author: PAUL A. BONIN, Judge.

text:
    MARSEILLES HOMEOWNERS CONDOMINIUM ASSOCIATION, INC. v. BROADMOOR, L.L.C.
    No. 2012-CA-1233.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 27, 2013.

      Michael R.C. Riess, Lisa A. Montgomery, Kingsmill Riess, L.L.C., New Orleans, LA, for Plaintiff/Appellant, Third-Party, Broadmoor, L.L.C.

      Gregory Fortier Rouchell, Albert Kirk Gasperecz, Adams and Reese, LLP, New Orleans, LA, for Defendant/Appellee, Third-Party, Pella Corporation.
    John I. Goodwin, Colliau Elenius Murphy Carluccio Keener & Morrow, Dallas, TX, James L. Pate, Ben Louis Mayeaux, Laborde & Neuner, Lafayette, LA, for DefendanVAppellee, Third-Party, Columbia Casualty Company.
    Lawrence J. Boasso, Inabnet & Jones, LLC, Mandeville, LA, Temple A. Stephens, Stephens & Grace, Metairie, LA, for Defendant/Appellee, Third-Party, J.F. Day & Company, Inc.
    Seth A. Schmeeckle, Daniel Centner, Lugenbuhl Wheaton Peck Rankin & Hubbard, New Orleans, LA, for Defendant/Ap-pellee, Third-Party, Travelers Lloyds Insurance Company of Dallas, Texas and St. Paul Mercury Insurance Company.
    David P. Salley, Peyton C. Lambert, Salley Hite & Mercer, LLC, New Orleans, LA, for Defendant/Appellee, Third-Party, Zurich American Insurance Company.
    Kevin R. Tully, H. Carter Marshall, P. Ryan Plummer, Christovich & Kearney, L.L.P., New Orleans, LA, for Defendant/Appellee, Third-Party, Liberty Mutual Insurance Company.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   PAUL A. BONIN, Judge.

|,Broadmoor, L.L.C., appeals the trial court’s sustaining the objection of libera-tive prescription raised by Pella Corporation, which dismissed with prejudice Broadmoor’s third party demand against Pella. Broadmoor also appeals the grant of summary judgment in favor of J.F. Day and Company, Inc., which dismissed with prejudice Broadmoor’s third party demand against Day, as well as the denial of its own motion for partial summary judgment on the issues of indemnity and defense.

Broadmoor was the designer and general contractor of the Marseilles Condominiums, a high-rise residential building on the Lakefront in New Orleans. As part of Broadmoor’s undertaking, it purchased from Day windows manufactured by Pella. Day, Pella’s exclusive distributor in the New Orleans region, entered a contract or purchase order with Broadmoor on May 19, 2000, to supply the Pella-windows. Broadmoor’s purchase order form contained a number | aof express obligations for a seller; among these obligations was the duty to indemnify, defend, and hold harmless Broadmoor even on account of Broadmoor’s negligence or liability incident to or in connection with the purchase and the duty to cause Broadmoor to be named as an additional insured on the seller’s insurance policies. The windows and doors were provided; Pella warranted its windows for ten years.

In late 2002, Tropical Storm Isidore and Hurricane Lili struck the New Orleans area, and the Marseilles Condominiums sustained water intrusion damage. The homeowners association sued Broadmoor on January 15, 2003, and joined Pella and Day on July 8, 2008. Broadmoor filed its third party petition against Pella and Day on July 15, 2008. Broadmoor’s claim against Pella was for the cost of repairs performed by Broadmoor, which were expended by February 28, 2003. Broadm-oor’s claim against Day was for indemnity and defense.

Pella objected to the lateness of Broadmoor’s filing against it and filed an exception of prescription. Because there was no evidence introduced at the hearing on the exception, the trial judge decided the matter solely upon Broadmoor’s third party petition, determined that the one-year prescriptive period to institute suit had prescribed, and dismissed the claim with prejudice. Applying the manifest error standard of review, we find that the trial judge was not clearly erroneous and affirm the judgment on the exception.

Day’s motion for summary judgment asserted that the indemnity/defense obligations of its purchase order were set forth on the reverse side of the purchase |sorder, that no attention was called to them, that they were not negotiated or bargained for, and that its employee did not have authority to execute the agreement. The trial judge ruled solely upon a determination that the seller’s obligations were on the reverse side of the signature page of the purchase order and no reference was made to them on the signature page, thus rendering these very onerous obligations null. At the same time, the trial judge denied Broadmoor’s motion for partial summary judgment, which sought a ruling on the issue that the provisions were permitted by law and thus enforceable. On our de novo review of the two motions, we conclude that there is a genuine issue of material fact which precludes summary judgment in favor of either Broadmoor or Day. The material fact here is dependent upon whether the parties mutually consented to the provisions or conditions and how the offer and acceptance occurred to establish the obligation which Broadmoor seeks to enforce. Thus, we reverse the summary judgment in favor of Day, affirm the denial of Broadm-oor’s summary judgment, and remand to the trial court for further proceedings.

We explain our decision in greater detail below.

I

In this Part we explain why we uphold the trial court’s finding that Broadmoor’s claims against Pella are prescribed.

^Prescription is an objection that may be raised by peremptory exception. See La. C.C.P. art. 927 A(l). At the hearing on the exception, “evidence may be introduced to support or controvert the objection pleaded, when the grounds therefor do not appear from the petition.” La. C.C.P. art. 931. When no evidence is introduced at the hearing, however, the exception must be decided on the facts alleged in the petition, and all the factual allegations are accepted as true. See De-noux v. Vessel Management Services, Inc., 07-2143, pp. 5-6 (La.5/21/08), 983 So.2d 84, 88. Because here no evidence was introduced at the hearing, we review the factual allegations of Broadmoor’s third party petition, accept them as true, and decide whether the trial judge was clearly wrong in sustaining the exception and dismissing the suit. See La. C.C.P. art. 934.

A

Broadmoor contends on appeal that there are three legal theories under which it can recover from Pella, none of which would result in the third party demand, which was filed in 2008 for loss or damage sustained in 2002, being prescribed. The three theories are (1) that Broadmoor was lulled into inaction by ongoing settlement negotiations with Pella; (2) that Pella is unjustly enriched at Broadmoor’s expense, and (3) that Pella’s ten-year warranty extends the prescriptive period. In the following sections, we contrast the controlling legal principles upon which each of these three theories of recovery are founded with the | ¡-.factual allegations of the third party petition so as to demonstrate that Broadmoor did not carry its burden to prove a longer than one-year prescriptive period.

1

We first consider the idea that any liberative prescriptive period can be interrupted by the debtor lulling the creditor into inaction. “Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.” La. Civil Code art. 3464. “Acknowledgement interruptive of prescription results from any act or fact which contains or implies the admission of the existence of the right.” 5 Civil Law Translations, Baudry-Lacantinerie & Tissier, Prescription, § 529, cited approvingly by Flowers v. U.S. Fidelity & Guaranty Co., 381 So.2d 378, 382 (La.1979). “A tacit acknowledgement occurs when a debtor performs acts of reparation or indemnity, makes an unconditional offer of payment, or lulls the creditor into believing he will not contest liability.” Lima v. Schmidt, 595 So.2d 624, 634 (La.1992). Other criteria that can evidence an acknowledgement include “undisputed liability, repeated and open-ended reassurances of payment, and continuous and frequent contact with the creditor throughout the prescriptive period.” Id.

Our inspection of Broadmoor’s petition reveals no factual allegations which could support application of the interrup-tive effects of Article 3464. Broadmoor alleges that in 2002, at its request, Pella wet-sealed the windows and doors and provided a new ten-year warranty beginning on December 9, 2002. But then its allegations go further and describe how Broadm-oor made repeated attempts to | (¡negotiate a reasonable settlement for the cost of repairs and how, since Hurricane Katrina in August 2005, there were new complaints about the windows and doors.

There is no allegation, factual or otherwise, that Pella lulled Broadmoor into believing it would not contest liability with respect to the cost of the repairs. Not only did Pella not consider the liability undisputed, but Broadmoor in its own petition emphasized that it was not admitting any liability for the alleged defects in the windows and doors. None of the allegations even suggest that Pella gave any assurances of payment to Broadmoor.

Importantly, Broadmoor’s allegations support Pella’s contentions that there was no lulling. “[M]ere settlement offers or conditional payments, humanitarian or charitable gestures, and recognition of disputed claims will not constitute acknowl-edgements.” Lima v. Schmidt, supra. Also, “settlement or compromise offers or negotiations do not evidence an acknowl-edgement.” Id.; see also Perez v. Finn, 04-1914, p. 7 (La.App. 4 Cir. 3/2/05), 899 So.2d 585, 589.

Thus, we conclude that there is no factual allegation in the petition which could support the interruption of prescription through acknowledgement of the debt by Pella.

2

Broadmoor’s second theory of recovery is that of unjust enrichment. Broadmoor argues that its claim for unjust enrichment is not prescribed for ten years. See La. Civil Code art. 3499 (“Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.”); see also Minyard v. Curtis Products, Inc., 251 La. 624, 653, 205 So.2d 422, 433 (1967) (unjust enrichment claim is prescribed by ten years reckoning from day judgment was obtained against the impoverished party).

“A person who has been enriched without cause at the expense of another person is bound to compensate that person.” La. Civil Code art. 2298. A prerequisite for maintaining a claim for unjust enrichment is that the plaintiff have no other remedy available to him. See La. Civil Code art. 2298 (“The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.”); see also Creely v. Leisure Living, Inc., 437 So.2d 816, 822 (La.1983) (“There must be no other remedy at law available to the plaintiff.”).

Here again, not only does Broadm-oor’s petition lack any factual allegation that Broadmoor has no other remedy, but it actually suggests several other legal theories under which it is asserting its claim against Pella. In addition to its assertion that it had a cause of action against Pella on account of its express ten-year warranty, its petition specifies its claim is being brought under La. Civil Code art. 2545 on account of the manufacturer’s knowledge of the redhibitory defects of its product and under La. R.S. 9:2800.51 et seq., the Louisiana Products Liability Act. Such a pleading in and of itself precludes recovery under a claim of unjust enrichment. See Walters v. MedSouth Record Management, LLC, 10-0352, p. 2 (La.6/4/10), 38 So.3d 241, 242 (“Having pled a delictual action, we find plaintiff is precluded from seeking to recover under unjust enrichment.”).

Broadmoor argues that the circumstances of its claim for unjust enrichment are virtually identical to those in Minyard, supra, (in which the impoverished contractor’s suit against the enriched manufacturer was found to be timely) on the same kind of cause of action. At the time of the Minyard decision, it is true, the contractor like Broadmoor who had purchased a product through an intermediary like Day had no cause of action against a manufacturer like Pella. Today, however, a contractor under these same circumstances does have a cause of action against a manufacturer under the Louisiana Product Liability Act, at least, and may have one in redhibition as well. See Media Production Consultants, Inc. v. Mercedes-Benz of North America, Inc., 262 La. 80, 91, 262 So.2d 377, 381 (1972) (“Louisiana has aligned itself with the consumer-protection rule, by allowing a consumer without privity to recover, whether the suit be strictly in tort or upon implied warranty.”).

Thus, again we conclude not only that there are no factual allegations in Broadm-oor’s petition which support a claim for unjust enrichment, but also that its pleading an action under the Act or in redhibition precludes a claim under unjust enrichment.

We note in passing that the fact that Broadmoor’s claim under the Act was prescribed at the time it filed its third party petition against Pella (see discussion in Part I-D) does not satisfy the requirement that Broadmoor have no other remedy. _]_2See Walters, supra (“Moreover, we find it of no moment that plaintiffs tort claims have been held to be prescribed. The mere fact that a plaintiff does not successfully pursue another available remedy does not give the plaintiff the right to recover under the theory of unjust enrichment.”); see also Dugas v. Thompson, 11-0178, p. 14 (La.App. 4 Cir. 6/29/11), 71 So.3d 1059, 1068.

3

We now consider Broadmoor’s contention that its suit is timely because Pella granted a ten-year warranty on the products manufactured by it. Under the pleadings, the ten-year period commenced on December 9, 2002, and thus, according to Broadmoor, the prescriptive period expired no sooner than December 9, 2012. We disagree.

Dispositively, we have previously held that a breach of express warranty “is no longer viable as an independent theory of recovery against a manufacturer.” Touro Infirmary v. Sizeler Architects, 04-2210, p. 7 (La App. 4 Cir. 11/21/06), 947 So.2d 740, 744, citing to La. R.S. 9:2800.54 B(l — 4). All such possible causes of actions are now subsumed under the Louisiana Products Liability Act (see discussion Part I-B, post), with the possible exception of a claim in redhibition. Id., p. 6, 947 So.2d at 744.

A warranty period is different from a prescriptive period. A manufacturer can guarantee that it assures the suitability of its product for a stated period of time and, if during that period of time it turns out that the product is not as warranted, |10the damaged party may commence an action in redhibition. See Ford Motor Credit Co. v. Bower, 589 So.2d 571, 573 (La.App. 1st Cir.1991). “Actions based on a breach of warranty against defects are to be brought in redhibition instead of as a breach of contract.” Id. Because damages that are caused by a breach of warranty are founded not in contract but in redhibition, they are “subject to the prescriptive period applicable to redhibitory actions.” Id. Thus, even though the warranty period may extend, as here, for ten years, a redhibitory claim must be brought within the prescriptive period established for a redhibitory defect. {See discussion at Part I-D, post.)

Moreover, a warranty period cannot be construed to specify a longer prescriptive period than that established by law. See La. Civil Code art. 3471 (“A juridical act purporting to exclude prescription, to specify a longer period than that established by law, or to make the requirements of prescription more onerous, are null.”).

Thus, the last date alleged in Broadm-oor’s petition regarding any problem with Pella’s doors is August 2005, following Hurricane Katrina. At that time the doors and windows were still in the warranty period. But the redhibition action had to be filed within the prescriptive period. Because Broadmoor knew or discovered defects in the windows and doors in August 2005, a one-year prescriptive period would commence at that time. See La. Civil Code art. 2534 A(l) or B. Because the third party petition was not filed by that date, it would be prescribed under this theory of recovery.

_LuB

Having rejected Broadmoor’s three theories for a prescriptive period longer than one year, we confirm, as Pella argues, that the liberative prescriptive period for the cause of action asserted in Broadmoor’s petition is that of one-year and that the prescriptive period had expired at the time Pella was first sued.

On Broadmoor’s redhibition claim, accepting its allegations as true, Broadmoor knew or discovered the defects in the windows and doors as early as October 2002. Ordinarily, a one-year prescriptive period would commence at that time. See La. Civil Code art. 2534 A(l) or B. Pella’s last effort at repair or remediation occurred, however, on December 9, 2002. This conducting the repair and tendering the product back to Broadmoor interrupted the prescriptive period, and it commenced anew on that date. See La. Civil Code art. 2534 C (“In any case prescription is interrupted when the seller accepts the thing for repairs and commences anew from the day he tenders it back to the buyer”). Clearly, Broadmoor’s redhibitory action was prescribed.

The prescriptive period of one-year also controls Broadmoor’s claim against Pella under the Products Liability Act. The one-year prescriptive period for delictual actions provided in Civil Code Article 3492 applies to actions brought under the Louisiana Products Liability Act. See Denoux, 07-2143, pp. 5, 7-8, 983 So.2d at 88-89, citing with approval to Denoux v. Vessel Management Services, Inc., 07-0163, p. 4 (La.App. 4 Cir. 7/11/07), 964 So.2d 1081,1084, on this point.

| t2Thus, we conclude that the trial judge was not clearly wrong in concluding from the face of Broadmoor’s petition that its claim against Pella was prescribed.

II

In this Part we explain why we find that the district court’s granting of Day’s motion for summary judgment must be reversed and why its denial of Broadmoor’s motion for partial summary judgment was correctly denied. Both Day and Broadm-oor argue that there are no genuine issues of material fact and that there should be judgment as a matter of law. We disagree with the parties because we find that there is a genuine issue of material fact which precludes summary judgment in favor of either party.

A

The parties’ dispute centers on the enforceability of the indemnity and defense provisions of a contract for the sale of windows by Day to Broadmoor. Broadm-oor routinely used its own custom “purchase order” form. We understand that the form was printed on both sides of the page. The page’s front side, which contained signature lines for the contracting parties, made no reference to the special indemnity and defense provisions on the page’s reverse side.

The purchase order, as it appears in the record, consists of six pages. The pages of the contract are not numbered. The first two pages appear to be a faxed proposal from Broadmoor to Day. On the first two pages are listed the specific Indoors and windows to be purchased and additional terms to the contract. On the third page is the signature of John Reynolds, Day’s representative, and Mr. Reynolds’ notation following his signature, stating, “see attached copy for revisions to mark #’s + details to windows and doors,” which Mr. Reynolds has initialed. The fourth and fifth pages produced are exact copies of the first two, but with hand-written modifications to the list of products that were to be sold. The sixth page is titled “Conditions” and contains Broadmoor’s standardized or boilerplate language. There is no language preceding the “Conditions” page that indicates terms in other writings would be incorporated into the contract.

Before describing the parties’ respective contentions and in order to emphasize the extremely onerous aspects of the provisions set out in the “Conditions,” we reproduce the contentious portions below:

6. (a) Seller/Subcontractor shall protect, defend, indemnify and hold harmless Buyer/Contractor and any agents, affiliates, subsidiary [and] related companies, directors, officers, employees, shareholders, assigns, partners, joint ventures, Subcontractor, or servants of Buyer/Contractor or any other persons or entity sharing equal, subordinate or superior status to the Buyer/Contractor in the performance [of] this work from and against aoy [sic] and all claims, demands, losses, liabilities, cost, judgments, obligations and causes of action of every kin[d of] character whatsoever related to or on account of bodily iojury [sic], death, property damage, or loss by whomsoever made, without limit and without regard to the cause or causes thereof or the negligence of any party or parties (including, but not [ 14limited to, the sole negligence o[r] strict liability of Buyer/Contractor) incident to or in connection with this documents [sic], whether arising out of performance of work or services] hereunder or otherwise.
(b) Seller/Subcontractor shall carry such employer’s liability or Workmen’s Compensation insurance as listed below to insure the liability of the parties hereto for injuries to, or death of, Seller/Subcontractor employees, aod [sic] Seller/Subcontractor shall also carry adequate] public liability insuraoce [sic] covering accidents to persons and property occasiooed [sic] by Seller/Subcontractor in the performance of any of the work covered by this contract, and Seller/Subcontractor shall also carry all insurance required by the law of the place where said work is done, and shall also insure his own risk in and about the building site, including all temporary material and structures used by him. Failu[re to] maintain insurance as required shall be grounds for withholding payment. Seller/Subcontractor shall furnish evidence of the following insurance’s [sic]:
Workers Compeosation [sic] Statutory Including U.S. Longshore & Harborworkers and Maritime Comverage Endorsements where applicable
Employer’s Liability 1,000,000/eaeh accident 1,000,000/disease-policy incident 1,000,000/disease-each employee
1,000,000/occurrence 1,000,000/project or location General Liability (Broad Form) Bodily Injury & Property Damage Combined Single Limit:
1,000,000/project or location Products/Completed Operation Auto Liability Bodily Injury & Property Damage Combined
1,000,000/occurrence Single Limit:
7. The above Worker’s Compensation Insurance shall contain a waiver of sub-rogation against Broadmoor. General Liability and Auto Liability policies shall name Broadmoor as an additional insured.
8. Seller/Subcontractor agrees to indemnify and save harmless Buyer/Contractor from any and all claims or hssuits for infringement or pa[tents] or violation of patent rights by Seller/Subcontractor, and further agrees to pay all loss and expenses incurred by Buyer/Contractor by rea[son] of any such claims or suits, including counsel fees.

By way of preliminary comment, in Paragraph 6(a) a seller like Day purportedly agrees to indemnify and defend Broadmoor for Broadmoor’s own negligent actions, even if those negligent actions are completely unrelated to the contract with Day, and for an undetermined amount of time. There appear to be no limits to the timing or scope of Day’s duty to Broadm-oor occasioned by Paragraph 6(a).

Day submitted testimonial evidence both by deposition and affidavit that Broadmoor had never called its attention to the provisions on the reverse side of the purchase order. Implicitly claiming never to have seen the provisions, having no knowledge of them, and having no warning or admonition about them, Day argued that the provisions, concealed from them, cannot be enforced because Day had not agreed to the conditions.

Broadmoor countered that when in discovery it requested Day to produce the purchase order, Day produced copies of the purchase order which included a copy of the objected-to provisions. Thus, Broadmoor argues, Day’s knowledge of the existence of the provisions is established and, Broadmoor further argues, it requested a summary judgment on the limited issue of the enforceability of those provisions.

Day responded by arguing that it was not bound by its production of the copy of the purchase order because it had simply responded with the same 11fipurchase order which Broadmoor had produced in and attached to depositions and that it had never admitted to the copy being the agreement between them.

Notably, the copies of the contract which are contained in the record appear to us to have been exchanged by fax for signatures. The original contract is not in evidence, and the parties report that no one has located it and they are currently unable to ascertain whether the agreement was con-fected on the original of the Broadmoor’s purchase order form. The deponents and affiants do not rule out that the purchase order may have been executed through an exchange of faxes, and no one categorically denies that the provisions may have also been faxed as any other page.

The trial judge stated that he found the fact that Broadmoor’s custom purchase order form contained the provisions without warning or admonition to Day and as a matter of law he granted summary judgment. The essence of his ruling is that the purchase order, as a matter of law, did not incorporate the provisions at issue. The trial judge, however, did not resolve the factual disputes about delivery and receipt of the purchase order.

B

We review a grant or a denial of a motion for summary judgment de novo. Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910. That is, there is no deference to the trial judge’s legal findings. And, as is well-known,17 summary judgment is to be granted only when “there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B(2). Our sole inquiry, then, is the same as for the trial court: is there any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Bonin, supra.

A fact is material if it is one that would matter at trial on the merits. Put differently, a fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Facts are material if they “potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Woodland Properties, L.L.C. v. New Orleans Sewerage and Water Bd., 10-0331, p. 3 (La.App. 4 Cir. 9/29/10), 49 So.3d 443, 445. Simply put, a material fact is one that would matter on the trial on the merits. “Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits.” Suire v. Lafayette City-Parish Consol. Govt., 04-1459, p. 11 (La.4/12/05), 907 So.2d 37, 48. And in determining whether an issue is genuine, we cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact. Windham v. Munay, 06-1275, p. 3 (La.App. 4 Cir. 5/30/07), 960 So.2d 328, 331.

Thus, a “genuine issue” is a triable issue, that is, an issue on which reasonable persons could disagree. Jones v. Estate of Santiago, 03-1424, p. 6 (La.4/14/04), 870 So.2d 1002, 1006. Importantly, in order to determine whether a fact is material, a reviewing court must evaluate the substantive law that governs the litigation at issue. Woodland Properties, 10-0331, p. 4, 49 So.3d at 445.

11RBecause this dispute is at the core a dispute about whether Broadmoor and Day entered into a contract containing these onerous indemnity and defense provisions, we begin by evaluating the substantive law on contracts. “A contract is formed by the consent of the parties established through offer and acceptance.” La. Civil Code art.1927 (emphasis added). Generally, “offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.” Id. And “[u]nless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the acceptance is made.” Id.

Clearly, in this case, the dis-positive factual issue is whether Day consented to the onerous provisions. Consent is an absolute necessity to the formation of a contract, and “where there is no meeting of the minds between the parties the contract is void for lack of consent.” Philips v. Berner, 00-0103, p. 5 (La.App. 4 Cir. 5/16/01), 789 So.2d 41, 45. Importantly, consent envisions agreement on all elements of a given sale or contract. See id. Here, if Day did not consent to the disputed defense and indemnity conditions, there was no meeting of the minds, and the contract would, therefore, be void for lack of consent.

Here, a dispute about whether there was a “meeting of the minds” respecting these provisions is clear. From the facts submitted in support of the respective motions, we are in considerable doubt as to whether the parties had an agreement about these provisions. Our doubt about the existence of the agreement is especially heightened because we are considering a very onerous indemnity and defense agreement. Made in a different context but nonetheless illuminating for our purposes is the Supreme Court’s statement about the careful attention to be given the strict construction of indemnity contracts before applying or enforcing | Tatheir provisions: “[S]uch a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent act, unless such an intention was expressed in unequivocal terms. Polozola v. Garlock, 343 So.2d 1000, 1003 (La.1977) (emphasis added); see also Morelia v. Board of Com’rs of Port of New Orleans, 04-0312 (La.App. 4 Cir. 10/27/04), 888 So.2d 321, 328.

We have considered our decision in AWC, Inc. v. CSF Construction, Inc., 05-0865 (La.App. 4 Cir. 4/26/06), 931 So.2d 382, upon which it appears that the trial judge may have relied. There, a buyer and seller disputed which of them bore the burden of paying sales tax on two purchase orders. Id., p. 1, 931 So.2d at 383. In the purchase agreement (in that case prepared by the buyer), the reverse side of the contract contained a provision indicating that the seller was to pay sales tax for the transaction. Id., p. 4, 931 So.2d at 385. The contract was sent by fax, and it was disputed whether the seller ever saw the condition that it was required to pay sales tax. The contract there, unlike Broadm-oor’s purchase order, provided the following language on the face of both purchase orders in all capital letters: “THIS PURCHASE ORDER SUBJECT TO TERMS AND CONDITIONS ON REVERSE.” Id., p. 3, 931 So.2d at 385.

We there held that the buyer’s referencing to terms and conditions on the reverse page was “sufficient to put [the seller] on notice that [the buyer] intended to incorporate terms and conditions into the Purchase Order in addition to those shown on the face of the document.” Id., p. 7, 931 So.2d at 387. “It then became incumbent upon [the seller] to inquire further as to the nature of those terms and conditions.” Id. AWC, Inc. v. CSF Construction, Inc., however, does not stand for a sort of inverse legal principle that in the absence of explicit notice on the front page any | ^provisions on the reverse side are unenforceable. The concurring opinion of Judge Belsome highlights that our decision there was not to announce a legal principle, but to resolve a factual dispute. See AWC, Inc. v. CSF Construction, Inc., 931 So.2d at 387 (Belsome, J., concurring) (noting, “We have not created a duty on a purchaser to examine terms that were not physically attached to the agreement to sell. However, there was evidence in the record to establish that AWC actually received the terms contained in paragraph # 21.”) (emphasis added)

Here, we know that there was no incorporating language putting Day on notice that it will be bound by additional terms appearing on the reverse of the signature page. And there is no undisputed evidence in the record that Day actually received the “Conditions” page. Without undisputed evidence of Day’s knowledge of the conditions, we cannot determine what Day actually agreed to when it signed the purchase order. Day’s knowledge of the “Conditions” page at the time of the agreement, therefore, is an essential element to the determination of whether a contract was ever formed. Because Day’s knowledge, or lack thereof, could be the subject of disagreement among reasonable minds, such knowledge is a genuine issue of material fact, precluding summary judgment.

Because Broadmoor is the party demanding performance of the indemnity and defense obligations, it is the party at trial with the burden of proof. See La. Civil Code art. 1831 (“A party who demands performance of an obligation must prove the existence of the obligation.”) Thus, Day’s burden on its motion was simply to point out that there was an absence of factual support for an essential element of Broadmoor’s claim, which would then shift the burden to Broadmoor |21to establish that it will be able to satisfy its eviden-tiary burden and, if it can, there is a genuine issue of material fact which precludes summary judgment. Cf. La. C.C.P. art. 966 C(2). We find from the record that Broadmoor has produced evidence, including some from Day’s document production, that can plausibly show that Day agreed to the indemnity provisions. But we also find from the evidence that Broadmoor did not show on its motion that there is no genuine issue of material fact which would entitle it to the partial summary judgment which it sought on a limited issue. Cf. La. C.C.P. art. 966 C(l) and E.

Accordingly, we affirm the trial court’s denial of Broadmoor’s motion for partial summary judgment, but reverse the summary judgment which it rendered in favor of Day (and its insurers). We remand to the district court for further proceedings.

|aaDECREE

We affirm the judgment of the district court sustaining Pella’s exception of prescription and dismissing Pella with prejudice from the third party petition of Broadmoor, LLC. We also affirm the district court’s denial of Broadmoor’s partial motion for summary judgment. We reverse the summary judgment in favor of J.F. Day & Company, Inc. (and its insurers) and against Broadmoor, which dismissed them with prejudice. We remand the matter to the district court for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

      . The dismissal also affects Broadmoor's claims for indemnity and defense against several insurers: Columbia Casualty Company; Liberty Mutual Insurance Company; The Travelers Lloyds Insurance Company, Travelers Property Casualty Company of America f/k/a The Travelers Indemnity Company of Illinois, St. Paul Mercury Insurance; and Zurich American Insurance Company. The insurers were also made third-party defendants and joined Day’s motion for summary judgment.

      . Generally, the denial of a partial summary judgment motion is an interlocutory judgment which is not eligible for designation as final and appealable. See Yokum v. Van Calsem, 07-0676, pp. 5-6 (La.App. 4 Cir. 3/26/08), 981 So.2d 725, 730. But, in the context of cross-motions for summary judgment, a party may obtain appellate review of the judgment denying its motion when it appeals the judgment which granted the opposing party relief on the issue. See Favrot v. Favrot, 10-0986, p. 2 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102 n. 1. Thus, both parties’ appeals of the various aspects of the district court’s rulings are properly before us. See also Bass Partnership v. Gravolet, 12-0024, pp. 10-11 (La.App. 4 Cir. 11/21/12), 105 So.3d 224, 230-231. But see n. 11, post.

      . At the hearing the trial judge expressly invited Broadmoor to introduce whatever evidence it desired, but Broadmoor did not formally admit any evidence in opposition to the exception.

      . There are four other criteria or prerequisites set out in Creely at 821-822: (1) there must be an enrichment; (2) there must be an impoverishment; (3) there must be a connection between the enrichment and resulting impoverishment, and (4) there must be an absence of justification or cause for the enrichment and impoverishment.

      . We note that Broadmoor has not offered any authority for its proposition that the warranty period is a prescriptive period or that a warranty, being contractual or quasi-contractual in nature, is governed by the ten-year prescriptive period for personal actions under La. Civil Code art. 3499.

      . A sample of the form is not contained in the record. In addition to not having the original contract, we have not been provided with a copy of the contract that does not have portions of the right side cut off of it. Brackets are used to indicate where we have guessed at filling in what a copy machine has taken away.

      . The additional terms to the contract on the second page include:
      1. Sales tax is included.
      6. Included is 10-year product warranty and 20 year insulated glass warranty.
      11. Schedule — Delivery of windows is (10) weeks after receipt of approved shop drawings.
      12. Freight is included.
      13. Excluded is Performance Bond, interi- or trim, interior finishing and installation.

      . Day also defended against Broadmoor's motion for partial summary judgment by urging, for the first time (as best we can ascertain) in the litigation that its representative, Mr. Reynolds, lacked corporate authority to execute such a purchase order with the special provisions. As Day’s mandatary, Mr. Reynolds would have the “general authority to do whatever is appropriate under the circumstances.” La. Civil Code art. 2994. Because, there is a genuine issue of material fact as to whether any Day representative actually saw the “Conditions” page before litigation arose, we do not make a determination of whether Mr. Reynolds had corporate authority to make such a decision. (See also n. 9, post, regarding ratification.)

      . We do not mean to foreclose on remand proof of ratification. See La. Civil Code art. 1843.

      . This is especially so when we consider that we are considering an indemnity agreement. See Polozola, supra.

      . The insurers’ (see n. 1, ante) defenses on appeal were derivative of or dependent upon the disposition of Day’s motion for summary judgment. We recognize that they may have defenses to Broadmoor's claims independent of Day’s defenses. In particular, we note that Columbia Casualty asserts in brief that it has a specific policy defense which it has asserted against Broadmoor and seeks relief independent of our disposition with respect to Day’s defenses. The trial judge denied Columbia Casualty’s motion for summary judgment as moot, but the insurer did not appeal or answer the appeal; thus, we do not address its argument. In any event, in light of our decision, it may re-urge its motion in the district court on remand.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    Katherine Felts and Edward ASHBY, Plaintiffs-Appellees v. Lawrence CASEY and Hartford Insurance Company, Defendants-Appellants.
    No. 47,761-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 6, 2013.

      Thomas A. Bordelon, Shreveport, LA, for Defendant-Appellant, State Farm Mutual Automobile Ins. Co.
    J. Brad Smitherman, for Defendant-Appellant, GEICO Indemnity Co.
    Dudley Debosier Injury Lawyers by Stephen T. Collins, Shreveport, LA, Kristen B. Bernard, for Plaintiffs-Appellees, Katherine Felts and Edward Ashby.
    Before STEWART, MOORE and LOLLEY, JJ.
   STEWART, J.

_JjDefendants-Appellants GEICO Indemnity Company (hereinafter referred to as “GEICO”) and State Farm Mutual Automobile Insurance Company (hereinafter referred to as “State Farm”) are appealing a trial court judgment awarding damages to Plaintiff-Appellee, Katherine Felts (hereinafter referred to as “Felts”). We affirm in part and remand.

FACTS AND PROCEDURAL HISTORY

On October 2, 2009, at approximately 9:16 p.m., Felts and Edward Ashby (hereinafter referred to as “Ashby”) were involved in a motorcycle-automobile accident. Felts was a passenger on the motorcycle, which was driven by Ashby southbound on Barksdale Boulevard near its intersection with Interstate 20 (hereinafter referred to as “1-20”). As they reached the intersection, Lawrence Casey attempted to make a left turn onto 1-20 in his vehicle, without the proper green arrow signal. Attempting to avoid the collision, Ashby quickly laid the motorcycle down.

Even though Ashby’s motorcycle never collided with Casey’s vehicle, both Felts and Ashby suffered injuries from the accident. Felts, who was 52 years old at the time, was thrown off the motorcycle, which resulted in her hitting her right hip and the right side of- her rib cage area on the handlebar of the motorcycle. She also hit her right arm as she landed on the ground.

Following the accident, Felts began to experience pain in her right side, mostly in her chest and her ribs. Felts’ daughter and son-in-law picked up Felts and Ashby from the accident scene and transported them to the emergency room at Christus Schumpert Highland, where Felts was |2examined and X-rays of Felts’ chest, cervical spine, right knee, and right hip were taken. She was discharged with medication and advised to follow up with her primary care physician.

On October 12, 2009, Felts was seen by her primary care physician, Dr. Eric Smith, at Shreveport Internal Medicine. She complained of soreness in her right chest and back areas. Dr. Smith advised that she continue with her initial medical regimen until a previously scheduled routine wellness visit on October 27, 2009. At the October 27 routine wellness visit, Dr. Smith conducted an urinalysis that determined that Felts suffered from a microscopic hematuria. Dr. Smith recommended that she see a urologist.

Felts was subsequently treated by Dr. Kevin Cline, a general urologist who specializes in female urology, at Regional Urology. At her initial visit on November 6, 2009, Dr. Cline took a sample for a cytology, which is a test designed to detect abnormal cells, and asked that she return on November 13, 2009, to conduct additional tests. On November 13, Dr. Cline conducted a CAT scan of the abdomen and pelvis that yielded normal results. He also conducted a cytoscopy, a procedure where the bladder wall is examined internally with a small flexible telescope, that also yielded normal results. He also informed Felts that the November 6 cytology yielded normal results.

On September 9, 2010, Felts and Ashby filed suit, seeking damages for the injuries they sustained from the accident, against Lawrence Casey and his automobile insurer, Hartford Insurance Company (hereinafter | {¡referred to as “Hartford”); Ashby’s insurer, GEICO; and, Felts’ uninsured motorist insurer, State Farm. Prior to trial, Felts and Ashby settled with Hartford for its $10,000 liability limits. Felts proceeded to trial against GEICO for uninsured/underinsured coverage on Ashby’s motorcycle, and State Farm for economic-only uninsured motorist coverage.

The bench trial commenced on February 28, 2012. Before trial, all parties stipulated to the $10,000.00 payment made by Hartford. Felts introduced the records and bills of her treating physicians. Also, Ashby’s claims were dismissed.

The trial court found that Felts was injured when she was thrown off the motorcycle, and that she was without fault in causing and/or contributing to her injuries. General damages in the amount of $5,400.00 and special damages in the amount of $11,921.26 were awarded. The special damages included $6,286.12 for Felts’ treatment at Regional Urology, and $90.00 for testing at the Delta Pathology Group, LLC. The trial court assessed the general damages in the amount of $5,400.00 to GEICO. It also assessed $4,600.00 of the special damages award to GEICO, and $7,321.26 of the special damages award to State Farm.

Both GEICO and State Farm appeal the trial court’s judgment.

LAW AND DISCUSSION

Damages

In GEICO’s second assignment of error, it argues that the trial court erred in rendering judgment awarding certain medical specials and damages to Felts that were not proven at trial and contradictory to the findings of the |4trial court as expressed in its opinion. Similarly, in State Farm’s first assignment of error, it argues that the trial court erred in awarding medical specials for urological treatment received by Felts. We will discuss these two assignments together.

A trial court’s factual findings are accorded great weight and may not be disturbed by a reviewing court in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989); Marshall v. Caddo Parish School Bd., 32,373 (La.App. 2 Cir. 10/29/99), 743 So.2d 943. Furthermore, it is the factfinder’s duty to weigh credibility and to accept or reject all or part of a witness’s testimony. As such, where there is conflict in testimony, reasonable evaluations of credibility should not be disturbed on appeal. Rosell, supra.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.2/20/95), 650 So.2d 757. The test for determining a causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by trauma suffered in the accident. Id.

The medical evidence must show that there is a “reasonable possibility” of a “causal connection” between the accident and the disabling condition. Morris v. Allstate Ins. Co., 25,148 (La.App. 2 Cir. 2/23/94), 632 So.2d 1209, writ denied, 94-1044 (La.6/17/94), 638 So.2d 1099. Or, the medical evidence must show that the nature of the accident, when combined [ awith other facts of the case, raises “a natural inference” through human experience that such a causal connection does exist. An exact medical diagnosis is not required. Id. Notably, a plaintiffs disability is presumed to have resulted from the accident if, before the accident the injured person was in good health, but subsequently the symptoms of a disabling condition appear and continuously manifest themselves thereafter, provided that the medical evidence establishes a reasonable possibility of a causal connection between the accident and the disabling condition. Marshall, supra.

Dr. Kevin Cline, a specialist in urology, treated Felts on November 6 & 13, 2009, and February 10, 2010. He concluded that Felts had a microscopic hematuria, but after conducting several tests, did not find a pathologic cause for it. In his deposition, Dr. Cline opined that if Felts’ microscopic hematuria resulted from trauma, it should have been resolved by the February 10, 2010, visit. However, he conceded that “if someone was in a motorcycle where they lay a motorcycle down, they can have some form of internal bleeding that will manifest itself in the urine.”

The trial court noted:

On November 6, 2009, Plaintiff was seen at the Regional Urology where impression of microscopic hematuria was observed. After several return visits for reexaminations and observations, Plaintiff’s diagnosis was persistent microscopic hematuria without identifiable cause despite the fact that her doctor was aware that Plaintiff had been injured in an October, 2009, motorcycle accident.

The trial court described Felts as “a 52-year-old, healthy, alert employed person at the time of the accident.” We note that Dr. Eric Smith, Felts’ primary care physician, acknowledged that Felts has been his patient |r,since September 10, 2007, and that all of the urinalyses conducted before and after October 27, 2009, have yielded negative results.

In denying Felts’ bad faith claims for penalties, the trial court noted:

This Court acknowledges the legal principles that insurers owe a high duty to its own insured and when insurers fail to pay valid claims fairly and promptly, penal statutes governing insurers should be broadly interpreted and applied. However, in this instant action, Plaintiff has failed to meet her burden that the medical evidence showed a reasonable possibility of a causal connection between the accident and her injuries. Specifically, the cause for Plaintiffs microscopic hematuria could not be identified and any injury to Plaintiffs plastic surgery was probable but necessitated no treatment. All other injuries suffered by Plaintiff as a result of the motorcycle accident had to be determined.

Based on this language in the trial court’s opinion, GEICO argues that the award for medical expenses related to urological treatment is inconsistent with the findings of the trial court. It believes that it is an error to award damages for medical expenses not causally related to the subject accident. After reading the trial court’s judgment carefully in its entirety, we disagree with this assertion. The trial court determined that Felts’ bad faith claims against GEICO and State Farm alleging failure to pay were not proven, since she failed to meet her burden that the medical evidence showed a reasonable possibility of a causal connection between the accident and her injuries. Further, it noted that injuries suffered by Felts as a result of the accident had to be determined.

As recognized earlier in the discussion portion of this opinion, the trial court found that Felts was a healthy 52-year-old prior to the accident. Dr. Smith testified in his deposition that all of Felts’ urinalyses conducted before and after October 27, 2009, have yielded negative results in her 17routine wellness visits. We believe that this evidence, coupled with the fact that Felts developed microscopic hematuria after the October 2, 2009, accident, clearly supports the trial court’s decision to award Felts special damages related to the treatment for her microscopic hematuria by Dr. Cline, in the amount of $6,286.12, and $90.00, for tests that were ordered by Dr. Cline. These two assignments are without merit.

Assessment of Damages

In GEICO’s first assignment of error, it asserts that the trial court erred in failing to recognize and give credit for the liability limit and payment made by Hartford in the amount of $10,000, when it rendered judgment against it and State Farm. State Farm asserts this assignment as well, and adopts GEICO’s argument.

GEICO argues that the trial court did not give credit for Hartford’s payment in its calculation of damages against it and State Farm. GEICO believes that the trial court should have acknowledged this payment and reduced any such award and corresponding damages payable by it and State Farm in the amount of $10,000.00. In its answer to Felts’ petition, GEICO stated:

GEICO Indemnity Company specifically avers that it is entitled to a credit on any judgment rendered against it to the full extent of any other policy of insurance issued and/or available to the plaintiff, Edward Ashby, for the alleged damages at issue herein.

The tortfeasor and the uninsured motorist carrier are obliged to the same thing. An obligation is solidary for the obligors when each obligor is liable for the whole performance. A performance rendered by one of the |ssoIidary obligors relieves the others of liability toward the obligee. La. C.C. art. 1794. A tortfeasor is obliged to repair the damage that he has wrongfully caused to the innocent automobile accident victim. La. C.C. art. 2315; Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982). The supreme court in Hoefly stated:

An obligation is solidary among debtors when they are obliged to the same thing, so that each may be compelled for the whole, and when payment by one exonerates the other toward the creditor. When these characteristics result from the provisions of law, as in the case of the obligation of the tortfeasor and uninsured motorist carrier, an obligation in solido exists without requiring an express declaration.

The supreme court further explained in Hoefly that the uninsured motorist carrier is obliged differently from the tortfeasor because its liability is conditioned by the tortfeasor’s total or partial lack of liability insurance, the type of damage he has caused and any limits on the insurer’s policy that are permitted by law. Hoefly, supra.

In calculating the general damage award of $5,400.00, the trial court included an amount to compensate Felts for the approximate five month period she was examined, observed, and treated for her physical pain and suffering. This amount was assessed to GEICO. In calculating the special damage award of $11,921.26, the trial court determined the following amount to be appropriate:

Christus Schumpert Highland $1,709.14
Texas Trail Emerg. Physicians $592.00
Diagnostic Imaging Assoc., L.L.C. $245.00
Shreveport Internal Medicine $270.00
Bostwick Laboratories, Inc. $150.00
Red River Consultants $318.00
Regional Urology $6,286.12
Willis-Knighton South $2,261.00
|9The Delta Pathology Group, L.L.C. $90.00
TOTAL $11,921.26

It assessed $4,600.00 of the special damages to GEICO, and $7, 321.26 of the special damages to State Farm. We find that the damage award issued by the trial court, totaling $17,321.26, is reasonable.

In the transcript from trial, all of the parties made the following stipulation:

Your Honor, we also have a stipulation that Mr. Lawrence Casey was covered by a policy of liability insurance issued by Hartford, and that the policy provided — it as a ten-twenty policy providing $10,000 in coverage, and that the $10,000 had been paid to Ms. Felts and the claims against Hartford and Mr. Casey were dismissed on those grounds.

Additionally, the trial court noted its opinion that Felts had resolved her claims with Hartford, further stating:

Now having considered the evidence, stipulations, arguments, of counsel, and law, this court now makes the following findings of facts which culminates with the determination of the amounts for damages.

The amount of coverage available under the Hartford policy, amounting to $10,000.00, is less the amount of damages suffered by her. Although GEICO, State Farm and Harford are solidary obligors, GEICO and State Farm’s liability is conditioned by the Casey’s partial lack of liability insurance with Hartford. Although the trial court noted that the claims against Hartford were resolved, and that it considered the stipulations presented, it did not “condition” State Farm and GEICO’s liability by deducting the $10,000.00 Hartford payment from the $17, 321.26 damage award, or clarify how it applied to the general and special damages ⅛]_^ awarded. Therefore, we remand the case so that the trial court can amend and clarify its calculation of the damages award to include a $10,000.00 credit for the Hartford payment, and reassess the damages to GEICO and State Farm.

Assessment of Damages to State Farm

In State Farm’s third and final assignment, it contends that the trial court erred in assessing damages to State Farm, since State Farm’s economic-only uninsured motorist coverage policy was secondary to GEICO’s uninsured/underinsured motorist policy, and the total amount of damages awarded by the trial court was less than the combined $20,000 in coverage of the Hartford and GEICO policies.

Our findings in the previous assignment require that we remand this case for a revised calculation of the damages award, and pretermit this assignment.

CONCLUSION

For the reasons discussed above, we affirm the part of the judgment awarding Felts damages for the injuries she sustained in the accident. Further, we remand this case to the trial court so that it may amend its calculation of the damages award to include a $10,000.00 credit for the Hartford payment, and reassess the damages to GEICO and State Farm.

AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.


author: MOORE, J.

text:
    Cedric Keith MOORE, Plaintiff-Appellant v. Ebony MOORE, Defendant-Appellee.
    No. 47,947-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 6, 2013.

      Daye, Bowie & Beresko, PLC, Shreveport, LA, by Alfred R. Beresko, Simmons, Morris & Carroll, Shreveport, LA, by Cynthia Leigh Carroll-Bridges, for Appellant.
    Samuel P. Love, Jr., Shreveport, LA, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   MOORE, J.

| íAfter trial in this custody dispute, the trial court ruled in favor of the mother, Ebony Moore, naming her the domiciliary parent in a joint custody decree and allowing her to relocate with the three minor children to Houston, Texas. The father, Cedric Moore, filed this appeal. For the reasons that follow, we affirm the judgment.

Facts

Cedric and Ebony Moore married on June 7, 2003, in Houston, Texas and subsequently established their matrimonial domicile in Caddo Parish, Louisiana. Three children were born of the marriage: Darren Keith Moore, born September 1, 2004, August Brian Moore, born October 27, 2009, and Jacqueline Alise Moore, born December 23, 2010.

The couple initially separated in July of 2009 while Ebony was six months pregnant with August. During this time, Ebony moved to Houston to be with her family. At that time, the couple prepared a written agreement providing that Darren, age 5, would reside with his mother in Houston for the 2009-10 school year. They further agreed that if Cedric did not obtain a job transfer to Houston, Darren would return to Louisiana to live with his father.

Employed as an aircraft mechanic, Cedric and his family members were able to fly free of charge. During the initial separation, the couple continued to see each other frequently, flying between Shreveport and Houston.

The couple ultimately reconciled and returned to Shreveport. Ebony became pregnant with their third child, Jacqueline, in March of 2010. |2Ebony continued to make trips to Houston, and Jacqueline was born on December 23, 2010, in Houston.

After Jacqueline’s birth, the couple returned to Shreveport in January of 2011. Their relationship was still strained, however, and by March of 2011, they were once again discussing divorce. The couple flew to Houston at the end of March for the spring break holiday. Cedric returned early to Shreveport alone, expecting Ebony and the children to return to Shreveport when spring break was over.

Instead, on April 5, 2011, Ebony did not return at the end of spring break and obtained a protective order in Texas, claiming she suffered instances of physical abuse by Cedric in Shreveport.

Two weeks later, Cedric filed a petition for divorce and custody of the children in Shreveport on April 19, 2011. He also obtained an ex parte order granting him temporary legal custody of the three minor children. A hearing was set for May 17, 2011.

On May 16, 2011, Ebony filed an Answer and Reconventional Demand seeking custody of the children and permission to relocate to Houston.

By Interim Order signed on May 16, 2011 and filed on May 25, 2011, the court awarded the parties joint custody of the children with Cedric designated as the domiciliary parent; Ebony was given visitation every other weekend to take place in the Caddo/Bossier area. The court ordered Dr. Dana Nelson as mental health evaluator, and it ordered Cedric to pay for the cost of an evaluation of both parents.

|sTrial began on January 9, 2012. Ebony testified regarding her allegations of physical and emotional abuse. She admitted that in 2008, Cedric discovered that she had exchanged inappropriate emails with a former male friend, but she adamantly denied any extramarital affair. Because of these emails, Cedric did not believe that August was his child. She testified that Cedric continuously humiliated her in front of Darren by spanking her on her buttocks and referring to her as the “bitch.” She also recounted at least one incident in which Cedric forced himself sexually on her despite her protests and attempts to get away.

Ebony also testified that Cedric had let Darren watch pornographic movies on a computer. She expressed her belief that Cedric had anger issues and feared that if she did not obtain custody of the children allowing Cedric only supervised visitation, he may kidnap the children. She expressed her desire to move to Houston and live with her father and mother, claiming that her family home in Houston would provide the children with more structure and a stable home environment.

Cedric’s aunt, Kimberly Harris McConi-co, testified that Cedric was raised in her home with Cedric’s mother and her sisters. She stated that she had never seen Cedric apply physical discipline to his children, and she knew that Cedric abhorred spanking. She said that Cedric was a good father and that during his marriage to Ebony he did everything for the children.

Trial resumed on January 10, 2012 with the entire day devoted to the testimony of the court-appointed psychologist, Dana Nelson, Psyc. D. Based upon the several psychological tests administered to Ebony and l4Cedric, a home visit to Cedric, and interviews with Ebony and Darren, Dr. Nelson had issued a report to the court in which she recommended that Ebony be allowed to relocate to Houston with custody of the children, and that Cedric be allowed supervised visitation until he obtained counseling to deal with some of his issues.

Perhaps the most damaging aspect of Dr. Nelson’s testimony concerned her home visit to Cedric, who had custody of the children at that time. Dr. Nelson testified that when she arrived at the door of Cedric’s home, she overheard Cedric slap Darren and use very harsh language with him before sending him to his room. When she entered the home, she immediately checked on the child who had retreated to his room. She said that Darren later confirmed that his father slapped him. She also gleaned from her interview with Darren that he received a lot of spankings and feared his father.

Dr. Nelson reported her suspicions of possible child abuse to child protective services on two occasions, but no action was taken. She testified that the matter had apparently fallen through the cracks.

At the end of Dr. Nelson’s testimony on January 10, trial adjourned to be resumed at a later date. Before adjourning, the court changed the interim custody arrangement in effect since May 16, 2011, by giving Ebony temporary custody of the children and allowing Cedric visitation every other weekend.

| .¡Trial resumed again on March 12, 2012 and concluded on March 13, 2012.

Cedric testified that he has been employed by Express Jet Airlines for eight years, following his honorable discharge from the U.S. Marine Corps in 2003. He recounted his separation from Ebony in 2009, in which she took the children to Houston to live with her parents. However, she subsequently moved from that location without notifying him of her whereabouts. For the four-month period before they reconciled, she kept him from regularly communicating with the children. After the couple reconciled and returned to Shreveport, Ebony became pregnant with Jacqueline.

Then, in early April of 2011, Ebony failed to return home from Houston with the children and refused to take his telephone calls. When Cedric contacted Darren’s school regarding his absence, he was informed by Darren’s local school principal that Ebony had transferred Darren’s school records to Houston. He contacted the Houston police to report a missing person and was informed shortly thereafter that Ebony had obtained a protective order against him.

Cedric then filed a petition for divorce and custody, and he obtained a temporary restraining order. He stated that he was fearful of Ebony’s brothers, one of which he stated pulled a gun on him during their previous separation. He obtained temporary custody of the children from April of 2011, which became an interim order of custody signed on May 25, 2011, until it was changed on January 10, 2012, as noted above.

| (¡Cedric testified that during their marriage, he prepared the meals for the family, made sure the children bathed, purchased the children’s clothes, and helped with their homework. He denied that he ever said mean or inappropriate things to the children about Ebony, and he never allowed Darren to watch pornography.

He denied that he has ever physically assaulted Ebony in any way whatsoever, including the alleged spankings. Cedric also recounted several recent instances which demonstrated that the children are not afraid of him. He said that Ebony was influenced by her mother, who had suffered abuse in a previous marriage, to fabricate the stories of abuse and to claim that he had raped Ebony and physically abused the children. He introduced employer records that he was working on the day he allegedly raped Ebony, who had reported that Cedric stayed home from work on the day of the alleged rape in her affidavit used to obtain the protective order.

Finally, regarding Dr. Nelson’s report to the child welfare or child protection services, Cedric said that the matter did not, as Dr. Nelson testified, fall through the cracks. In fact, he stated that the matter was investigated by child welfare, including a home inspection and interview with Darren, and a visit to the school. He said that child welfare found the claim to be invalid.

Cedric’s mother, Robin Moore, testified that Cedric took care of most of the housekeeping duties. She had never witnessed Cedric abuse Ebony, although she had seen them argue a lot. She said that Ebony told her that Cedric abused her. She has also supervised Cedric’s visits with the children 17since the interim custody decree.

Ruling from the bench, the court initially found that the proposed relocation to Houston by Ebony was made in good faith, but observed that her attempt to make it a matter for the Texas courts was ill-advised. The court then reviewed each of the factors of La. R.S. 9:355.12 and La. C.C. art. 134. Ultimately, it found that the factors favored Ebony and ruled in her favor, allowing her to relocate to Houston and naming her the domiciliary parent in a joint custody plan. The court awarded Cedric visitation every other weekend in Houston from 5:00 p.m. Friday to 5:00 p.m. Sunday, to be supervised by Cedric’s mother or his aunt (Ms. McConico). After some discussion, the schedule was adjusted to accommodate Cedric’s off-days from work, which are generally Monday, Tuesday and Wednesday. However, during the school year, Cedric was to have visitation with Darren on Monday evenings only, which required him to bring Darren to school on Tuesday mornings.

After these matters were concluded, the trial court declared on the record to Cedric that it did not find his testimony to be credible, stating that it believed Cedric evaded giving straight answers to questions and was attempting to shade his answers.

On May 8, 2012, court reconvened to set child support. Based upon the worksheets submitted, the trial court set child support at $1,731 per month.

IsThis appeal followed.

DISCUSSION

On appeal, Cedric raises three assignments of error.

By his first assignment he alleges that the trial court erred in allowing Ebony Moore to relocate to Houston and naming her the domiciliary parent of the minor children. Cedric notes that the trial court found no domestic violence or that any abuse had occurred in this case. This finding, he argues, is contrary to allegations that supply the grounds in Ebony’s petition for relocation and custody. The court also found that there was no substance abuse, and that the parties were basically equal in many factors including their love for the children and their capacity and disposition to provide food, clothing, medical care and other material needs. There was no finding by the court that Cedric had raped Ebony as she alleged, nor a finding that he allowed Darren to watch pornography. The court found both parents to be morally fit, as well as mentally and physically healthy.

Nevertheless, without mentioning Dr. Nelson’s report, the court found that the weight of the evidence favored Ebony such that she should be named the domiciliary parent in a joint custody plan, allowed to relocate to Houston, and awarded Cedric supervised visitation only. Cedric contends that the trial court must have given inordinate weight to Ebony’s testimony and Dr. Nelson’s report, and it committed error when it determined that the factors under consideration favored her as the domiciliary parent of the children rather than him.

1 flThe paramount consideration in any child custody case is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731. The court is to consider all relevant factors in determining the child’s best interest. La. C.C. art. 134. The court is not required to make a mechanical evaluation of the statutory factors but should decide each case on its own facts in light of those factors. Semmes v. Semmes, (La. App. 2 Cir. 12/16/09), 27 So.3d 1024; Bergeron v. Bergeron, 44,210 (La.App. 2 Cir. 3/18/09), 6 So.3d 948. The factors are not exclusive, but are meant as a guide for the court to assess then* relative weight and fashion a custody order within its great discretion. Id.

| inTo the extent feasible and in the best interest of the child, physical custody of the children should be shared equally. La. R.S. 9:335 A(2)(b); Semmes v. Semmes, supra. Nevertheless, even when joint custody is in the best interest of the child, the statute does not mandate an equal sharing of physical custody; substantial time, rather than strict equality of time, is the objective of joint custody. Id. The trial court’s discretion in fixing custody is great, and a custody award will not be disturbed on appeal in the absence of a clear showing of abuse. AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756; Semmes v. Semmes, supra.

A parent seeking to remove his or her child from the jurisdiction of the court has the burden of proving that: (1) the move is made in good faith; and (2) the move is in the child’s best interest. La. R.S. 9:355.13; Gathen v. Gathen, 2010-2312 (La.5/10/11), 66 So.3d 1; Payne v. Payne, 41,049 (La. App. 2 Cir. 5/19/06), 930 So.2d 1181, writ denied, 2006-1871 (La.8/9/06), 935 So.2d 130; Blackburn v. Blackburn, 37,006 (La. App. 2 Cir. 1/29/03), 836 So.2d 1222. In determining the child’s best interest, the court shall consider the benefits which the child will derive either directly or indirectly from an enhancement in the relocating parent’s general quality of life. La. R.S. 9:355.13.

In reaching its decision regarding a proposed relocation, La. R.S. 9:355.12 supplies 12 factors for the trial court’s consideration:

(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life..
|u(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.

The trial court is not required to expressly analyze each statutory relocation factor in its oral or written reasons for judgment in a relocation Incase. Gathen v. Gathen, supra. Cf. Curole v. Curole, 2002-1891 (La.10/15/02), 828 So.2d 1094. A trial court’s failure to expressly analyze each factor does not constitute an error of law that would allow de novo review. Gathen v. Gathen, supra. The trial court is free to give whatever weight it deems appropriate to each of the statutory factors in a contested relocation case and, thus, upon review, it is appropriate for a reviewing court to look to the reasons and factors the trial court did expressly take into account in reaching its ultimate determination, and, for the factors the trial court did not expressly discuss, it is appropriate for the reviewing court to determine whether the trial court’s failure to give weight to those factors led the court to abuse its discretion in reaching its ultimate determination on relocation. The district court is vested with great discretion in matters of child custody and visitation; its determination is entitled to great weight and will not be disturbed absent a clear showing of abuse of that discretion. Id.

After a complete review of the record, including the lengthy trial transcript and exhibits placed in evidence, we find no abuse of discretion in the trial court’s determination that Ebony should be named domiciliary parent and allowed to relocate to Houston with the children pursuant to the joint custody decree. Because of the distance involved between Shreveport and Houston, equal or near equal physical custody of the children was not a viable consideration in this case. Therefore, the court was required in these circumstances to designate a domiciliary parent, that is, the parent with whom the children would primarily reside. La. R.S. 9:355(B)(2).

In this instance, the trial court considered 11 of the 12 relocation factors of La. R.S. 9:355.12 along with the best interest factors. It found that Ebony’s request to relocate to Houston was made in good faith. The court noted that Cedric had asked for a divorce and Ebony’s family lived in Houston. Her parents would provide her the support of a home and family structure. Because Ebony apparently does not have any specialized training or advanced education, the court observed that it would be virtually impossible for her to make it on her own in Shreveport.

Of the 12 factors listed under La. R.S. 9:355.12, the court found that 5 of the factors, nos. 1, 5, 6, 7, and 8, favored Ebony. Specifically, regarding factor (1), the court found that, although both parents were involved in the children’s lives, the presence of Ebony’s extended family and support in Houston favored Ebony. Regarding factor (5), the court believed that Ebony would more likely promote a relationship between the children and Cedric, in spite of her history of twice removing the children to Houston and not allowing him to freely communicate with the children. The court also concluded in considering factor (6) that living in Houston offered advantages to the children in terms of home stability and schooling, and getting away from the hostile environment associated with their marriage while in Shreveport. The court found that Ebony really has no choice regarding relocation (factor (7)) given that she has no job training or education and her family lives in Houston. Finally, the court observed that by relocating to Houston, Ebony would have the support of her family and community and would be able to continue her education (factor (8)).

114The court concluded that 4 of the factors (nos. 2, 9, 10, and 11) favored neither party or should not weigh in this relocation request. The court believed that because the children are so young, relocation would have little impact on the children’s development (factor (2)). Regarding factor (9), the court determined that there was not enough evidence to make a determination of the extent each party has fulfilled his or her financial obligations to the other parent, although it noted that Cedric had paid the costs of the psychological evaluations. The court also concluded that it was likely not feasible for Cedric to relocate to Houston because his employment is in Shreveport (factor (10)). Finally the court found that there was no domestic violence by either parent (factor (11)), although it stated that “there has been some pushing and shoving.”

The single factor that the court found favored Cedric, factor (3), was a finding that it would be logistically and financially easier for Cedric to travel to Houston than for Ebony to travel to Shreveport, inasmuch as Cedric can fly free of charge due to his job and both their extended families reside in Houston. The court did not consider factor (4), the children’s preference. Finally, for factor (12), the court considered the “best interests” factors of Civil Code Article 134.

The court found that overall, the “best interest” factors favored Ebony. It noted that both parents love their children, so factor (1) was equal. Factors (2), (5), (10) and (12) favored Ebony, largely because of the stability of living with her parents in their Houston home (factors (2) and (5)), and its belief that Ebony would facilitate the children’s relationship |lawith Cedric (factor 10) and its belief that Ebony has previously played more of a role in the children’s daily lives, inasmuch as she did not work during the marriage. The court found that the other factors, love and affection for the children (1), their capacity and disposition to provide and care for them (3), moral fitness (6), and mental and physical health (7) were equal. Factors (4), (8) and (11) favored neither parent. It did not consider factor (9) related to the children’s preference.

The proverbial “elephant in the (courtroom” in this case was Dr. Nelson’s report. Although the trial court did not expressly mention the findings or conclusions of the report in her ruling, it is clear that the basis of some of the trial judge’s remarks regarding Cedric’s parenting skills, such as feeding the child, August, TV dinners, is contained in Dr. Nelson’s report or her testimony regarding the report. As acknowledged by counsel for the appellant, Dr. Nelson’s report is not favorable to Cedric, but without any express reference by the trial court to specific findings in the report, counsel has little choice but to attack Dr. Nelson’s credibility as well as her findings and conclusions. We find no merit in these attacks.

The report reflects Dr. Nelson’s belief that Cedric has anger issues and he is overwhelmed by the divorce and the responsibilities of the children. She believes his anger manifested itself by increasingly physical responses toward Ebony and the children. The report strongly recommends that Ebony be allowed to relocate to Houston with primary custody of the children and permit Cedric supervised visitation until he obtains counseling. Even though the trial court expressly stated that matters had not risen to the Mevel of domestic violence, only some “pushing and shoving,” we note that the trial court expressly stated that it did not find Cedric’s testimony to be credible, which largely consisted of denials of the accusations made by Ebony. The court also expressly found that Cedric’s parenting skills were deficient in some respects.

Matters of credibility and the weight given to evidence are the sole province of the trier of fact. For this reason, we find no abuse of discretion in the trial court findings that the best interests of the children dictates that Ebony be allowed to relocate to Houston and that she be named the domiciliary parent in the joint custody decree.

This assignment is without merit.

By his second assignment of error, Cedric contends that the trial court committed reversible error when it awarded the parties joint custody of the minor children, but it only allowed Cedric to have supervised visitation with his children. Cedric contends that the evidence in this case does not support or justify an award of supervised visitation, where there is no finding of domestic violence, substance abuse, sexual abuse, or other forms of abuse and neglect.

The trial court’s findings in child custody matters are entitled to great weight and will not be disturbed on review without a showing of clear abuse. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). After weighing and evaluating expert and lay testimony, the trial court is free to accept or reject the expert’s opinion and may substitute his or her common sense and judgment when warranted by the record as whole. Beene v. Beene, 43,845 (La.App. 2 Cir. 10/22/08), 997 So.2d 169. Courts have inherent power to determine a child’s best interest and to tailor a custody order, including visitation, that minimizes the risk of harm to the child. Id.

In this instance, the trial court gave no specific reasons for its decision to allow only supervised visitation for Cedric, but we assume that the court followed the recommendation of Dr. Nelson based upon her evaluations. The court expressly stated during its best interest analysis that she did not believe matters had not risen to the level of domestic violence in this case, just some “pushing and shoving.” It found there was no drug abuse, and both parents were mentally, physically, and morally fit. Although there was no finding that hostilities had risen to the level of domestic violence as defined in La. R.S. 9:364 of the Post-Separation Family-Violence Relief Act, the order for supervised visitation was reasonable, considering Dr. Nelson’s opinion that there was an escalating potential for violence in this case.

For these reasons, we find no abuse of discretion or reversible error in the court’s visitation order. We also note, however, that visitation schedules in a joint custody plan are subject to modification in order to meet the goals of allowing the non-custodial parent substantial time with the children and frequent and continuing contact. La. R.S. 9:355. Because visitation has an independent basis from custody, the Bergeron test rule is not applicable to a motion to modify visitation. The “best interests” of the child is the appropriate standard. Acklin v. Acklin, 690 So.2d 869 (La.App. 2 Cir.1997).

|1sBy his third assignment of error, Cedric contends that the trial court erred in setting child support without considering the mother’s income.

In addition to the $1,731 per month child support, Cedric was ordered to pay one-half of the children’s child care costs, estimated to be $95 per week or $411 per month. Evidence at trial showed that Ebony had worked at her father’s church while she resided in Houston, earning an average of $800 every two weeks for an average of $650 per month.

The trial court did not impute any income to Ebony, who was residing in Shreveport in the months preceding and during trial and was currently unemployed. The court expressly said it would not impute income to her because she had two children under the age of five.

Cedric argues that the child support award is excessive since she lives with her parents in Houston and does not have expenses for rent and utilities, and there was no evidence of her expenses. Cedric’s counsel has submitted two new worksheets (for demonstrative purposes), and requests that the court re-set child support or remand for a hearing on the child support issue.

We find no error in the child support award based on the evidence submitted at trial, which consisted of Cedric’s reported income at the time. Although Ebony had previously worked part-time, she was unemployed at the time of trial. She expressed her intention to return to school, presumably to improve her prospects of obtaining gainful employment.

Remand is not appropriate in this case. We note that a child support award is subject to modification after a hearing in the trial court pursuant to | lna properly filed motion.

For these reasons, this assignment is without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court at appellant’s cost.

AFFIRMED.

      . Under Art. 134, "Such factors may include:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.”