text:
    STATE ex rel. Jeffery BAHAM v. STATE of Louisiana.
    No. 2013-KH-2683.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Baham, Jeffery; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. F, No. 10-CR3-107583; to the Court of Appeal, First Circuit, No. 2013 KW 1322.

Denied.

WEIMER, J., recused.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Dwayne WILLIAMS v. STATE of Louisiana.
    No. 2013-KH-2691.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Williams, Dwayne; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 11-4013; to the Court of Appeal, Fifth Circuit, No. 13-KA-170.

Denied.

JOHNSON, C.J., would grant.


text:
    STATE ex rel. Edward HENDERSON, Jr. v. STATE of Louisiana.
    No. 2013-KH-2692.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Henderson, Jr., Edward; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. A, No. OS-162673; to the Court of Appeal, First Circuit, No. 2013 KW 1359.

Demed. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Demond TANNER v. STATE of Louisiana.
    No. 2013-KH-2693.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Tanner, Demond; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 09-4179; to the Court of Appeal, Fifth Circuit, No. 13-KH-604.

Denied.


text:
    STATE ex rel. Harris COLLINS v. STATE of Louisiana.
    No. 2013-KH-2694.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Collins, Harris; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 384-209; to the Court of Appeal, Fourth Circuit, No. 2013-K-1377.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Phil BANKS v. STATE of Louisiana.
    No. 2013-KH-2695.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Banks, Phil; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 373-573; to the Court of Appeal, Fourth Circuit, No. 2013-K-1384.

Denied.


text:
    STATE ex rel. Levance A. WILLIAMS v. STATE of Louisiana.
    No. 2013-KH-2702.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Williams, Levance A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 10-1044; to the Court of Appeal, Fifth Circuit, No. 13-KH-744.

Denied.


text:
    STATE ex rel. Steven Dale MOUNCE v. STATE of Louisiana.
    No. 2013-KH-2703.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Mounce, Steven Dale; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 503036; to the Court of Appeal, First Circuit, No. 2013 KW 1126.

Denied.


text:
    STATE ex rel. Santanna DAVIDSON v. STATE of Louisiana.
    No. 2013-KH-2710.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Davidson, Santanna; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of Caddo, 1st Judicial District Court Div. 5, No. 262,010; to the Court of Appeal, Second Circuit, No. 48,-900-KW.

Denied.


text:
    STATE ex rel. Shanmarcus A. BUTLER v. STATE of Louisiana.
    No. 2013-KH-2712.
    Supreme Court of Louisiana.
    July 31, 2014.
   IN RE Butler, Shanmarcus A.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 218,125; to the Court of Appeal, Second Circuit, No. 48,-877-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. William BARNES v. STATE of Louisiana.
    No. 2013-KH-2713.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Barnes, William; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 79-1376; to the Court of Appeal, Fifth Circuit, No. 13-KH-901.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.?


text:
    STATE ex rel. Tjianna T. KELLY v. STATE of Louisiana.
    No. 2013-KH-2714.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Kelly, Tjianna T.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 2, No. 185,799; to the Court of Appeal, Second Circuit, No. 48,-873-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Albert PATTERSON v. STATE of Louisiana.
    No. 2013-KH-2715.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Patterson, Albert; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 09-87-0498; to the Court of Appeal, First-Circuit, No. 2013 KW 1440.

Denied.


text:
    STATE ex rel. Raymond WADE v. STATE of Louisiana.
    No. 2013-KH-2718.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Wade, Raymond; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court ■ Div. 2, No. 188,782; to the Court of Appeal, Second Circuit, No. 48,-755-KH.

Denied.


text:
    STATE ex rel. Shannon ALEXANDER v. STATE of Louisiana.
    No. 2013-KH-2719.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Alexander, Shannon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 90-2711; to the Court of Appeal, Fifth Circuit, No. 13-KH-804.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.?


text:
    STATE ex rel. Danterrius K. HOLMES v. STATE of Louisiana.
    No. 2013-KH-2720.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Holmes, Danterrius K.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. A, No. 07-F-2108; to the Court of Appeal, Second Circuit, No. 47,730-KA.

Denied.


text:
    STATE ex rel. Tommy CULLIER v. STATE of Louisiana.
    No. 2013-KH-2722.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Cullier, Tommy; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 08-3614; to the Court of Appeal, Fifth Circuit, No. 13-KH-696.

Denied.


text:
    STATE ex rel. James T. PRYOR v. STATE of Louisiana.
    No. 2013-KH-2734.
    Supreme Court of Louisiana.
    July 31, 2014.
   In re Pryor, James T.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. I, Nos. 93-CR1-55035, 93-CR9-55035; to the Court of Appeal, First Circuit, No. 2013 KW 1336.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


author: GUIDRY, J. CRAIN, J.,

text:
    E.P. SERVICES, INC. v. WINNEBAGO INDUSTRIES and Ford Motor Company, et al.
    No. 2012 CA 1678.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 8, 2014.
    John Haas Weinstein, Tom St. Germain, Christie Noel, Lafayette, LA, for Plaintiff-Appellee E.P. Services, Inc.
    Carl J. Giffin, Jr., Robert W. Maxwell, Howard B. Kaplan, Metairie, LA, for Defendants-Appellants Winnebago Industries, Ford Motor Company, and Berry-land Motors, LLC.

      Before GUIDRY, WELCH, CRAIN, THERIOT, and DRAKE, JJ.
   GUIDRY, J.

Pin this redhibition suit, the dealership and manufacturers of a recreational vehicle (RV) appeal a judgment of the trial court granting the purchaser rescission of the sale.

FACTS AND PROCEDURAL HISTORY

On October 18, 2005, E.P. Services, Inc., (E.P. Services) which was wholly owned by Earl and Gail Percle, purchased a 2006 Itasca Suncruiser, gas-powered RV from Berryland Motors, LLC (Berryland) in Ponchatoula, Louisiana. The chassis of the RV was manufactured by Ford Motor Company (Ford), and the outer body of the RV was manufactured by Winnebago Industries (Winnebago). E.P. Services took possession of the RV on October 25, 2005.

In the week prior to Thanksgiving in 2005, Mr. and Mrs. Percle, along with their daughter, Priscilla, and two grandchildren took a trip to Pigeon Forge, Tennessee in the RV. About ten minutes outside of Chattanooga, Tennessee, the Percies began to hear a loud noise emanating from the rear of the RV. While in Tennessee, Mr. Percle sought to bring the RV to a local dealership, but because of the approaching Thanksgiving holiday, he was advised that if he felt comfortable driving the RV home, he should return home and then contact his local dealership following the holiday.

The Percies drove the RV home to Morgan City, and on the Friday after Thanksgiving, Mr. Percle again sought to have the noise in the RV diagnosed. Arrangements were then made to have the RV towed to Hollingsworth Ford in Baton Rouge. The RV was delivered to Hollingsworth Ford on November 29, 2005, where it was eventually determined that noise generated by the RV was caused by the rear differential. Thereafter, attempts were made to order the part of the rear differential that was not working correctly, but after sending the wrong part twice, Ford eventually sent an entire rear differential assembly to | (¡Hollingsworth. All parts and service were provided under warranty. Once the entire rear differential assembly was received, repair of the RV was commenced by elevating the RV on a wooden platform and “chocks” were wedged beneath the front and back wheels to keep the RV from rolling forward. Unfortunately, the chocks became unanchored and moved, causing the RV to drop and damage the right rear of the body of the RV. Following this accident, the RV was sent to Wooddale Truck Repair Service, Inc. (Wooddale), where the rear differential was replaced with the new assembly sent by Ford.

On April 28, 2006, E.P. Services filed a “Petition for Redhibition, Negligence and for Damages” against Winnebago, Berry-land and Ford. Also in that petition, E.P. Services named Hollingsworth-Richards, LLC, as a defendant, but by a later amended petition properly named River City Ford, Inc., doing business as Holl-ingsworth Richard Ford (Hollingsworth), as the proper defendant.

A trial on the merits of the E.P. Services petition commenced on June 14-15, 2011, then continued to October 12, 2011. Prior to resuming the trial in October, E.P. Services reached a settlement with Hollingsworth, and a judgment dismissing all claims against Hollingsworth was rendered by the trial court on the joint motion of E.P. Services and Hollingsworth. Following the presentation of the last of the evidence, the trial court rendered judgment against Berryland, Ford and Winnebago (collectively “defendants”) and rescinded the sale of the RV. The trial court further awarded E.P. Services $351,997.06 in damages for the purchase price of the RV, tax on the purchase, attorney fees, interest on the RV note, and insurance paid on the RV note. The defendants have suspensively appealed the judgment.

ASSIGNMENTS OF ERROR

In bringing this appeal, the defendants assert that the trial court committed the following errors in rendering judgment:

Ji-
The trial court erred in determining that a redhibitory defect existed. The evidence in the record does not reasonably support the finding that there was a lack of sufficient lubrication/oil in the rear differential
II.
Even assuming the existence of a red-hibitory defect in the rear differential, the trial court still erred in rendering judgment against [the defendants] because the entire rear-end assembly was successfully replaced/repaired before this case was filed. In the alternative, the trial court erred in rescinding the sale of the motor home, as opposed to allowing a claim for diminished value. Under Louisiana law, a one-time malfunction of a part, properly repaired, does not rise to the level warranting rescission of the sale.
III.
The trial court erred in relying upon the “additional problem” created by the “intervening dropping of the vehicle by a co-defendant, the Hollingsworth Ford Dealership,” as grounds to rescind the sale. Under Louisiana redhibition law, additional problems that occur after the alleged defective part is replaced by the manufacturer do not permit rescission of the sale.
IV.
The trial court erred in awarding all attorneys’ fees against [the defendants], including those incurred by EPS in pursuing claims against Hollingsworth-Riehards Ford for negligent repair. Attorney’s fees are not recoverable in actions for negligent car repair. And, attorneys’ fees are not recoverable for pursuing claims against a settling defendant. The trial [court] further erred in awarding legal interest on the $163,523 award of attorney’s fees “from April 28, 2006 until paid,” rather than the date of judgment — April 4, 2012.

DISCUSSION

In their first assignment of error, the defendants contend that the trial court erred in finding that the RV contained a redhibitory defect of a lack of sufficient oil or lubrication in the rear differential at the time of sale. We find merit in this assignment.

The original rear differential was disposed of after it was replaced by Wood-dale. The defendants presented the testimony of Paul Chutz, who was accepted by the trial court as an expert witness in automotive mechanics, to establish that there was sufficient oil or lubricant in the rear differential and therefore the rear differential was not defective. Mr. Chutz worked for ¡¿Hollingsworth and was the mechanic who originally diagnosed the problem with the RV as being the rear differential. It was also Mr. Chutz who admittedly was responsible for causing the RV to fall and sustain new damage. Mr. Chutz testified that he believed there was sufficient oil in the rear differential to adequately operate the RV, but he further stated that had he been given the opportunity, it was his intent to more fully examine the parts of the rear differential to determine whether the “small lack of oil contributed to the failure” of the rear differential.

E.P., Services offered the testimony of James Guidry, who was accepted by the trial court as an expert in the field of rear differentials in heavy duty truck repairs, mechanics and body work. Based on his many years of experience, Mr. Guidry testified unequivocally that the lack of sufficient oil in the rear differential caused the loud noise the Percies heard while operating the RV. He further explained that there could be a lack of sufficient oil, despite there being no observable odor of burnt oil or metal shavings in the existing oil contained in the differential.

The law is well settled that where the testimony of expert witnesses differs, the trier of fact has great, even vast, discretion in determining the credibility of the evidence, and a finding of fact in this regard will not be overturned unless clearly wrong. Cotton v. State Farm Mutual Automobile Insurance Company, 10-1609, pp. 7-8 (La.App. 1st Cir. 5/6/11), 65 So.3d 213, 220, writ denied, 11-1084 (La.9/2/11), 68 So.3d 522. Considering the foregoing testimony, the trial court could have reasonably found that there was initially a lack of sufficient oil in the rear differential.

However, the record further shows, and it is undisputed, that the entire rear differential was replaced with a brand new assembly and no evidence was offered by E.P. Services to show that the new assembly was defective or did not remedy the complained of noise.

| fiUnder La. C.C. art. 2520, the seller warrants the product he sells to be free of redhibitory defects, and under La. C.C art. 2531, the seller is liable to the buyer even for redhibitory defects he was not aware of, including those that were the fault of the manufacturer. In such a case, the seller is responsible for correcting the defect. Only in the event that the seller is unable to remedy the defect is he liable for the return of the purchase price with interest, plus reimburse the buyer for his reasonable expenses. La. C.C. art. 2531; Aucoin v. Southern Quality Homes, LLC, 07-1014, pp. 10-11 (La.2/26/08), 984 So.2d 685, 693. In the absence of E.P. Services proving otherwise, the record establishes that the defendants corrected the defect, and thus should not be held liable in redhibition for the lack of sufficient oil or lubrication in the rear differential as that defect was remedied by the replacement of the rear differential. See Cazaubon v. Cycle Sport, LLC, 11-0289, p. 8 (La.App. 1st Cir. 11/9/11), 79 So.3d 1063, 1068. We therefore find the trial court erred in holding that the defendants were liable in redhibition for the RV’s rear differential. In so finding, we likewise find merit in the defendants’ second assignment of error.

As for their third assignment of error, the defendants contend that the trial court erred in ordering the rescission of the sale of the RV based on the intervening negligence of Hollingsworth. This assignment of error also has merit.

While a buyer may sue a manufacturer directly for redhibitory defects, the manufacturer can only be held liable for defects “resulting from the original manufacture” of the product. Aucoin, 07-1014 at p. 11, 984 So.2d at 693. The warranty against redhibitory defects covers only defects that exist at the time of the delivery. The defect shall be presumed to have existed at the time of delivery if it appears within three days from that time, La. C.C. art. 2530. In its oral reasons for judgment, the trial court expressly found that the Louisiana Lemon Law, La. R.S. 51:1941-1948, did not apply, but in its written reasons for judgment, the trial court [ 7nevertheless held that the RV was not “timely repaired or tendered to [E.P. Services], as required by the applicable statutes.”

It is undisputed that the entire rear differential assembly was replaced; however, in the course of replacing the rear differential, Hollingsworth’s repair shop dropped the RV, causing new and different damage to the RV. As a result of this new and different damage, the RV was not returned to E.P. Services following the replacement of the rear differential due to a dispute among the parties regarding authorization of repair of the new damage. Although La. R.S. 51:1943(A)(2) requires a buyer to provide the manufacturer with written notice that a motor home has been out of service a cumulative total of 90 days, it does not mandate automatic rescission upon the lapse of 90 days. Rather, La. R.S. 51:194S(A)(2) mandates that written notice and an opportunity to repair be afforded the manufacturer. Therefore, we agree that the provisions of the Louisiana Lemon Law are inapplicable in this case and further find that based on the evidence presented, it appears automatic rescission would not, in any event, be mandated under the provisions of the Louisiana Lemon Law due to the complete replacement of the rear differential.

Thus, we find no basis for holding the defendants liable in redhibition or under the Louisiana Lemon law based on the new damage caused to the RV by the negligence of Hollingsworth. Hence, the trial court erred in finding otherwise.

CONCLUSION

Accordingly, having found the trial court erred in finding the defendants liable in redhibition, we reverse the judgment of the trial court, including all costs Land damages awarded therein. All costs of this appeal are cast to the appellee, E.P. Services, Inc.

REVERSED.

CRAIN, J. dissents and assigns reasons.

WELCH, J. concurs by Guidry.

CRAIN, J.,

dissents.

11 Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it had he known of the vice. La. Civ.Code art. 2520. As a condition precedent to rescission, a good faith seller must be given the opportunity to repair the defect. La. Civ. Code art. 2531. A manufacturer is presumed to know of the defects in the things it sells, and therefore can never be in good faith, and is not entitled to the opportunity to repair. La. Civ.Code art. 2545; Pratt v. Himel Marine, Inc., 01-1832 (La.App. 1 Cir. 6/21/02), 823 So.2d 394, 404; writs denied, 02-2025, (La.11/1/02), 828 So.2d 572, and 02-2128 (La.11/1/02), 828 So.2d 571.

The trial court found that the RV purchased by E.P. Services contained a latent, redhibitory defect at the time of the sale (i.e. the rear differential failed, it rendered the motor home useless, and the purchaser would not have bought it had he known of the defect). I believe that finding is factually supported by the record, and subject to the manifest error standard of review. See Rhodes v. All Star Ford, Inc., 599 So.2d 812, 814 (La.App. 1 Cir.1992). The rear differential is a major and indispensable component of a vehicle. Whether it failed from lack of oil or for some other technical reason is immaterial. The buyer need not prove the cause of a redhibitory defect, only that the thing contains such a defect. Young v. Ford Motor Co., Inc., 595 So.2d 1123, 1126 (La.1992); Morrison v. Allstar Dodge, Inc., 00-03982 (La.App. 1 Cir. 5/11/01), 792 So.2d 9, 14, writ denied, 01-2129 (La.11/2/01), 800 So.2d 878.

While the manufacturer is not due the opportunity to repair redhibitory defects, the ease of repair of such defects can be relevant to the question of whether the buyer’s remedy should be rescission or reduction of price. Dumond v. Houma Toyota, Inc.-AMC. Jeep, Inc., 470 So.2d 484, 488 (La.App. 1 Cir.1985); Dickerson v. Begnaud Motors, Inc., 446 So.2d 536, 541 (La.App. 3 Cir.), writ denied, 449 So.2d 1349 (La.1984). However, that decision is vested within the sound discretion of the trial court and cannot be overturned absent an abuse of that discretion. See La. Civ.Code art. 2541; Insurance Storage Pool, Inc. v. Parish Nat. Bank, 97-2757 (La.App. 1 Cir. 5/14/99), 732 So.2d 815, 821. I do not believe that the decision to allow a purchaser to rescind the sale of a new $130,000 vehicle when the rear differential fails at approximately 2000 miles is an abuse of discretion.

Any alteration of the risk of loss under these circumstances must be made by the legislature, not the judiciary. In Prince v. Paretti, 281 So.2d 112, 116 (La.1973), our supreme court held that “[t]he notion that easily repaired defects do not support red-hibition is not found in our statutory law.” In response to that decision, the legislature enacted Article 2531 which expressly granted the opportunity to make repairs to the good faith seller. It did not grant that right to manufacturers.

While I may not have granted a rescission in this case, it is not the role of this court to substitute our conclusions on the weight and credibility of the evidence for those of the trial court. The trial court decided that rescission was appropriate and did not abuse its discretion in doing so. I would affirm that decision relative to the manufacturer.

I would also note that Cazaubon v. Cycle Sport, LLC, 11-0289 (La.App. 1 Cir. 11/9/11), 79 So.3d 1063, is distinguishable. In Cazaubon the alleged defect |swas in the motor of the motorcycle. The motor was never replaced and the defendant’s expert at trial testified that the alleged problem could not be duplicated. The trial court found sufficient evidence to establish a defect. This court found manifest error in that determination. Here, not only was the rear differential proven defective, the manufacturer replaced it. That significant fact distinguishes Cazaubon. For these reasons, I disagree with the majority opinion and would affirm the trial court’s judgment granting a rescission.

      . According to the testimony of Gail Percle, while offers were made to repair the damage to the body or frame of the RV caused by the negligence of Hollingsworth, because the underlying redhibition suit had already been filed in which EP Services sought rescission of the sale of the RV, Mr. Percle, as the representative of EP Services, refused to consent or authorize the repair without the agreement of the defendants and Hollingsworth to likewise authorize the repair. (R. 1412-1414)

      . In so holding, the defendants’ final assignment of error regarding the trial court's award of attorney fees is rendered moot.


author: DRAKE, J.

text:
    STATE of Louisiana through the DIVISION OF ADMINISTRATION, OFFICE OF RISK MANAGEMENT v. NATIONAL UNION FIRE INSURANCE COMPANY OF LOUISIANA and Aon Risk Services of Louisiana, Inc.
    No. 2013 CA 0375.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 8, 2014.

      W. Shelby McKenzie, Amy Groves Lowe, John P. Murrill, Erinn W. Neyrey, Baton Rouge, Louisiana, for Plaintiff/Appellant State of Louisiana, Office of Risk Management.
    Robert I. Siegel, New Orleans, Louisiana, for Defendant/Appellee, National Union Fire Insurance Company of Louisiana.
    Gus A. Fritchie, III, New Orleans, Louisiana, for Defendant/Appellee, Aon Risk Services of Louisiana, Inc.
    BEFORE PARRO, GUIDRY, and DRAKE, JJ.
   DRAKE, J.

1 gThis appeal arises out of the district court’s grant of a motion for summary judgment in favor of defendant/appellee, Aon Risk Services of Louisiana, Inc. (“Aon”), which dismissed all claims against Aon, with prejudice. The State of Louisiana, through the Division of Administration, Office of Risk Management (“ORM”), appeals a judgment of the district court that denied the State’s motion for reconsideration and motion for new trial. For the following reasons, we affirm.

BACKGROUND

This matter began as a negligence action by a motorist against the State Department of Transportation and Development (“DOTD”). The State, through the ORM, eventually brought this suit against the State’s excess insurer. The parties filed cross-motions for summary judgment. The district court granted partial summary judgment to the State and denied summary judgment to the insurer. The insurer appealed, and this court affirmed in part on the issue of the validity of notice to the insurer, and reversed in part on the issue of the insurer’s liability under its policy based on the existence of prejudice. The question now before us is the legal effect the district court must give to the 2011 ruling of this court.

In the prior appeals in this matter, this court made the following findings of fact. Since 1980, the State, through the ORM, has provided self-insurance coverage to participating State offices and agencies. La. R.S. 39:1528 et seq. The Louisiana Legislature has authorized the ORM to purchase insurance through | scommercial carriers when necessary to effectuate the self-insurance program. La. R.S. 39:1535. In 1989, the ORM issued an “Invitation for Bids” for excess insurance coverage for the State and its various agencies. Among the coverages for which bids were sought was “excess road and bridge hazard liability” coverage, in excess of the State’s $5 million per occurrence primary self-insurance, covering claims against DOTD. See State ex rel. Div. of Admin., Office of Risk Mgmt., 56 So.3d at 1239.

Alexander and Alexander, Inc. (later merged into Aon) was an independent insurance agency and brokerage firm that submitted a multi-coverage bid proposal in response to the Invitation for Bids; its proposal was accepted by the State. The proposal included two layers of excess liability coverage for comprehensive general liability and other risks, including road and bridge hazard liability coverage. The Invitation for Bids required that each bid proposal be signed by authorized representatives of both the bidding agent or broker and each insurer providing coverage; upon being signed by an authorized official of the State, a binding contract would exist between Aon and the State. Furthermore, the Invitation for Bids contained a provision mandating that the State would provide a written report to the insurance agent within seventy-two hours of all “occurrences.”

Pursuant to this contract, Aon then procured excess liability coverage for the State through National Union Fire Insurance Company of Pittsburgh, Pennsylvania (“National Union”). The coverage provided in the policy was $20 million coverage in excess of $5 million for road and bridge liability. After Aon’s bid was accepted by the State, National Union issued the excess policy. Aon’s proposal bore the signature of National Union’s regional manager as the “[ajuthorized [ijnsurance [c]ompany representative.” Id. at 1239-40. The policy period at issue was from July 1, 1991, to July 1, 1992. Id. at 1240.

|4Puring the 1991 policy period, a collision occurred in Calcasieu Parish, resulting in a suit being filed against the State. In 1998, the State notified Aon of a possible excess claim and sent it copies of the pleadings in the Odom litigation. In 2000, the State again sent notice to Aon, notifying it of the upcoming trial. It was undisputed that Aon failed to convey the claim information to National Union on either occasion. Id. at 1241.

Following a bench trial in the Odom litigation, the district court rendered judgment against the State in excess of $5 million. Aon sent notice to National Union, advising it of the rendition of judg-raent. After the judgment became final and definitive, the State also sent notice to National Union, along with copies of the judgment, seeking payment under the excess policy of approximately $2.9 million. It was undisputed that these notices, which came after trial and judgment, were the first actual notices sent directly to National Union regarding the Odom claim. Id.

In 2002, National Union advised the State that it declined coverage under its excess policy on the grounds that “the State failed to give [it] timely and adequate notice” of the claim, thereby causing National Union “to suffer significant prejudice.” Id. Thereafter, the current suit was filed by the State against both Aon and National Union. In January 2006, Aon filed a motion for summary judgment, ^seeking its dismissal as a defendant on the grounds that the State’s claim against it was perempted under Louisiana Revised Statutes 9:5606. The district court granted the motion, dismissing the State’s cause of action against Aon. The State appealed, and this court reversed, finding that a genuine issue of material fact existed regarding whether or not Aon’s failure to convey the State’s two notices of the claim to National Union caused prejudice to National Union. Id. at 1242; State ex rel. Div. of Admin., Office of Risk Mgmt. v. Nat’l Union Fire Ins. Co. of La., 2007-1184 (La.App. 1 Cir. 2/8/08), 984 So.2d 91, 96-7, writ denied, 2008-0548 (La.4/25/08), 978 So.2d 370.

In 2009, National Union filed a motion for summary judgment, seeking its dismissal on the basis of its coverage defense of late and inadequate notice of the claim. The State filed a cross-motion for summary judgment, seeking the amount owed by National Union as excess insurer, as well as legal interest, statutory penalties, and attorney fees. State ex rel Div. of Admin., Office of Risk Mgmt., 56 So.3d at 1242. Following a hearing on both motions, the district court denied National Union’s motion and granted the State’s motion, in part, as to the issue of adequacy of the notice of the claim to National Union through Aon. On appeal, this court upheld the denial of National Union’s motion and reversed the granting of the State’s motion on the issue of liability, finding that the notice the State sent to Aon of this litigation constituted valid and legal notice to National Union. However, this court also held that the district court erred in finding liability against National Union based upon lack of prejudice, because “the question of ‘whether, when, and to what extent National Union ... was prejudiced’ by the State’s delay in notifying Aon and National Union of the ... litigation remains an unresolved issue )fiof material fact, precluding summary judgment.” Id. at 1249; State ex rel. Div. of Admin., Office of Risk Mgmt., 984 So.2d at 97.

Thereafter, in July 2011, Aon filed a second motion for summary judgment, seeking to be dismissed from the suit. The State, in seeking a judgment against Aon, alleged that Aon was liable for the “fault, error, and omission ... in failing to notify National Union of the information communicated by the State to Aon.” The State also argued that the law-of-the-case doctrine is discretionary and should not be applied in this matter. In reply, Aon contended that the issue of whether the State’s notice of the underlying claims to Aon constituted legal notice to National Union was final and was the law of the case under the prior ruling of the First Circuit Court of Appeal. National Union, co-defendant to Aon, filed a memorandum addressing the motion. Although National Union did not oppose Aon’s motion, it disputed Aon’s contention that the First Circuit Court of Appeal found that notice to Aon was sufficient and timely notice to National Union. National Union argued the First Circuit Court of Appeal determined that the notice was late and applied the legal factors set forth in earlier ease law to determine if the late notice resulted in non-coverage.

Following the submission of briefs by the parties, the district court granted Aon’s motion for summary judgment, agreeing with Aon that the State’s claim against Aon for failing to notify National Union was moot. The district court held that “although there may be a remaining issue between the State and National Union regarding whether the notice was timely and whether actual prejudice oceurred[,] the issue regarding Aon is final.” The district court issued written reasons for judgment on May 22, 2012. The final judgment, which granted ¡-¡-summary judgment in Aon’s favor and dismissed it from the suit, with prejudice, was signed on October 5, 2012.

Prior to the signing of the final judgment, the State filed a motion to reconsider the ruling on the summary judgment granted in Aon’s favor. After the signing of the final judgment, the State also filed a motion for new trial. Following a joint hearing on the State’s motion to reconsider and motion for new trial, the district court denied both motions. The State now appeals.

LAW AND DISCUSSION

Summary Judgment

The purpose of the summary judgment is to enable the court to expedite the disposition of cases and to put an end to useless and expensive litigation when, as set forth in Louisiana Code of Civil Procedure article 966B, it is properly determined by the court that there is no genuine issue as to any material fact. See La. C.C.P. art. 966A(2) and B(2); see also Omega Const. v. Thornco, Inc., 2007-1806 (La.App. 1 Cir. 8/21/08), 994 So.2d 65, 67. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966B(2). Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La. C.C.P. art. 966A(2); see also 8Babin v. Winn-Dixie Louisiana, Inc., 2000-0078 (La.6/30/00), 764 So.2d 37, 39. The burden of proof remains with the movant; however, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential element’s of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966C(2). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schultz v. Guoth, 2010-0343 (La.1/19/11), 57 So.3d 1002,1005.

Law-of-the-Case Doctrine

The State alleges that the district court erred in applying the “law of the case” established by the 2011 decision of this court in this same matter. The law-of-the-case doctrine embodies the principle that an appellate court generally does not revisit its own rulings of law on a subsequent appeal in the same case. See Trans Louisiana Gas Co. v. Louisiana Ins. Guar. Ass’n, 96-1477 (La.App. 1 Cir. 5/9/97), 693 So.2d 893, 896, writ not considered, 95-0853 (La.4/21/95), 653 So.2d 555. The law-of-the-case doctrine is a discretionary guide which relates to (a) the binding force of a trial judge’s ruling during the later stages of trial; (b) the conclusive effects of appellate rulings at trial on remand; and (c) the rule that an | flappeIIate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same case. Jones v. McDonald’s Corp., 97-2287 (La.App. 1 Cir. 11/6/98), 723 So.2d 492, 494, writ not considered, 98-3057 (La.2/5/99), 737 So.2d 738, citing Louisiana Land and Exploration Co. v. Verdin, 95-2579 (La.App. 1 Cir. 9/27/96), 681 So.2d 63, 65, writ denied, 96-2629 (La.12/13/96), 692 So.2d 1067, cert. denied, 520 U.S. 1212, 117 S.Ct. 1696, 137 L.Ed.2d 822 (1997). It applies to all prior rulings or decisions of an appellate court or the supreme court in the same case, not merely those arising from the full appeal process. Jones v. McDonald’s Corp., 723 So.2d at 494, citing Brumfield v. Dyson, 418 So.2d 21, 23 (La.App. 1 Cir.), writ denied, 422 So.2d 162 (La.1982). The reasoning behind the law-of-the-case doctrine is to avoid re-litigation of the same issue, to promote consistency of result in the same litigation, and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Jones v. McDonald’s Corp., 723 So.2d at 494, citing Louisiana Land and Exploration Co. v. Verdin, 681 So.2d at 65. Re-argument in the same case of a previously decided point will be barred where there is simply a doubt as to the correctness of the earlier ruling. The law-of-the-case doctrine is not an inflexible law, thus appellate courts are not absolutely bound thereby and may exercise discretion in application of the doctrine. Jones v. McDonald's Corp., 723 So.2d at 495. The doctrine is not applied in cases of palpable error or where, if the law of the case were applied, manifest injustice would occur. Jones v. McDonald's Corp., 723 So.2d at 494, citing Glenwood Hosp., Inc. v. Louisiana Hosp. Serv., Inc., 419 So.2d 1269, 1271 (La.App. 1st Cir.1982). The doctrine applies only against those who were parties to the case when the earlier decision was rendered, and who thus have had their day in court. Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105, 107 (1971).

| inThe State admits that this court previously made a factual finding that the State’s August 1998 notice of the Odom litigation to Aon was legally effective notice as to National Union; however, the State points out that its claim against Aon is an alternative claim:

Alternatively, in the event that notice was not sufficient to preserve petitioner’s claim under the National Union policy, then such failure of notice was due to the fault, error and omission of Alexander [Aon] in failing to notify National Union of the information communicated by petitioner to Alexander [Aon].

The State argues that should this ease ultimately reach the Louisiana Supreme Court, and the supreme court disagrees that the State’s 1998 notice to Aon of the Odom litigation was legally effective notice as to National Union, then the State should be allowed to pursue its claim against Aon. If, however, Aon has been dismissed from the case, the State would be denied the opportunity to pursue its claim.

Aon notes that the district court and this court have both agreed that the State’s notice to Aon was legally sufficient notice to National Union, Aon also contends that the Louisiana Supreme Court has previously denied writs on this court’s 2011 ruling, such that this court’s ruling that the State’s notice to Aon constituted legally effective notice as to National Union is now a “final-final” judgment. See State v. National Union Fire Ins. Co. of La., 2011-0849 (La.6/3/11), 63 So.3d 1023. Aon argues that unless this court is now going to find that its earlier decision constitutes palpable error, the law-of-the-case doctrine mandates that the judgment dismissing Aon be affirmed. See Lejano v. Bandak, 97-388 (La.12/12/97), 705 So.2d 158, 170, cert. denied, 525 U.S. 815,119 S.Ct. 52, 142 L.Ed.2d 40 (1998).

Here, both the district court and this court have held that notice to Aon constituted notice to National Union of the underlying excess claim at issue in this | n litigation. The Louisiana Supreme Court denied writs on this issue. We agree with the district court that there may still be an issue between the State and National Union regarding whether the notice was timely and whether actual prejudice occurred; however, the issue regarding the State’s notice to Aon constituting effective notice to National Union is now final and the law of the case, and we will not review this issue on appeal. Thus, we find that this court’s prior rulings in this matter rendered the State’s alternative claim against Aon moot and subject to dismissal. The district court properly granted summary judgment in favor of Aon, dismissing all claims asserted against it by the State, with prejudice.

DECREE

For the foregoing reasons, the judgment rendered by the district court is hereby affirmed. All costs of this appeal, in the amount of $206.50, are cast to plaintifffap-pellant, the State of Louisiana, through the Division of Administration, Office of Risk Management.

AFFIRMED.

PARRO, J., concurs with the result.

      . See Odom v. City of Lake Charles, 2000-1050 (La.App. 3 Cir. 1/31/01), 790 So.2d 51, 53, writ denied, 2001-1198 (La.6/22/01), 794 So.2d 787.

      . See State ex rel. Div. of Admin., Office of Risk Mgmt. v. Nat'l Union Fire Ins. Co. of Louisiana, 2007-1134 (La.App. 1 Cir. 2/8/08), 984 So.2d 91, writ denied, 2008-0548 (La.4/25/08), 978 So.2d 370.

        .See State ex rel. Div. of Admin., Office of Risk Mgmt. v. Nat'l Union Fire Ins. Co. of Louisiana, 2010-0689 (La.App. 1 Cir. 2/11/11), 56 So.3d 1236, 1239, writ denied, 2011-0849 (La.6/3/11), 63 So.3d 1023.

      . In September 1991, Michael Williams was involved in a single-vehicle accident on a westbound overpass of Interstate Highway 10 in Lake Charles, Louisiana. Mr. Williams suffered severe and disabling injuries. State ex rel. Div. of Admin., Office of Risk Mgmt., 56 So.3d at 1240. Harry Odom filed suit on behalf of Mr. Williams in Calcasieu Parish against the City of Lake Charles and other defendants ("Odom litigation”). In the amended petition for damages, DOTD was joined as a defendant. The amended petition alleged liability on behalf of DOTD, based upon the defective design and construction of the overpass guardrail. Id.

      . In August 1998, a claims adjuster for the ORM wrote to Aon for the purpose of notifying it "of a possible excess claim” under the excess policy, and enclosed copies of the plaintiffs’ pleadings. There is no evidence that any representative of ORM, DOTD, or the State notified either Aon or National Union of the claim prior to that time. State ex rel. Div. of Admin., Office of Risk Mgmt., 56 So.3d at 1240-41, Furthermore, in January 2000, an ORM claims adjuster provided Aon with a "status update,” advising it that the case was set to begin trial that month and of the settlement offers that had been presented. Id. at 1241.

      . On appeal, the judgment amount was increased to over $11 million. State ex rel. Div. of Admin., Office of Risk Mgmt., 56 So.3d at 1241.

      . The State subsequently filed an application for writs of supervisory review to the Louisiana Supreme Court. The supreme court denied the State's application. State ex rel. Div. of Admin., Office of Risk Mgmt. v. Nat’l Union Fire Ins. Co. of Louisiana, 2011-0849 (La.6/3/11), 63 So.3d 1023.

      . The State appealed only the judgment rendered January 7, 2013, which was the judgment denying its motion for reconsideration and/or motion for new trial. The denial of a motion for new trial is not an appealable judgment absent a showing of irreparable harm. Morrison v. Dillard. Dept. Stores, Inc., 99-2060 (La.App. 1 Cir. 9/22/00), 769 So.2d 742, 744, writ denied, 2000-3379 (La.2/2/01), 784 So.2d 646. However, the supreme court has directed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits as well, when it is clear from the appellant's brief that he intended to appeal the merits of the case. See Reno v. Perkins Engines, Inc., 98-1686 (La.App. 1 Cir. 9/24/99), 754 So.2d 1032, 1033, writ denied, 99-3058 (La. 1/7/00), 752 So.2d 863; Carpenter v. Hannan, 2001-0467 (La.App. 1 Cir. 3/28/02), 818 So.2d 226, 228-29, writ denied, 2002-1707 (La. 10/25/02), 827 So.2d 1153. It is obvious from the State’s brief that it intended to appeal the judgment granting Aon’s motion for summary judgment and dismissing the State's claims against Aon. Thus, we will treat the appeal accordingly.

      . See State ex rel. Div. of Admin., Office of Risk Mgmt., 56 So.3d 1236.

      . As Justice Holmes stated in Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912), ''[i]n the absence of statute^] the phrase, 'law of the case’, as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.”

      . We note that it was the State, through the ORM, who brought the writ to the Louisiana Supreme Court regarding which party had the burden of proving prejudice on a motion for summary judgment as a result of the alleged late notice. See State v. National Union Fire Ins. Co. of La., 63 So.3d 1023.


author: GUIDRY, J.

text:
    Michael ALOISIO and His Wife, Paulla Aloisio v. Salvadore CHRISTINA, Jr.
    No. 2013 CA 0676.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 3, 2014.
    R. Scott Ramsey, Jr., Morgan City, LA, for Plaintiffs/Appellees Michael and Paulla Aloisio.
    Dane Ciolino, New Orleans, LA, for Defendant/Appellant Salvadore Christina, Jr.
    Salvadore Christina, Jr., Baton Rouge, LA, Defendant/Appellant In Proper Person.
    Before PARRO, GUIDRY, and DRAKE, JJ.
   GUIDRY, J.

| gin this legal malpractice suit, the defendant, attorney Salvadore Christina, Jr., appeals a judgment granting a motion filed by the plaintiffs, Michael and Paulla Aloi-sio, to enforce an alleged settlement agreement reached by the parties.

The record in this matter discloses that the Aloisios filed suit against Mr. Christina on December 20, 2010, alleging that he had charged them in excess of the agreed-upon percentage for representing them on a contingency fee basis in a personal injury suit. They also alleged that Mr. Christina committed malpractice by failing to file a Social Security claim that he had agreed to file on behalf of Mr. Aloisio. Mr. Aloisio eventually filed the Social Security claim himself, and once the claim was approved, Mr. Aloisio was granted benefits retroactive for up to twelve months preceding the date his claim was filed. Thus, the Alois-ios claimed Mr. Christina’s failure to file the claim when requested resulted in the loss of several months of uncollected Social Security payments.

Once issue was joined and discovery conducted, the Aloisios filed a motion for partial summary judgment on the issue of liability, and the motion was set for hearing on March 5, 2012. Prior to the scheduled hearing, Mr. Christina requested a continuance until such a time as the deposition of the Aloisios’ daughter, Beverly Delaune, could be taken and transcribed. The trial court denied the motion to continue, and a hearing on the Aloisios’ motion for partial summary judgment was held as scheduled. Following argument and submission of the matter, however, the | atrial court decided to hold the case in abeyance until the Aloisios’ daughter was deposed. The deposition of Mrs. Delaune was conducted on March 15, 2012.

In the meantime, the parties were also attempting to negotiate a possible settlement of the Aloisios’ suit. On March 2, 2012, Mr. Christina sent an email offering to settle the entire case for $50,000.00. Then on March 6, 2012, Mr. Christina presented a new offer to settle the entire case for $100,000.00, noting that if the parties were unable to resolve the case, they would be forced to depose Mrs. De-laune per the trial court’s order following the March 5, 2012 hearing. Counsel for the Aloisios responded to the March 6th offer in an email sent at 5:20 p.m. on the same date, stating that the Aloisios also wished to resolve the suit; however, counsel was only authorized to settle the entire matter for $170,000.00 with Mr. Christina paying court costs. Mr. Christina then responded, the same date, to state: “I have reviewed your clients’ counter to my proposal to settle this matter in its entirety, and although I cannot accept their offer, I am willing to increase my offer to $110,000.00.”

Counsel for the Aloisios responded to the $110,000.00 offer the following day to state that he would forward the offer to his clients, but stated that he would not recommend that they accept the offer. The next correspondence regarding Mr. Christina’s March 6th offer of $110,000.00 did not occur until April 4, 2012. On that date, counsel for the Aloisios sent an email to counsel for Mr. Christina acknowledging that prior to Mrs. Delaune’s deposition, Mr. Christina had offered to settle the entire case for $110,000, “but [Mr. Christina] wanted to take [Mrs. Delaune’s] deposition before we went any further thinking that her testimony would help strengthen his position.” Counsel for the Aloisios then stated:

My client feels (and I agree) that his position was strengthened, not weakened, by [Mrs. Delaune’s] deposition. Nevertheless, he is willing |4to make one last attempt at trying to resolve this case amicably for less than 1/2 of his loss or the sum of $170,000.00 with your client paying all court costs. This offer will remain open through the close of business this Friday (April 6th) and thereafter will be considered withdrawn. Please transmit this offer to your client and let me have his response within the allotted time.

On April 6, 2012, the designated deadline for responding to the Aloisios’ April 4th offer, Mr. Christina rejected the Aloisios’ offer and instead made a new offer to settle the Social Security portion of the Aloisios’ suit for $23,976.00.

Over five months later, on September 20, 2012, counsel for the Aloisios sent an email to Mr. Christina and counsel representing him stating “my clients have given me the authority to accept the previous offer of Mr. Christina, confirmed by his email on March 7, 2012, offering to pay the sum of $110,000.00 to my clients to settle this case in exchange for a complete release.” On October 8, 2012, counsel for Mr. Christina responded to the Aloisios’ September 20, 2012 “acceptance” to state that Mr. Christina could settle the malpractice case for $23,000.00, but he could not settle the entire case for more than $100,000.00, because Mr. Christina did not have the money to fund settlement of the entire dispute. Counsel then stated that if the Aloisios were willing to “take less, we can of course talk further.”

Thereafter, the Aloisios filed a motion to enforce settlement, alleging that the parties had negotiated a settlement for $110,000.00, which Mr. Christina refused to honor; therefore, the Aloisios sought issuance of a judgment enforcing said settlement. A hearing on the Aloisios’ motion to enforce settlement was held on February 4, 2013, following which the trial court rendered judgment granting the Aloisios’ motion and further ordered Mr. Christina to pay the sum of $110,000.00 plus legal interest thereon and court costs to the Aloisios. Mr. Christina suspensively appealed the judgment finding that a settlement had been preached by the parties and ordering him to remit payment of the amount allegedly agreed to by the parties.

DISCUSSION

A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. La. C.C. art. 3071. A contract is formed by the consent of the parties established through offer and acceptance. La. C.C. art. 1927. Thus, before a district court can find the existence of a valid written compromise agreement, it must find an offer and an acceptance. Elder v. Elder & Elder Enterprises, Ltd., 06-0703, p. 3 (La.App. 4th Cir.1/11/07), 948 So.2d 348, 351, writ denied, 07-0560 (La.5/4/07), 956 So.2d 616. An offer not irrevocable under Civil Code article 1928 may be revoked before it is accepted. La. C.C. art. 1930. A revocation of a revocable offer is effective when received by the offeree prior to acceptance. La. C.C. art. 1937. Moreover, an acceptance not in accordance with the terms of the offer is deemed to be a counteroffer. La. C.C. art. 1943.

Considering the applicable law and the facts of record, we find that a binding contract of settlement or compromise between the parties never existed, based on the fact that Mr. Christina’s offer was rejected prior to acceptance by the Alois-ios.

The record shows that the Aloisios rejected Mr. Christina’s offer to settle the entire suit for $110,000.00 when they responded with a counteroffer on April 4, 2012, to settle the entire suit for $170,000.00, with Mr. Christina paying all court costs. We find it appropriate to view the Aloisios’ April 4, 2012 offer as a counteroffer for two reasons. First, while most of the terms of the Aloisios’ April 4, 2012 offer were essentially the same as their previous counteroffer made on March 6, 2012, there was one additional term of significance. The April 4, 2012 | ,;offer by the Aloisios provided an express time period for acceptance, making the offer an irrevocable offer. See La. C.C. art. 1928. The March 6, 2012 counteroffer by the Aloisios did not express any such time limitation for acceptance. Secondly, and more importantly, the April 4, 2012 counteroffer could not be considered just a mere reiteration or continuation of the Al-oisios’ March 6, 2012 counteroffer, because the March 6th offer was expressly rejected by Mr. Christina on March 6, 2012. Thus, the Aloisios’ April 4, 2012 offer to Mr. Christina was not just a renewal of their previous counteroffer, but a new counteroffer to Mr. Christina’s offer made on March 6, 2012, to settle the entire suit for $110,000.00. As such, the Aloisios’ April 4, 2012 counteroffer served as a rejection of Mr. Christina’s $110,000.00 offer of March 6, 2012, making the $110,000.00 offer no longer viable or available for acceptance. See Sweet v. Iberia Parish School Board, 99-483, p. 6 (La.App. 3d Cir.11/3/99), 746 So.2d 256, 259, writ denied, 99-3414 (La.2/4/00), 754 So.2d 237.

CONCLUSION

Therefore, having found that the Alois-ios’ March 6, 2012 offer of $170,000.00 to settle the lawsuit was a counteroffer, whereby the Aloisios rejected Mr. Christina’s offer of $110,000.00 and thus terminated the offer, we reverse the judgment of the trial court granting the Alois-ios’ motion to enforce settlement agreement and remand this ease for further proceedings. All. costs of this appeal are assessed to Michael and Paulla Aloisio.

REVERSED AND REMANDED.

      . Mr. Christina also requested the continuance because he had a deposition scheduled for the same date and time as the hearing and because he had recently terminated his relationship with his attorney of record. The trial court later denied the motion to withdraw submitted by Mr. Christina’s attorney.

      . Following Mrs. Delaune ⅛ deposition, a new hearing on the Aloisios’ motion for partial summary judgment was scheduled, and following that hearing, the trial court denied the Aloisios’ motion for partial summary judgment.


author: PETTIGREW, J. GUIDRY, J.,

text:
    QUALITY DESIGN AND CONSTRUCTION, INC. v. CITY OF GONZALES.
    No. 2013 CA 0752.
    Court of Appeal of Louisiana, First Circuit.
    March 11, 2014.

      Scott E. Frazier, Baton Rouge, LA, for Plaintiff-2nd Appellant Quality Design & Construction, Inc.
    Robert Ryland Percy, III, Gonzales, LA, for Defendant-1 st Appellant City of Gonzales.
    Before GUIDRY, PETTIGREW, MCDONALD, McCLENDON, and DRAKE, JJ.
   PETTIGREW, J.

|2The defendant, the City of Gonzales (the City), appeals a January 3, 2013 judgment granting a writ of mandamus. The mandamus compels the City to pay a contract balance of $51,200.00, previously adjudged by the trial court (and affirmed by this court) to be due and owing to the plaintiff, Quality Design and Construction, Inc. (QDC). QDC also appeals that judgment, assigning error to the court’s failure to include an order compelling the City additionally to pay interest on the amount owed and due.

PROCEDURAL BACKGROUND

Prior Litigation

Prior to the mandamus underlying this appeal, this matter was litigated regarding QDC’s right to collect a money judgment from the City for the unpaid balance on a public works construction project (a municipal water park for children), for which QDC was the successful low bidder. The trial court rendered judgment on March 9, 2006, against the City, awarding QDC the amount retained, $54,000.00, subject to a deduction for the liquidated damages of a 14-day overrun of the project, in the amount of $2,800.00, for a total judgment of $51,200.00, together with all costs. The trial court denied QDC’s claim for attorney’s fees. In written reasons for that judgment, the trial court stated that any future work authorized by the City to remedy or repair defective products or workmanship would be considered warranty work, which was not and would not be covered by that March 9, 2006 judgment. The trial court further found the City’s claim to recover amounts it had yet to expend for warranty work constituted a separate action, and the trial court expressly reserved the City’s right to pursue such warranty claims.

In an opinion rendered on November 28, 2007, this court affirmed the portion of the trial court’s judgment finding that QDC was entitled to payment of the contract balance in the total amount of $51,200.00. This court reversed that part of the trial court’s judgment that denied QDC’s claim for attorney’s fees, remanding the matter to the trial court for a determination of the appropriate award for attorney’s fees. Finally, this court also amended the trial court’s judgment to include legal interest on the award of $54,000.00 from July 30, 2004 (the date of judicial demand) to the date of substantial | ^completion of the contract. Quality Design and Construction, Inc. v. City of Gonzales, 2006-2211 (La.App.l Cir. 11/28/07), 977 So.2d 87. Neither party sought review of that judgment; thus, it became final.

Current Litigation

On October 26, 2012, QDC filed a Petition for Alternative Writ of Mandamus, alleging that notwithstanding the trial court’s judgment, having been largely affirmed by this court and rendered final, no amount whatsoever had been paid by the City to QDC. Relying on La. R.S. 38:2191(D), QDC sought to enforce the payment of the contract balance by writ of mandamus compelling the payment of the sums due, together with attorney’s fees, legal interest, and costs.

After a hearing, the trial court, finding as. a matter of law that mandamus lies to compel payment of the contract balance, rendered judgment on January 3, 2013, granting the writ of mandamus, making it peremptory, and ordering Barney Arcen-eaux, in his capacity as Mayor of the City of Gonzales, to pay QDC the sum of $51,200.00.

As noted earlier, both parties have appealed.

THE CITY’S APPEAL

As appellant, the City asserts that mandamus is not an appropriate remedy pursuant to La. R.S. 38:2191(D), since the substantial majority of the funds budgeted for the construction of the project have been exhausted, through payments to QDC as well as payments to subsequent contractors and suppliers, hired to correct and/or complete the scope of QDC’s work. The City further asserts that mandamus is also not an appropriate remedy pursuant to that same statute because QDC failed to prove that the City is withholding payment “arbitrarily and without reasonable cause” as required by the statute. Thus, the City maintains the trial court erred in granting mandamus.

STANDARD OF REVIEW

As revealed below, the City’s appeal requires us to interpret a Louisiana statute relative to the enforcement of a money judgment against a political subdivision of the state. Because the proper interpretation of a statute is necessarily a question of law, 14we apply a de novo standard of review. Newman Marchive Partnership, Inc. v. City of Shreveport, 2007-1890, p. 3 (La.4/8/08), 979 So.2d 1262, 1265.

APPLICABLE LAW

The payments for public contracts are governed by Louisiana Revised Statutes Title 38, Chapter 10. Specifically, La. R.S. 38:2191, on which QDC’s arguments rely, provides as follows:

A. All public entities shall promptly pay all obligations arising under public contracts when the obligations become due and payable under the contract. All progressive stage payments and final payments shall be paid when they respectively become due and payable under the contract.
B. Any public entity failing to make any final payments after formal final acceptance and within forty-five days following receipt of a clear lien certificate by the public entity shall be liable for reasonable attorney fees.
C. The provisions of this Section shall not be subject to waiver by contract.
D. Any public entity failing to make any progressive stage payments arbitrarily or without reasonable cause, or any final payment when due as provided in this Section, shall be subject to mandamus to compel the payment of the sums due under the contract up to the amount of the appropriation made for the award and execution of the contract.

(Emphasis added.)

The issuance of mandamus generally is governed by La. C.C.P. art. 3862, which provides:

A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice; provided, however, that no court shall issue or cause to be issued a writ of mandamus to compel the expenditure of state funds by any state department, board or agency, or any officer, administrator or head thereof, or any officer of the state of Louisiana, in any suit or action involving the expenditure of public funds under any statute or law of this state, when the director of such department, board or agency, Or the governor shall certify that the expenditure of such funds would have the effect of creating a deficit in the funds of said agency or be in violation of the requirements placed upon the expenditure of such funds by the legislature,

Because the City’s arguments present a question of the proper interpretation of La. R.S. 38:2191(D), the following principles of statutory interpretation are relevant and applicable herein. The function of statutory interpretation and the construction to be given to legislative acts rests with the judiciary. Livingston Parish Council on Aging v. Graves, 2012-0232, p. 3 (La.12/4/12), 105 So.3d 683, 685. The fundamental [ r,question in all cases of statutory interpretation is legislative intent and the ascertainment of the reason or reasons that prompted the legislature to enact the law. In re: Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1128. The rules of statutory construction are designed to ascertain and enforce the intent of the legislature. Id.; Stogner v. Stogner, 98-3044, p. 5 (La.7/7/99), 739 So.2d 762, 766. Legislation is the solemn expression of legislative will, and therefore, interpretation of a law involves primarily a search for the legislature’s intent. La. R.S, 1:4; La. C.C. art. 2; Lockett v. State, Dept. of Transp. and Development, 2003-1767, p. 3 (La.2/25/04), 869 So.2d 87, 90 (overturned, on other grounds, due to Legislative Action, La. R.S. 13:5106). Moreover, the legislature is presumed to act with full knowledge of well-settled principles of statutory construction. Catahoula Parish School Bd. v. Louisiana Machinery Rentals, LLC, 2012-2504, p. 13 (La.10/15/13), 124 So.3d 1065, 1073. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9; Lockett, 2003-1767 at 3, 869 So.2d at 90-91; Conerly v. State, 97-0871, pp. 3-4 (La.7/8/98), 714 So.2d 709, 710-11.

DISCUSSION/ANALYSIS

Briefly, the undisputed facts regarding the underlying public works contract at issue herein are as follows: In late 2003, the City budgeted and appropriated a sum of money for the construction of a public works project — a children’s “Spray-ground” and other improvements to the public recreational facility, Jambalaya Park, in Gonzales. The City advertised for bids, and QDC, the lowest bidder, entered into a contract with the City for the initial price of $390,633.00, which was increased by written change orders approved by the City to the sum of $407,487.24.

The City and its project engineer executed and recorded a certifícate of substantial completion verifying that the project was substantially complete as of July 30, 2004. Notwithstanding, the City refused to tender full payment to QDC, based on alleged outstanding warranty and defect claims. This litigation ensued.

| ,;The City, first, maintains that the trial court erred in granting mandamus pursuant to La. R.S. 38:2191(D), urging that a substantial majority of the funds budgeted for the construction of the Sprayground has been exhausted through payments to QDC and payments to subsequent contractors and suppliers hired to correct and/or complete the scope of QDC’s work. The statute authorizes mandamus to compel payment “up to the amount of the appropriation made for the award and execution of the contract.” La. R.S, 38:2191(D). Thus, the real issue before us is whether the City’s payments to these other contractors and suppliers can have the lawful effect of diminishing that amount upon application of the statute’s mandate.

The City argues that execution of the contract, as used in the statute, refers to the satisfactory completion of the Spray-ground and not to its individual contract with QDC.

The City further maintains that mandamus is not proper pursuant to the statute because it requires the City’s withholding of final payment to be “arbitrary and without reasonable cause.” The City asserts that its withholding of the payment was “due to [its] pending warranty/defect claims” against QDC rendering its action reasonable and, therefore, outside the scope of the statute’s mandate. Moreover, the City argues that, “given the high likelihood of set off,” those claims must be decided before the City can be compelled by mandamus, pursuant to La. R.S. 39:2191(D), to pay the judgment. The City adds that the original judgment “was predicated on a preservation of the City’s right to pursue its warranty/defect claims,” preventing said judgment from becoming due and payable until those claims are resolved.

The City also claims mandamus is improper because QDC has failed to carry its alleged burden under the statute to submit evidence proving the existence of appropriated funds remaining within the City’s budget from which the recovery can be had. (Admittedly, only $4,389.00 remains, as the rest of the appropriated funds have been exhausted by payments to subsequent contractors hired to remedy QDC’s alleged inadequate completion of the project.)

Finally, the City maintains mandamus is improper in light of QDC’s failure to prove any injustice caused by a delay in obtaining ordinary relief, as required by La. C.C.P. |73862, The City claims ordinary relief can be had by resolving its pending litigation for warranty/defect claims and determining the amount of set off, if any, prior to being compelled to pay the judgment.

We find the City’s argument — that the statute applies to funds appropriated to the “project,” which would include all funds paid to all other contractors subsequently hired, rather than to the “contract” and the contractor to whom the project was awarded — wholly lacks merit. The statute specifically and unambiguously refers to appropriation “made for the award and execution of the contract.” (Emphasis added.) Had the legislature meant amounts appropriated for the whole project, it would have used that language, and left out the word “award,” because the “awarding” of the contract is only to one entity. Indeed, by referring to the, appropriation made for the award and execution of the contract, the statute promotes the legislative intent, to provide for the prompt payment to contractors awarded public works contracts. Paragraph C of the statute prohibits waiver of the statutory provisions by contract, further supporting the lack of legislative intent to leave payment of these contracts to the discretion of the City in any way.

Additionally, the City cites no authority for its untenable proposition that availability of the mandamus relief in La. R.S. 38:2191(D) is conditioned on appropriated funds remaining available. The statute does not refer to appropriated funds remaining available; rather, it clearly states appropriation “for the award and execution of the contract.” The fact that the City has spent those appropriated funds on other contracts in violation of the statute’s mandate, alone, supports a finding that its nonpayment of the contract balance warrants mandamus relief.

Further, we find no merit to the City’s argument that its withholding payment of the judgment is reasonable in light of its pending suit against QDC for warranty work and defective products. As specifically ordered by the trial court, those claims encompass an entirely different and separate lawsuit. The execution of the final judgment rendered in this matter, finding the City liable for the remaining unpaid balance of the contract, does not hinge on the outcome of that separate lawsuit. And, pursuant to the mandate of La. |8R.S. 38:2191(D), mandamus is the appropriate and proper remedy by which QDC can execute that judgment.

Therefore, we affirm the judgment of. the trial court, granting mandamus, and compelling the City to pay QDC the contract balance of $51,200.00.

QDC’S APPEAL

QDC appeals that portion of the judgment that fails to include an award of interest in addition to the sums ordered to be paid by the mandamus grant. It points out that in the earlier litigation over the balance owed, the trial court failed to award interest and attorney’s fees, but that on appeal of that judgment, this court amended the trial court’s judgment, finding it erred in failing to award interest and attorney’s fees, and awarded such. Specifically, this court awarded interest due on the sum of $51, 200, 00 from the date of substantial completion of the contract, July 30, 2004. (As earlier noted, the record reveals that the City and its project engineer executed a certifícate of substantial completion verifying that the project was substantially complete as of July 30, 2004, and that said certifícate was recorded in the mortgage records of Ascension Parish.) The City did not appeal that judgment, and though it became final, no payments were made to QDC, resulting in the matter before us.

QDC maintains that an award of interest is within the mandatory scope of La. R.S. 38:2191(D) because it is part of the “sums due under the contract,” and therefore, the trial court erred in not including an award of interest in the mandamus order.

The grant of judicial interest is governed by La. C.C.P. art. 1921, which states that “[t]he court shall award interest in the judgment as prayed for or as provided by law.” (Emphasis added.) Since the word “shall” in La. C.C.P. art. 1921 is mandatory, the court lacks discretion to deny interest if interest is prayed for or provided for by law. La. R.S. 1:3; Bickham v. Bickham, 2002-1307, p. 5 (La.App. 1 Cir. 5/9/03), 849 So.2d 707, 710-11. Under Louisiana law, debts bear interest from the due date. Louisiana Civil Code article 2000 provides “[w]hen the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due-” (Emphasis added.)

9In C.R. Humphreys General Contractor, Inc. v. Tangipahoa Parish School System, 2007-0993, pp. 16-17 (La.App. 1 Cir. 12/21/07), 2007 WL 4480064, at *9 (unpublished opinion), writ denied, 2008-0166 (La.3/14/08), 977 So.2d 934, the contractor for a public works project appealed the trial court’s failure to award interest when it found the Tangipahoa Parish School System owed it the balance of a contract pursuant to La. R.S. 38:2191. This court found the contractor was entitled to interest on the contract sum awarded from the date of its final pay request. This court cited Thomas B. Catchings and Associates v. City of Baton Rouge, 621 So.2d 767 (La.1993), where the supreme court found that plaintiffs were entitled to legal interest on the amount owed them under a public works contract from the date of default, which again, in this case, would support such an award from the date of the execution of the certificate of substantial completion,

The only argument presented by the City to contradict QDC’s assertion of entitlement to an award of interest is a re-urging of its argument in opposition to the mandamus grant, that the statute applies only to appropriated funds still unspent and available for distribution. For the reasons we found this argument had no merit as it relates to the grant of mandamus, we likewise find it lacks merits insofar as QDC’s entitlement to interest on the amount awarded via mandamus.

Accordingly, we grant QDC’s appeal, and amend the judgment of the trial court granting the writ of mandamus to include an award of interest owed to QDC by the City of Gonzales on the amount of the judgment, $51,200.00, from July 30, 2004, until paid.

CONCLUSION

For the foregoing reasons, the January 3, 2013 judgment of the trial court granting the writ of mandamus is amended to include an award of interest on the total amount due from the date of July 30, 2004, until paid, and as amended, it is affirmed. Costs of this appeal in the amount of $2,386.50 are assessed against the City of Gonzales.

AMENDED, AND AS AMENDED, AFFIRMED.

GUIDRY J., dissents in part and assigns reasons.

McCLENDON J. dissents in part and adopts the reasons assigned by Judge GUIDRY.

GUIDRY, J.,

dissenting in part.

| ¡While I agree with the majority’s affir-mance of the trial court judgment insofar as it grants the plaintiffs petition for mandamus to compel payment of the contract balance owed to the plaintiff, I disagree with the majority’s decision to amend the judgment to compel payment of the award of interest on the judgment by virtue of the writ of mandamus as well. The law is clear that mandamus is an extraordinary remedy, which must be used sparingly by the court and only to compel action that is clearly provided by law. Pelican Educational Foundation, Inc. v. Louisiana State Board of Elementary and Secondary Education, 11-2067, pp. 5-6 (La.App. 1st Cir. 6/22/12), 97 So.3d 440, 444. A writ of mandamus should be issued only in cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. La. C.C.P. art. 3862; Board of Trustees of Sheriff s Pension and Relief Fund v. City of New Orleans, 02-0640, p. 2 (La.5/24/02), 819 So.2d 290, 292. Whereas the plaintiff is clearly entitled to an award of interest on its judgment in accordance to La. C.C.P. art. 1921, neither that article nor La. R.S. 38:2191(D) provide authority for compelling the payment of such interest by use of the writ of mandamus. For these | ¡treasons, I respectfully dissent from that portion of the majority opinion finding otherwise.


author: McDonald, j.

text:
    SUCCESSION OF William Albert MEYERER.
    No. 2013 CA 1015.
    Court of Appeal of Louisiana, First Circuit.
    March 19, 2014.

      G. Bruce Kuehne, Baton Rouge, Louisiana, for Plaintiffs/Appellants Lori Meyerer and Lisa Meyerer.
    Chad F. Reynolds, Earl Cyril Reynolds, Baton Rouge, Louisiana, for Defen-danVAppellee Teresa Meyerer.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McDonald, j.

| ¿This appeal by Lori and Lisa Meyerer concerns the distribution of the decedent’s John Deere Savings and Investment Plan (SIP) (a 401K account) and his John Deere Pension Plan for Salaried Employees. The decedent, William Albert Meyerer, was married to his second wife, Teresa Meyerer, on June 8, 1974. Although the parties maintained separate residences, they were still married at the time of his death on June 29, 2008. Subsequently, Mr. Meyerer’s John Deere SIP account proceeds, in the amount of $68,378.00, were paid to Teresa Meyerer as the beneficiary. Also, Teresa Meyerer began receiving a monthly spousal benefit check of $242.68 from Mr. Meyerer’s John Deere Pension Plan.

On June 25, 2010, Mr. Meyerer’s two daughters from his previous marriage, Lori and Lisa Meyerer, filed a petition for recoupment of money due to Mr. Meyer-er’s estate and for specific performance of a separation of property agreement, naming as defendant Teresa Meyerer. Lori and Lisa Meyerer asserted that Mr. Mey-erer’s John Deere SIP and his John Deere Pension Plan account became his separate property as a result of a separation of property agreement entered into between Mr. Meyerer and Teresa Meyerer. Lori and Lisa Meyerer maintained that Mr. Meyerer did not designate beneficiaries to the John Deere plans; thus, after his death those monies became the property of Lori and Lisa Meyerer as the legatees of his will.

On August 18, 2010, Teresa Meyerer filed exceptions of prescription, no cause of action, and no right of action. At a hearing on the exceptions, Lori and Lisa Mey-erer made an oral motion to amend the petition. After the hearing, the exceptions were denied and the district court granted Lori and Lisa Meyerer “leave to amend the petition to eliminate any misunderstanding as to any inferred delictual action, such as tortious conversion or any other delictual claim, to more clearly state the theory of the claims, and to clarify the allegations of the petition.”

|3On December 17, 2010, Lori and Lisa Meyerer filed an amended petition for restitution of money due to the estate, for specific performance of the separation of property agreement, for enforcement of judgment, for breach of contract, and for an accounting by Teresa Meyerer of all monies she received from the John Deere plans.

On March 4, 2011, Lori and Lisa Meyer-er filed a motion for partial summary judgment, asking that the district court compel Teresa Meyerer to account for and transfer to Lori and Lisa Meyerer all amounts received by her or to be received by her from the John Deere SIP and the John Deere Pension Plan, along with attorney fees and costs. Lori and Lisa Meyerer asserted that, despite their timely written request, Teresa Meyerer had refused to sign a waiver of her interest in those plans.

On March 21, 2011, Teresa Meyerer filed an answer to the amended petition and filed exceptions of no cause of action and no right of action. She also raised affirmative defenses, namely, that the plaintiffs’ claims were preempted by the Employment Retirement Income Security Act (ERISA), 29 U.S.C. 1001, et seq.; that the parties were still married at the time of Mr. Meyerer’s death; that Mr. Meyerer did not change the beneficiaries under the John Deere plans; and, that there was no QDRO (qualified domestic relations order). Further, Teresa Meyerer filed a third-party claim against Deere & Company, asserting that as administrator of the John Deere plans, Deere & Company would be liable to Teresa Meyerer for any amount rendered in favor of plaintiffs on the main demand.

On April 25, 2011, the matter was removed to the United States District Court for the Middle District of Louisiana by Deere & Company. Deere & Company maintained that the federal court had jurisdiction over the claims asserted in the third-party claim by Teresa Meyerer. After a status conference on January 24, 2012, the matter was remanded to the state court. Deere & Company |4was dismissed from the lawsuit.

On March 23, 2012, Teresa Meyerer filed a motion for partial summary judgment, asking to be recognized as the sole beneficiary of Mr. Meyerer’s John Deere SIP and John Deere Pension Plan and asking that the district court dismiss the plaintiffs’ claims.

After a hearing, the district court denied the motion for partial summary judgment filed by Lori and Lisa Meyerer and granted the motion for partial summary judgment filed by Teresa Meyerer. The district court dismissed Lori and Lisa Meyerer’s claims against Teresa Meyerer for the amounts received from Mr. Meyer-er’s John Deere plans and further ordered the Clerk of Court to disburse the sum of $4,251.15 held in the registry of the court to the succession of Mr. Meyerer for one-half the expenses incurred to maintain and sell the home located at 2613 West High-meadow Court. Lori and Lisa Meyerer appealed that judgment and make the following assignments of error.

1. The trial court committed legal error in holding that Teresa Meyerer was not obligated by a provision in a Separation of Property Agreement, homologat-ed as an order of court, by which she conveyed to William Meyerer all of her interest in employee benefits provided by William Meyerer’s former employer, John Deere. Implicitly, this error was based on the incorrect legal conclusion that her contractual obligation was preempted by the Employee Retirement Income Security Act (“ERISA”).
2. The Trial Court committed legal error by failing to award attorney fees, although the same were specifically provided for in the Separation of Property Agreement, where, as here, [Appellee] breached her contractual duty.

THE SEPARATION OF PROPERTY AGREEMENT

The Separation of Property Agreement provides, in part:

A.
In consideration for the property allocated to me herein by William A. Meyer-er, and the assumption of debts by him as outlined ^herein, I, Teresa Meyerer, hereby agree to convey and transfer any and all ownership interest I may have or may hereafter acquire in the following property:
1) John Deere, Inc. Savings and Investment Plan;
2) John Deere, Inc. Pension Plan and 401 K;
M.
The parties stipulate and agree that the obligations set forth in this agreement are personal obligations only of each party, for the consideration herein received, and that third parties may deal with the parties free and clear of any expressed or implied resolutory condition or any expressed or implied right of recission.
Q-
Both parties further agree to execute and sign any deeds, bills of sale, or other documents or instruments reasonably necessary and proper to accomplish the purpose and conditions of this agreement, and specifically agree to sign and execute any and all papers necessary to effect a transfer of any property mentioned in this settlement, including qualified domestic relations orders concerning their retirement plans.

Mr. Meyerer and Teresa Meyerer never executed any additional paperwork in regard to the John Deere plans. Specifically, Mr. Meyerer did not designate a beneficiary, no Qualified Domestic Relations Order (QDRO) was ever executed, and Teresa Meyerer never signed a waiver of her interest in the plans.

THE JOHN DEERE SAYINGS AND INVESTMENT PLAN (SIP) 401K

The John Deere Savings and Investment Plan provides:

ARTICLE VIII. VESTING DISTRIBUTIONS AND WITHDRAWALS
8.6 Beneficiaries.
(a) Each Participant may designate any legal or natural person or persons to receive any benefits payable under the Plan on account of his death. Each designation by a Participant shall be filed with the Plan Administrator on an Appropriate Form and may include | ^successive or contingent Beneficiaries. A Participant, by filing an Appropriate Form with the Plan Administrator, may change his Beneficiary designation at any time and from time to time without the consent of or notice to any person previously designated by him. No Beneficiary designation or change of designation shall be effective unless filed with the Plan Administrator during the Participant’s lifetime.
(b) Notwithstanding the foregoing, however, if a Participant has a surviving spouse, the surviving spouse shall be the Beneficiary unless the spouse consents as provided in Paragraph (d) to the designation of a Beneficiary other than the surviving spouse, and the designation of a Beneficiary other than the surviving spouse shall be ineffective without such consent.
(c) If no person has been designated by a Participant (or if all persons so designated die before the Participant or die before complete distribution of his benefits), then the Plan Administrator, in its sole discretion, shall direct the Trustee to distribute the Participant’s benefits (or the balance thereof) to:
(i) his surviving spouse; or
(ii) if there is no surviving spouse, one or more of his relatives by blood, adoption or marriage as it decides; or
(iii) the estate of the last to die of the Participant and his Beneficiary. In no event can the Beneficiary of a deceased Participant designate a Beneficiary.
(d)For purposes of this Section 8.6, the consent of a Participant’s surviving spouse must be in writing, must acknowledge the effect of the designation and must be witnessed by a notary public. However, such consent shall not be required if the Participant establishes to the satisfaction of the Plan Administrator that such consent cannot be obtained because the spouse cannot be located or because of such other circumstances as the Plan Administrator may prescribe in accordance with regulations for the Secretary of the Treasury.'

Lori and Lisa Meyerer acknowledge that the John Deere SIP was distributed as required by the terms of the plan: that is, since Mr. Meyerer did not designate a beneficiary to the plan, and Teresa Meyerer was married to Mr. Meyerer at the time of his death, the John Deere SIP was distributed properly to Teresa Meyer-er. However, they argue that Teresa Meyerer breached her contract (the community partition agreement) with Mr. Meyerer by refusing to sign a waiver (as requested by Lori and Lisa Meyerer after Mr. Meyerer’s death), which would have allowed | 7the John Deere SIP proceeds to be paid to Lori and Lisa Meyerer. Further, Lori and Lisa Meyerer maintain that Teresa Meyerer breached her contract with Mr. Meyerer by not turning the John Deere SIP money over to Lori and Lisa Meyerer after she received it.

The separation of property agreement provides that Teresa Meyerer “agreetd] to convey and transfer any and all ownership interest I may have or may hereafter acquire” in the John Deere SIP and John Deere Pension Plan (emphasis added). It also provides that “the obligations set forth in this agreement are personal obligations only of each party.”

An obligation is strictly personal when its performance can be enforced only by the obligee, or only against the obligor. La. C.C. art. 1766. By its own terms, the obligation of Teresa Meyerer to “convey and transfer” her interest in the John Deere SIP to Mr. Meyerer was enforceable only by Mr. Meyerer. He failed to enforce the contract. Lori and Lisa Mey-erer cannot now enforce the contract after his death.

THE JOHN DEERE PENSION PLAN FOR SALARIED EMPLOYEES

The John Deere Pension Plan for Salaried Employees provides:

ARTICLE IV

SURVIVOR BENEFITS

Section 1. Survivor Benefits for Retired Employees

A. For a married employee retiring on or after 30 September 1979 under Sections 1, 2, 3-D or 4 of Article III, whose designated spouse shall be living at the employee’s death after retirement, a Survivor Benefit shall be payable to such spouse commencing on the first day of the month following the employee’s death after retirement.
Section 4. Preretirement Surviving Spouse Benefit for Former Employees
A. Notwithstanding any other provision of this Plan, the surviving | sspouse of a former employee, whose employment terminated after 30 October 1976, will be eligible for a monthly survivor’s benefit, provided the former employee:
(1)had been married to the spouse for at least one year immediately prior to death;
(2) dies on or after 23 August 1984;
(3) was eligible for a Deferred Vested Pension as provided in Section 5 of Article III;
(4) had not rejected this preretirement surviving spouse benefit by filing the proper form with the Company prior to death. An election to reject the preretirement surviving spouse benefit is valid only if consented to by the spouse as required on the form provided by the Company.

The John Deere Pension Plan provides for a survivor benefit for surviving spouses of retired employees only. This is a monthly sum payment, and the pension plan does not provide a way for a surviving spouse to transfer this benefit to another person. However, Lori and Lisa Meyerer maintain that Teresa Meyerer should have honored her contract with Mr. Meyerer by paying to Lori and Lisa Meyerer the amount she receives each month from the John Deere Pension Plan after she receives it. They maintain that this solution is endorsed in Estate of Kensinger v. URL Pharma, Inc., 674 F.3d 131 (3rd Cir.2012). Again, they maintain that Teresa Meyerer breached her contract with Mr. Meyerer by refusing to “convey and transfer any and all ownership interest I may have or hereafter acquire” to Mr. Meyerer’s estate.

As noted above, this obligation was owed personally to Mr. Meyerer, as per the terms of the contract. Furthermore, in Estate of Kensinger, the parties were divorced, and the wife signed a waiver of her rights to her husband’s employer-sponsored 401 (k) plan, as part of their divorce decree. However, Mr. Kensinger never changed the beneficiary of his plan, which remained his ex-wife at the time of his death. In that case, the court found that the estate could sue the ex-wife to enforce the waiver and the challenge would be litigated as an ordinary contract [¡¡dispute. The court determined that, to the extent that ERISA is concerned with the expeditious payment of plan proceeds to beneficiaries, permitting suits against beneficiaries after benefits have been paid does not implicate any concern of expeditious payment or undermine any core objective of ERISA. Estate of Kensinger, 674 F.3d at 137.

In the present case, the Meyerers never divorced and never completed the necessary paperwork to partition the community property in regard to the John Deere plans.

In Gorham v. Gorham, 2009-1118 (La.App. 1st Cir.12/23/09), 31 So.3d 421, writ denied, 2010-0164 (La.4/5/10), 31 So.3d 363, this court considered an appeal from a judgment in favor of a surviving spouse recognizing her as the sole designated beneficiary to the entirety of two retirement accounts and dismissing all claims asserted by the succession of the deceased spouse to a portion of the funds in those accounts. This court affirmed the district court judgment. The parties were married and had no children. They physically separated and did not reconcile. Mrs. Gorham filed a petition for divorce, and thereafter the parties entered into an agreement regarding matters related to divorce, including a stipulation that the community ended on October 2, 2003. A stipulated judgment was signed on December 23, 2003. Gor-ham, 31 So.3d at 423.

On April 28, 2004, Mrs. Gorham filed a petition to partition the community property, alleging that she and Mr. Gorham had partially partitioned the community of ac-quets and gains, but they were unable to partition the remaining community assets. On January 31, 2005, a second stipulated judgment was signed that included an acknowledgment by the parties that Mrs. Gorham was entitled to a pro-rata interest in Mr. Gorham’s Shell Pension Plan and that the parties “shall endeavor to confect a Qualified Domestic Relations Order to be submitted to the plan administrator or effect a buy-out of her interest in his pension plan within | Tnsixty (60) days from the date of this Judgment.” The QDRO was never confected and the parties were never divorced, and Mr. Gorham died later that year. Prior to his death, Mr. Gorham executed a will naming two individuals other than Mrs. Gorham as the residual legatees of his estate and co-executors of his estate, but he made no changes in the ownership or beneficiary status of the retirement accounts. Id.

The trial court determined that Mrs. Gorham’s participation in a prior consent judgment that ordered that a pro-rata share of the accounts be apportioned to her in a community property settlement was not a judicial confession precluding her from asserting that she was the owner/beneficiary of the retirement accounts. Gorham, 31 So.3d at 424.

This court in Gorham noted that ERISA generally preempts Louisiana community property law and that ERISA provides an exception to that preemption where an ex-spouse has a QDRO establishing his or her claim to these survivor benefits. Gorham, 31 So.3d at 424-425. The court affirmed the trial court judgment in favor of Mrs. Gorham that dismissed the co-executors’ claims to the IRA funds received by Mrs. Gorham. This court found that the statements by Mrs. Gorham were insufficiently explicit to establish a judicial confession that IRA benefits were owned by the named beneficiary, and noted that “in this matter, the parties were never divorced, and a QDRO was never confected between them.” Gorham, 31 So.3d at 426.

As in Gorham, in the present case, Mr. Meyerer and Teresa Meyerer were never divorced, and the necessary paperwork to partition the community property in regards to the John Deere plans was never executed. Thus, we find no manifest or legal error in the district court judgment denying the motion for partial summary judgment filed by Lori and Lisa Meyerer, and granting the motion for partial summary judgment filed by Teresa Meyerer, recognizing her as the sole beneficiary |nof Mr. Meyerer’s John Deere SIP and his John Deere Pension Plan, and we affirm that judgment.

Regarding assignment of error number two, we find no manifest error or abuse of discretion in the court’s denial of Lori and Lisa Meyerer’s request for attorney fees based on their argument that Teresa Mey-erer breached her contractual duty to Mr. Meyerer.

For the foregoing reasons, the district court judgment granting summary judgment in favor of Teresa Meyerer is affirmed. Costs are assessed against Lori and Lisa Meyerer.

AFFIRMED.

      . Assignment of error number three, that the trial court committed legal error by striking from the record an affidavit submitted by Lori and Lisa Meyerer, while not striking an affidavit on the same topic submitted by Teresa Meyerer, was withdrawn by Lori and Lisa Meyerer in their reply brief.

      . The Separation of Property Agreement erroneously refers to the John Deere Pension Plan as the 40IK. The John Deere Savings and Investment Plan (SIP) is actually the 401K account.