims in their entirety because there was no binding Agreement to Lease property at a future date. In granting defendant’s motion for summary judgment, the trial court held that:

The executed Agreement to Lease did not result in a binding Agreement specifically because the undisputed facts indicated that the parties understood that their Agreement to Lease was tantamount to a letter of intent which contemplated additional negotiations, to wit: finalizing the lease form.

As a result of this adverse ruling, plaintiff appealed.

Discussion

Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Cote v. City of Shreveport, 46,571 (La.App.2d Cir.09/21/11), 73 So.3d 435. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). The procedure is favored under Louisiana law and shall be construed to accomplish these ends. Id. Summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if [4any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

CHK admits that it made an offer in its delivery of the Agreement to Lease. The basic principle of the law of contract is that no one is bound to perform a contract unless an offer was made by the offeror and accepted by the offeree. In this case, the lessee and the lessor negotiated and agreed on the bonus, royalty and term. A lease form was to be prepared. The group’s attorney, Wedgeworth, rejected the form attached by CHK to its offer and presented to CHK a form that copied a previous form in a similar case that CHK had accepted. Internal memos among CHK’s employees indicated that CHK was amenable to Wedgeworth’s proposed lease form. However, the market for gas had plummeted, and CHK was no longer willing to pay the large sums set forth in its original offer.

The parties agreed to the essential terms of the lease; however, the lease form remained to be written. In such a case, the parties each have standard boilerplate terms which are technical in style and usually drafted by legal counsel. In this case, Wedgeworth deemed the proposed terms he submitted to be significant and material.

When, in the absence of a legal requirement, the parties have contemplated a certain form, it is presumed that they do not intend to be bound until the contract is executed in that form. La. C.C. art. 1947. A contract to enter into a lease at a future time is enforceable by either party if there was agreement as to the thing to be leased and the rent, unless the parties understood that the contract would not be binding until reduced to | ¿writing or until its other terms were agreed upon. La. C.C. art. 2670. Enforcement of a contract to lease is not available if the parties understood that the contract would not be binding until reduced to writing or until its other terms were agreed upon. In such cases, “the contract is [merely] inchoate, incomplete, and either party, before signing, may ... recede ...” La. C.C. art. 2670, Comment (C). These conditional contracts are often referred to as “letters of intent.” When LOIs contemplate some further conditions being fulfilled, such as a subsequent written contract being executed, the parties are not bound, and are therefore free to walk away, until those conditions are satisfied. Graham v. Chesapeake Louisiana, L.P., 2013 WL 5673858 (W.D.La. October 16, 2013); Ballard v. XTO Energy, Inc., 784 F.Supp.2d 635 (W.D.La.2011).

The fundamental question in this case is whether the Agreement to Lease and Wedgeworth’s revision constitute a contract between the parties. An analysis of their provisions will show that they do not constitute a contract. Initially an offer was made by CHK. The proposal was to have the terms of the agreement reduced to writing so that there could be no uncertainty as to the terms of the contract. Instead of accepting the contract proposed by defendant, the landowners, via their attorney, submitted their own proposal and specified the terms and conditions. It was a counteroffer or proposition for a contract. Plaintiff, in making this counteroffer, deemed these terms material, and it is not for the court to say that they were immaterial. When plaintiff submitted this counteroffer to defendant, only one of two courses of action was open to defendant. It could accept the goffer made and thus manifest that assent, which was essential to the creation of a contract, or it could reject the offer. There was no middle course.

Plaintiff contends that there is an abundance of evidentiary proof that shows that CHK approved the Wedgeworth lease form and communicated that approval to the landowners before it backed out of the agreement. Plaintiff asserts that the internal emails of CHK and the deposition testimony of the two main landowners, Maurice Graham, who represented the Graham Group, and Jerry Cook, who represented the Go Getters Group, who engaged directly with CHK’s agents, show that CHK did in fact approve Wedge-worth’s lease form, but subsequently backed out, in bad faith, when market conditions changed. Some of these instances, as set forth by plaintiff, include:

1. Deposition testimony of Graham and Cook stating that CHK’s contract agent, Joey Kovach, informed them that the proposed lease form was approved prior to their signing the Agreement to Lease.
2. A September 15, 2008,. email chain from CHK’s agent, Steve Denny, to his boss, David Luke (CHK’s land-man employee), with a copy to Luke’s boss, Brad Kemp (middle management of CHK), transmitting Wedgeworth’s proposed lease form. The email acknowledged that CHK had previously approved this lease form for another group Wedgeworth represented. The email chain spoke of needing to review the subsurface clause. Subsequently, on September 19, 2008, Luke transmitted an email to all, including Kemp, saying that the subsurface clause issue had been resolved. No other issues with the lease form were mentioned.
3. After Wedgeworth emailed CHK’s contract agents regarding the status of CHK’s review of his proposed lease form on October 8, 2008, Luke sent an interoffice email that stated “read it again ... it is fine ... and yes, we ok’d this already. — how could I forget the hospital grade muffler.”
4. Thereafter, an internal chain of CHK emails laying out a plan to at first delay payment of the lease bonuses until 2009 and denying 17bonuses to those who will not wait. Then the agents question whether they want to go through with the deal anymore. Ultimately Gary Dunlap, CHK’s Vice-President, determines that the best way to get out of the deal is to proclaim that they are unable to reach a mutually agreeable lease form and that as a result CHK is withdrawing its offer to lease.

Defendant submits the deposition testimony of Wedgeworth to support its claim that there was no agreement on a lease form in the present case. Wedgeworth testified that at no time prior to the execution of the Agreement to Lease or thereafter did CHK communicate to him that the group’s lease form had been approved. In fact, CHK asserts, it was Wedgeworth himself who rejected CHK’s originally proposed lease form attached to the Agreement to Lease and revised the Agreement to state that the lease form would be negotiated and agreed upon in the future, which revisions Graham and Cook approved. This action, defendant contends, is what rendered the agreement nonbinding.

While we are sympathetic to plaintiffs plight, the facts and evidence in this case are clear. Wedgeworth, with the group representatives’ approval, rejected CHK’s proposed lease form and proposed his own lessor-friendly lease form to CHK. While a representative of CHK may or may not have informed Graham and/or Cook prior to their signing the Agreement to Lease that CHK approved the Wedgeworth lease form, the Wedgeworth revised Agreement to Lease clearly stated that “Chesapeake’s offer is subject to the execution of a mutually agreed upon paid up form of Oil and Gas Lease.” This provision not only required the contract to lease to be reduced to writing, it also acknowledged the state of the ongoing negotiations. As such, the Agreement to Lease was reduced to an | sunenforceable contract that CHK was free to remove itself from unilaterally. See ASJ Interests v. Chesapeake Louisiana LP, 2012 WL 2357313 (W.D.La. June 20, 2012).

Plaintiff argues that CHK is liable for damages for failing to negotiate the terms of the lease in good faith as required by La. C.C. art. 1759, which states that good faith shall govern the conduct of the obli-gor and the obligee in whatever pertains to the obligation. Conversely, plaintiff contends that the suspensive condition of approval of lease form is deemed met under La. C.C. art. 1772, which states that a condition is regarded as fulfilled when it is not fulfilled because of the fault of a party with an interest contrary to the fulfillment. To find CHK liable under either of these theories would negate the purpose of La. C.C. art. 2670. The parties executed a nonbinding Agreement to Lease. CHK, like plaintiff, was free to rescind its offer/acceptance at anytime prior to execution of the mutually agreeable lease form. On behalf of the group, Wedgeworth revised the Agreement to Lease and rejected CHK’s proposed lease form and submitted his own lessor-friendly lease form. These acts transformed the Agreement to Lease into a nonbinding Letter of Intent.

Plaintiff cites forth numerous cases dealing with articles 1759 and 1772. These cases, however, are all distinguishable as none of them 19address the issue of an unenforceable and nonbinding LOI. It has been widely held that the duty to act in good faith extends only to situations in which an obligation has been created. Here, defendant had no legally binding obligation on which to base a duty to act in good faith since there was no enforceable contract. See Liljeberg v. Hospital Corp. of America, 1989 WL 30272 (E.D.La. March 28,1989).

Considering the aforementioned, we find that the Agreement to Lease executed between the parties was a nonbinding and unenforceable contract. As such, no breach was committed by CHK, and the trial court correctly granted CHK’s motion for summary judgment. Furthermore, as this court previously held, all of plaintiffs claims are “subsumed by” and necessarily fall as a result of this finding.

Conclusion

For the reasons stated, the trial court’s granting of defendant’s motion for summary judgment is affirmed. Costs of this appeal are assessed to plaintiff,' Floyd Walsworth, Jr.

      . Retail Merchants Ass'n, Inc. v. Forrester, 47,936 (La.App.2d Cir.05/15/13), 114 So.3d 1175; Bloom's Inc. v. Performance Fuels, L.L.C., 44-259 (La.App.2d Cir.07/01/09), 16 So.3d 476; Grimsley v. Lenox, 93-1618 (La.App.3d Cir.09/14/94), 643 So.2d 203, writ denied, 94-2547 (La.12/09/94), 647 So.2d 1117; Schollian v. Ullo, 558 So.2d 776 (La.App. 5th Cir. 1990), writ denied, 564 So.2d 324 (La.1990).

      . The reason, however, that CHK rejected the counteroffer was because the price of gas fell to a level that the price initially agreed to would be unprofitable. Regardless of CHK's reasons, without an acceptance of the terms of the offer, there is no contract. This rule permits the seller when the price soars and the buyer when the price dives to escape an unfortunate bargain.

      . This matter has been before this court twice on writ applications. In granting defendant’s second writ application, we directed the trial court to enter judgment dismissing all claims as a result of its ruling on the parties’ cross-motions for summary judgment.


source: Caselaw Access Project

author: DANIEL L. DYSART, Judge.

license: Public Domain

text:
    Deborah DANIELS v. SMG CRYSTAL, LLC., The Louisiana Stadium & Exposition District, ABC Insurance Company, And The DEF Insurance Company.
    No. 2013-CA-0761.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 4, 2013.
    Rehearing Denied Jan. 7, 2014.
    Jeffrey P. Green, Ron Anthony Austin, Austin & Associates, L.L.C., Harvey, LA, for Plaintiff/Appellant.

      Jairo F. Sanchez, Thomas L. Gaudry, Jr., Gaudry Ranson Higgins & Gremillion, L.L.C., Gretna, LA, for Appellee/Maryland Casualty Company.
    Timothy R. Richardson, Freeman R. Matthews, Usry Weeks & Matthews, APLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

|,In this suit for personal injuries, the trial court granted summary judgment in favor of Maryland Casualty Insurance Company (“Maryland”), finding that its policy does not provide coverage for the claims asserted by plaintiff. The trial court initially denied Maryland’s Motion for Summary Judgment. After Maryland filed a Motion for New Trial, the trial court reversed itself and granted both the Motion for New Trial and the Motion for Summary Judgment, dismissing Maryland from this action with prejudice.

For the reasons that follow, we vacate the judgment of the trial court and remand.

FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit has a rather complicated procedural history. Because we are vacating the trial court’s judgment on procedural grounds, we detail the procedural history of the case as follows:

On June 30, 2006, plaintiff filed an original petition, seeking damages for personal injuries allegedly sustained by plaintiff, Deborah Daniels, on July 3, 2005, |2when Ms. Daniels was attending the Essence Festival at the Louisiana Superdome. Plaintiff alleges that she slipped on an “unknown substance,” which caused her to fall to the ground and become injured. In her original petition, plaintiff named SMG Crystal, L.L.C. (“SMG”), the Louisiana Stadium & Exposition District (“LSED”), the manager and owner of the Superdome, and two fictitious insurers as defendants.

On August 3, 2009, LSED, SMG and the State of Louisiana filed a Third Party Demand against Essence Festivals, LLC (“Essence Festivals”), Festival Productions Louisiana, LLC (“FPLA”), and Festival Productions, Inc. — New Orleans (“FPINO”), seeking defense and indemnity. According to the Third Party Demand, plaintiffs fall during the 2005 Essence Festival occurred in an area leased and occupied by the third party defendants. It further alleged that a lease agreement between SMG (on its behalf and on behalf of the State of Louisiana) and Essence Festivals required Essence Festivals to indemnify it and hold it harmless. The Third Party Demand also alleged that the third party plaintiffs are listed as additional insureds under a policy issued by Travelers Insurance Company, which provided coverage to Essence Festivals for the time period of plaintiffs fall.

On March 10, 2010, Essence Festivals then filed a Cross-Claim against FPINO and its insurer, Maryland Casualty Company (“Maryland”), in which it alleged that, pursuant to a contract between it and FPINO, the latter assumed ^responsibility “for all aspects of the production of the events program” on its behalf, including “concessions operations” and “arranging for adequate security.” Essence Festivals further alleged that FPINO contractually agreed to indemnify, defend and hold it harmless for “any and all claims, liabilities ... damages, cost or expense ... arising out of: (1) any accident, incident or occurrence in any way connected to the event, which is or was proximately or exclusively caused by [it] or its agents.” Finally, Essence Festivals alleged that FPINO was contractually obligated to obtain and provide insurance which named Essence Festivals as an additional insured.

In a second amending petition filed on November 4, 2010, plaintiff amended her factual allegations to include the claim that, “upon information and belief,” the substance on which she slipped either “leaked from the ceiling” or “was spilled on the floor” and not cleaned up. Plaintiff also amended to name Essence, FPLA, FPINO, and Maryland as direct defendants, along with several fictitious insurers.

On June 2, 2011, Maryland filed a Motion for Summary Judgment in which it made several arguments. First, it argued that its policy, issued to FPINO, did not cover the Superdome as a designated premises. Second, it argued that its policy excluded coverage for Essence’s claims for defense and indemnity because the contract between Essence and FPINO is not an “insured contract” under the terms |4of the policy. Lastly, it argued that it owed no defense and indemnity to Essence because Essence could not be held liable for FPINO’s negligence.

Essence then filed its own Motion for Summary Judgment on September 21, 2011, on the basis that it owed no duty to plaintiff because SMG, who leased the Su-perdome, undertook all responsibility for the premises, including concessions, security and janitorial services. It further argued that Essence had no duty to SMG for defense and indemnity.

On November 4, 2011, FPINO filed a Cross-Claim against Maryland and Essence Festivals. It alleged that, as an insured under Maryland’s policy, it was owed defense and indemnity, which Maryland had refused to provide. It further alleged that Maryland’s actions amounted to bad faith for which it was liable for penalties and attorney’s fees. As to Essence Festivals, FPINO alleged that Essence contractually agreed to indemnify it for Essence’s negligence and also to provide insurance coverage to FPINO pursuant to their agreement.

FPINO filed a Motion for Summary Judgment against plaintiff on March 16, 2012, which argued that the area in which plaintiff fell was not within the custody or control of FPINO, and that there was an absence of any evidence establishing that FPINO had any knowledge or should have had any knowledge of the substance on which plaintiff fell.

|sOn April 3, 2012, FPINO filed a second Motion for Summary Judgment, directed against Maryland, in which it argued that Maryland’s policy provided coverage to FPINO for the allegations in plaintiffs suit and therefore, owed FPINO defense and indemnity.

Another Motion for Summary Judgment was filed on September 12, 2012, by the State of Louisiana (on behalf of LSED) and SMG against Essence in which they maintained that, by virtue of their lease contract with Essence, they were covered as additional insureds under Essence’s policy for claims arising out of Essence’s operations. As such, they claimed Essence owed defense and indemnity. In response, Essence filed a Cross-Motion for Summary Judgment.

On September 28, 2012, the court heard argument on all of the motions for summary judgment. At that hearing, the trial court made the following verbal rulings.

First, the trial court denied Maryland’s motion and granted FPINO’s motion, finding that Maryland’s policy provided coverage to both FPINO and to Essence. The court concluded that Maryland’s “commercial liability policy ... ambiguously fails to exclude coverage in this case.”

Second, the trial court denied the State’s (LSED’s) and SMG’s motion, and granted Essence’s Cross Motion for Summary Judgment, finding that that the lease agreement between Essence and SMG explicitly provided that SMG, rather than Essence, would be responsible for the event and that SMG “reserve[d] the right ... |Rto control the management and/or operation of the Superdome.” It further found that Essence owed no duty to plaintiff.

Before the trial court issued written judgments on the September 28, 2012 hearings, Maryland filed a “Motion to Clarify Ruling Re: Motion to Amend & Supplement Maryland Casualty Company’s Motion for Summary Judgment filed on 9/10/12” on October 1, 2012. In that motion, Maryland contended that the trial court’s verbal ruling on Maryland’s motion conflicted with its ruling on Essence’s motion. In that regard, Maryland argued that the evidence in support of its motion supported the conclusion that the trial court reached — that SMG (not FPINO or Essence) “had the duty to inspect, maintain, and clean the floor area” where plaintiff fell. Accordingly, Maryland argued, the same evidence warranted a dismissal of all claims against Maryland.

The trial court rendered two judgments on November 2, 2012, in connection with the September 28, 2012 hearing and confirmed its verbal rulings. One judgment denied LSED’s and SMG’s Motion for Summary Judgment, but granted Essence’s Cross Motion for Summary Judgment, dismissing those claims raised by LSED and SMG in their third party demand. The second judgment denied Maryland’s Motion for Summary Judgment and granted FPINO’s Motion for Summary Judgment.

|7On November 13, 2012, Maryland filed a Motion for New Trial in which it noted that the trial court was converting its October 1, 2012 motion to clarify into a motion for new trial. This Motion was heard on February 22, 2013. By judgment dated March 5, 2013, the trial court granted Maryland’s Motion for New Trial and reversed its prior ruling, thereby granting its Motion for Summary Judgment, dismissing all claims against it. In its written Reasons for Judgment, the trial court found that: (1) Maryland’s policy provided coverage to FPINO only for two locations (336 Camp Street and 938 Moss Street) by virtue of a designated premises endorsement; (2) because of the designated premises endorsement, there is no coverage for the Superdome; and (3) Essence Festivals is not an additional insured under the policy, as the policy’s contractual liability exclusion precludes coverage for contracts that assume liability for other parties. The trial court then vacated the November 2, 2012 judgment.

From this March 5, 2013 judgment, FPINO filed a Motion for Devolutive Appeal on March 26, 2013. Plaintiff also filed a Notice of Devolutive Appeal as to this judgment on April 22, 2013.

In the meantime, on February 22, 2013, the trial court issued its written judgment granting Essence’s Motion for Summary Judgment (as to liability) which was also heard on September 28, 2012. Essence filed a Notice of Devolutive Appeal of the trial court’s February 22, 2013 judgment (erroneously noting that the judgment granted Maryland’s motion for summary judgment) on February 22, |s2013. Plaintiff filed a Notice of Devolutive Appeal on April 12, 2013 of the February 22, 2013 judgment as well; however, this appeal purportedly was of the trial court’s “judgment ... granting Maryland Casualty Insurance Company’s Motion for Summary Judgment.” Plaintiff filed another notice of devolutive appeal of the February 22, 2013 dismissal of Essence on April 22, 2013. Plaintiff also filed a notice of devol-utive appeal of the March 5, 2013 judgment on April 22, 2013.

On June 5, 2013, Maryland filed a motion to dismiss the appeals taken by plaintiff and Essence of the March 5, 2013 judgment. Maryland’s motion was based on plaintiffs failure to file an order with her April 22, 2013 notice of appeal as required by La. C.C. Pr. art. 2121. Rather, as Maryland contends, plaintiffs order of appeal was filed on May 14, 2013. By Order dated June 27, 2013, this Court dismissed Maryland’s Motion to Dismiss Appeals, reserving Maryland’s right to re-urge the motion before this panel.

On August 6, 2013, plaintiff filed an “Answer” to FPINO’s appeal of the March 5, 2013 judgment. Maryland then filed an Original Brief in opposition to plaintiffs Answer in which Maryland raised the issue of the timeliness of plaintiffs “Answer.”

^DISCUSSION

In this appeal, the parties address the propriety of the trial court’s judgment granting Maryland’s Motion for Summary judgment — that is, whether Maryland’s policy provides coverage for the claims in this suit and whether Maryland has a duty to defend FPINO. We do not reach these issues, as we find procedural defects in this appeal.

The trial court’s November 2, 2012 judgment, denying Maryland’s Motion for Summary judgment was an interlocutory order and our law recognizes no procedure for obtaining a new trial on a denial of a motion for summary judgment. As this Court noted in Carter v. Rhea, 01-0234, p. 5 (La.App. 4 Cir. 4/25/01), 785 So.2d 1022, 1025, citing Winston v. Martin, 34,424, p. 2, (La.App.2d Cir. 9/21/2000), 801 So.2d 389, “a motion for new trial is a procedural device applying only to final judgments.” At issue in Carter was whether a writ application filed more than four months after the ruling on a summary judgment was timely, when filed within thirty days of the denial of a motion for new trial on that ruling. The Carter court held:

In the instant case, the judgment at issue is a non-final partial summary judgment, not appealable under the provisions of La. C.C.P. art.1915. Thus, the filing of a motion for new trial seeking reconsideration of an interlocutory judgment cannot interrupt the 30-day period for filing an application for supervisory writs established by Rule 4-3 of the Uniform Rules-Courts of Appeal. However, the provisions of the Louisiana Code of Civil Procedure are clear that motions for new trial may be taken only from a final judgment.

Id.

More recently, this Court addressed the virtually identical issue as that presented in this case. In Magallanes v. Norfolk Southern Ry. Co., 09-0605 (La.App. 4 Cir. 10/14/09), 23 So.3d 985, also a suit for personal injury, one of the defendants filed a motion for summary judgment which the trial court denied. After it filed a motion for new trial, the trial court reversed itself and granted the summary judgment, dismissing the defendant from the case. Citing Carter, we first noted that a motion for new trial pursuant to La. C.C.P. art.1974 applies only to final judgments. We then held:

The proper procedure for obtaining a reconsideration of the motion for summary judgment which has been denied is to re-urge the motion itself by re-filing it prior to trial. Young v. Dupre Transport Co., 97-0591 (La.App. 4 Cir. 10/1/97), 700 So.2d 1156, 1157. In his concurrence in Carter, supra, Judge To-bias noted:
[A] literal reading of La. C.C.P. art. 1974, authorizing motions for new trial, makes it applicable to final judgments only.... The majority makes our practice conform to the literal language of La. C.C.P. art. 194 and the jurisprudence from two other appellate circuits.... Now, in order to accomplish the same result as a motion for new trial, one must file a brand new motion (with appropriate attachments) addressing the identical issue as a previous motion that |¶ resulted in an allegedly erroneous interlocutory degree.
Carter, 01-0234 at p. 6, 785 So.2d at 1026. (Footnote omitted).

Magallanes, 09-0605, p. 4, 23 So.3d at 988.

As we concluded in Magallanes, the trial court in this matter erred as a matter of law by reconsidering the denial of the motion for summary judgment through the procedural vehicle of a motion for new trial and in rendering summary judgment, dismissing Maryland from this lawsuit with prejudice. Id., 09-0605, p. 5, 23 So.3d at 989.

We distinguish this case from Louisiana Stadium & Exposition Dist. v. BFS Diversified Products, LLC, 10-0587 (La.App. 4 Cir. 9/15/10), 49 So.3d 49, writ denied, 10-2278 (La.11/24/10), 50 So.3d 831. While the procedural history in that case is somewhat unclear, it appears that the insured filed a motion for summary judgment, seeking defense and indemnity from its insurer and the insurer filed a cross-motion for summary judgment seeking a determination that it had no duty to defend. The insurer’s motion also sought a determination that it had not acted in bad faith. The opinion is silent as to whether the trial court granted or denied the various motions. However, the opinion indicates that the trial court “initially ruled that [insurer] did owe a duty to defend” but that it had not acted in bad faith. Id., 10-0587, p. 2, 49 So.3d at 50. Clearly, the trial court’s ruling granted the insured’s summary judgment motion on the duty to defend (and at the same time, denied the insurer’s motion on this issue) and granted the insurer’s summary | ^judgment motion on the issue of bad faith. The trial court’s grant of the motion for new trial was proper in that case, as such a motion may be filed after the grant of a motion for summary judgment which is also is a final judgment. See, e.g. Bernard v. Ellis, 11-2377 (La.7/2/12), 111 So.3d 995; Orleans Dist. Redevelopment Corp. v. Fein, 11-1634 (La.App. 4 Cir. 4/18/12), 90 So.3d 1199.

This case is also distinguishable from Mandina, Inc. v. O’Brien, 13-0085 (La.App. 4 Cir. 7/31/13), — So.3d -, 2013 WL 3945030. In that case, in which this Court converted an appeal to a supervisory writ, the trial court initially granted a summary judgment, which was a final judgment. It then granted a new trial, reversed itself and denied the summary judgment, designating that judgment as final. Again, the motion for new trial was appropriate in that case given the trial court’s initial granting of the summary judgment motion was a final judgment.

Based on the foregoing, we vacate the judgment of the trial court and remand this matter for further proceedings. Because of our reversal of the trial court’s judgment, we need not address any other issues herein, including the timeliness of plaintiffs Answer to the appeal.

VACATED AND REMANDED.

      .According to its answer, LSED is the owner of the Superdome, while SMG manages it.

      .The record does not reflect an appearance on behalf of FPLA.

      .According to the agreement between Essence and FPINO, FPINO’s responsibilities also included procuring talent, air travel and hotel accommodations, selecting venues, and "effectuating the technical and creative aspects.”

      . On September 10, 2012, Maryland supplemented its Motion for Summary Judgment so as to provide deposition testimony and discovery responses which it argued established that it was not responsible to inspect, maintain and clean the floor area where plaintiff fell. Rather, based on this evidence, it was SMG who had that responsibility. Thus, it argued, summary judgment in its favor was further warranted.

      . LSED and SMG filed a supervisory writ of review with this Court on the November 2, 2012 judgment; this Court, finding the judgment to be final and appealable, converted the writ application to an appeal. LSED and SMG entered into a compromise with plaintiff and subsequently dismissed their appeal.

      . The judgment is mistakenly dated February 22, 2012; this is clearly a typographical error.

      . Essence dismissed this appeal on August 29, 2013 (indeed, the February 22, 2013 judgment was rendered in its favor).

      . In fact, the judgment granting Maryland’s Motion for Summary Judgment was not issued until March 5, 2013. This February judgment pertained to Essence's Motion for Summary Judgment.

      . Plaintiff did not brief nor otherwise address the issue of Essence’s dismissal and we do not consider it in this opinion. See Alden v. Leming, 04-0724, (La.App. 4 Cir. 5/4/05), 904 So.2d 24, 30 ("pursuant to Rule 2-12.4 of the Uniform Rules — Courts of Appeal, ‘the court may consider as abandoned any specification of assignment of error which has not been briefed.' ")

      .Maryland's motion to dismiss Essence’s notice of appeal was made moot by its August 29, 2013 dismissal of its appeal (See: footnotes 5, 7).

      . La. C.C.P. art.1915 provides, in pertinent part:
      A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court: (3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).


author: AMY, Judge.

text:
    Paul J. ALLAIN, Architect (APAC) v. TRIPPLE B HOLDING, LLC, et al.
    No. 13-673.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Edward P. Landry, Landry, Watkins, Repaske & Breaux, New Iberia, LA, for PlaintifPAppellee, Paul J. Allain, Architect (APAC).
    Michael D. Lopresto, Iberia, LA, for Defendants/Appellants, Roger Lehman Hector “Buzz” Andersen.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

| ,The plaintiff claimed that he was retained to perform architectural services on behalf of the defendants and that he was not paid for his efforts. The individual defendants denied the allegations and asserted that they were not liable individually because they were acting on behalf of a limited liability company. Further, the defendants asserted that the portion of the plaintiffs claim seeking reimbursement for subcontractor fees had prescribed. The trial court found that the defendants never disclosed to the plaintiff that they were acting as mandataries for a limited liability company and that they were individually liable for any damages. Further, the trial court determined that the defendants had retained the plaintiff to perform the architectural services but that there was no agreement with regard to the plaintiffs fees. The trial court found that $57,637.50 was reasonable compensation for the plaintiffs work and awarded him that amount. The defendants appeal. For the following reasons, we affirm.

Factual and Procedural Background

This dispute arises out of the collapse of a business venture that intended to create a privately-owned work release facility in Iberia Parish. The plaintiff, Paul J. Al-lain, Architect (A Professional Architectural Corporation), filed suit against Triple B Holding, L.L.C., and the individual defendants, Roger Lehman and Hector “Buzz” Andersen d/b/a Louisiana Work Release Systems, alleging that he was retained to provide architectural services for the project and was not paid for those services. Mr. Allain sought $97,650.00 in damages on the basis that the | ¿parties had entered into a contract that tied the value of Mr. Allain’s compensation to a percentage of construction costs. The record indicates that Triple B was dismissed from these proceedings. Mr. Lehman and Mr. Andersen denied the allegations and asserted that they were acting on behalf of Louisiana Work Release Systems, L.L.C., and were, therefore, not personally liable for any of Mr. Allain’s claims.

On the day of trial, the defendants filed an amended answer asserting that the portion of Mr. Allain’s claim that sought remuneration for engineering fees had prescribed. The record indicates that the trial court allowed the amendment but that there was little on-the-record discussion of the exception of prescription. Further, the exception of prescription is not specifically mentioned in either the trial court’s final judgment or reasons for judgment.

After hearing all the testimony and evidence, the trial court issued reasons for judgment, finding that Mr. Allain agreed to perform services for the defendants and that Mr. Lehman and Mr. Andersen gave Mr. Allain the “go-ahead” to perform the work. However, the trial court found that the parties had not reached an agreement as to Mr. Allain’s compensation for the work. Accordingly, the trial court found that a reasonable amount of compensation for Mr. Allain’s work was $46,200.00 plus the $11,437.50 that Mr. Allain incurred in engineering fees. Further, the trial court found that Mr. Lehman and Mr. Andersen never disclosed to Mr. Allain that “Louisiana Work Release Systems” was a corporation or limited liability company. Thus, the trial court found that Mr. Lehman and Mr. Andersen were individually liable for Mr. Allain’s damages. The trial court subsequently entered judgment against the defendants in the amount of $57,637.50.

The defendants appeal, asserting as error that:

| al. The Trial Court erred in finding the Defendants, Roger Lehman and Hector Anders[e]n, liable as principals, instead of Louisiana Work Release, LLC.
2. Alternatively, the Trial Court erred in awarding judgment by calculating the fees due the Plaintiff on an hourly basis for a specific number of hours without the plaintiff meeting his burden of proof for such services.
3. Alternatively, the Trial Court erred in not granting the exception of prescription and awarding judgment in favor of plaintiff for an invoice of a third party for which no collection efforts had been made for over three years.

Discussion

Calculation of Damages

The defendants complain that the trial court erred in its calculation of damages. Additionally, the defendants’ argument implies that Mr. Allain failed to prove the existence of a contract.

Louisiana Civil Code Article 1927 provides, in part, that “[a] contract is formed by the consent of the parties established through offer and acceptance. Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.” “[T]he fact [that] the amount of compensation a party is to receive for his services was not agreed upon does not vitiate the contract. Instead, the law will imply in the contract a provision that the party ‘would be paid a reasonable sum for his services.’” Bordelon v. Comeaux Furniture & Appliance, Inc., 97-2864, p. 2 (La.2/13/98), 705 So.2d 740, 741 (quoting Morphy, Makofsky & Masson, Inc. v. Canal Place 2000, 538 So.2d 569 (La.1989)). The existence (or nonexistence) of a contract is a finding of fact which will not be disturbed unless clearly wrong. Sam Staub Enterp., Inc. v. Chapital, 11-1050 (La.App. 4 Cir. 3/14/12), 88 So.3d 690. Similarly, the manifest |4error/clearly wrong standard of review applies when factual findings are relevant to the interpretation of a contract. Clinkscales v. Columns Rehab. & Ret. Ctr., 08-1312 (La.App. 3 Cir. 4/1/09), 6 So.3d 1033.

Further, La.Civ.Code art. 1846 requires that, where a contract in excess of five hundred dollars is not reduced to writing, “the contract must be proved by at least one witness and other corroborating circumstances.” A party to a lawsuit may serve as his own credible witness. Tallulah Constr., Inc. v. Ne. La. Delta Cmty. Dev. Corp., 07-1029 (La.App. 4 Cir. 4/23/08), 982 So.2d 225. Only general corroboration is required, not independent proof of every detail of his testimony. Id. See also Ransom v. Ransom, 10-846 (La.App. 3 Cir. 2/2/11), 54 So.3d 1287.

Our review of the record reveals that the trial court did not err in determining that a contract existed, albeit one for which the price had not been determined. The record indicates that Mr. Allain met with Mr. Andersen and later with Mr. Lehman. After discussing the defendants’ requirements, he forwarded two options to Mr. Lehman, which included the square footage of each option and the estimated construction cost for each. Mr. Allain’s fee was also included with each option and was calculated as a percentage of the construction cost.

Thereafter, Mr. Lehman contacted Mr. Allain and instructed him that he had spoken with the principals and wanted to move the project forward. According to Mr. Lehman’s testimony, Mr. Allain was to design a set of plans for the larger of the two options. Further, Mr. Lehman testified that Mr. Andersen authorized him to hire Mr. Allain. Additionally, the record contains emails, primarily between Mr. Al-lain and Mr. Lehman, discussing various aspects of the project which corroborate the contractual relationship between the parties. The record also indicates that Mr. Allain produced actual work product for the work release facility |sproject, including schematics, original architectural drawings, and a 429-page project manual, and that he forwarded the plans to the State Fire Marshal’s office for approval.

We note that the trial court found that Mr. Andersen’s testimony, which included assertions that he never hired Mr. Allain and that he thought they were just discussing the feasibility of the project, was “incredible and unbelievable.” Accordingly, we find no error in the trial court’s conclusion that the defendants retained Mr. Allain to perform architectural services for the work release facility project. Further, we find no error in the trial court’s finding that that the parties had not agreed upon a price, based primarily on the observation that there was no testimony or evidence that the parties had discussed the fees and that defendants never signed and returned the AIA contract which included the calculation of Mr. Allain’s fees.

A trial court’s award of damages for breach of contract is subject to the abuse of discretion standard of review. Tallulah Constr., 982 So.2d 225. The defendants’ main objection to the trial court’s award of damages is that Mr. Allain’s testimony was insufficient to prove the reasonable value of his services. We find no merit to this allegation. In Morphy, 538 So.2d at 575 (quoting Jones v. City of Lake Charles, 295 So.2d 914 (La.App. 3 Cir. 1974)), the supreme court stated that “[tjhere is no specific test which must be applied to determine the reasonable value for such services. It is a matter of equity depending on the circumstances of each case.’ ”

Here, Mr. Allain testified that he worked on this project from late July of 2008 until mid-October of 2008. According to his testimony, although he had a few small residential projects, this was his primary project. Mr. Allain testified |fithat he did not keep time sheets and did not think that he would be able to accurately reconstruct his time. However, he opined that it “didn’t matter” because he was charging a percentage of the construction costs. Further, Mr. Allain testified that his hourly rate was between $75.00 and $125.00 per hour, although he conceded that, at his deposition, he had stated that his fee was $75.00 per hour.

Given this evidence, the trial court accepted Mr. Allain’s testimony concerning the approximate amount of time that he spent on the project and awarded him compensation equal to seventy-seven days of work at eight hours per day at $75.00 per hour. We observe that there is additional evidence corroborating Mr. Allain’s assertion that he essentially worked nonstop on the project, which included testimony that the project was a “fast track” project and that the defendants wanted the work release facility to be operational by late December of 2008. Further, the trial court found that the invoice for engineering services was a “reasonable cost[ ] to be paid in connection with the hiring of Allain by defendants.” Accordingly, we find no abuse of discretion in the trial court’s award of damages.

The defendants’ assignment of error ■with regard to the trial court’s damage award is without merit.

Liability of Individual Defendants

On the basis that they were acting as mandataries of Louisiana Work Release Systems, L.L.C., the defendants also contend that the trial court erred in finding that they are individually liable for Mr. Allain’s damages. Louisiana Civil Code Article 3017 states that “[a] mandatary who contracts in his own name without disclosing his status as a mandatary binds himself personally for the performance of the contract.” The mandatary has the burden of proving that he |7disclosed his status as a mandatary and the identity of the mandator. Irrigation Mart, Inc. v. Gray, 42,442 (La.App. 2 Cir. 9/19/07), 965 So.2d 988. However, if there is sufficient evidence that the mandate was known by the third party so as to put him on notice of the relationship, that disclosure need not be express. Id. See also Wirthman-TAG Constr. Co., L.L.C. v. Hotard, 00-2298, 00-2299 (La.App. 4 Cir. 12/19/01), 804 So.2d 856.

This principle is illustrated in Brown v. Ardoin, 95-256 (La.App. 3 Cir. 10/4/95), 663 So.2d 194, wherein a panel of this court addressed the liability of corporate representatives who failed to disclose their representative status. The court stated:

When a corporate officer or agent contracts on behalf of the corporation, he has the duty to disclose his representative status and the identity of his principal in order to avoid personal liability under the contract. However, the mere use of a tradename is not necessarily a sufficient disclosure by the individual that he is in fact contracting on behalf of a corporation so as to protect him against personal liability. The facts and circumstances of each case determine whether or not the individual sufficiently disclosed that he was acting in a representative capacity so as to alert the other contracting party that the contract was with a corporation.

Id. at 198 (quoting Transport Refrigeration of La., Inc. v. D’Antoni, 281 So.2d 469, 471 (La.App. 4 Cir.1973)).

Here, the trial court issued reasons for judgment. With regard to the individual liability of the defendants, the trial court found that:

However, neither [Mr. Lehman nor Mr. Andersen] informed Allain that they were employed by the LLC. Neither of them informed Allain that they were acting on behalf of a[n] LLC and not individually in them dealings with Allain. They did not comply with their duty as an agent to disclose their capacity and escape personal liability in this matter. All of the evidence in this matter indicates that Allain was never informed or received any documentation until after he completed all of his work that Andersen and Lehman may have been agents of a[n] LLC.
|RThe evidence supports the testimony of Allain relative to dealing with two individuals. [Plaintiffs Exhibit # 1] contains all of the e-mails between Lehman, Andersen and Allain. They were all individually forwarded by Lehman and Andersen to Allain or by Allain to the two individuals, Lehman and Andersen. Not one e-mail from Lehman and Andersen to Allain indicated] any corporate or LLC affiliation of Lehman and Andersen. Not one e-mail from Allain to Lehman and Andersen indicate[s] any corporate or LLC affiliation of Andersen and Lehman. On the other hand, almost every e-mail and all of the billings and letterheads sent by Allain to Lehman and Andersen indicate[s] the professional architectural corporation of Al-lain. Additionally the AIA document [ ] which is the contract sent by Allain to Lehman and Andersen does not indicate any corporate or LLC association of Louisiana Work Release. The document does, however, reflect the professional architectural corporation of Allain. The testimony also reflects that when this contract was sent to Andersen and Lehman for signature, that initially Al-lain erroneously showed the owner as Juvenile Detention Facility. At the request of Andersen and Lehman, Allain was advised to change that to Louisiana Work Release. Allain did this and returned the document to Andersen and Lehman for execution. The two individuals never advised Allain that in fact the owner was an LLC or corporation and not the two individuals doing business as Louisiana Work Release.
Lehman testified that he never told Allain he was working for an LLC or a corporation and his card did not indicate that.
Anders[e]n testified that he told Allain at the Darnall Road property the first day that Andersen’s LLC had a contract with Iberia [Parish] Sheriff Ackal for a work release facility. As set forth in these Reasons this Court does not give any weight to Andersen’s testimony. Allain denies this testimony and the Court believes Allain.
The only other indication is that much later, after Allain completed his work, defendants say they sent a check from their LLC to pay Allain’s bill for $662.57, dated November 12, 2008, for printing and reproductions for the submissions to the Fire Marshal[ ]. However, this check was sent after the fact. Additionally, Allain said he never saw the check. Allain testified that he was only told by his secretary that the invoice had been paid. Even assuming this is true, it does not affect the dealing and representation of Lehman and Andersen during the work done by Allain. It therefore bears no relevance or weight.

Our review of the record reveals ample support for the trial court’s findings of fact. Thus, we find no error in the trial court’s determination that Mr. Andersen and Mr. Lehman did not disclose their status as representatives of Louisiana Work 1 nRelease Systems, L.L.C., and that Mr. Andersen and Mr. Lehman are individually liable. See Irrigation Mart, 965 So.2d 988; Martin Home Ctr., Inc. v. Stafford, 434 So.2d 673 (La.App. 3 Cir.1983).

The defendants’ assignment of error with regard to individual liability is without merit.

Prescription

Finally, the defendants contend that Mr. Allain’s claim for reimbursement for engineering expenses has prescribed. The defendants contend that no collection efforts took place within three years after Craig Hebert Engineering, LLC submitted its invoice on October 28, 2008. Accordingly, they suggest that the three-year statute of limitations has expired and that they are not liable for this debt.

Prescription is a peremptory exception which is provided for in La.Code Civ.P. art. 927. Evidence in support or contravention of the exception may be introduced if the grounds are not apparent from the petition. La.Code Civ.P. art. 931. An appellate court reviews the exception under the manifest error standard of review if evidence is introduced in support or contravention of the exception. Dugas v. Bayou Teche Water Works, 10-1211 (La.App. 3 Cir. 4/6/11), 61 So.3d 826. If not, the appellate court “simply determines whether the trial court’s finding was legally correct.” Id. at 830. Generally, the burden of proof lies on the party pleading the exception of prescription. Id. However, if it is apparent from the face |inof the pleadings that prescription has occurred, the burden shifts to the plaintiff to show that the action has not prescribed. Id.

Assuming that the engineering services at issue herein are subject to the three-year liberative prescription period contained in La.Civ.Code. art. 3494 for “compensation for services rendered, including ... professional fees” or “action[s] on an open account[,]” our review indicates that prescription is not apparent from the face of the record. Further, we observe that, although there was no argument on the issue of prescription at trial, evidence was taken concerning the debt that Mr. Allain incurred for engineering services. Accordingly, the burden of proof lies on the defendants to prove that prescription occurred, and our review of this issue is subject to the manifest error standard of review.

We find no merit to the defendants’ arguments. In the petition and amended petition, Mr. Allain seeks damages based on the alleged contractual relationship between the parties. There is no mention of any claim on behalf of Craig Hebert Engineering, LLC. The trial court found that a contract existed, although there was no agreement as to fees. Having so determined, the trial court’s award of the amount of fees incurred for engineering services was part of the trial court’s determination of the “reasonable value” of Mr. Allain’s services. Morphy, 538 So.2d at 575. As previously discussed, we have found no abuse of discretion in the trial court’s award of damages.

| nAccordingly, the record supports a conclusion that the defendants failed to meet their burden of proof with regard to the exception of prescription, and we find no error in the trial court’s rejection of that exception.

DECREE

For the foregoing reasons, we affirm in all respects the trial court’s judgment dated December 17, 2012, in favor of the plaintiff, Paul J. Allain, Architect (A Professional Architectural Corporation). Costs of this appeal are allocated to the defendants, Roger Lehman and Hector “Buzz” Andersen.

AFFIRMED.

      . For convenience, we refer to Paul J. Allain, Architect (A Professional Architectural Corporation) and Mr. Allain, individually, as "Mr. Allain.” Additionally, Triple B is also referred to as "Tripple B Holding, L.L.C.” and "Triple B Holdings, L.L.C.” in the record. We use the spelling in the trial court’s judgment dated December 17, 2012. Further, Mr. Andersen’s name is occasionally spelled as “Anderson.” We use the spelling in the trial court's judgment.

      . "Creditors and other persons having an interest in the acquisition of a thing or in the extinction of a claim or of a real right by prescription may plead prescription, even if the person in whose favor prescription has accrued renounces or fails to plead prescription." La.Civ.Code art. 3453. The record indicates that the exception of prescription was formally submitted to the trial court on the day of trial, but that there was no argument on that issue. The trial court's judgment signed on December 17, 2012, states that "the exceptions filed on behalf of defendant be and are hereby DENIED[.]” Accordingly, we conclude that the exception of prescription was submitted to the trial court and was denied.

      . Further, we observe that Mr. Allain testified that he had spoken with the engineers "assuring them that after this settlement that we will make payment and they said that would be acceptable. And, so irregardless [sic] of what happens I'm obligated to pay them.” Although the record is unclear as to the timing of any discussions between Mr. Allain and the engineers, this statement could be construed as an indication that prescription had been interrupted by acknowledgement. La. Civ. Code arts. 3464 and 3466. See also Lima v. Schmidt, 595 So.2d 624 (La.1992), superseded on other grounds in Jenkins v. Starns, 11-1170 (La.1/24/12), 85 So.3d 612.


author: GENOVESE, Judge.

text:
    Marti COCHRAN v. SAFEWAY INSURANCE COMPANY of Louisiana and Keonn Green.
    No. 13-688.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Dawn L. Morris, The Dill Firm, Lafayette, Louisiana, for Defendants/Appellants Safeway Insurance Company of Louisiana and Keonn Green.
    Kenny L. Oliver, David 0. Way, Oliver & Way, L.L.C., Lafayette, Louisiana, for Defendant/Appellant Louisiana Farm Bureau Casualty Insurance Company (as UM insurer).
    Gregory P. Marceaux, Marceaux Law Firm, L.L.C., Lake Charles, Louisiana, for Plaintiff/Appellee Marti Cochran.
    H. David Vaughn II, Plauche, Smith & Nieset, LLC, Lake Charles, Louisiana, for Appellee Louisiana Farm Bureau Casualty Insurance Company (as subrogating insurer).
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this personal injury action arising out of an automobile accident, the trial court found Plaintiff, Marti Cochran, free from fault and awarded her damages, a penalty, and attorney fees. Defendants, Keonn Green, and his liability insurer, Safeway Insurance Company of Louisiana (Safeway), and Plaintiffs uninsured/under-insured motorist (UM) carrier, Farm Bureau Casualty Insurance Company (Farm Bureau), have appealed. For the following reasons, we affirm in part, amend in part, and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of August 7, 2011, Ms. Cochran was involved in a rear-end automobile collision with Defendant, Keonn Green. Although there is a conflict in the testimony as to what exactly occurred, the series of events which lead to the incident at issue began at Wayne and Layne’s Bar in Sulphur, Louisiana. Mr. Green and his friend, Edward Bates, started an argument at the bar with Casey Cormier, Ms. Cochran’s boyfriend at the time. According to Ms. Cochran, she and Mr. Cormier left the bar and drove out of the parking lot, going north on Louisiana Highway 27 (Highway 27). Soon thereafter, Mr. Green’s vehicle was closely following Ms. Cochran’s vehicle. Ms. Cochran admits that she tapped her brakes, but claims it was not to the point where she would slow down. She contends that she only tapped her brakes to make her brake lights illuminate, hoping it would make Mr. Green stop following her too closely. As she came to the intersection of Carlyss Drive and Highway 27, Ms. Cochran slowed down for a red light. It is at this red light where she claims the rear-end automobile collision occurred.

| yMs. Cochran filed suit against Mr. Green and his insurer, Safeway. She sought damages for her personal injuries, property damage to her vehicle, penalties, and attorney fees.

Safeway answered on behalf of Mr. Green, denying all allegations and asserting certain affirmative defenses. Safeway also filed a Reconventional Demand and Third Party Demand. Safeway, as Plaintiff-in-Reconvention and Third Party Plaintiff, asserted claims against Ms. Cochran and her insurer, Farm Bureau, alleging that Ms. Cochran’s negligence caused the collision. Safeway’s Third Party Demand sought recovery for its payment of Mr. Green’s property damages.

According to Mr. Green, while he and Mr. Edwards were attempting to leave the bar’s parking lot, Ms. Cochran sped past them, with Mr. Cormier hanging out of the passenger’s window yelling. Mr. Green testified that Ms. Cochran slammed on her brakes several times until the collision ultimately occurred. He denies that the collision occurred at an intersection and alleges that it was unavoidable and was caused by Ms. Cochran’s intentional actions.

Farm Bureau filed its own Reconven-tional Demand against Safeway and Mr. Green. Farm Bureau sought subrogation for its payment of Ms. Cochran’s property damage and rental expense.

Ms. Cochran also filed a Cross Claim against Farm Bureau, in its capacity as her UM carrier. Her Cross Claim was filed in the event she was awarded damages from Mr. Green which exceeded the limits of his liability insurance coverage.

Farm Bureau answered the Cross Claim, contending that Ms. Cochran’s “alleged injuries and damages were caused [by] or were the result of an event not 13covered by the subject accident, i.e., an altercation[ ]” and “the negligent acts of [Ms. Cochran],” including “driving in a careless and dangerous manner[.]” Both Ms. Cochran and Mr. Green acknowledge that a physical altercation took place between them after the rear-end automobile collision occurred. Ms. Cochran claims Mr. Green punched her in the chest, causing her to fall to the ground. Mr. Green claims Ms. Cochran was attacking him, so, to defend himself, he pushed her away, and she fell to the ground.

A bench trial was held on March 21, 2013. In its oral reasons for judgment, the trial court found Mr. Green 100% at fault in causing the accident; however, it attributed only seventy-five percent of Ms. Cochran’s alleged injuries to the rear-end automobile collision. The trial court also found that Safeway failed to tender a property damage payment to Ms. Cochran, a third party claimant, thereby warranting a penalty and attorney fees. Judgment was rendered in favor of Ms. Cochran and against Mr. Green, Safeway, in its capacity as Mr. Green’s liability insurer, and Farm Bureau, in its capacity as Ms. Cochran’s UM insurer, awarding Ms. Cochran $2,460.00 for past medical expenses, $20,000.00 in general damages ($15,000.00 for past pain and suffering and $5,000.00 for future pain and suffering), $158.83 for reimbursement of her rental expense, and $500.00 for reimbursement of her property damage deductible. Safeway and Mr. Green were also ordered to pay Farm Bureau, in its capacity as subrogating insurer, $2,566.41 for reimbursement of its payment for Ms. Cochran’s property damage claim, and to pay Ms. Cochran a $1,000.00 penalty and $1,000.00 in attorney fees. Mr. Green, [4Safeway, and Farm Bureau, in its capacity as UM insurer, have appealed the trial court’s judgment.

ASSIGNMENTS OF ERROR

Safeway and Mr. Green assign as error:

1. The trial court committed legal error when it awarded penalties and attorney[ ] fees for Safeway’s alleged failure to tender payment for a third party claimant’s property damage contrary to statutory and jurisprudential law.
2. The trial court erred by finding that only 25% of [Ms. Cochran’s] alleged injuries were a result of the physical altercation.
3. Alternatively to assignment number 2, the trial court committed legal error when it failed to reduce all of [Ms. Cochran’s] damages for personal injuries by 25%, in particular, when it failed to reduce past medical expenses and future pain damages by 25%.
4. The trial court committed manifest error when it failed to allocate a percentage of fault to [Ms. Cochran].
5. The trial court committed legal error when it awarded damages in excess of its jurisdictional limit pursuant to [La.Code Civ.P.] art. 4843(E)[.]

Farm Bureau assigns as error:

1. The [t]rial [c]ourt erred in finding that only 25% of [Ms. Cochran’s] alleged injuries were a result of the physical altercation rather than the automobile accident.
2. The [t]rial [c]ourt committed legal error when it failed to reduce the award for medical expenses and “residual pain” by 25% given the [c]ourt reduced the award for general pain and suffering by 25% due to the lack of causation proven between the accident related injuries versus the altercation related injuries.
3.The [t]rial [c]ourt committed manifest error when it failed to allocate a percentage of fault to [Ms. Cochran] in causing the subject automobile accident.

1 ¿LAW AND DISCUSSION

Safeway and Mr. Green’s First Assignment of Error

In the first assignment of error, Safeway and Mr. Green raise the issue of whether the trial court erroneously concluded that La.R.S. 22:1892(A)(4) and (B)(1) provide for the imposition of a penalty and attorney fees for the alleged failure to tender payment for a third party claimant’s property damage.

This issue requires the interpretation of a statute; thus, it raises a question of law. Red Stick Studio Dev., L.L.C. v. State ex rel. Dep’t of Econ. Dev., 10-193 (La.1/19/11), 56 So.3d 181 (citing Thibodeaux v. Donnell, 08-2436 (La.5/5/09), 9 So.3d 120). Therefore, the appropriate standard to be applied by this court is the de novo standard of review. Id.

State Farm Mut. Auto. Ins. Co. v. Norcold, Inc., 11-1355, p. 4 (La.App. 3 Cir. 4/4/12), 88 So.3d 1245, 1249.

The trial court awarded a $1,000.00 penalty and attorney fees of $1,000.00 to Ms. Cochran, specifically declaring it was doing so due to Safeway’s failure to tender to Ms. Cochran the amount she claimed as property damage. The trial court made these awards pursuant to the provisions of La.R.S. 22:1892(A)(4) and (B)(1).

Louisiana Revised Statutes 22:1892 (emphasis added) sets forth the duties owed to its insured and a third party claimant by an insurer as follows, in pertinent part:

A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:1811, 1821, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest. The insurer shall notify the insurance producer of record of all such payments for property damage claims made in accordance with this Paragraph.
(2) All insurers issuing any type of contract, other than those specified in R.S. 22:1811, R.S. 22:1821, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any third party property damage claim and of any reasonable medical 16expenses claim due any bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant.
(3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant .... Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1973.
(4) All insurers shall make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim.
B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (Ip) of this Section, respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2) of this Section when such failure is found, to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs....

Safeway argues that its written offer of $1,533.66 to settle Ms. Cochran’s property damage claim fully complied with its obligations under La.R.S. 22:1892(A)(4). Safeway asserts that the trial court erred in its determination “that Louisiana law mandates that Safeway actually tender payment to a third party claimant for property damage claims[.]”

Ms. Cochran counters, arguing “that an offer of $1,533.66, to settle stipulated damages of $3,066.41, is ‘arbitrary, capricious, or without probable cause’ and subject[ed] Safeway to penalties and attorney fees.” According to Ms. Cochran: “Under Safeway’s logic, it could offer $1 on [her] property damage |7claim of $3,066.41, and be immune from a claim for penalties and attorney fees.” We disagree.

This court in Armstrong v. Safeway Insurance Co., 10-183, p. 13 (La.App. 3 Cir. 10/6/10), 47 So.3d 63, 71, considered this same issue and concluded: “The law simply does not require an insurer to offer a third party claimant an unconditional tender.” In addition, Safewa/s offer of half the amount of Ms. Cochran’s property damage claim was not arbitrary, capricious, or without probable cause. Ms. Cochran’s degree of fault was always disputed. Even Farm Bureau, in its capacity as Ms. Cochran’s UM insurer, asserted that Ms. Cochran’s negligence was a factor in the rear-end automobile collision. Ms. Cochran’s credibility was challenged by the testimony of both the police sergeant who investigated the rear-end automobile collision and the physical altercation, as well as by Ms. Cochran’s treating physician, as further examined below. Therefore, we reverse that portion of the trial court’s judgment awarding a $1,000.00 penalty and $1,000.00 for attorney fees to Ms. Cochran.

Safeway and Mr. Green’s Second & Farm Bureau’s First Assignment of Error

Safeway, Mr. Green, and Farm Bureau raise the issue of whether the trial court erroneously concluded that only twenty-five percent of Ms. Cochran’s injuries were a result of the physical altercation rather than the automobile accident. The testimony of the officer who investigated the accident and Ms. Cochran’s treating physician were detrimental to her allegation that the rear-end collision was the sole cause of her injuries.

Sergeant Anthony Virgadamo, of the Sulphur Police Department, testified that Ms. Cochran did not complain to him of any injuries from the rear-end collision. Ms. Cochran reported to him that Mr. Green injured her during their |aphysical altercation. Dr. Timothy Van Cleve, Ms. Cochran’s treating physician, testified that Ms. Cochran did not tell him that she was involved in a physical altercation. After learning of the physical altercation, Dr. Van Cleve admitted that his opinion as to causation of Ms. Cochran’s injuries was based on an incomplete history. However, Dr. Van Cleve’s testimony relative to Ms. Cochran’s injuries was not disputed.

Factual findings of a trial court are subject to the manifest error standard of appellate review. Detraz v. Lee, 05-1263 (La.1/17/07), 950 So.2d 557. Thus, an appellate court may not set aside the findings of the trial court unless it is manifestly erroneous or clearly wrong. Greer v. State ex rel. Dep’t of Transp. & Dev., 06-417 (La.App. 3 Cir. 10/4/06), 941 So.2d 141, writ denied, 06-2650 (La.1/8/07), 948 So.2d 128.

In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and meet the following two-part test: (1) find that a reasonable factual basis does not exist for the finding; and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, Through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).

Id. at 145.

We do not find manifest error in the trial court’s finding that only twenty-five percent of Ms. Cochran’s injuries were a result of the physical altercation rather than the automobile accident. A reasonable factual basis does exist for the trial court’s determination in this regard. This assignment of error is meritless.

Safeway and Mr. Green’s Third & Farm Bureau’s Second Assignment of Error

Safeway, Mr. Green, and Farm Bureau raise the issue of whether the trial court erred when it failed to also reduce Ms. Cochran’s award for medical | expenses and future pain and suffering by twenty-five percent, given its reduction of her past pain and suffering award by twenty-five percent due to the lack of causation proven between the accident-related injuries versus the altercation-related injuries. We agree.

Ms. Cochran’s medical expenses and future pain and suffering awards were only partly attributed, and not fully attributed, to the automobile accident for which she asserted a claim. The trial court erred when it did not reduce all damages, including the damages for pain and suffering and medical expenses, by the same percentage.

Therefore, the judgment in favor of Ms. Cochran is amended to reflect a twenty-five percent reduction in the award for future pain and suffering from $5,000.00 to $3,750.00 and in the award for past medical expenses from $2,460.00 to $1,845.00.

Safeway and Mr. Green’s Fourth & Farm Bureau’s Third Assignment of Error

Safeway, Mr. Green, and Farm Bureau contend that the trial court was manifestly erroneous in its failure to asses Ms. Cochran with any percentage of fault. We disagree.

When there are different theories presented to the fact finder for their consideration, the fact finder’s credibility determination between the two plausible theories shall not be disturbed on appeal. Cheairs v. State ex rel. Department of Transp. and Development, 03-0680 (La.12/3/03), 861 So.2d 536, 546. Credibility determinations, including evaluating expert witness testimony, are for the trier of fact. Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-0201, p. 6 (La.10/19/99), 748 So.2d 417, 421.

Detraz, 950 So.2d at 564. “Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong, even if the reviewing court would have decided the case differently.” Id. at |in561 (citing Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270).

Ms. Cochran’s version of the events that occurred differ greatly from Mr. Green’s. It is apparent that the trial court accepted the testimony of Ms. Cochran as being the more credible of the two. Thus, the trial court’s findings in this ease are reasonable in light of our review of the record in its entirety. Though there are two permissible views of the evidence, the trial court’s choice between them cannot be considered manifestly erroneous or clearly wrong, nor is this court allowed to simply substitute its judgment for that of the trial court. This assignment of error is meritless.

Safeway and Mr. Green’s Fifth Assignment of Error

Finally, Safeway and Mr. Green raise the issue of whether the trial court exceeded its jurisdictional authority. The City Court of Sulphur’s jurisdictional limit is provided for in La. Code Civ.P. art. 4843(E) which provides, in pertinent part: “In ... the City Court of Sulphur, ... the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or value of the property involved, does not exceed twenty-five thousand dollars.” Having previously determined that the trial court erred in failing to also reduce Ms. Cochran’s award for medical expenses and future pain and suffering by twenty-five percent, Safeway and Mr. Green’s final assignment of error has been rendered moot.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment as to liability; we reverse the trial court’s judgment in its assessment of a penalty and an attorney fee; and, we amend the trial court’s judgment by reducing its future pain and suffering award and its medical expense award by twenty-five percent. Costs of lathis appeal are to be equally assessed against Plaintiff, Marti Cochran, and Appellants, Safeway Insurance Company of Louisiana, Keonn Green, and Farm Bureau Casualty Insurance Company, in its capacity as UM insurer.

AFFIRMED IN PART; AMENDED IN PART; AND REVERSED IN PART.

      . Mr. Green filed a pro se answer one day after Ms. Cochran’s petition was filed, denying all allegations against him.

      . The trial court reduced its initial $20,000.00 award for Ms. Cochran’s past pain and suffering to $15,000.00 due to its finding that twenty-five percent of Ms. Cochran's physical injuries were attributable to the post-automobile-accident physical altercation. Ms. Cochran's petition for damages does not assert a claim against Mr. Green for damages resulting from said altercation.

      . Fanil Bureau's three assignments of error repeat the second, third, and fourth errors, respectively, assigned by Safeway and Mr. Green; therefore, said errors will be addressed contemporaneously.