author: MAX N. TOBIAS, JR., Judge.

text:
    BROOKEWOOD INVESTMENTS CO., L.L.C. v. SIXTY-THREE TWENTY-FOUR CHEF MENTEUR HIGHWAY L.L.C. and Jacob V. Morreale.
    No. 2012-CA-1205.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 2013.

      Scott J. Sonnier, Lemle & Kelleher, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Lawrence Blake Jones, Errol Barry Conley, Scheuermann & Jones, New Orleans, LA, Charles E. McHale, Jr., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, Jr., Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

| ,This matter comes to us on remand from the Supreme Court of Louisiana for reconsideration of our earlier decision set forth in Brookewood Investments Co., L.L.C. v. Sixty-Three Twenty-Four Chef Menteur Highway, L.L.C., 12-1205 (La.App. 4 Cir. 1/16/13), 108 So.3d 329, in light of its holding in Smitko v. Gulf South Shrimp, Inc., 11-2556 (La.7/2/12), 94 So.3d 750. See Brookewood Investments Co., L.L.C. v. Sixty-Three Twenty-Four Chef Menteur Highway, L.L.C., 13-0369 (La.4/1/13), 110 So.3d 134. In our original decision, we declared the tax sale to be an absolute nullity and ruled that the tax purchaser’s right of redemption was solely against the tax debtor or record owner of the property and not the City of New Orleans.

1¾After careful review of the Smitko decision, although it dealt with tax sales that were apparently of no legal force or effect and absolutely null for failure to give proper notice and want of due process, we find the Supreme Court did not address the central issue presented by the case presently before us; that is, who is responsible for reimbursing the tax purchaser following a failed tax sale. Accordingly, we find that the Smitko decision sheds no new light upon, and does not change, our early ruling.

Smitko involved a motion for summary judgment brought by the tax sale purchaser in its action to quiet title to real property. The appellate court had affirmed the trial court’s ruling granting summary judgment, which confirmed and quieted the title of the tax purchaser on the basis that the former property owner had failed to timely file a separate action or recon-ventional demand to institute proceedings to annul the tax sale within the statutory six-month period as required by the law then in effect, former La. R.S. 47:2228. Smitko, p. 1, 94 So.3d at 751. On writ of certiorari, the Court reversed, stating that the property owner had sufficiently established that the sheriff failed to provide proper notice of the tax delinquencies and tax sale to the record property owner in compliance with former ]sLa. R.S. 47:2180, our own constitution, and federal due process. Id., pp. 13-15, 94 So.3d at pp. 758-59. Further, the Court noted that since Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 794, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), Louisiana courts have held that the failure to give notice to a record property owner is a violation of the due process owed to the property owner and that the resulting tax sale is null and void in its entirety. Consequently, the court held that because the tax sale at issue may already have been fatally defective for want of due process, the time limitation for seeking to annul a tax sale as set forth in former La. R.S. 47:2228 did not apply and the reconventional demand brought by the former property owner was timely brought before the trial court. Id.

While Smitko, and the other cases relied upon by Brookewood, address the absolute nullity of a tax sale when notice of the sale is found lacking, none of these cases address the central issue presented herein; that is, who is the responsible party for reimbursing the tax purchaser for monies paid to the tax collecting authority or tax recipient body once a tax sale is annulled for failure to provide sufficient notice of the sale to the property owner. Consequently, because Smitko (and the other cited lack-of-notice cases upon which Brookewood relies) does not |4address or shed any new light upon the reimbursement issue presented, we find that it does not alter or change the decision reached in our earlier opinion. Specifically, we find the Westwego and Lind-ner cases continue to control the outcome of the instant case. Identical to the situation presented before us, both cases involved a tax sale purchaser’s right of reimbursement following a failed tax sale; in Westwego, the tax sale was declared an absolute nullity, and in Lindner, when viewed in context, the tax sale was also an absolute nullity. In short, according to Westwego and Lindner, the tax sale purchaser’s right of recourse against the City ceases at the moment upon which the tax sale is made; for not pretending to sell its own property, the City warrants neither the title to the property nor the return of the purchase price. See Lindner, 116 La. at 372, 40 So. at 736. Consequently, Brookewood’s right of reimbursement, as the tax purchaser, is solely against Sixty-Three, the tax debtor, and it lacks standing to seek reimbursement from the City.

|fiBrookewood contends that the legislature’s enactment of La. R.S. 47:2153C(1) essentially overruled Westwego, Lindner, and its progeny. We disagree. La. R.S. 47:2153C(1) provides:

In the absence of actual notice of the sale to a tax sale party, including a transferee, or the demonstration of a reasonable effort to provide notice, where the name and address of the tax sale party were reasonably ascertainable or where the transfer was recorded after the tax collector completed his pre-sale party research, the tax collector shall cancel the sale of the property and refund the tax sale purchaser the tax sale purchase price.

The general rule against retroactive application of legislative enactments and its exceptions is codified in La. C.C. art. 6, which provides that that “[i]n the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.” Keith v. U.S. Fidelity & Guar. Co., 96-2075, p. 5 (La.5/9/97), 694 So.2d 180, 182-83. Additionally, La. R.S. 1:2 provides that no statute is retroactive unless it is expressly so stated. Unlike La. C.C. art. 6, La. R.S. 1:2 does not distinguish between substantive, procedural and interpretive laws. However, the jurisprudence has generally construed the two provisions as being co-extensive. Id.

Article 6 requires a two-fold inquiry. First, we must ascertain whether the enactment expresses legislative intent regarding retrospective or prospective application. If such intent is expressed, the inquiry ends unless the enactment impairs contractual obligations or vested rights. If no such intent is expressed, the enactment must be classified as substantive, procedural, or interpretive. Id., p. 6, 694 So.2d at 183. It is well accepted that substantive laws either establish new rules, rights, and duties or changes existing ones, while interpretive laws merely | ^establish the meaning the statute had from the time of its enactment. Id. Procedural laws prescribe a method for enforcing a previously existing substantive right and relate to the form of the proceeding of the operation of the laws. Id. Nonetheless, since the application of legislative enactments has constitutional implications under the due process and contract clauses of both the United States and Louisiana Constitutions, even where the legislature has expressed its intent to give a substantive law retroactive effect, the law may not be applied retroactively if it would impair contractual obligations or disturb vested rights. Id.

La. Acts 2012, No. 886, § 1, which enacted La. R.S. 47:2153C(1), contains no clear and unmistakable expression of legislative intent regarding retrospective application. A careful review of La. Acts 2012, No. 886, § 1, reveals that the legislative amendment makes a change in the party responsible for reimbursing the tax purchaser— from the tax debtor to the tax collector— creating a substantive change in the law. Accordingly, we conclude the legislative changes reflected in the amendment to La. R.S. 47:2153C(1) are substantive, and can only be applied prospectively. Thus, applying the law in effect at the time the tax sale in the instant case occurred, as well as at the time the judgment annulling the sale for lack of notice was rendered, Brookewood’s right of reimbursement is against the tax debtor, Sixty-Three, and not the City.

Accordingly, for the foregoing reasons, determining that Smitko does not change or alter our previous decision in Brookewood Investments Co., L.L.C. v. Sixty-Three Twenty-Four Chef Menteur Highway, L.L.C., 12-1205 (La.App. 4 Cir. 1/16/13), 108 So.3d 329, we re-affirm our original decision.

AFFIRMED.

      . We summarize our prior decision as follows:
      The tax purchaser, Brookewood Investments Co., L.L.C. (“Brookewood”), purchased property at a tax sale conducted by the City of New Orleans (“City”) for the full amount of unpaid ad valorem taxes due on the property in the amount of $591,343.03, plus costs. In due course, Brookewood filed a motion for writ of seizure and possession, seeking corporeal possession of the property. Sixty-Three Twenty-Four Chef Menteur Highway, L.L.C. ("Sixty-Three”), the record property owner, and Jacob Morreale filed a reconventional demand seeking to annul the tax sale on the basis that the City had assessed the property in an erroneous name and failed to provide the requisite notice of the delinquent taxes and tax sale to the proper owner of record, Sixty-ThreeBrookewood then filed a third-party demand against the City and its Ex-Officio Tax Collector seeking reimbursement for the monies it paid in the event the tax sale was declared an absolute nullity. The trial court, having determined that the City failed to provide the proper statutory notice to Sixty-Three, rendered judgment annulling the tax sale and ordered that the judgment would take effect only upon payment of the taxes, costs, and interest by Sixty-Three as provided for in La. Const. Art. VII, § 25(C). The trial court further ruled that Brookewood's sole source for reimbursement for monies paid at the tax sale was against Sixty-Three, the tax debtor and property owner of record, and not the City. On appeal, this court amended the trial court judgment by declaring the tax sale to be an absolute nullity, and relying upon La. Const. Art. VII, § 25(C), Westwego Canal & Terminal Co., Inc. v. Pitre, 197 La. 374, 1 So.2d 550 (1941), and Lindner v. City of New Orleans, 116 La. 372, 40 So. 736 (1906) and its progeny, affirmed that Brookewood’s right of reimbursement is solely against Sixty-Three and not the City.

      . In Mennonite, the mortgagee of a property contested a tax sale that occurred after the homeowner failed to pay her property taxes. The mortgagee was not provided notice of the homeowner/mortgagor’s delinquent payment of the taxes or the subsequent tax sale. Id. at 794, 103 S.Ct. 2706. The Supreme Court held that “a mortgagee possesses a substantial property interest that is significantly affected by a tax sale” and therefore "is entitled to notice reasonably calculated to apprise him of a pending tax sale.” Id. at 798, 103 S.Ct. 2706. Because the mortgagee was not afforded it constitutional right to due process, the Court reversed the decision that upheld the tax sale. Id. at 800, 103 S.Ct. 2706.

      . Brookewood relies upon the following cases, in addition to Smitko, in support of its position that its right of reimbursement is against the City and not Sixty-Three: Jamie Land Co., Inc. v. Atwood, 06-2057 (La.App. 1 Cir. 6/8/07), 965 So.2d 873; Sutter v. Dane Investments, Inc., 07-1268, 07-1269 (La.App. 4 Cir. 6/4/08), 985 So.2d 1263; and Cressionnie v. Intrepid, Inc., 03-1714 (La.App. 1 Cir. 5/14/04), 879 So.2d 736.

      . In Westwego, the Court affirmed the lower court’s determination that, pursuant to La. Const. Art. X, § 11 (1921), providing that "[n]o judgment annulling a tax sale shall have effect until the price and all taxes and costs paid, with ten per cent per annum interest on the amount of the price and taxes paid from date of respective payments, be previously paid to the purchaser,” when a tax sale is declared null, other than "sales annulled on account of the taxes having been paid prior to the date of the tax sale,” the record owner of the property is the party responsible for reimbursing the tax purchaser. Id., 197 La. at 377, 1 So.2d at 551.

      . In Lindner, the tax purchaser sought reimbursement from the City after a failed tax sale. The Louisiana Supreme Court, in affirming the trial court’s dismissal of the suit on the City's exception of no cause of action, reiterated that the tax purchaser’s only remedy, as provided in La. Const. Art. 233 (1898), was to recover the amounts paid by him, together with costs and interest, from the property owner and not the City. Specifically, the Lindner court noted that "[a] tax sale, in the absence of special legislation to the contrary, is generally held to be subject to the rule caveat emptor, and the purchaser assumes the risk of all legalities and irregularities in the proceedings, of which, as they are open to inspection, he is presumed to have notice. He is therefore without recourse against the municipality at the instance of which the sale is made, and which, not pretending to sell its own property, warrants neither the title nor the return of the price.” Id., 116 La. 372, 40 So. 736.

      . We are somewhat at a loss to explain precisely why Brookewood wants to seek reimbursement from the City in view of La. Const, art. XII, § 10(C) and the jurisprudence interpreting that provision.


source: Caselaw Access Project

author: MADELEINE M. LANDRIEU, Judge.

license: Public Domain

text:
    LOCONTE PARTNERS, LLC v. MONTGOMERY AND ASSOCIATES, INC., Tim Montgomery, and Landmark American Insurance Company.
    No. 2012-CA-0691.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 2013.

      Lawrence J. Centola, III, Scott R. Bick-ford, Martzell & Bickford, New Orleans, LA, for PlaintiffiAppellant.
    Peter J. Wanek, Kevin P. Kress, Lynda A. Tafaro, McCranie Sistrunk Anzelmo Hardy Maxwell & McDaniel, Metairie, LA, for Defendant/Appellee, Montgomery and Associations, Inc.
    Paul D. Palermo, Craig V. Sweeney, Spyridon Palermo & Doman, L.L.C., Me-tairie, LA, for Defendant/Appellee, Landmark American Ins. Company.
    W. Paul Andersson, Catherine L. Davidson, Leake & Andersson, L.L.P., New Orleans, LA, for Defendant/Appellee, ER Systems, Inc.
    (Court composed of Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU, Judge SANDRA CABRINA JENKINS).
   MADELEINE M. LANDRIEU, Judge.

hThe plaintiff, Loconte Partners, L.L.C. [“Loconte”] appeals three judgments: (1) the October 7, 2011 granting of summary judgment in favor of defendant E.R. Systems, Inc. [“ERS”]; (2) the October 26, 2011 judgment finding no liability and dismissing with prejudice the remaining defendants, namely, Tim Montgomery, Montgomery and Associates, Inc., and their insurer, Landmark American Insurance Company [“Landmark”]; and (3) the December 6, 2011 judgment denying Lo-conte’s motions for judgment notwithstanding the verdict and for new trial. For the reasons that follow, we affirm the judgments.

FACTS AND PROCEEDINGS BELOW

Loconte is a limited liability company with only two members, Clay Frazier and his wife, Paula Frazier. Loconte owns two adjacent commercial buildings located at 7405 and 7407 St. Bernard Highway in Arabi, which it purchased following Hurricane Katrina. In August 2006, Loconte hired Montgomery and Associates, Inc. [hereinafter sometimes referred to as “Montgomery”] to repair the 12roof on these contiguous buildings by installing a spray polyurethane foam (SPF) roof over the existing roof, which consisted of metal decking overlaid by lightweight insulated concrete and then a modified bitumen layer. The contract included a ten-year warranty whereby Montgomery obligated itself to repair any leaks in the surfaces to which the SPF roof was applied, except for leaks due to “structural weakness, lighting, fire, tornado and damage by any third party, or other such acts beyond our [Montgomery’s] control.”

Approximately four months after the installation of the SPF roof, Mr. Frazier reported to Tim Montgomery that water was leaking into building 7407. Tim Montgomery inspected and discovered three sources of water intrusion, none of which he attributed to the SPF layer itself. The three leakage sites were: (1) an opening around a conduit that protruded from the back wall; (2) the area beneath an old, non-functioning air conditioning unit that was located on the roof; and (8) a large preexisting vent in the roof that was not properly capped. Mr. Montgomery stopped the water intrusion in two of the three places by caulking the opening around the conduit and placing a plastic bag over the large vent. He also sprayed additional foam around the base of the air conditioning unit, but this action failed to cure the water leak in that area. Mr. Montgomery then secured a large tarp over the top of the air conditioning unit. There is a factual dispute between the parties as to whether the placing of this tarp stopped the roof from leaking.

On March 11, 2009, Loconte filed suit against Tim Montgomery, Montgomery and Associates, Inc., and its insurer, Landmark, alleging that [.-¡Montgomery had breached its ten-year warranty on the SPF roof by failing to repair it successfully. In July of 2010, Loconte filed a First Supplemental and Amending Petition adding ERS, the manufacturer of the spray polyurethane foam, as a defendant and alleging that ERS was liable to Loconte under the provisions of the Louisiana Products Liability Act [“LPLA”]. Loconte subsequently filed a Second Supplemental and Amending Petition asserting a cause of action in redhibition against all defendants.

On September 22, 2011, ERS brought a motion for summary judgment on the basis that the plaintiff lacked any evidence to show that the polyurethane foam was defective. The motion was heard on October 7, 2011, and was granted from the bench that same day. The case against the remaining defendants was tried before a jury on October 10-14, 2011. At the close of the plaintiffs evidence, Tim Montgomery moved for a directed verdict as to the plaintiffs claims against him individually, which the trial court granted. At the close of trial, the jury unanimously found that Montgomery and Associates, Inc., was not negligent in installing the roof and did not breach its contract with the plaintiff. On October 26, 2011, the trial court rendered a written judgment based upon its directed verdict and the jury’s verdict, dismissing with prejudice the plaintiffs claims against all three defendants. Loconte filed motions for judgment notwithstanding the verdict and for new trial, which were denied. This appeal followed.

I ¿ISSUES

Loconte raises three issues:

(1) The trial court erred by granting summary judgment in favor of ERS four days prior to trial;
(2) The trial court committed legal error by failing to instruct the jury that “A roof which leaks is a defective roof.”
(3) The trial court erred by denying the plaintiffs motion for judgment notwithstanding the verdict.

DISCUSSION

1. Granting of Summary Judgment in favor of ERS

Loconte first argues that the trial court committed legal error by hearing and granting the motion for summary judgment only four days prior to trial, in contravention of La. C.C.P. art. 966(D), which provides:

The court shall hear and render judgment on the motion for summary judgment within a reasonable time, but in any event judgment on the motion shall be rendered at least ten days prior to trial.

Loconte cites Environmental Operators, LLC v. Natco, Inc., 2008-1183 (La.App. 4 Cir. 3/18/09), 7 So.3d 1232, in support of its argument that Article 966(D) mandates the vacating of the summary judgment. In that case, this court vacated a summary judgment that had been granted one day prior to trial, stating: “The constraint imposed by La.Code Civ. Proc. art. 966(D) is mandatory, rather than permissive.” Id., p. 8, 7 So.3d at 1237. However, in Environmental Operators, this court also recognized that it had reached the opposite result in a prior case, Bell v. Uniroyal, Inc., 96-2838 (La.App. 4 Cir. 6/11/97), 696 So.2d 268, but did not overrule that case. Instead, the Environmental Operators court impliedly distinguished Bell, noting “that this Circuit and other circuits have also come to |sdifferent conclusions, depending on the factual circumstances regarding the application of La. C.C.P. art. 966(D).” Id., p. 5, 7 So.3d at 1235. See, e.g.: Mitchell v. St. Paul Marine, 98-1924 (La.App. 4 Cir. 1/27/99), 727 So.2d 1245 (Distinguishing Bell, the court reversed summary judgment rendered one day pri- or to trial.); Johnson v. Canale, 00-891 (La.App. 5 Cir. 10/18/00), 769 So.2d 833 (The court found prejudice and vacated summary judgment rendered one day pri- or to trial.); Strong’s Plumbing, Inc. v. Leon Angel Constructors. Inc., 35,105 (La.App. 2 Cir. 10/12/01), 796 So.2d 926 (Finding no prejudice, the court affirmed summary judgment rendered three days prior to trial.).

Arguing that the trial court’s summary judgment in the present case should be affirmed, ERS specifically relies upon Bell, in which this court noted that the purpose behind the ten-day requirement of Article 966(D) is to prevent “burdening] parties with unnecessary trial preparation.” Bell, supra, p. 4, 696 So.2d at 270. Then, finding “no evidence that Bell’s case was in any way prejudiced by the two day delay,” this court declined to overturn a summary judgment that had been rendered eight (rather than ten) days prior to trial. Id.

As in Bell, we find that the record in this case contains no evidence that Lo-conte was prejudiced by the fact that the motion for summary judgment by E.R. Systems was decided four days prior to trial. The record reflects that it was one of several motions decided on October 7, 2011. ERS’s motion, which asserted that Loconte could not prove its LPLA claim or its redhibition claim because Loconte lacked any evidence to show that the SPF roof was defective, was filed on September 22, 2011. Loconte’s written opposition to the motion was filed on ^September 29, 2011. In the opposition, the plaintiff raised the untimeliness of the motion’s being set for hearing on October 7, 2011 in contravention of Article 966(D), but did not argue that it was unable to effectively defend the motion because it was being heard less than ten days prior to trial. Loconte did not raise the issue of the untimeliness of the motion at the hearing itself. More importantly, Loconte failed to submit any evidence in defense of the motion on the merits, either by attaching such to its memorandum or introducing it at the hearing. In fact, when questioned (twice) by the trial judge at the hearing as to whether the plaintiff had any evidence that the product manufactured by ERS was defective, counsel for Loconte responded both times that he did not have any such evidence. Under these circumstances, we cannot say that Loconte was prejudiced by the trial court’s failure to hear and decide the motion at least ten days prior to trial pursuant to La. C.C.P. art. 966(D). We therefore decline to vacate the summary judgment on procedural grounds.

Alternatively, Loconte argues that the motion for summary judgment was wrongly decided on the merits. We review the trial court’s granting of a motion for summary judgment de novo. Cressionnie v. Liberty Mut. Ins. Co., 98-0534 (La.App. 4 Cir. 4/8/98), 711 So.2d 364, 366. La. C.C.P. art. 966 provides, in pertinent part:

[B](2) The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law....
C. (1) After adequate discovery or after a ease is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
|7(2) 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 elements of the adverse party’s claim, action, or defense, 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, action, or defense. 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. (Emphasis added).

Loconte asserts two claims against ERS: a products liability claim under the LPLA and a claim in redhibition under La. C.C. art. 2520. To establish the liability of a manufacturer under the LPLA, the plaintiff must show: “(1) damage, that (2) was proximately caused by (3) a characteristic of an unreasonably dangerous product during (4) a reasonably anticipated use of that product. La.Rev.Stat.Ann. § 9:2800.54 (West 1991). To be unreasonably dangerous, a product must either: (a) be defective in construction, (b) be defective in design, (c) have an inadequate warning, or (d) fail to conform to an express warranty.” Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir.1997).

To maintain an action in redhibition, the plaintiff must prove that the thing sold contained a hidden vice or defect, not apparent by ordinary inspection, which subsequently rendered the thing unfit for use, that the vice existed at the time of sale, and that the vendor did not advise the purchaser of it. Peters v. Pattison Pontiac Co., 259 So.2d 99, 101 (La.App. 4th Cir.1972). In addition, the defect must be of such a nature as to render the object purchased so inconvenient or imperfect that it gives rise to a presumption the buyer would not have bought it, had he known of that defect. Dupuy v. Rodriguez, 620 So.2d 397, 400 (La.App. 1st Cir.1993).

|sIn support of its motion for summary judgment, E.R. Systems submitted the deposition testimony of Tim Montgomery, and of experts Rene Dupuis, Richard Feddeck and Neil Shearer to show that the plaintiff lacked evidence that the spray polyurethane foam provided to Montgomery by ERS was defective or unreasonably dangerous. Mr. Dupuis, an expert in SPF roofs, was hired by Montgomery. Mr. Feddeck, the plaintiffs expert, was qualified to give opinion testimony only as to lightweight insulated concrete roofs, not SPF roofs. Mr. Shearer is a chemist whom Mr. Feddeck consulted to perform tests on the SPF roof. None of these experts opined that the ERS product was defective. Mr. Shearer testified in his deposition that his tests showed the SPF roof to be “off ratio” in some areas, but that the person responsible for adjusting the ratio was the one who had installed the SPF roof, not the manufacturer. Mr. Dupuis stated that the physical properties of the SPF roof were good and that they comported with industry standards. He specifically stated that that his inspection and testing of the roof had revealed nothing which suggested that the ERS product was defective.

Loconte submitted no affidavits, depositions, or evidence in any form to refute that presented by ERS or to show that Loconte would be able to satisfy its burden at trial of proving that the product supplied by ERS was defective or unreasonably dangerous for normal use. Admitting at the hearing that he had no such evidence, Loconte’s counsel relied solely on his assertion that, by law, “a roof which leaks is a defective roof.” This assertion, the validity of which is addressed infra in our discussion of Loconte’s second assignment of error, is insufficient to defeat summary judgment under the facts of this case. We therefore conclude that the trial court did not err by granting summary judgment in favor of E.R. Systems.

|ag. Failure to Give Requested Jury Charge

Loconte argues the trial court committed reversible legal error by refusing to charge the jury that “a roof which leaks is a defective roof.” In submitting this jury charge, Loconte relied upon Guy T. Williams Realty, Inc. v. Shamrock Constr. Co., Inc., 564 So.2d 689, 694 (La.App. 5th Cir.1990), and Hebert v. McDaniel, 479 So.2d 1029, 1033 (La.App. 3rd Cir.1985). The transcript of the jury charge conference reflects that the trial court judge refused to give this jury charge because it sounded in strict liability, which he found was inapplicable to the facts of this case. Instead, the trial court charged the jury on the law as to negligence, breach of contract, and breach of warranty. Loconte argues that the warranty issued by Montgomery on the SPF roof created a strict liability claim on behalf of Loconte, absolving it from having to prove fault once the roof leaked. We disagree.

Whether to give a particular jury instruction is within the discretion of the court, and its decision will not be disturbed absent an abuse of that discretion. Baxter v. Sonat Offshore Drilling, Inc., 98-1054, p. 6 (La.App. 1 Cir. 5/14/99), 734 So.2d 901, 906. With regard to appellate review of this issue, this court has stated:

When deficiencies in the jury instructions are raised on appeal, this Court must look to the “gravity or degree of error and considering the instruction as a whole and the circumstances of the case.” Clarkston v. Louisiana Farm Bureau Cas. Ins. Co., 07-158, p. 23 (La.App. 4 Cir. 7/2/08); 989 So.2d 164, 181-82 (citing Seal v. State Farm Fire Cas. Co., 00-2375, p. 4 (La.App. 4 Cir. 3/20/02), 816 So.2d 868, 871-72). On appeal the jury charges presented to the jury are considered in their entirety to determine if they adequately provide the proper principles of law applicable to the issues presented in the case. Clarkston, p. 23; 989 So.2d [at] 182. A “[d]e novo review of the record is only warranted when the jury charges are so incorrect or inadequate that the jury was barred from reaching a verdict based on the law and the facts.” Id. Otherwise, this Court applies the manifest error Imstandard of review to determine if the trial court erroneously omitted the requested instructions. Id. Further, this Court will not disturb a jury’s apportionment of fault unless it is clearly wrong or manifestly erroneous. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, 609-610.

Dede v. Tip’s Dev., L.L.C., 2009-0199, pp. 2-3 (La.App. 4 Cir. 7/1/09), 16 So.3d 526, 529.

In the present case, the trial court did not err by refusing to give the requested jury instruction. A review of the jurisprudence from which this instruction was taken reveals that those cases all involved building construction contracts, which legally include an implied warranty of good workmanship pursuant to Louisiana Civil Code article 2769. See, e.g.: Guy T. Williams Realty, Inc. v. Shamrock Construction Co., Inc., supra; Hebert v. McDaniel, supra; Stream v. LeJeune, 352 So.2d 714, (La.App. 3rd Cir.1977); and Goudeau v. Hill, 410 So.2d 338, 339 (La.App. 4th Cir.1982). Moreover, unlike the instant case, each of those cases involved the construction of an entirely new roof or the complete replacement of a roof.

The case before us involves a contract to repair a roof by installing an SPF layer over the existing roof material. The warranty supplied by the roofing contractor, Montgomery and Associates, is a limited one, providing as follows:

This guarantee covers surfaces treated by us and binds us to repair, at our expense, any and all leaks through these surfaces for a period of Ten Years (10) (Renewable) on Material & Labor for new polyurethane foam roof systems, commencing on day of completion. Guarantee does not cover leaks due to structural weakness, lightning, fire, tornado, and damage by any third party, or |nother such acts beyond our control. Invoice for this work to be paid in full for guarantee to become effective.

Nothing in this warranty provides for the strict liability of the roofing contractor. Rather, to prove that Montgomery and Associates breached this warranty, Lo-conte must show not only that the roof leaked, but that the leak was not due to one of the causes listed above as being beyond the control of Montgomery. Therefore, the trial court properly charged the jury and correctly refused to give the charge requested by Loconte.

3. Refusal to Grant Judgment Notwithstanding the Verdict

Loconte argues that the jury verdict is not supported by the evidence and that the trial court therefore erred by refusing to grant Loconte’s motion for JNOV.

A trial court’s authority to overrule a jury’s findings and grant a JNOV is limited to situations in which the facts point so strongly in favor of the moving party that the court feels a reasonable jury could not arrive at a contrary verdict. Delaney v. Whitney Nat. Bank, 96-2144, p. 13 (La.App. 4 Cir. 11/12/97), 703 So.2d 709, 718 (citing Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La.1991)). Where two permissible views of the evidence exist, the fact-finder’s choice between them cannot be manifestly erroneous. Id. (citing Schlesinger v. Herzog, 95-1127 (La.App. 4 Cir. 4/3/96), 672 So.2d 701). Therefore, a jury’s verdict should not be set aside as long as a fair interpretation of the evidence supports it. Id. (citing Willis v. Louisiana Power and Light, 524 So.2d 42 (La.App. 4th Cir. 1988)). All reasonable inferences from the evidence are to be construed in the light most favorable to the non-moving party. Id. (citing Egan v. Hullinghorst Indust., Inc., 587 So.2d 1226 (La.App. 4th Cir.1989)). The trial 112court’s refusal to render a JNOV can only be overturned if it is manifestly erroneous. Id., p. 10, 703 So.2d at 717 (citing Plummer v. Marriott Corp., 94-2025 (La.App. 4 Cir. 4/26/95), 654 So.2d 843, 846).

In the case before us the jury unanimously found that Montgomery did not breach its warranty or commit any negligence that caused damages to the plaintiff. Our review of the record demonstrates that the evidence clearly supports that verdict. Tim Montgomery testified that found three sources of water leakage into the building, none of which was attributable to the SPF roof he had applied. The sources of the leaks were a conduit running through the wall of the building, an inoperable air conditioning unit on the roof, and an uncapped vent. Even though each of these leaks was caused by a preexisting opening in the wall and/or underlying roof rather than by a failure of the SPF layer, Tim Montgomery was able to successfully repair each leak. Clay Frazier’s testimony confirmed that Tim Montgomery had stopped two sources of water intrusion by caulking around the opening around the conduit and by putting a plastic bag over the uncapped vent. As to the air conditioning unit, Mr. Montgomery testified that his first effort, which involved applying additional foam around the base of the unit, did not stop the leakage in that area. He further testified that the roof was damaged in September of 2008 by Hurricane Gustav, which caused a large fissure. Mr. Frazier testified that he fixed the damaged section in early 2009 even though that damage was not covered by his warranty. According to Mr. Montgomery, while he was at the building, Mr. Frazier told him there was still leakage in the area of the old air conditioning unit. Mr. Montgomery re-examined the area, and determined that the |mwater was entering through the top of the unit. He then secured a rubber tarp over the top of the unit and duct taped it. Mr. Montgomery testified that he subsequently asked Mr. Frazier whether the leak had stopped, and Mr. Frazier responded that it had.

Several weeks later, however, Mr. Frazier called Mr. Montgomery and complained that the roof was leaking again. Mr. Montgomery testified that he again went to the building and determined that the water was coming through the air conditioning unit, and that the tarp had been removed. Mr. Frazier admitted that he had removed it. When questioned at trial as to why he had removed the tarp from an inoperable unit, Mr. Frazier testified that he had done so because the roof leaked with or without the tarp. This discrepancy in the testimony presented a credibility issue for the jury to resolve.

At trial, Loconte did not offer the testimony of an expert in SPF roofs to counter the testimony of Mr. Dupuis, who was an authority in that field. Mr. Dupuis testified that the only sources of water intrusion were due to preexisting mechanical penetrations through the roof rather than to any fault in the application of the SPF layer. The two experts who testified for Loconte were Mr. Feddeck, accepted as an expert in lightweight insulated concrete and in roof consulting, and Mr. Shearer, an expert in chemistry. Mr. Shearer visually inspected the roof in question and testified as to the general properties of polyurethane foam. He did not testify that the roof was leaking nor did he perform any tests on the roof. None of the plaintiffs’ experts was able to refute Mr. Dupuis’s testimony.

Considering the totality of the evidence, we find that the trial court did not err by denying the plaintiffs motion for JNOV. | ^CONCLUSION

Accordingly, for the reasons stated, we affirm the judgments rendered by the trial court.

AFFIRMED

      . Tim Montgomery is the sole owner/operator of Montgomery and Associates, Inc., a roofing contractor. The plaintiff's claims against Mr. Montgomery in his individual capacity were dismissed when the trial court orally granted his motion for a directed verdict. Mr. Montgomery's dismissal by directed verdict was then noted in the October 26, 2011 written judgment dismissing the remaining defendants pursuant to the jury’s verdict.

      . See La. R.S. 9:2800.51, et seq.

      . The -written judgment reflecting the granting of the motion was signed on October 20, 2011.

      . On that date, the trial court rendered written judgments denying a motion for summary judgment brought by Tim Montgomery, in his individual capacity, and denying an exception of prescription asserted jointly by Tim Montgomery and Montgomery and Associates.

      . This article, entitled "Contractor’s liability for non-compliance with contract,” provides: “If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract."

      . Mr. Frazier admitted that Mr. Montgomery had repaired the fissure, but testified that the fissure had been caused by a collapse of the roof unrelated to Hurricane Gustav.


author: MAX N. TOBIAS, JR, Judge.

text:
    SUCCESSION OF Julia Lambert AMARO.
    No. 2013-CA-0022.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 15, 2013.
    Robert J. Landry, New Orleans, LA, for Appellant, Jerry David Allison.

      (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU).
   MAX N. TOBIAS, JR, Judge.

J^Jerry David Allison (“Jerry”) seeks a reversal of a trial court’s judgment that granted possession of all of the property of Julia Lambert Amaro, the decedent, to her husband at the time of her passing, Marcelino Amaro. For the reasons that follow and based upon the record on appeal before us, we vacate the trial court’s judgment and deny Jerry’s motion to supplement the record on appeal with a copy of the purported decedent’s last will and testament.

Julia Lambert Amaro departed this life on 1 May 2012. Her husband, Marcelino Amaro, commenced these proceedings with a petition for possession filed on 4 September 2012 in which he alleged that his late wife died intestate leaving immovable property and that he accepted her succession as her sole heir. To his petition, Mr. Amaro attached a notarized affidavit of death and heirship signed by him and “Margie Smith,” in which they assert that (a) they were well acquainted with the decedent, (b) the decedent was domiciled in Orleans Parish, (c) the decedent died intestate on 1 May 2012, (d) the decedent was married at the time of her death to Mr. Amaro, and (e) Mr. Amaro is the decedent’s sole heir. No ^allegation is made, as is customary in such an affidavit, as to (a) the number of times the decedent was married, (b) to whom she had been previously married and how any earlier marriage terminated, (c) the number and names of the children she had and/or adopted and if any of her children predeceased her, (d) whether she was adopted by anyone, and (e) if relevant, whether her parents predeceased her. The sworn descriptive list attached to Mr. Amaro’s petition and signed by him lists a piece of immovable property located in Orleans Parish valued at $100,000 and debts of the decedent of $12,000. The ex parte judgment of possession rendered on 4 September 2012 decrees that Mr. Amaro is the sole heir and surviving spouse of the decedent and places him in possession of the Orleans Parish immovable property. (No notice of judgment was required to be issued under the literal language of La. C.C.P. art. 1913 A because at the time the judgment was signed, nothing was contested — the matter being handled ex parte.)

On 9 November 2012, Jerry filed a “Petition to Intervene” in the succession proceedings “pursuant to La. C.C.P. art. 1091,” in which he alleges inter alia that (a) he was the son of the decedent; (b) Mr. Amaro was the decedent’s third husband; (c) Mr. Amaro was acquainted with him and aware that he was the decedent’s son and heir; (d) the immovable property forming the subject of the judgment of possession was the decedent’s separate, and not community, property; |s(e) he was not informed of the opening of the succession and of the nondisclosure of his existence; (f) he discovered the judgment of possession when preparing to open his mother’s succession; and (g) he has the right to appeal the judgment under La. C.C.P. art. 2086. He attached to his petition his own sworn affidavit of death and heirship signed by only him in which he asserts (a) that the decedent died testate; (b) that the decedent was domiciled in Orleans Parish at the time of her death; (c) to whom the decedent had been married; (d) that he was the decedent’s only son and that he survived the decedent; (e) that the decedent adopted no one else and was not adopted by anyone; (f) that the decedent’s parents predeceased her; (g) that he was aware of the existence of a testament but had not yet located it; (h) that Mr. Amaro was aware that he was the decedent’s son and had his address and telephone number; and (i) that he was personally acquainted with Mr. Amaro since Mr. Amaro’s marriage to the decedent. Jerry also attached a copy of his own birth certificate that shows his mother to be “Julia Crabtree.” The birth certificate shows Jerry’s father to be Albert William Allison, but discloses no relationship between Julia Crabtree and Albert William Allison, although Jerry’s affidavit | ^asserts that the decedent was married to Albert William Allison. An order was signed on 9 November 2012 allowing Jerry to intervene.

On 9 November 2012, Jerry also filed a “Motion for Suspensive Appeal Out of Time or, in the Alternative, Motion for Expedited Appeal.” The trial court denied the out-of-time suspensive appeal on 14 November 2012, but did grant Jerry a devolutive appeal.

On 18 November 2012, before the order granting the appeal was signed, Jerry filed an ex parte motion to supplement the record with another affidavit of death and heirship signed by Hugh David Crabtree, who asserts, in addition to many of the same things asserted by Jerry in his affidavit, that he was the decedent’s brother and the decedent was married to Albert William Allison of which “union” Jerry was born. The trial court granted the ex parte motion.

Jerry assigns but one error of the trial court to us: the trial court erred in entering the judgment of possession based upon the “fraudulent affidavit of Marcelino Amaro and Margie Smith, which provided the false assertions that decedent died intestate” and that Mr. Amaro was the decedent’s sole surviving heir.

Before addressing Jerry’s assignment of error, we note one additional matter. On 14 February 2013, after the record on appeal was lodged in this court, Jerry filed in this court an ex parte motion to supplement the record with a copy of the decedent’s purported last will and testament dated 18 August 2007. This

| ..¡purported testament has not been admitted to probate. As a court of record, we cannot consider any document or pleading not forming part of the record on appeal. Moreover, the document was not filed in the trial court prior to the trial court being divested of jurisdiction. La. C.C.P. art. 2088. Therefore, we do not grant Jerry’s 14 February 2013 motion to supplement. Nevertheless, whether we were to grant the motion or not is of no moment in this case as becomes apparent from our discussion, infra.

In the analogous case of Succession of Lissa, 194 La. 328, 193 So. 663 (La.1940), the decedent’s daughter, Mrs. Mathe, opened the decedent’s succession, praying that a notary public be appointed to search for the decedent’s will. After her obtaining an order of appointment of the notary and without notice to her or any of the decedent’s other children, Mrs. Mathe’s father, Mr. Spiro, filed a petition to probate a testament of the decedent written twenty-seven years earlier, seeking to be appointed executor of the decedent’s estate and alleging that he had been appointed executor. On the following day, Mr. Spiro filed a rule against Mrs. Mathe to rescind the order appointing the notary that Mrs. Mathe had been granted. The hearing on his rule was continued indefinitely. Mr. Spiro was thereafter confirmed as testamentary executor and obtained an inventory of the decedent’s property. About 1.5 years later, Mr. Spiro obtained a judgment of possession, placing him and his three children in possession of the decedent’s property based upon an asserted compromise, alleging that Mrs. Mathe had been disinherited by the decedent in the probated testament. No notice was provided to Mrs. Mathe of any of the proceedings. Mrs. Mathe appealed, asserting that the judgment of | (¡possession was invalid because even though a lawful heir, no evidence had been introduced establishing that she had been disinherited. Mr. Spiro moved to dismiss Mrs. Mathe’s appeal, asserting, inter alia, that she had no right to appeal absent her filing of a petition to set aside the probate of the decedent’s will, asking for a new trial, or asking for an amendment of the judgment of possession.

The Supreme Court held that Mrs. Mathe had an appealable interest in the judgment of possession, reasoning the then applicable Code of Practice article (now embodied in La. C.C.P. art. 2086) granted a third party the right to make a “prima facie showing that they are aggrieved by the judgment.” Id., 194 La. at 334-35,193 So. at 665. Citing Succession of Barber, 52 La. Ann. 960, 27 So. 363 (1900) and Succession of Dickson, 148 La. 501, 87 So. 251 (1921), the Court held that “a person claiming to be an heir may appeal from an ex parte judgment placing other persons in possession.” Lissa, 194 La. at 335, 193 So. at 665.

Although it might be said that the trial court did not err in rendering the ex parte judgment of possession based upon the evidence that it had before it on 4 September 2012, subsequent events and evidence in the record on appeal establish that the judgment of possession should be vacated. La. C.C.P. art. 2164. If Jerry is in fact the decedent’s sole child as appearing to be established by Jerry’s birth certificate and the affidavits of death and heirship that he submitted with his 9 and 13 November 2012 pleadings, he would be the decedent’s sole heir by virtue of Mr. Ama-ro’s allegation that the decedent died intestate. Jerry has made a prima facie case per the record on appeal that he is the child of Julia Lambert Amaro. An appropriate proceeding in the trial court where testimony and evidence can be 17submitted is warranted. At such hearing, the determination can also be made of whether the immovable property reflected in the judgment of possession is the separate property of the decedent or community property.

For the foregoing reasons, we vacate the judgment of possession rendered on 4 September 2012 in these proceedings and remand this case to the trial court for further proceedings. The motion of Jerry David Allison to supplement the record on appeal is denied.

JUDGMENT VACATED; MOTION TO SUPPLEMENT DENIED.

      . The absence of such allegations may create unmerchantable title of the immovable.

      . Article 1913 A of the Code of Civil Procedure states: "Except as otherwise provided by law, notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel." [Emphasis supplied.]

      .Code of Civil Procedure article 2086 states: "A person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.”
      The official revision comments to article 2086 note that La. C.C.P. art. 1091 “requires that there be connexity between the intervention and the main case, and furnishes the criterion for determining the right of appeal of third persons” and that "[wjhen a third person appeals, he takes the record as he finds it, and must show either that the judgment appealed from is erroneous or that it was the result of fraud and collusion between the original parties" (citing Haas v. Haas, 181 La. 265, 159 So. 384 (1935) and Balis v. Mitchell, 48 So.2d 691 (La.App. 1st Cir.1950)).

      . Articles 2821 and 2822 and of the Code of Civil Procedure require two individuals, not one, to sign an affidavit of death and heirship.

      . Jerry does not state what happened to the decedent’s previous two husbands prior to her marriage to Mr. Amaro.

      . Nothing in the record before us indicates that a notice of the pendency of this appeal has been filed in the Orleans Parish conveyance records.

      . The Court implicitly recognized that the issue of nullity could also be addressed by a petition of nullity of judgment. Id. The law of nullity of judgment under our current law is set forth in La. C.C.P. art. 2001 et seq.


author: MARC E. JOHNSON, Judge.

text:
    COMMUNICATION AND TECHNOLOGY INDUSTRIES, INC. v. GLOBAL HUNTER SECURITIES, INC.
    No. 12-CA-861.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 16, 2013.
    Rehearing Denied June 26, 2013.

      Brainerd S. Montgomery, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    David Israel, Bryan C. Shartle, Michael D. Alltmont, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and ROBERT M. MURPHY.
   MARC E. JOHNSON, Judge.

| gPIaintiffAppellant, Communication and Technology Industries, Inc. (hereinafter referred to as “Commtech”), appeals the granting of a summary judgment in favor of Defendant/Appellee, Global Hunter Securities, L.L.C. (hereinafter referred to as “Global”), rendered in First Parish Court for the Parish of Jefferson, Division “A”, regarding a non-solicitation clause in a contract between the parties. For the following reasons, we reverse and remand the matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Commtech is a Louisiana corporation engaged exclusively in the business of providing information technology services. Global is a foreign limited liability company engaged nationally in the investment banking business with an office located in New Orleans, Louisiana. On August 20, 2009, Commtech and Global entered into a Master Services Agreement (hereinafter referred to as “the MSA”). |3The initial term of the MSA was for one year with automatic one year extensions, unless can-celled by either party during the initial term or any extension thereof with sixty days (60) prior written notice to the other party. The MSA, which was drafted by Commtech’s attorney, stated the following terms and conditions in Subsection 11.10 regarding employee solicitation:

If Client solicits for employment hires and/or contracts with an employee or representative of CommTech during the term of our engagement or within twelve (12) months after the most recent invoice date, Client agrees to pay a fee within thirty (30) days of the retainer or employment date of such employee or representative an amount equal to the equivalent of fifty percent (50%) of employee’s or representative’s annual gross salary for the preceding year.

No employees of Commtech signed or approved the MSA.

Jason Bohnenstiehl was hired by Commtech as an at-will employee to perform the contracted information technology services. Mr. Bohnenstiehl’s annual salary with Commtech was $37,800.00. In March 2010, Mr. Bohnenstiehl resigned from Commtech, and Global hired him as a technician to provide information technology services.

On February 15, 2011, Commtech filed a Petition against Global, alleging Global breached the MSA by hiring Mr. Bohnen-stiehl and, in the alternative, a claim based on quantum meruit and unjust enrichment. Global filed an Answer to the petition on March 7, 2011, and subsequently filed a Motion for Summary Judgment on May 24, 2011. In the motion, Global alleged the “Employee Solicitation” provision found in the MSA violated La. R.S. 28:921 because it restricted every Commtech employee, particularly Mr. Bohnenstiehl, from exercising a lawful profession, trade, or business.

A hearing on the motion was held on June 26, 2012. At the hearing, the trial court granted the summary judgment on the claims raised in the petition and declared Subsection 11.10 of the MSA null and void. In her oral reasons from the |4bench, the trial judge found La. R.S. 23:921 applied to this matter because a Commtech employee becomes “less desirable to a potential employer because he is saddled with the terms of a contract that he is not part of. And there’s inequity and unfairness about that, and I think that’s exactly what 28:921 was intended to — one of the things it was intended to prevent.” There was no evidence accepted at the hearing. A written judgment granting summary judgment was signed on July 16, 2012, which dismissed Commtech’s action with prejudice. This timely appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Commtech raises the following assignments of error: 1) the trial court erred in granting summary judgment and finding that, as a matter of law, the employee solicitation clause of the MSA was null and void in violation of La. R.S. 23:921, in spite of the consistent law of other circuits and applicable federal jurisprudence to the contrary; and 2) the trial court erred in granting summary judgment by ignoring the remaining genuine issues of material fact as to whether Commtech had restrained its employee and/or Global from exercising a lawful profession, trade, or business in violation of La. R.S. 23:921.

LAW AND ANALYSIS

General Law

Appellate courts review summary judgments de novo, using the same criteria that governed the trial court’s consideration of whether summary judgment is appropriate, asking whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Favre v. Boh Bros. Const. Co., L.L.C., 11-451, pp. 6-7 (La.App. 5 Cir. 3/13/12); 90 So.3d 481, 485, writ denied, 12-1024 (La.6/22/12); 91 So.3d 976 (citation omitted). The summary judgment procedure is favored and is designed to secure the just, speedy and | ^inexpensive determination of every action, except those disallowed by law. Id. citing, DROR Intern. L.P. v. Thundervision, L.L.C., 11-215 (La.App. 5 Cir. 12/13/11); 81 So.3d 182, writ not considered, 12-0127 (La.3/23/12); 84 So.3d 560.

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the movant is entitled to judgment as a matter of law. Id. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable person could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Employee Solicitation Clause of the MSA

Commtech alleges the trial court erred in granting summary judgment as a matter of law by finding the employee solicitation clause of the MSA was null and void in violation of La. R.S. 23:921. Commtech avers it was free to contract with Global for any lawful purpose, and the sole purpose of the provision in the MSA was to protect its investment in its trained technicians. As such, Commtech argues the language of the non-solicitation clause of the MSA is not contrary to public policy, and in similar cases, has been upheld as enforceable and not governed by La. R.S. 23:921. Commtech further argues the “Employee Solicitation” provision of the MSA was reasonable in scope and duration and did not in any way restrain Mr. Boh-nenstiehl or Global from exercising a lawful profession, trade, or business.

In opposition, Global asserts the trial court was correct in its ruling because it applied the plain language of La. R.S. 23:921 to a circumstance wherein a contract contained a provision that restrains an at-will employee from exercising Rhis lawful profession, trade, or business. Global contends the statute at issue prohibits all restraints but for a limited number of specific exceptions, none of which apply to the instant facts. Global further argues the provision was null and void because Mr. Bohnenstiehl did not consent to the restraint and may not have had any knowledge of the restraint. Global contends the provision limits the ability of every Commtech employee to seek employment with Global by placing a steep price, half of the employee’s annual salary, as a requirement for employment, and that restriction limits Mr. Bohnenstiehl’s ability to obtain gainful employment with Global.

La. R.S. 23:921(A)(1) provides,

Every contract or agreement or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section shall be null and void. However, every contract or agreement, or provision thereof, which meets the exceptions as provided in this Section, shall be enforceable.

Louisiana’s public policy has disfavored noncompetition agreements. Restored Surfaces, Inc. v. Sanchez, 11-529, p. 4 (La.App. 5 Cir. 12/28/11); 82 So.3d 524, 527, citing, SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695- (La.6/29/01); 808 So.2d 294, 298. In USI Ins. Services, L.L.C. v. Tappel, 09-149, p. 7 (La.App. 5 Cir. 11/10/09); 28 So.3d 419, 423-424, writ denied, 09-2697 (La.2/26/10); 28 So.3d 271, this Court explained:

This policy is based on the State’s desire to prevent an individual from contractually being deprived of an ability to support him or herself and consequently becoming a public burden. Such agreements are in derogation of the common right and must be strictly construed against the party seeking their enforcement.
La. R.S. 23:921 provides limited instances in which a contract can restrict the exercise of a lawful profession. That statute must also be strictly construed, since it is an exception to Louisiana public policy against such contracts. Id. Louisiana courts have made no distinction between non-compete and non-solicitation clauses when interpreting La. R.S. 23:921.

(citations omitted).

|7A non-solicitation agreement, like a noncompetition agreement, is a contract between the parties who enter it, and it is to be construed according to the general rules of contract interpretation. See generally, Sanchez at 5; 82 So.3d at 528. The common intent of the parties is used to interpret a contract. Id., citing, La. C.C. art.2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. Id., citing, La. C.C. art.2046.

In the instant matter, the non-solicitation terms of the MSA are clear and unambiguous. The “Employee Solicitation” provision of the MSA requires Global as the “Client” to pay a fee within thirty days of the retainer or employment date of a solicited Commtech employee. The fee is equivalent of fifty percent of the employee’s annual gross salary for the preceding year. The MSA merely places a fee on any client that solicits an employee of Commtech.

Mr. Bohnenstiehl was an employee of Commtech who was hired by Global within the applicable time frame of the MSA. In contradiction to Global’s argument, the non-solicitation provision in this matter did not restrain Mr. Bohnenstiehl from the exercise of his profession, trade, or business, which is evidenced by the fact that Global hired him as an information technology services technician. Clearly, the possibility of having to abide to the MSA was not a deterrent for Global. Because Mr. Bohnenstiehl, or any other Commtech employee, is not prevented from exercising his trade, profession, or business under the “Employee Solicitation” provision of the MSA, we cannot find that La. R.S. 23:921 governs that provision. Commtech and Global are two businesses that chose to enter into an agreement, and La. R.S. 23:921 is not intended to protect independent corporations on an equal footing from a possibly bad bargain. See, Louisiana Smoked Products, Inc. v. Savoie’s Sausage and Food Products, Inc., 96-1716 (La.7/1/97); 696 So.2d 1373, 1381. Thus, the non-solicitation provision is valid and enforceable.

Therefore, we find the trial court erred in granting summary judgment and declaring the “Employee Solicitation” provision of the MSA null and void.

Burden of Proof

Commtech alleges the trial court erred in not properly applying Louisiana summary judgment standards and La. C.C.P. art. 966 when it granted Global’s summary judgment in the face of remaining genuine issues of material fact. Commtech maintains Global failed to meet its burden of proving a prima facie case that no genuine issues of material fact exist, and the unsworn statements of uncontested material facts that “Section 11.10 of the MSA is unenforceable under La.Rev.Stat. Ann. § 23:921” and it “restricts and restrains the ability of CommT-ech employees to obtain employment with [Global]” were not supported by a valid affidavit. Commtech further maintains the alleged uncontested material facts did not appear in Global’s unverified answer, pleadings, depositions, or admissions on file.

The mover in a motion for summary judgment bears the burden of proof. La. C.C.P. art. 966(C)(2). 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 elements of the adverse party’s claim, action, or defense, 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, action, or defense. Id. When ruling on a motion for summary judgment, the trial court may consider “pleadings, depositions, answers to interrogatories, and admissions on file, together with the ^affidavits, if any[,]” presented by the parties in support of or in opposition to the motion; those specifically enumerated documents need not be formally introduced into evidence at the hearing on the motion if they are already “on file” or physically placed into the record prior to the hearing on the motion. La. C.C.P. art. 966(B) ; Sheffie v. Wal-Mart Louisiana, LLC, 11-1038, pp. 5-6 (La.App. 5 Cir. 5/31/12); 92 So.3d 625, 629 (citation omitted).

If a defendant moving for summary judgment has made a prima facie showing that the motion should be granted, the burden shifts to the adverse party to present evidence demonstrating that material factual issues remain. Monier v. St. Charles Parish School Bd., 10-526, p. 6 (La.App. 5 Cir. 5/10/11); 65 So.3d 731, 734 (citation omitted). The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Id.

In the case at bar, a review of the record reflects Global failed to have any documentation accepted into evidence at the hearing. With its Motion for Summary Judgment, Global attached a copy of the MSA, Commtech’s responses to discovery requests, a copy of Mr. Bohnenstiehl’s employment offer with Commtech, an email regarding Mr. Bohnenstiehl’s salary, the Answer, and an affidavit of Matthey Schandler, Global’s Director of Information Technology. After review, we find that none of the documentation submitted by Global supports the notion that Section 11.10, the “Employee Solicitation” provision, of the MSA is unenforceable under La. R.S. 23:921. Thus, there are remaining genuine issues of material fact to be resolved at the trial court level, e.g., whether Global breached the MSA and/or whether Global was unjustly enriched through hiring Mr. Bohnenstiehl.

lTnIn conjunction with our finding that La. R.S. 23:921 is inapplicable to the provision in question, we also find the trial court erred in granting the summary judgment in favor of Global because it failed to present evidence to meet its prima facie burden that it was entitled to summary judgment as a matter of law.

DECREE

For the foregoing reasons, we reverse the granting of the summary judgment on both issues and dismissal of Communication and Technology Industries, Inc.’s action and remand the matter to the trial court for further proceedings. Global Hunter Securities, Inc. is assessed the costs of this appeal.

REVERSED AND REMANDED

      . It is noted that La. C.C.P. art. 966 was amended by Acts 2012, Nos. 257 and 741, § 1, which took effect on August 1, 2012. The pre-amended version of La. C.C.P. art. 966 was in effect at the time of the hearing on the Motion for Summary Judgment in this matter.


author: JOY COSSICH LOBRANO, Judge.

text:
    Anthonty BUFFONE v. Mable MANGANO, Salvador Mangano, and Buffman, Inc.
    No. 2012-CA-0819.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 17, 2013.

      W. Christopher Beary, Angel L. Byrum, Orrill Cordell & Beary, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Robert Angelle, Metairie, LA, Charles V. Cusimario, III, Cusimano Law Firm, PLC, Michael G. Gaffney, Hurndon & Gaffney, New Orleans, LA, Van Robi-chaux, Robichaux Law Firm, Chalmette, LA, for Defendants/Appellees.
    (Court composed of Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| jThis case involves a dispute over the ownership of 800 shares of stock in Buff-man, Inc., a family-owned corporation that operated St. Rita’s Nursing Home (“St. Rita’s”) in St. Bernard Parish. Following a trial, the trial court determined plaintiff, Anthony Buffone, had ratified the issuance of the 800 shares of stock to his sister, Mabel Mangano, and rendered a judgment accordingly. Plaintiff appealed. For the reasons that follow, we affirm the district court judgment.

Buffman, Inc., was incorporated and registered with the Louisiana Secretary of State on September 19,1984. The articles of incorporation, which authorized the issuance of 1,000 shares of stock, issued 100 shares each to plaintiff and Salvador Man-gano, Mabel’s husband. The remaining 800 shares were not issued at that time. The Board of Directors and officers of the corporation were listed as Salvador Man-gano (president), Anthony Buffone (vice president), Mabel Mangano (secretary) and Agnes Buffone (treasurer).

On October 2, 1985, a stock certificate evidencing the remaining 800 shares of stock was issued to Mabel Mangano. Although Salvador and Mabel Mangano | ^signed the certifícate as corporation president and secretary, respectively, there are no minutes from a Board of Directors meeting for that date reflecting a vote to issue the stock, nor is there a corporate resolution authorizing the stock issuance.

On October 28, 1985, the Board of Directors held a meeting and passed two resolutions. The first, Resolution 11-85-1-A, appointed Mabel Mangano as the authorized representative of Buffman, Inc., giving her the power to enter into any contracts necessary for the operation of St. Rita’s. The second, Resolution 11-85-2, obligated Buffman, Inc., to repay the mortgage executed by Mabel and Salvador Mangano in the amount of $294,000.00 to construct and operate St. Rita’s pursuant to the terms of the mortgage.

Mabel and Salvador Mangano managed all the business and daily operations of St. Rita’s. Although plaintiff received a regular salary from Buffman, Inc., he had no active role in operating the home. St. Rita’s operated successfully from September 1984 to August 29, 2005, when flooding in the aftermath Hurricane Katrina destroyed the facility, and 35 residents died. After the hurricane, Buffman, Inc., successfully sued its insurer, Lafayette Insurance Company, for property damage and loss of business income. Meanwhile, the Louisiana Attorney General filed criminal charges against Salvador and Mabel Man-gano for the deaths and injuries that occurred as a result of their failure to evacuate the facility prior to the storm, despite government warnings to do so.

| sIn August 2007, prior to the start of the criminal trial, plaintiff spoke with John Reed, one of the Mánganos’ defense attorneys, who informed him that he (plaintiff) owned only ten percent (10%) of Buffman, Inc. According to plaintiff, at that point in time, he believed he still owned fifty percent (50%) of the corporation and was unaware the remaining 800 authorized shares of stock had been issued to Mabel. He claimed he “blew off’ the conversation and did not inquire whether Reed’s information was correct, because he did not want to bother the Mánganos while their criminal trial was pending. However, several days later plaintiff did tell his wife about his conversation with Reed.

In early 2010, Mabel Mangano sent plaintiff a “Cash Call” letter that stated, in part:

Sal and I are writing to inform you that it is necessary to put $100,000.00 into Buffman, Inc, in order to begin renovating the nursing home property so that the State will not revoke our Certificate of Need. Since you are the owner of 10% percent of the stock, your contribution is $10,000.00, which we will need on or before the end of March, 2010.
We anticipate further expenses as time goes on in order to put the property back in shape to serve as a nursing home. Consequently, we expect further cash calls in the near future. Ultimately, the property will again be profitable, but there will be some hard time for all of us before then.

Upon receipt of the letter, plaintiff retained an attorney who sent a letter to Mabel Mangano on May 6, 2010, requesting an inspection of Buffman, Inc.’s records from 1984 to the present. As a result of the inspection, plaintiff discovered that the remaining 800 authorized shares of stock had been issued to Mabel Mangano in |4October 1985. Plaintiff also discovered the Mánganos had used corporate funds to purchase personal items and satisfy personal debts, paid themselves excessive salaries and bonuses, and continued to pay their children and relatives salaries, even though St. Rita’s ceased operations after Hurricane Katrina.

On August 12, 2010, plaintiff filed a Petition for Declaratory Judgment, for Appointment of a Receiver and for Reimbursement, praying for, among other relief, a judgment declaring him the owner of fifty percent (50%) of Buffman, Inc., and the issuance of the 800 shares to Mabel Mangano absolutely null and void.

At a pre-trial hearing, the trial court ruled that the stock issuance was a relative nullity, as defined in La. Civ.Code art. 2031. Thus, the issue at trial was whether or not plaintiff confirmed or ratified the issuance of the 800 shares to Mabel Man-gano.

Following a trial, the trial court found plaintiff acquired notice sufficient to require further action on his part to ascertain the ownership of the 800 shares during his conversation with John Reed in August 2007. From that point on, the court concluded, plaintiff should have known Mabel Mangano claimed ownership of eighty percent (80%) of the corporation. The court found plaintiff’s claim had not prescribed, as it was filed within five years of the date of his conversation with Reed. See La. Civ.Code Art.2032. Referring to La. Civ.Code Art. 1843, the |ficourt found no proof that plaintiff expressly ratified the issuance of the 800 shares to Mabel Mangano and, thus, the issue was whether he tacitly ratified it by his inaction. In concluding plaintiff did, in fact, tacitly ratify the stock issuance, the court gave the following reasons:

The cases cited support that tacit ratification can result through the inaction of shareholders when knowledge of the transaction is imputable to them. However, the fact that a shareholder chooses not to be involved or take an active role in corporate affairs in and of itself does not impute knowledge to the shareholder. As in any corporation, the owners are the shareholders. The shareholders have no legal obligation to take any action on behalf of the corporation. They can simply sit back and enjoy the fruits of their ownership, i.e. dividends. However, that is not the same for directors and/or officers of the corporation. A director has duties and responsibilities to the corporation while an officer is charged with participation in the day-today operation of the corporation. When a shareholder such as [plaintiff] is also one of the members of the Board of Directors and also the vice-president of the corporation, he stands a greater potential to have knowledge of actions taken by other Board members imputed to him. In fact, [plaintiff] received a salary as an officer in Buffman, Inc.[,] and for twenty-five years regularly went to St. Rita’s. He had unlimited access to all corporate and financial records of Buff-man, Inc. He was fully aware of the construction and improvements made over the years by Mabel Mangano to St. Rita’s. Despite the numerous requests by his wife to check up on the financials of the corporation, he chose to “leave it alone.” In this instance, [plaintiff] chose to allow Mabel Mangano to run the entire operation in exchange for his salary and not having to perform any duties or put any more money into this corporation. It is unreasonable to draw a salary for twenty-five years without any duties and allow another director to run the corporation and then to complain that |fithat person is actually the majority owner of the corporation. The Court finds that to be a tacit ratification by [plaintiff] due to his indifference, his lack of due diligence and his desire to just “leave it alone.” Accordingly, the Court finds that there has been confirmation of the issuance of 800 shares of stock to Mabel Mangano through the “tacit ratification” of the stock issuance. [Plaintiff] is found to be the owner of 100 shares of Buffman, Inc.[,] stock.

On appeal, plaintiff argues that the trial court erred in determining that he tacitly ratified the stock issuance through his indifference and lack of due diligence, considering he had no knowledge of it. Specifically, plaintiff contends that he had to have actual knowledge of the stock issuance in order to ratify it.

Ratification is the adoption by one person of an act done on his behalf by another without authority. It amounts to a substitute for prior authority. First National Bank of Shreveport v. Crawford, 455 So.2d 1209, 1215 (La.App. 2d Cir.), writ denied, 459 So.2d 538 (La.1984). Ratification occurs when personnel with the authority to bind the corporation acquire knowledge of the unauthorized act and thereafter fail to repudiate it within a reasonable period of time. 3 A’s Towing Co. v. P & A Well Service, Inc., 642 F.2d 756, 758 (5th Cir.1981).

In Ogden v. Culpepper, 474 So.2d 1346 (La.App. 2d Cir.1985), several minority shareholders of a corporation filed suit to invalidate a sale of treasury stock conducted by the corporation’s lone director, Billy Culpepper. Delbert Speights, a minority shareholder who initially proposed the sale, was present at the corporate office when the stock certificate was prepared and issued to John Lohnes, an employee and secretary of the corporation. Several years later, at a shareholders meeting with all shareholders present or represented, Culpepper and Lohnes voted their shares to elect themselves directors of the corporation. While Delbert Speights and his family members (collectively, the minority shareholders) 17voted in opposition, their shares were insufficient to block the election of Culpepper and Lohnes.

The minority shareholders, save Delbert Speights and his wife Ruth, filed suit to invalidate the sale of the shares to Lohnes and to challenge the election of Culpepper and Lohnes as directors. The articles of incorporation and Louisiana statutory law required the Board of Directors to be composed of no less than three persons, and because the board was improperly constituted, the Court found Culpepper lacked authority to set the price and issue the shares. Nonetheless, the Court found Culpepper’s acts were not void, but voidable, and could be ratified by the shareholders. The court concluded that such ratification could be implied through acquiescence. Because several years had elapsed between the date of the sale and the date the minority shareholders filed their suit, and they never complained of the sale, the court found their acquiescence could be implied unless they neither had actual knowledge of the sale nor should have knowledge imputed to them.

The court noted that while the minority shareholders, save Delbert Speights, had no actual knowledge of the sale, the reason for their lack of knowledge was due to their placing complete trust in him. The court found the evidence “left no doubt that [the minority shareholders] placed their faith in Speights to watch out for their interests in the corporation and trusted his judgment.” 474 So.2d at 1352. The court further stated:

A well established principle in corporation law is that where a corporation entrusts an officer or director with management of the corporation’s business, the corporation will not later be heard to deny the authority of the individual to act on behalf of the corporation. See City Sav. Bank and Trust Co. v. Shreveport Brick Co., Inc., 172 La. 471, 134 So. 397. See also Harris v. H.C. Talton Wholesale Grocery Co., Inc., 11 La.App. 331, 123 So. 480. Similarly, we hold that in a closely held corporation where an individual controls a significant portion of the shares of the corporation, takes an active role in the managing of the corporation’s business, and is entrusted by related stockholders to watch out for and to act in their best interests, that individual knowledge of corporation’s business affairs may be imputed to those who have entrusted him to act on their behalf.

Id. The court concluded that Delbert Speights’ actual knowledge of the stock sale was imputed to the minority shareholders, and because of such knowledge, the minority shareholders ratified the sale by acquiescence. Id.

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Hall v. Folger Coffee Company, 2003-1734, p. 9 (La.4/14/04), 874 So.2d 90, 98 (citation omitted). Thus, the reviewing court may not merely decide if it would have found the facts of the case differently. Id. The reviewing court should affirm the trial court where the trial court judgment is not clearly wrong or manifestly erroneous. Id.

In the instant case, plaintiff was an officer and director as well as a shareholder in Buffman, Inc. As an officer and director, plaintiff owed a fiduciary duty to the corporation and its shareholders, and was obligated to discharge the duties of his position in good faith, and with the diligence, care, judgment, and skill that an ordinary prudent man would exercise under similar circumstances in a like position. See La. R.S. 12:91(A). Further, as an officer he was obligated to perform the duties in the management of the property and affairs of the corporation as prescribed in the bylaws or by the board. See La. R.S. 12:82(D).

|9Based on the record, and applying the reasoning in Culpepper, supra, we find no manifest error in the trial court’s finding that plaintiff tacitly ratified the stock issuance to Mabel Mangano due to his indifference, lack of due diligence and desire to ignore his duties as an officer and director. Plaintiff acknowledged that he received a regular salary from Buffman, Inc., for twenty-five years, even though he performed no duties at the nursing home. He went to St. Rita’s regularly to pick up his check and had complete access to the corporation’s books and financial statements, yet he choose not to inspect them, despite his wife’s pleas to do so. He allowed Mabel Mangano to manage St. Rita’s daily operations and business affairs. Plaintiff also permitted the Manga-nos to make extensive, costly capital improvements to the facility over the years without objection. Considering plaintiffs position as an officer and director in Buff-man, Inc., we agree with the trial court that it was unreasonable for him to draw a salary for many years without commensurate duties and allow Mabel Mangano to run the corporation, and then to complain that she was the actual majority owner.

Finally, we find it was unreasonable for plaintiff, after being advised in 2007 that he owned only 10% percent of the corporation, to wait three years before filing his suit to challenge Mabel Mangano’s ownership of the 800 shares. At the time, plaintiff knew there had never been a vote at a Board of Directors meeting or corporate resolution authorizing the issuance of the 800 shares. Given that fact, as an officer and director, plaintiff had a duty to ascertain whether the information was correct by either confronting the Mánganos or inspecting the corporation’s books. Plaintiffs failure to take any action within a reasonable period of time after his conversation with Reed to ascertain the actual ownership of the corporation |insupports the trial court’s conclusion that he tacitly ratified the issuance of the shares to his sister.

Accordingly, for the above reasons, we affirm the trial court’s December 20, 2011 judgment in favor of Mabel Mangano, Salvador Mangano and Buffman, Inc.

AFFIRMED

BELSOME, J., concurs in the result.

      . Agnes Buffone is plaintiff’s wife.

      . The Mánganos’ home served as collateral for the loan.

      . Plaintiff's primary occupation was working as a commercial fisherman.

      . See Buffman, Inc. v. Lafayette Insurance Company, 2009-0870 (La.App. 4 Cir. 4/14/10), 36 So.3d 1004; writ granted in part, 2010-1341 (La.1/20/12), 78 So.3d 130.

      . On September 7, 2007, the jury acquitted the Mánganos of the charges.

      . La. Civ.Code. Art.2031 provides:
      A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made. A contract that is only relatively null may be confirmed.
      Relative nullity may be invoked only by those persons for whose interest the ground for nullity was established, and may not be declared by the court on its own motion.

      . La. Civ.Code Art. 1843 provides:
      Ratification is a declaration whereby a person gives his consent to an obligation incurred on his behalf by another without authority.
      An express act of ratification must be evidence the intention to be bound by the ratified obligation.
      Tacit ratification results when a person, with knowledge of an obligation incurred on his behalf by another, accepts the benefit of that obligation.