text:
    Wendy Coleman LeGARDEUR, et al v. Renate Briel COLEMAN. Sucession of William B. Coleman, Jr. v. Renate Briel Coleman.
    No. 13-CA-435.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2013.

      Philip A. Franco, Courtney C. Miller, Attorneys at Law, New Orleans, Louisiana, Bruce A. Miller, Attorney at Law, Metairie, Louisiana, for PlaintiffiAppellant.
    Marc D. Winsberg, Robin Penzato Arnold, Lee A. Heidingsfelder, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON, and STEPHEN J. WINDHORST.
   FREDERICKA HOMBERG WICKER, Judge.

|sPlaintiffs appeal the trial court judgment in favor of their deceased father’s second wife, defendant-herein. The trier-of-fact determined that defendant acquired ownership of certain property through ten-year acquisitive prescription and further denied the deceased father’s estate’s claim for reimbursement of funds from a brokerage account the estate claims was decedent’s separate property. For the following reasons, we find the trial court was correct in its findings and affirm the judgment appealed.

14FACTUAL AND PROCEDURAL BACKGROUND

William Coleman, Jr. (Mr. Coleman) was married to Stella Coleman until her death in 1972. Of that marriage, three children were born — William B. Coleman, III, Wendy Coleman LeGardeur, and Jon Keith Coleman, plaintiffs herein. In 1975, Mr. Coleman married Renate Briel Coleman (Mrs. Coleman), defendant herein, and remained married to her until his death in December of 2006.

Plaintiffs filed suit asserting a 50% ownership interest in a property (hereinafter “the Falcon Road property”) formerly owned by their father and mother, Stella Coleman, and further seeking reimbursement of sale proceeds from Mrs. Coleman’s 2008 sale of the property. Plaintiffs challenge a 1982 transaction in which their father purported to convey to Mrs. Coleman title to the Falcon Road property. Separately, William Coleman, III, in his capacity as executor of his father’s estate, filed suit for reimbursement of funds from a brokerage account (hereinafter “the Smith Barney account”) he claims the estate inadvertently distributed to Mrs. Coleman following Mr. Coleman’s death.

DISCUSSION

The issues on appeal stem from the trial court’s judgment in favor of Mrs. Coleman, finding that (1) she acquired full ownership of the Falcon Road property by ten-year acquisitive prescription, and (2) the Smith Barney account was a community account and Mr. Coleman’s estate is not entitled to reimbursement for community funds previously distributed to Mrs. Coleman. We address plaintiffs’ assignments of error related to the Falcon Road property and the Smith Barney account each in turn.

| ¿Falcon Road Property

Mr. Coleman and Stella Coleman purchased the Falcon Road property as their community home in 1949 and resided there until Stella Coleman’s death in 1972. In 1971, before Stella Coleman’s death, Mr. Coleman executed an act of sale transferring the property to his company, the William B. Coleman Company, Inc. In a pretrial ruling, the trial judge determined that the 1971 transfer to the company was a simulated sale. In 1976, after Stella Coleman’s death, the William B. Coleman Company transferred the property back to Mr. Coleman individually. Plaintiff, William Coleman, III, as then-President of the company, witnessed and placed his signature on this 1976 Act of Sale. The evidence presented at trial demonstrates that the Falcon Road property was not included in Stella Coleman’s succession documents, including the detailed descriptive list and the judgment of possession rendered in the Twenty-Fourth Judicial District Court.

Mr. Coleman and Mrs. Coleman married in 1975. In 1982, Mr. Coleman executed an Act of Sale, transferring his rights in the property to his wife, Mrs. Coleman, for consideration in the amount of $100,000.00. On the same date, Mr. Coleman executed an Act of Donation, donating the property to Mrs. Coleman as her separate property. Mr. and Mrs. Coleman resided together in the Falcon Road property until his death in December of 2006, with the exception of a period of time following Hurricane Katrina.

Mrs. Coleman sold the Falcon Road property to a third party in 2008 for $1,150,000.00. In 2010, Plaintiffs filed the instant litigation asserting a 50% | (-.ownership interest in the Falcon Road property and seeking reimbursement of 50% of the sale proceeds from the 2008 sale. Mrs. Coleman subsequently asserted that she acquired full ownership of the Falcon Road property through ten-year acquisitive prescription.

The matter proceeded to jury trial. As to the Falcon Road property, the jury found that Mrs. Coleman possessed the Falcon Road property for a period over ten years in good faith. The jury further found that plaintiffs are estopped from asserting their claim to the property in light of their actions or inaction to assert their ownership. The trial judge subsequently determined the issue of just title, finding that the 1982 transfer conveyed valid title of Mr. Coleman’s 50% interest in the property and further conveyed just title to the remaining 50% interest in the property. The trial court entered judgment on the jury’s verdict and found that Mrs. Coleman acquired full ownership of the Falcon Road property through ten-year acquisitive prescription.

Plaintiffs appeal the trial court’s judgment, arguing that (1) the trial judge erred in determining that the 1982 transfer conveyed just title to Mrs. Coleman of their mother’s 50% interest in the Falcon Road property; (2) the jury erred in finding that Mrs. Coleman possessed the property in good faith; and (3) the jury erred in applying the doctrine of estoppel under the facts of this case — where they contend their claim to assert ownership has not yet prescribed — and further that Mrs. Coleman failed to meet her burden to prove estop-pel in this case.

We address each assignment of error related to the Falcon Road property separately below:

| tAcquisitive Prescription

Under Louisiana law, ownership and other real rights in immovable property may be acquired by the prescription of ten years. La. C.C. art. 3473. The requisites for acquisitive prescription of ten years are: possession for ten years; good faith; just title; and a thing susceptible of acquisition by prescription. La. C.C. art. 3475. In this appeal, plaintiffs claim that the trial court erred in finding that Mrs. Coleman had just title of their mother’s 50% interest in the Falcon Road property and further claim that the jury erred in finding that Mrs. Coleman possessed the Falcon Road property in good faith.

Just Title

Because the trial judge determined that the 1971 transfer to the William B. Coleman Company, Inc. was a simulated sale, Mr. Coleman only had valid title to a 50% interest in the Falcon Road property at the time of the 1982 Act of Sale to Mrs. Coleman. Plaintiffs argue that because the language in the 1982 Act of Sale provides that Mr. Coleman transferred all of the rights he “has or may have[,]” the 1982 Act of Sale only transferred valid title as to Mr. Coleman’s 50% interest. We agree. However, plaintiffs further contend that the 1982 Act of Sale did not convey just title to Mrs. Coleman of the remaining 50% interest — Stella Coleman’s 50% interest in the property at the time of her death. For the following reasons, we disagree.

One requisite to acquiring property through ten-year acquisitive prescription is proof of just title. La. C.C. art. 3475. Just title is defined as “a juridical act, such as a sale, exchange, or donation, sufficient to transfer ownership or another [Rreal right. The act must be written, valid in form, and filed for registry in the conveyance records of the parish in which the immovable is situated.” La. C.C. art. 3483. Comment (b) to article 3483 clarifies that a just title is a juridical act, such as an act of sale, “translative of ownership.” (emphasis in original).

In her Reasons for Judgment, the trial judge discussed La. C.C. art. 3483 and provided the following analysis to support her judgment with regard to just title:

Specifically, the children rely on the following language contained in the 1982 Act of Sale:
“William B. Coleman, Jr.who declares that he does by these presents grant, bargain, sell, convey, transfer, assign, setover, abandon and deliver, with all legal warranties and with full substitution and subrogation in and to all of the rights and actions of warranty which he has or may have against all preceding owners and vendors..”
The children focus on the highlighted phrases. They argue since William B. Coleman, Jr. only owned the rights to % of the house, the language of the Act only transferred the rights to ¡á of the house to Renate. The court disagrees.

Civil Code Article 3483 defines “just title” as follows:

A just title is a juridical act, such as a sale, exchange, or donation, sufficient to transfer ownership or another real right. The act must be written, valid in form, and filed for registry in the conveyance records of the parish in which the immovable is situate[d][sic ].
The comments to this article shed some light on interpretation of this definition. In particular, Comment (b) explains that “Just title” need not be derived from the true owner because if that were the case, prescription would have no place in our law. The law merely requires a document, which if it had been executed by the true owner, would have conveyed ownership.
Applying this rationale to the 1982 Act of Sale, the court concludes it conveyed “just title” to Renate Briel Coleman of the entire property. The language of the Act of Sale is clear and unambiguous. The document does not limit William B. Coleman, Jr.’s interests to only ¡é of the Falcon Road property, nor does it reference any co-owners. Clearly if William B. Coleman, Jr. had been the true owner of the entire property in 1982, the Act of Sale would have transferred the entire property to Renate Briel Coleman. Furthermore, the Act was written in valid form and filed in the conveyance records. Therefore, it is “just title” as defined by Civil Code Article 3483. This interpretation is consistent with the Supreme Court’s interpretation of |9“just title” in Land Development Co. of Louisiana v. Schultz [Schulz], [169 La. 1] 124 So. 125[ ] (La.1929).
This conclusion is also supported by the Comment (b) of Civil Code Article 3484. According to this comment, when a co-owner of an immovable transfers ownership of the entire immovable, the transferee acquires the undivided interest of the transferor and “just title” to the remaining parts. Thus, in 1982, Renate Coleman immediately acquired the Falcon Road property. However, because the 1982 Act of Sale did not limit Mr. Coleman’s interest to \ of the property, she acquired “just title” to the remaining part.

We agree with the trial judge’s analysis and find that the 1982 Act of Sale is a juridical act translative of title sufficient to convey valid title to Mr. Coleman’s 50% interest and just title to Stella Coleman’s remaining 50% interest.

To further support their position, plaintiffs point to two appellate court decisions, In re Succession of Samuel, 11-1511 (La.App. 4 Cir. 5/2/12), 89 So.3d 1275 and Taylor v. Taylor, 32,517 (La.App. 2 Cir. 1/6/00), 755 So.2d 341. For the following reasons, we find the two cases cited by plaintiffs are not controlling under the facts of this case.

In In re Succession of Samuel, the decedent, Bernard Samuel, was married to Bertha Samuel and three children were born of that marriage. Mr. Samuel and his first wife purchased property during the community regime. After Bertha Samuel’s death, Mr. Samuel, through a power of attorney executed in favor of his second wife, transferred the property at issue to his son, Barry Samuel. Following Mr. Samuel’s death, Barbara Samuel, Barry’s sister, sought to set aside the 1998 transaction on the ground that the power of attorney used to convey the property was invalid because Mr. Samuel lacked mental capacity at the time he executed the power of attorney. Barry subsequently filed a motion for summary judgment, asserting the validity of the 1998 act of sale. The trial court granted Barry’s motion, in part, finding that the 1998 act of sale transferred Mr. Samuel’s 50% Iminterest in the property but further found that the three children co-owned the remaining 50% interest. Barbara appealed the trial court judgment. The Louisiana Fourth Circuit stated in its opinion that Barry failed to appeal the trial court’s judgment and further indicated that Barry abandoned his argument as to just title of the remaining 50% interest on appeal by conceding to the trial court’s judgment. The Fourth Circuit affirmed the trial court’s partial granting of the summary judgment, but did so on the ground that Barbara’s claim to set aside the 1998 sale had prescribed under La. R.S. 9:5647. However, the Fourth Circuit specifically stated that it “pretermit[ted] discussion of the remaining issues ... relative to ten-year acquisitive prescription.... ” In re Succession of Samuel, 89 So.3d at 1279. Accordingly, we find the Fourth Circuit in Samuel did not reach or determine the issue of just title and is thus not controlling or persuasive to the facts of this case.

Plaintiffs further cite Taylor to support their position. The plaintiff in Taylor also attacked the validity of a transfer, based upon an invalid power of attorney, of her father’s interest in a property. The property at issue in Taylor was inherited by nine individuals and plaintiffs father’s interest was clearly set forth in a judgment of possession rendered in connection with a succession. Therefore, the nine heirs clearly co-owned the property. In dicta, the Louisiana Second Circuit states that the deed, which did not specify the percentage of plaintiffs father’s interest in the property, only transferred his interest in the property and did not transfer just title Into the remaining hems’ interests. However, the primary issue before the court in the Taylor case was whether plaintiffs claim to attack the validity of the power of attorney, allegedly executed with lack of mental capacity, had prescribed. We find the Taylor case, in which a judgment of possession clearly reflected that plaintiffs father only owned an undivided interest in the property and where the primary issue before the court was whether plaintiffs claim to attack the validity of a power of attorney had prescribed, is distinguishable and not applicable under the facts of this case.

Accordingly, we find the 1982 Act of Sale to Mrs. Coleman contained language sufficient to transfer valid title to Mr. Coleman’s 50% interest in the property and just title to the remaining 50% interest.

Good Faith

To acquire immovable property through ten-year acquisitive prescription, a party must also prove possession, in good faith, for a period of ten years. La. C.C. art. 3475. The jury found that Mrs. Coleman possessed the Falcon Road property for a period of ten years and in good faith. Plaintiffs do not dispute the jury’s finding of possession. However, plaintiffs assign as error the jury’s finding that Mrs. Coleman was in good faith. For the following reasons, we find the evidence presented at trial supports the jury’s verdict finding that Mrs. Coleman possessed the Falcon Road property in good faith.

Plaintiffs argue that the jury erred in finding Mrs. Coleman in good faith primarily because: (1) plaintiffs contend that a “family meeting” was held after Mr. and Mrs. Coleman’s marriage wherein the ownership of the Falcon Road property was discussed and Mrs. Coleman was informed that the children owned 50% of the 112property; and (2) the evidence shows that Mrs. Coleman purchased title insurance days after Mr. Coleman’s death, evidencing her knowledge of plaintiffs’ property interest and her bad faith.

With regard to the family meeting, plaintiffs each testified that a family meeting was held at the Falcon Road property shortly after Mr. and Mrs. Coleman married. Plaintiffs each testified that Mr. Coleman, Mrs. Coleman, plaintiffs, and Mr. Coleman’s brother, Jimmy Coleman, attended the meeting and that the purpose of the meeting was to discuss the ownership of the Falcon Road property. Plaintiffs testified that, at that meeting, Jimmy Coleman, the family attorney, explained to Mrs. Coleman and plaintiffs that plaintiffs owned a 50% interest in the home, which they received from their mother’s succession. Mrs. Coleman, on the other hand, testified that she recalled a family meeting taking place shortly after she married Mr. Coleman, but the purpose of the meeting was to smooth over the relationship between plaintiffs and Mrs. Coleman because the relationship was like “ice.” Mrs. Coleman testified clearly that no one ever informed her that the children had any ownership interest in the Falcon Road property, and that her husband repeatedly explained to her that he wished for his children to inherit the William B. Coleman Company, Inc. and for her to have the house. Mrs. Coleman testified, and evidence was introduced to indicate, that Mr. Coleman’s brother, Jimmy Coleman handled the documentation for the 1982 Act of Sale and the 1982 Act of Donation transferring the property to Mrs. Coleman. She testified that, at the time she executed the Act of Sale and Act of Donation, Jimmy Coleman never explained to her that the children may have had any ownership interest in the property. Mrs. Coleman explained that Mr. Coleman’s actions led her to believe that he owned 100% of the Falcon Road property. Further, Mrs. Coleman testified |13that she often referred to the Falcon Road property as her home and that, when she did ask the children-plaintiffs to leave her home, they complied and never responded that they too had an ownership interest in the property. The jury clearly believed Mrs. Coleman’s testimony and did not accept plaintiffs’ testimony that Mrs. Coleman had been informed of the childrens’ interest in the property.

Regarding the purchase of title insurance, the record reflects that title insurance was purchased days after Mr. Coleman’s death. Mrs. Coleman testified that, following Mr. Coleman’s death, Jimmy Coleman purchased a policy of title insurance in Mrs. Coleman’s name and explained to her that it was a standard precaution to protect her property following Mr. Coleman’s death. Plaintiffs contend that this purchase of title insurance proves that Mrs. Coleman knew of plaintiffs’ ownership interest in the property and shows her possession in bad faith. However, Mrs. Coleman testified that the insurance policy was purchased without her knowledge by Jimmy Coleman and further that, had she known that the children would assert any ownership claim, she would not have sold the property to a third-party until the dispute had been resolved. The jury believed Mrs. Coleman’s testimony and found her to be a good faith possessor.

In her Reasons for Judgment, the trial judge found:

[C]ontrary to Plaintiffs’ assertions, ample evidence offered at trial supports the jury’s finding [of good faith]. Mrs. Coleman testified she believed her husband gave her the house as a gift and that she always believed her husband owned 100% of the property. His actions and the actions of Plaintiffs led her to believe he owned 100% of the property....

When findings of fact are based on the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings. Salassi v. Salassi, 08-510 (La.App. 5 Cir. 5/12/09), 13 So.3d 670, 675; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Upon review of the record and consideration of the deference given to the jury in the factual determination of good faith, we find the evidence supports the jury’s verdict that Mrs. Coleman possessed the Falcon Road property for a period of ten years and in good faith.

Estoppel

Mrs. Coleman, as an alternative argument, also asserted that plaintiffs, through their actions and inactions prior to the 2008 Act of Sale to a third party, are estopped from asserting an ownership claim to the property. Equitable estoppel is a jurisprudential doctrine whereby a party is precluded from asserting rights against another who has justifiably relied upon that party’s conduct and has “changed his position so that he will suffer injury if the former is allowed to repudiate the conduct.” MB Indus., LLC v. CNA Ins. Co., 11-0303 (La.10/25/11), 74 So.3d 1173, 1180 (quoting Morris v. Friedman, 94-2808 (La.11/27/95), 663 So.2d 19, 25). The doctrine of equitable estoppel is not favored and applies only where a party has made false or misleading representations of fact and the other party justifiably relied on the representation. Id.

At trial, Mrs. Coleman testified that plaintiffs never told her that they had any ownership interest in the property and never took any action to stop the 2008 sale to a third party. Mrs. Coleman further testified that, had she known that the children had any ownership interest in the property, she would never have sold the property or let the title insurance on the property lapse. The jury found that Mrs. Coleman met her burden of proof that plaintiffs are estopped from asserting their ownership claim to the Falcon Road property.

|1sOn appeal, plaintiffs argue that the doctrine of estoppel cannot apply in this case — where they contend their claim to assert ownership has not yet prescribed— and that Mrs. Coleman further failed to prove the elements of estoppel at trial. First, we find that plaintiffs failed to raise this argument before the trial court and further failed to object to the application of the equitable estoppel doctrine in this case. The record reflects that, prior to trial, plaintiffs failed to object to any jury interrogatory regarding equitable estoppel. We therefore find that plaintiffs have failed to preserve for appellate review the issue of whether the doctrine of equitable estoppel could apply in this case. Further, because we find that Mrs. Coleman acquired the Falcon Road property by ten-year acquisitive prescription, as discussed above, plaintiffs’ assignment of error concerning the doctrine of equitable estoppel is moot.

Accordingly, for the reasons provided herein, we affirm the trial court’s judgment in all respects related to Mrs. Coleman’s acquisition of full ownership of the Falcon Road property through ten-year acquisitive prescription.

The Smith Barney Account

Plaintiff, William B. Coleman, III, as executor of Mr. Coleman’s estate, also sought reimbursement from Mrs. Coleman for funds he contends were inadvertently distributed to Mrs. Coleman following Mr. Coleman’s death from his father’s separate brokerage account (the Smith Barney account). Plaintiff argues that the Smith Barney account was opened in the 1970s, prior to Mr. and Mrs. Coleman’s marriage, and that, as a matter of practice, his father deposited and kept his separate funds in that account. Plaintiff therefore argues that the account is Mr. |16Coleman’s separate property and that the estate should be entitled to reimbursement for the funds inadvertently distributed to Mrs. Coleman.

At trial, plaintiff submitted to the jury the Smith Barney account’s balance statements. Although plaintiff claims Mr. Coleman opened the Smith Barney account in the 1970s, plaintiff could not produce any balance statements prior to May 29, 2000. The Smith Barney account balance on that date was $605,000.00. At this time, Mr. and Mrs. Coleman had been married for nearly 25 years. For the following reasons, we find that the Smith Barney account is presumed to be a community property account and that the jury’s finding that the estate-plaintiff failed to meet its burden to prove the separate nature of the account’s funds is not manifestly erroneous.

There is a presumption that property acquired or in the possession of a spouse during the marriage is community property. La. C.C. art. 2340; In re Succession of Firmin, 09-0411 (La.App. 4 Cir. 4/21/10), 38 So.3d 445, 450, writ denied sub nom., Succession of Firmin, 10-1176 (La.9/17/10), 45 So.3d 1046. This presumption is rebuttable if a spouse can prove, by a preponderance of the evidence, the separate nature of funds or property brought into the community. Talbot v. Talbot, 03-0814 (La.12/12/03), 864 So.2d 590, 600. When the separate property is commingled, the issue of the separate nature of the property is called into question by the very act of commingling the property. Id. The Louisiana Supreme Court has stated that, “once the spouse allows those separate funds to be commingled with community funds, the spouse still must meet the burden of proof by a preponderance of the evidence to demonstrate the separate ownership of property....” Id. at 603. Proof by a preponderance of the evidence is defined as taking the evidence as a whole, the fact to be proved is more probably than not. Boxie v. Smith-Ruffin, 07-264 (La.App. 5 Cir. 2/6/08), 979 So.2d 539, 545.

117The burden of overcoming the presumption of community rests with the party asserting that the property is separate. Id. A trial court’s findings regarding the nature of the property as community or separate is a factual determination subject to manifest error review. Ross v. Ross, 02-2984 (La.10/21/03), 857 So.2d 384, 395.

To support its position that the Smith Barney account is Mr. Coleman’s separate property, plaintiff presented the testimony of Mr. John Theriot. Mr. Theriot’s testimony reflects that he is the CPA for the William B. Coleman Company, Inc. and has handled the company’s finances for approximately thirty years. Mr. Theriot testified that he earns approximately $25,-000.00-$30,000.00 each year for his work performed for the company, and that he would like to continue to perform such work for the company. Mr. Theriot further testified that he received approximately $30,000.00-$40,000.00 for the work that he has performed in connection with this litigation alone.

At trial, Mr. Theriot presented a summary of certain transactions from the Smith Barney account, which he opined represented Mr. Coleman’s separate property. Included in those transactions was a $194,699.88 check written to Mr. Coleman that Mr. Theriot traced to Mr. Coleman’s inheritance from his sibling’s estate. The evidence showed, however, that the check was first deposited into Mr. Coleman’s checking account, which Mr. Theriot agreed would be considered a community account, and that subsequently, Mr. Coleman transferred only the amount of $87,600.00 to the Smith Barney account. Mr. Theriot further testified to securities transferred from Jimmy Coleman’s account that he testified could also be traced to Mr. Coleman’s inheritance from his sibling’s estate. On cross-examination,18 however, Mr. Theriot admitted that he could not specifically identify all securities as related to Mr. Coleman’s inheritance from his sister’s estate.

Mr. Theriot testified regarding other various transactions — transferring funds from Jimmy Coleman’s account to Mr. Coleman’s Smith Barney account — that appear on the account statements, which Mr. Theriot found to be Mr. Coleman’s separate property. On cross examination, however, Mr. Theriot stated that Jimmy Coleman, the family attorney, would have been familiar with Mr. Coleman’s use of the Smith Barney account. He further testified that either Jimmy Coleman or someone with his law firm would have been the individual to advise William Coleman, III, as executor of Mr. Coleman’s estate, to distribute $547,000.00 to Mrs. Coleman.

Mr. Theriot testified that 95% of the activity of the Smith Barney account after the year 2000 would be considered Mr. Coleman’s separate property. On cross-examination, however, Mr. Theriot conceded that his review of the account only accounted for 25% of the time-period that the account had allegedly been opened. Mr. Theriot’s analysis concluded that Mrs. Coleman owed Mr. Coleman’s estate reimbursement in the amount of $416,845.00.

Plaintiff argues that the jury erred in not accepting Mr. Theriot’s testimony because it was uncontroverted by Mrs. Coleman at trial and, thus, should be accepted as true. “A trier of fact may evaluate expert testimony by the same 1 ^principles as apply to other witnesses; it has great discretion to accept or reject expert or lay opinions.” Lopez v. Wal-Mart Stores, Inc., 94-2059 (La.App. 4 Cir. 8/13/97), 700 So.2d 215, 219, writ denied, 97-2522 (La.12/19/97), 706 So.2d 457. While uncon-tradicted expert testimony should be accepted as true, it is not binding on the fact-finder if circumstances in the record “cast suspicion on the reliability of that testimony.” Mathews v. Dousay, 96-858 (La.App. 3 Cir. 1/15/97), 689 So.2d 503, 510; see also Boxie v. Smith-Ruffin, 07-264 (La.App. 5 Cir. 2/6/08), 979 So.2d 539, 545.

We find that Mrs. Coleman presented evidence sufficient to cast suspicion on the reliability of Mr. Theriot’s testimony. On cross-examination, Mr. Theriot testified that he has worked with the William B. Coleman Company, Inc. and William B. Coleman, III, individually, for a period of 30 years and that he has received $30,-000.00-$40,000.00 for his work performed in relation to this litigation alone. He further testified that he receives approximately $25,000.00-$30,000.00 each year for work performed with the company and that he would like to continue working for the company. Mrs. Coleman presented testimony to show the potential for bias due to Mr. Theriot’s past, present, and anticipated future financial relationship with the William B. Coleman Company, Inc. and plaintiff William B. Coleman, III, individually. Further, Mr. Theriot opined that the initial known balance of $605,000.00 was Mr. Coleman’s separate property, with no evidentiary basis for such assumption or opinion.

Upon review of the record, including Mr. Theriot’s expert testimony, we find the jury was not manifestly erroneous in its determination that the plaintiff-estate failed to meet its burden to rebut the community presumption and failed to present sufficient evidence to trace with reasonable certainty any separate funds commingled into the community Smith Barney account. We therefore affirm the Lptrial court’s judgment denying the estate-plaintiffs claim for reimbursement of funds previously distributed to Mrs. Coleman from the Smith Barney account.

Alternative Argument for Reimbursement

William B. Coleman, III, as executor of Mr. Coleman’s estate, asserts an alternative claim that if the Smith Barney account is deemed community and the Falcon Road property is deemed Mrs. Coleman’s separate property, then Mr. Coleman’s estate is entitled to reimbursement for the insurance proceeds and community funds used to repair the Falcon Road property following Hurricane Katrina pursuant to La. C.C. art. 2366.

The evidence presented at trial demonstrates that the Falcon Road property sustained significant damage as a result of Hurricane Katrina and that repairs to the home were necessary to render the house livable for Mr. and Mrs. Coleman. Plaintiff argues that the insurance policies insuring the home were in Mr. Coleman’s name alone and that insurance proceeds, and other community funds, were used to repair and benefit the Falcon Road property following Hurricane Katrina. The estate claims that it is entitled to reimbursement for Mr. Coleman’s half of the insurance proceeds — allegedly purchased with community funds — and other community funds used to benefit Mrs. Coleman’s separate property.

We find that the record reflects that the repairs to the Falcon Road property were performed to maintain the livability of the matrimonial home. Thus, Mr. 121 Coleman’s estate is not entitled to reimbursement of those funds. See Cook v. Cook, 457 So.2d 235 (La.App. 3rd Cir. 1984); see also La. C.C. art. 2363.

CONCLUSION

Accordingly, for the reasons provided herein, the judgment of the trial court is hereby affirmed.

AFFIRMED.

      . The matters were subsequently consolidated.

      . Plaintiffs moved for a judgment notwithstanding the verdict and/or a motion for new trial on the issues raised in this appeal, which the trial court denied.

      . The evidence presented at trial further reflects that plaintiffs each unconditionally accepted their mother’s succession in the Twenty-Fourth Judicial District Court. Plaintiffs, however, assert that no evidence proves that each plaintiff viewed the detailed descriptive list in connection with Stella Coleman's succession.

      .The evidence presented at trial reflects that the 1982 Act of Sale was recorded in the conveyance records for Jefferson Parish. However, the Act of Donation was never recorded in the public records. At trial, Mrs. Coleman presented the expert testimony of real estate attorney Rader Jackson to testify to the standard or common practices of real estate attorneys in the 1980s. Mr. Jackson testified that it was common practice in 1982 for a real estate transaction to involve an act of sale followed immediately by an act of donation and, while the act of sale would be filed in the public records, the act of donation was typically not recorded.

      . Mrs. Coleman also asserted that she acquired the property through thirty-year acquisitive prescription. The jury found that Mrs. Coleman failed to prove that she possessed the property for a period of thirty years. Mrs. Coleman has not appealed that portion of the jury verdict and that issue is not before this Court.

      . The elements of possession and a thing susceptible by prescription are not disputed in this case.

      . No party sought supervisory review of the trial court’s judgment finding the 1971 transfer to be a simulated sale and neither party raises this issue on appeal. Accordingly, we do not address the merit of that judgment in this appeal.

      . Mrs. Coleman introduced into evidence a copy of the 2008 sale of the Falcon Road property to a third-party. The 2008 Act of Sale contained language identical to the 1982 Act of Sale plaintiffs now challenge (the 2008 sale provided that Mrs. Coleman transferred "all the rights ... which the vendor has or may have....”).

      . La. R.S. 9:5647(A) provides:
      Any action to set aside a document or instrument on the ground that the party executing the document or instrument under authority of a power of attorney was without authority to do so, or that the power of attorney was not valid, is prescribed by five years, beginning from the date on which the document or instrument is recorded in the conveyance records, or the mortgage records if appropriate. Nothing contained in this Section shall be construed to limit or prescribe any action or proceeding which may arise between a principal and the person acting under authority of a power of attorney.

      . Nevertheless, the Louisiana Supreme Court subsequently reversed the Fourth Circuit’s decision in In re Succession of Samuel, finding that the court improperly considered the prescriptive period under La. R.S. 9:5647. In remanding the case to the Fourth Circuit, the Louisiana Supreme Court instructed, "[t]he decision of the appellate court is reversed; this case is remanded to the court of appeal for consideration of the trial court’s judgment in light of all relevant issues of fact and law contained in the record.” In re Succession of Samuel, 12-1707 (La. 12/14/12), 104 So.3d 415. We therefore find that, given the Louisiana Supreme Court’s reversal of the Fourth Circuit’s decision, the Succession of Samuel case is neither controlling nor persuasive to the Court.

      . The Second Circuit remanded the case to allow the plaintiff to amend the petition in accordance with La. C.C.P. art. 934.

      . The Taylor case does not state whether the Judgment of Possession discussed was filed in the conveyance records.

      . Jimmy Coleman died before plaintiffs filed the instant suit.

      . The record reflects that plaintiffs knew that Mrs. Coleman had placed the Falcon Road property for sale with a realtor prior to the date of sale.

      . The evidence presented at trial reflects that William Coleman, III, as executor of his father’s estate, instructed a representative of Smith Barney to transfer $547,271.00 from the Smith Barney account at issue to Mrs. Coleman.

      . Additionally, a check, dated September 2, 1976, in the amount of $400,000.00 was introduced into evidence that Mr. Theriot testified was a check related to Mr. Coleman’s separate property interest in The Downtown Howard Johnson’s company. No documentary evidence, however, was introduced to prove that the $400,000.00 was in fact ever deposited into the Smith Barney account.

      . Over plaintiffs’ objection, a draft of a detailed descriptive list in connection with Mr. Coleman’s succession was introduced into evidence. The draft listed stocks and other property as Mr. Coleman’s separate property. The draft, however, listed the Smith Barney account as a community property account. Plaintiff William B. Coleman, III testified that he did not draft nor approve this descriptive list and that it incorrectly classifies the Smith Barney account as community. Neither party could verify who prepared this descriptive list draft but William Coleman, III testified that it would have been someone preparing documents in connection with his father’s estate.

      .Further, in his calculations, Mr. Theriot charged or deducted $77,000.00 from any funds Mrs. Coleman may be entitled as a result of $154,000.00 that Mr. Coleman allegedly borrowed from the William B. Coleman Company, Inc. during the community regime. However, no promissory note or other evidence of this loan was introduced at trial.

      . La. C.C. art. 2366, in part, provides:
      If community property has been used during the existence of the community property regime or former community property has been used thereafter for the acquisition, use, improvement, or benefit of the separate property of a spouse, the other spouse is entitled to reimbursement for one-half of the amount or value that the community property had at the time it was used.

      . We find that Mrs. Coleman may have argued that the insurance proceeds were in fact her separate properly as they insure the Falcon Road home, determined to be her separate property. See Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12 (1956), rev’d. on other grounds by Fowler v. Fowler, 03-0590 (La.12/12/03), 861 So.2d 181; Trahan v. Trahan, 387 So.2d 35 (La.App. 3rd Cir.1980). However, the parties failed to introduce the actual insurance policies into evidence and we are thus unable to determine with certainty who in fact the policies list as the named insured(s) or the insured property address.

      . We further find that the estate could have asserted a claim for reimbursement of the insurance premiums paid, if in fact paid with community funds. However, the plaintiff-estate failed to introduce any evidence concerning the premiums paid in connection with the insurance policies.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    James E. SHIELDS, Sr. v. The PARISH OF JEFFERSON, Department of Inspection and Code Enforcement for the Parish of Jefferson, and Leroy Danos Maintenance Service, Inc.
    No. 13-CA-481.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2013.

      James E. Shields, Sr., Attorney at Law, Gretna, Louisiana, for Plaintiff/Appellant.
    Guice A. Giambrone, III, Kelly A. Du-gas, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARC E. JOHNSON, ROBERTA. CHAISSON, and ROBERT M. MURPHY.
   MARC E. JOHNSON, Judge.

l2Plaintiff, James E. Shields, Sr., appeals the granting of summary judgment in favor of Defendant, the Parish of Jefferson (“the Parish”), which dismissed his lawsuit for fraud with prejudice. For the reasons that follow, we reverse.

PROCEDURAL HISTORY

On May 19, 2011, Plaintiff filed a Petition for Damages and for Injunction against the Parish, the Department of Inspection and Code Enforcement for the Parish of Jefferson, and Leroy Danos Maintenance Service, Inc. (“Danos”). In his petition, Mr. Shields alleged that Defendants engaged in fraud by billing him for grass cutting services and debris removal from property they claimed was owned by him when, in fact, said property was owned by the Parish. He further alleged the Parish scheduled a tax sale of his property for June 15, 2011 in retaliation of his failure to pay the fraudulent bill. Mr. Shields sought damages for fraud, the removal of the fraudulent lien, and an injunction of the tax sale.

[3The Parish responded by filing peremptory exceptions of no cause of action and nonjoinder of an indispensable party relating to Mr. Shields’ request for an injunction. The Parish argued the tax sale was canceled on June 15, 2011 due to lack of notice, thereby rendering Mr. Shields’ request for an injunction moot. It further maintained that the Jefferson Parish Sheriffs Office was a necessary party to the request for injunction and that Mr. Shields had failed to name it as a defendant. These exceptions were ultimately continued without date at the Parish’s request. Thereafter, the Parish answered the petition.

The Parish subsequently filed a motion for summary judgment on the basis Mr. Shields could not prove the Parish acted fraudulently because it acted in complete compliance with the law at all times in adjudicating his violations of the Jefferson Parish Code of Ordinances. The Parish maintained that it was undisputed that Mr. Shields was in violation of the Code of Ordinances and that the work performed by Danos was authorized by statute and documented by photographic evidence.

The Parish attached various documents in support of its motion including: (1) an Act of Cash Sale showing Mr. Shields owned certain property described as Lot 2 of Parcel “A” in the Meadowbrook Subdivision; (2) the inspection file of the Department of Inspection and Code Enforcement showing photographic evidence of certain code violations at the alleged property from January 2008 through January 2009; (3) a violation notice sent to Mr. Shields dated January 29, 2008; (4) an administrative order dated July 14, 2008 finding Mr. Shields’ property at 2958 Glenbrook Drive to be in violation of the Jefferson Parish Code of Ordinances for having junk and debris on the property; (5) a letter from Mr. Shields dated July 25, 2008 requesting additional time to rectify the code violations with which he agreed to be violations; (6) an administrative order dated October 30, 2008 allowing the | ¿Parish to correct the existing violations on Mr. Shields’ property under La. R.S. 13:2575 by removing all junk and debris; (7) a bill in the amount of $1,874.00 for Danos’ services on February 5, 2009 for “[cjutting and/or removal of Weeds, Grass, Debris, and other Vegetation” at 2958 Glenbrook Dr.; (8) photographs taken by Danos of the work it performed at 2958 Glenbrook Dr. on February 5, 2009; (9) a second bill in the amount of $932.00 for Danos’ services on September 17, 2009 for “[cjutting and/or removal of Weeds, Grass, Debris, and other Vegetation” at the Glenbrook Dr. location; and, (10) a release of lien dated June 2, 2010 showing that a lien on the property in the amount of $982.00 had been canceled on May 27, 2010.

Mr. Shields opposed the motion for summary judgment, claiming that the work performed by Danos was not done on his property. He maintained that there was no debris on his property and that all work, which included debris removal and grass cutting, was performed on the vacant lot next to and the servitude behind his property, which Mr. Shields claimed was owned by the Parish. Mr. Shields alleged that he constructed a fence around his property, and all work was performed outside the fence. He further contended that he consistently advised the Parish that he did not own the property on which the work was performed. Mr. Shields argued that the Parish fraudulently billed him for grass cutting services that were not done on his property. He also argued the Parish committed fraud by billing him for double of Danos’ original bill.

In support of his opposition to the Parish’s motion for summary judgment, Mr. Shields attached various documents including: (1) photographs of his property, showing the wood fence around it; (2) a plot map of his property; (3) correspondence he sent to the Parish advising them that the debris removal and Rgrass cutting were not performed on his property; and (4) correspondence he sent to the Jefferson Parish Sheriffs Office requesting a fraud investigation.

A hearing was held on January 28, 2013. The parties argued their positions and submitted into evidence the exhibits attached to their respective briefs. At the end of the hearing, the trial court granted the Parish’s motion for summary judgment. The trial court subsequently signed a judgment on February 22, 2013, dismissing Mr. Shields’ claims against the Parish with prejudice. It is from this judgment that Mr. Shields appeals.

ISSUES

On appeal, Mr. Shields first contends the trial court erred in granting summary judgment because there is a genuine issue of fact as to who owned and controlled the property on which Danos performed services. Second, he claims there is an issue of fact as to whether the Parish’s conduct in billing him for Danos’ services constituted fraud when the plot map and photographs sent to the Parish clearly show Danos’ work was not done on Mr. Shields’ property. Third, Mr. Shields asserts the Parish judicially confessed that it fraudulently noticed a tax sale when it removed the lien related to the second invoice in the amount of $932.00. Finally, Mr. Shields contends that Jefferson Parish Ordinance 19-21a, which allegedly allows for a 100% surcharge on work performed by a contractor, is unconstitutional.

LAW AND ANALYSIS

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, 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. 966(B). The initial burden of proof is with the mover to show that no genuine issue of material fact Rexists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. art. 966(C)(2); Callis v. Jefferson Parish Hosp. Service, Dist. # 1, 07-580 (La.App. 5 Cir. 12/27/07); 975 So.2d 641, 643.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored in the law. La. C.C.P. art. 966(A)(2); Robinson v. Jefferson Parish School Bd., 08-1224 (La.App. 5 Cir. 4/7/09); 9 So.3d 1035, 1043, writ denied, 09-1187 (La.9/18/09); 17 So.3d 975. Even though the summary judgment procedure is favored, it is not a substitute for trial on the merits. S.J. v. Lafayette Parish School Bd., 06-2862 (La.6/29/07); 959 So.2d 884, 887 (per curiam).

A material fact is one that potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Hines v. Garrett, 04-806 (La.6/25/04); 876 So.2d 764, 765 (per curiam). A genuine issue is a “triable issue.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94); 639 So.2d 730, 751. If reasonable persons could disagree after considering the evidence, a genuine issue exists. However, if reasonable persons could reach only one conclusion on the state of the evidence, there is no need for a trial on that issue and summary judgment is appropriate. Id.; Alwell v. Meadowcrest Hosp., Inc., 07-376 (La.App. 5 Cir. 10/30/07); 971 So.2d 411, 414. “In determining whether an issue is ‘genuine,’ courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Smith, 639 So.2d at 751.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Specifically, appellate courts must ask the same questions as the district court: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Matthews v. Banner, 08-339 (La.App. 5 Cir. 10/28/08); 996 So.2d 1161, 1163.

In his petition for damages, Mr. Shields claims the Parish committed fraud by billing him for work that was not performed on his property. Fraud is a misrepresentation or suppression of the truth made with the intention to obtain an unjust advantage or to cause a loss or inconvenience to the other party. La. C.C. art. 1953. A party may obtain recovery when he has suffered a loss due to intentional fraudulent misrepresentation. Taylor v. Dowling Gosslee & Associates, Inc., 44,654 (La.App. 2 Cir. 10/7/09); 22 So.3d 246, 255, writ denied, 09-2420 (La.2/5/10); 27 So.3d 299. The two elements necessary to establish fraud are an intent to defraud or gain an unfair advantage, and a resulting loss or damage. Mooers v. Sosa, 01-286 (La.App. 5 Cir. 9/25/01); 798 So.2d 200, 207.

In its motion for summary judgment, the Parish contended that its contractor legally performed services on Mr. Shields’ property and that Mr. Shields was billed accordingly. Conversely, Mr. Shields maintains he was billed for work that was not done on his property. There are two separate bills at issue: (1) the invoice for Danos’ services performed on February 5, 2009, and (2) the invoice for Danos’ services performed on September 17, 2009.

|sTo support its position that all work done by Danos on February 5, 2009 was performed on Mr. Shields’ property, the Parish attached a copy of its inspection file. The inspection file consists of eight pages and purportedly shows grainy, black and white copies of photographs of Mr. Shields’ property taken on various dates. The first series of six pictures are dated January 29, 2008, with a notation indicating it was the first inspection and a violation was issued. Next, there are four pictures dated February 22, 2008 that were taken upon a “violation re-check” inspection with a notation that a violation still exists. There is also a notation stating, “FORD MUSTANG WITH NO LICENSE PLATE NEVER MOVED AND SAME DEBRIS STILL IN BACKYARD.”

The file also contains 11 pictures dated March 20, 2008, with a notation that the photos were taken as part of a scheduled inspection. On that date, it was noted that the violation still existed and described the violation as

BED FRAME, WOOD, RIM, KITCHEN CHAIR, BUCKETS, BOXES, LADDERS, WHEEL BARROW, RAKE, CAR RAMPS, DISMANTLED BOAT WITH HEAVY DEBRIS INSIDE, FORD MUSTANG WITH NO LICENSE PLATE, GRAY FORD VAN NO BRAKE TAG OR LICENSE PALTE DRIVER FRONT TIRE FLAT, A WHITE FORD VAN WITH DRIVER REAR TIRE MISSING.

The next series of seven photos, dated May 20, 2008, also resulted from a scheduled inspection. It was noted that a violation still existed; specifically, “JUNK AND DEBRIS STILL EXISTS, IN O.P. VEHICLE STILL EXISTS.”

On July 2, 2008, there was a post-hearing notice inspection that generated nine photos. The inspector found the junk and debris still existed but noted, “THE VAN IS NOW CURRENT.”

On August 14, 2008, an adjudication notice re-check inspection was conducted that resulted in 14 photos. The inspection noted

SCATTERED TRASH, LAWN EQUIPMENT, HOME FURNITURE UNDER CARPORT, MISCELLANEOUS DEBRIS INSIDE OF | .TRAILER, GREEN ISUZU TROOPER NO LICENSE PLATE EXPIRED BRAKE TAG LEAKING FLUIDS, WHITE FOR VAN PASSENGER REAR TIRE FLAT IN FRONT GRASS, MUSTANG IN REAR COVERED WITH GRAY TARP, 2TRAIL-ERS [sic] NO LICENSE PLATE.

A subsequent inspection on October 16, 2008 resulted in 17 photos and the following notation, “A BLACK TROOPER HAS NO LICENSE PLATE EXPIRED BRAKE TAG 2/08, A GREEN TOYOTA CAMRY PARKED ON THE FRONT LAWN [HAS] AN EXPIRED BRAKE TAG 9/08, LIVING ROOM FURNITURE UNDER CARPORT, CAR PARTS, KITCHEN CHAIR, WOOD, SHEETROCK, SCATTERED TRASH ACROSS YARD.”

The final inspection prior to Danos’ work was conducted on January 29, 2009 and yielded 10 photos with a notation stating, “TROOPER IS STRIPPED IN REAR YARD TOYOTA CAMRY IS IN REAR YARD NO LICENSE PLATE FLAT TIRES DEBRIS REMAINS ON PROPERTY UNDER CARPORT AND REAR YARD BOAT IS NOW BEHIND PROPERTY LINE JAKES IS NEEDED ON CLEAN UP HOUSE IS OCCUPIED.”

The final eight photos in the file were taken on February 6, 2009, the day after Danos performed its clean-up work. The inspector noted, “JAKE”S [sic] DID NOT TOW ANY VEHICLES 8 MEN ON CREW BOBCAT 1 HR CLEAN UP LASTED 1:10-2:80 WITH 4 YARDS OF DEBRIS CLEARED.”

The Parish argues these photographs in the inspection file clearly show that the Code violations were on Mr. Shields’ property and that the billed work was performed on Mr. Shields’ property. We disagree. The grainy, black and white photocopies of Mr. Shields’ property contained in the inspection file are of extremely poor quality. We cannot discern from these photocopies the extent of the alleged junk and debris on Mr. Shields’ property prior to or after Danos’ cleanup work. Mr. Shields attached clear color copies of photographs to his | inmotion for summary judgment opposition that purportedly showed debris, including a boat which was listed in the January 29, 2009 inspection report, in an area beyond his property.

In our de novo review of the record, we find it is unclear what debris was removed by Danos on February 5, 2009 and from where. Contrary to the Parish’s argument, we find the photographs in its inspection file are not dispositive of this issue. Nor do we find the similar poor quality, grainy, black and white copies of photographs submitted by Danos to the Parish show what debris was removed and from where. We cannot tell from the photographs whether all of the work was done within Mr. Shields’ fenced property or whether some of it was performed outside the fenced property. Thus, we find there is a genuine issue of material fact as to whether any work performed by Danos and for which Mr. Shields was billed was done beyond the boundaries of Mr. Shields’ property. Accordingly, we find the granting of summary judgment inappropriate in this case.

Regarding Mr. Shields’ allegation that Jefferson Parish Ordinance 19-21a is unconstitutional, we find that issue is not properly before us on appeal. While there is not a single procedure for challenging the constitutionality of a statute or ordinance, long-standing jurisprudence requires the statute first be questioned in the trial court and not the appellate court. Rogoz v. Tangipahoa Parish Council, 08-2789 (La.1/30/09); 21 So.3d 923, 925; Vallo v. Gayle Oil Co., Inc., 94-1238 (La.11/30/94); 646 So.2d 859, 864-65. Additionally, the unconstitutionality of the statute must be specially pleaded and the grounds for the claim particularized. Id. at 865. The unconstitutionality of a statute cannot be asserted in the appellate court unless it has been pleaded and made an issue in the trial court. Id. Therefore, the unconstitutionality of a statute must be raised in a petition, an exception, a motion, [nor an answer. It cannot be raised in a memorandum, opposition, brief, or argument, as they do not constitute pleadings. Id.

The record shows that the only allegation of the unconstitutionality of the ordinance came during Mr. Shields’ argument at the hearing on the motion for summary judgment when he stated, “I contend that it’s absolutely unconstitutional, not only for myself but for other tax payers, to automatically double the bill.” The trial court never ruled on Mr. Shields’ contention that the ordinance was unconstitutional and simply granted the Parish’s motion for summary judgment. Because Mr. Shields failed to specifically plead the unconstitutionality of the ordinance in a petition, an exception, or a motion, the issue of the constitutionality of the ordinance is not properly before us on appeal.

DECREE

Based on the record before this Court, we find that there is a genuine issue of fact that precludes summary judgment. Therefore, we reverse the trial court’s granting of the Parish’s motion for summary judgment and remand the matter for further proceedings.

REVERSED AND REMANDED.

      . The summary judgment recognized that Plaintiff incorrectly referred to the Department of Inspection and Code Enforcement for the Parish of Jefferson as a separate entity from the Parish.

      . Shortly after Danos answered Plaintiff's petition, Plaintiff’s claims against Danos were dismissed with prejudice upon joint motion of Plaintiff and Danos.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    STATE of Louisiana DEPARTMENT OF CHILDREN AND FAMILY SERVICES in the Interest of J.C. v. Jeffrey E. CHARLES.
    No. 13-CA-527.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2013.

      See also, 102 So.3d 179.

      Paul D. Connick, Jr., District Attorney, Parish of Jefferson, Terry M. Boudreaux, Amanda L. Calogero, Ashley E. Amato, Assistant District Attorneys, Harvey, Louisiana, for Appellee, State of Louisiana, Department of Children and Family Services.
    Kim M. O’Dowd, Attorney at Law, New Orleans, Louisiana, for Appellant, Jeffrey E. Charles.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

12This is the second appeal by Jeffrey Charles of the child support award regarding J.C. by the Jefferson Parish Juvenile Court. For the following reasons, we affirm.

Facts and Procedural History

On July 1, 2008, a child, J.C., was born to defendant/appellant, Jeffrey C. Charles, and Erica Severance Pilot. In 2010, Ms. Pilot was receiving services from the Louisiana Department of Children and Family Services so the State of Louisiana, Department of Children and Family Services filed a Rule for Child Support on August 16, 2010. On October 25, 2010, the hearing officer recommended that Mr. Charles pay $657.00 per month, plus court costs, in child support, retroactive to August 16, 2010. State Dep’t of Children & Family Serv. ex rel. J.C. v. Charles, 11-1012 (La.App. 5 Cir. 5/31/12), 102 So.3d 179, 180-82. At the November 22, 2010 disagreement hearing triggered by Mr. Charles, the juvenile court judge upheld the hearing officer’s recommendation. Id.

|sOn December 20, 2010, Mr. Charles and Ms. Pilot stipulated to joint custody of J.C. with a specific custodial schedule. On the same date, Mr. Charles filed a Rule to Dismiss Child Support Proceedings. On February 1, 2011, the hearing officer determined that Mr. Charles had physical custody of J.C. 192 days of the year (which equated to 52% of the year), gave a credit on the arrearages owed by Mr. Charles, and suspended the child support order pending the receipt of proof of child care expenses. The matter was reset for a hearing to calculate the child care expenses. Id.

On March 15, 2011, the hearing officer heard testimony regarding child care expenses. The hearing officer calculated each parent’s physical custody time and reinstated the support order against Mr. Charles of $532.35 per month retroactive to February 1, 2011. Mr. Charles again disagreed with the hearing officer’s recommendation and triggered a disagreement hearing in juvenile court. On April 11, 2011, the juvenile court judge upheld the hearing officer’s recommendations. Id.

On May 31, 2011, Mr. Charles filed a Rule to Reduce Child Support. On June 7, 2011, the hearing officer found that Mr. Charles has physical custody of the child 56% of the year then reduced his child support obligation to $434.70 per month, retroactive to May 31, 2011. Both parents disagreed with this recommendation and triggered a disagreement hearing before the juvenile court. Id.

On July 18, 2011, the juvenile court judge determined that Mr. Charles had physical custody of J.C. 56% of the year and ordered Mr. Charles to pay child support in the amount of $589.00 per month plus court costs, retroactive to May 31, 2011. Mr. Charles was also ordered to pay for all school uniforms and school field trips and to continue providing medical insurance. Id.

14Mr. Charles appealed the amount of the support order, the order to pay for all school uniforms and school field trips, and the failure to credit him for amounts he paid directly to J.C.’s child care facility. Id. at 182. This Court affirmed the judgment against Mr. Charles in part, regarding the award of child support of $539.00 per month plus court costs, payment for all school uniforms, and all school field trips. This Court reversed the juvenile court and allowed Mr. Charles to receive credit for payments made directly to the child’s daycare facility and reduced the amount of Mr. Charles’ arrearages. State, Dep’t of Children & Family Servs. ex rel. J.C. v. Charles, 11-1012 (La.App. 5 Cir. 5/31/12), 102 So.3d 179, 185.

On September 19, 2012, Mr. Charles filed a Rule to Reduce Child Support on the basis that the expense of the child’s daycare decreased from $500.00 per month to $276.50 per month. On January 22, 2013, the hearing officer denied a reduction as the decrease did not meet the statutory minimum of 25%, specified in La. R.S. 9:311(C)(1). Again, Mr. Charles disagreed with the recommendation, which again triggered a disagreement hearing. At the February 25, 2013 disagreement hearing, the juvenile court judge found that the decrease did not amount to a 25% reduction and upheld the hearing officer’s recommendation. Mr. Charles appeals that ruling.

Law and Argument

On appeal, Mr. Charles raises three assignments of error: first, “the provision of Louisiana Revised Statute 9:311(0(1) is unconstitutional,” second, “to allow the current support obligation to be maintained would result in unjust enrichment to the recipient parent,” and finally, “the Court failed to review the changes in circumstances under” La. R.S. 9:311(A).

[Jn his first assignment of error, Mr. Charles contends that La. R.S. 9:311(C)(1) is unconstitutional “as it does not grant to a payor parent paying through the State the same rights as a payor parent who is not paying through the State.” Initially, we note that our review of the record reveals that this issue was not argued to the trial judge at the disagreement hearing.

“It is well-established that litigants must raise constitutional challenges in the trial court rather than in the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized.” Arrington v. Galen-Med, Inc., 06-2923 (La.2/2/07), 947 So.2d 719, 720. Moreover, “[i]f the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard.” La. C.C.P. art. 1880.

The purpose of this requirement is to allow full argument and presentation of evidence at the trial court level in order to create a full record for appellate review. Arrington, supra. The supreme court has determined that its jurisdiction extends only over those issues that have been properly raised and ruled on at the trial court level. Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So.2d 697 (La.1993). Because this claim was not raised in, or ruled on by, the juvenile court, it is not before this Court on appeal. U.R.C.A. 1-3.

In his second assignment of error, appellant argues “to allow the current support obligation to be maintained would result in unjust enrichment to the recipient parent.” Specifically, appellant alleges that Erica Severance Pilot has been unjustly enriched by $67.00 per month while appellant was correspondingly impoverished by the same amount, which warrants a reduction.

La. C.C. art. 2298 provides, in pertinent part:

|fiA person who has been enriched without cause at the expense of another person is bound to compensate that person. The term ‘without cause’ is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.

In Baker v. Maclay Properties Co., 94-1529 (La.1/17/95), 648 So.2d 888, 897, the Louisiana Supreme Court stated that there are five elements required for a showing of unjust enrichment:

(1) there must be an enrichment;
(2) there must be an impoverishment;
(3) there must be a connection between the enrichment and resulting impoverishment;
(4) there must be an absence of ‘justification’ or ‘cause’ for the enrichment and the impoverishment; and
(5) there must be no other remedy at law available to the plaintiff.

To recover in an unjust enrichment action, the plaintiff must prove each of the five elements. See Fagot v. Parsons, 06-1528 (La.App. 4 Cir. 5/9/07), 958 So.2d 750, 752-53. Under Article 2298, the remedy of unjust enrichment is subsidiary in nature, and is “only applicable to fill a gap in the law where no express remedy is provided.” Walters v. MedSouth Record Management, LLC, 10-0353 (La.6/4/10), 38 So.3d 243, 244 (quoting Mouton v. State, 525 So.2d 1136, 1142 (La.App. 1 Cir.1988)).

In Gallo v. Gallo, 03-0794 (La.12/3/03), 861 So.2d 168, 178, the Louisiana Supreme Court held that,

although the child support payments were made to the mother, they were made for the benefit of the child, and the mother is under no obligation to refund the monies. Because the child support payments were received by the child, through the mother, the mother was not a person who received a payment not owed her, a requirement imposed by La. C.C. art. 2299 for reimbursement to be made.

In applying the law to the facts as presented to the juvenile court, we find that Mr. Charles’ payments were made to the child to fulfill his parental obligation, so there has been neither impoverishment to him nor enrichment to the child’s 17mother. See, Vaccari v. Vaccari, 10-2016 (La.12/10/10), 50 So.3d 139, 142 (citing Guillot v. Munn, 99-2132 (La.3/24/00), 756 So.2d 290, 295-96).

Further, the remedy of unjust enrichment is “only applicable to fill a gap in the law where no express remedy is provided.” Our legislature has provided ample remedy regarding child support matters. See, La. C.C. art. 141 et seq.; La. R.S. 9:311 et seq. Accordingly, the trial court did not err in its denial of this claim. This assignment of error lacks merit.

Finally, Mr. Charles argues that “the Court failed to review the changes in circumstances under” La. R.S. 9:311(A).

La. R.S. 9:311(C)(1) specifies “in cases where the Department of Children and Family Services is providing support enforcement services: ... A material change in circumstance exists when a strict application of the child support guidelines ... would result in at least a twenty-five percent change in the existing child support award.” State, Dep’t of Soc. Ser., ex rel. S.McC. v. J.A.McC., 03-108 (La.App. 5 Cir. 5/28/03), 848 So.2d 121, 124-25.

Here, the law precludes a reduction in the matter as presented. The hearing officer and the judge both found that the decrease in child care expenses resulted in only a 12.43% change in the existing child support award. Under La. R.S. 9:311(0(1), because there had not been a 25% change, there had not been a “material change in circumstance” in this matter. Both the hearing officer and the trial judge were correct. This assignment of error lacks merit.

Conclusion

Based on the foregoing, we find no error in the juvenile court’s ruling denying Mr. Charles’ reduction. The juvenile court’s ruling is affirmed. Costs of this appeal are assessed in their entirety to Mr. Charles.

AFFIRMED.

      . Under La. R.S. 46:236.1.1 et seq, the State, Department of Children and Family Services may take direct civil action against a biological parent of a child and may obtain an order, judgment, or agreement of support for the child against the responsible person. See, State, Dep’t of Soc. Ser., ex rel. S.McC. v. J.A.McC., 03-108 (La.App. 5 Cir. 5/28/03), 848 So.2d 121, 122.


author: JUDE G. GRAVOIS, Judge.

text:
    Connie CHRISTIANO and Anthony Christiano v. SOUTHERN SCRAP RECYCLING and XYZ Insurance Company.
    No. 13-CA-595.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2013.

      Cheryl Ann McAnespy-Smith, Attorney at Law, Harvey, Louisiana, for Plaintiffs/Appellant.
    Jefferson R. Tillery, William C. Baldwin, C. Barrett Rice, Attorneys at Laws, New Orleans, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

12Plaintiffs have appealed the trial court’s grant of defendant’s motion for an involuntary dismissal of their case. For the reasons that follow, we affirm.

PROCEDURAL BACKGROUND AND FACTS

On October 18, 2007, plaintiffs, Connie and Anthony Christiano, filed suit against Southern Scrap Material Co., LLC (“Southern Scrap”). The petition alleged that on October 19, 2006, plaintiffs were customers at Southern Scrap’s facility in Westwego, Louisiana, when Mrs. Christi-ano fell after encountering a slippery substance on a pedestrian walkway. The petition alleged that the accident was unavoidable and unforeseeable and was caused by the fault and negligence of Southern Scrap for failing to provide clean and safe walkways. The petition also alleged that Southern Scrap knew or should have known of the hazard and failed to | .¡correct the hazard, and that Southern Scrap failed to inspect, maintain, clean or repair the walkway.

Southern Scrap answered the petition with a general denial and specifically asserted that the accident was the fault of the victim who failed to see what she should have seen and failed to look where she was going.

After pre-trial discovery and hearings were conducted, the matter eventually proceeded to a one-day judge trial.

At trial, Mrs. Christiano testified that on the day of the accident, she went to Southern Scrap to sell aluminum cans. She was driving a pickup truck which she backed up against a hopper. As she was transferring the cans into the hopper, one of her cans fell to the ground. She described the area where the can fell as “a little sloppy.” She described the “slop” where the can fell as “oil and some other kind of substance” which looked like it had been there for some time. After the can fell, she “looked around to make sure that [she] could step from there to pick up the can. And [she] saw some dry mud,” expounding that the mud was dry because it was “cracked and clay and muddy.” This mud was on top of the cement. The cement around the mud was dry. When she went to pick up the can, Mrs. Christiano was careful only to walk on the dry mud; she did not step in the “slop” by the can. In explaining the cause of her slip and fall, she testified as follows: “It was wet underneath the mud. It was like some more slop, but you couldn’t see it just by looking at it. It was like it was dry.” She stated that there was “slop” underneath the dried mud. When she stepped on the dried mud, “it gave way and made [her] slide,” causing her fall. There were no signs or other notifications in the area to indicate that the area was dangerous to walk on.

|4Mrs. Christiano had been going to Southern Scrap to sell cans every two to three months for six years. At no time had she ever seen anyone hosing or cleaning the cement in the area where she fell. She admitted that she did observe Southern Scrap personnel picking up cans off the ground in this area. She confirmed that she had seen dried mud on the cement in this area on other occasions, but this was the first time that she had stepped on any of the dried mud.

On cross-examination, Mrs. Christiano admitted that on the day of the accident, the weather was clear and that it had not been raining. She explained that she was looking down the entire time as she walked around to the side of the hopper to retrieve the can that had fallen in the “slop.” There was an area of dried mud behind the fallen can that was approximately three feet long and two feet wide. In order to reach the fallen can, Mrs. Christi-ano stated that she could not have avoided the dried mud. She stated that the mud appeared thick enough and sturdy enough for her to walk on. Although there was “slop” next to the dried mud, she did not think or know that there was “slop” underneath the dried mud. She placed one foot on the dried mud, and when she went to place her other foot on the dried mud, it gave way and she slipped and fell. She fell on her butt and injured her wrist in the fall. She admitted that there were no holes or cracks on the cement; rather, it was the “slop” and mud that caused her to fall.

Mrs. Christiano admitted that she could have asked a nearby employee of Southern Scrap (identified as “Leroy Carter”) to retrieve the fallen can, but did not do so because he was busy with other people who had come to sell cans. She admitted that she did not know how long the mud had been there, but estimated that it was there “longer than a day” because “it was all dried up.” She did not know how the mud or the “slop” got on the side of the hopper.

|BAnthony Christiano, Mrs. Christiano’s husband, testified that he was also putting cans in the hopper when Mrs. Christiano fell. He stated that he had listened to her testimony at trial and that he agreed with her testimony as to how the accident occurred.

Plaintiffs then rested their case, at which point Southern Scrap moved for an involuntary dismissal of the case pursuant to Louisiana Code of Civil Procedure article 1672(B). Southern Scrap argued that in order to prevail, plaintiffs had to prove that Southern Scrap had custody and control of the premises (which Southern Scrap admitted), that Southern Scrap was negligent or acted unreasonably in failing to keep the premises clean, and that Southern Scrap knew or should have known of the dangerous condition. Southern Scrap argued that if the condition was open and obvious, plaintiffs could not prevail. Southern Scrap asserted that plaintiffs had not proved that Southern Scrap had actual knowledge or constructive knowledge of the alleged dangerous condition, and that there was no evidence as to where the “slop” came from or how long it had been present. Southern Scrap further argued that plaintiffs failed to prove that Southern Scrap did not conduct reasonable inspections, and that plaintiffs admitted that the can fell into an area with oil and mud and that Mrs. Christiano voluntarily stepped into that dangerous area. It further argued that Mrs. Christiano admitted that she could have stepped in another area, could have grabbed on to the side of the hopper, or could have asked Southern Scrap’s employee, Mr. Carter, for assistance.

Plaintiffs’ counsel responded that the dangerous condition in question was not open and obvious, that Mrs. Christiano acted reasonably, and that she was | ^presented with a “hidden trap,” something that she could not see. Plaintiffs also pointed out that Mrs. Christiano’s testimony was not rebutted. Plaintiffs argued that Southern Scrap could not and did not produce documents showing the existence of any cleanup policies or procedures — thereby admitting that no such documents exist. Plaintiffs further argued that Southern Scrap had a duty to protect and warn Mrs. Christiano and that it breached that duty.

Defense counsel responded that plaintiffs had the burden of proof and failed to prove there was a lack of inspection procedures. Counsel further argued that plaintiffs also failed to prove exactly where Southern Scrap’s employee, Mr. Carter, was located at the time of Mrs. Christi-ano’s fall, and whether or not he was in a position to warn plaintiffs. Counsel reiterated that the alleged danger was open and obvious.

The trial court agreed with Southern Scrap’s position and granted the motion for involuntary dismissal, stating that because there was “a small patch of some dried mud on top of some other mud that clearly is next to slop, it’s not unusual to assume that the slop is also underneath that part” of the mud. She concluded that the defect was open and obvious. The court further stated that there was no evidence that Southern Scrap was aware of any defect and should have corrected it, nor was there any evidence that Southern Scrap acted negligently in their procedures. This timely appeal followed.

LAW AND ANALYSIS

Louisiana Code of Civil Procedure article 1672(B), which allows for the involuntary dismissal of actions tried by the court without a jury, provides:

B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right |7to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

The trial court has much discretion in determining whether to grant a motion for the involuntary dismissal of an action. Perkins v. Carter, 09-673 (La.App. 5 Cir. 12/29/09), 30 So.3d 862, 867. An appellate court may not reverse a ruling on a motion for involuntary dismissal unless it is manifestly erroneous or clearly wrong. Id. In determining whether an involuntary dismissal should be granted after the plaintiff has completed the presentation of his evidence during a bench trial, the appropriate standard is whether the plaintiff has presented sufficient evidence in his case-in-chief to establish his claim by a preponderance of the evidence. Id. The trial court is not required to review the evidence presented in the light most favorable to the plaintiff. Id. The issue to be resolved is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Brock v. Singleton, 10-550 (La.App. 5 Cir. 3/29/11), 65 So.3d 649, 660, writ denied, 11-1216 (La.9/23/11), 69 So.3d 1160.

On appeal, plaintiffs argue that the trial court was manifestly erroneous in determining that the “slop,” which caused Mrs. Christiano to slip and fall, was open and obvious to all.

If the facts of a specific case show that the complained-of condition should be open and obvious to all, the condition is not unreasonably dangerous and the defendant may not owe a duty to the plaintiff. Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96), 673 So.2d 585, 591. Generally, a defendant has no duty to protect against an open and obvious hazard. Eisenhardt v. Snook, 08-1287 (La.3/17/09), 8 So.3d 541, 544. In order for a defect to be considered open and obvious, the danger created by that defect must be apparent to all comers. Broussard v. State ex rel. Office of State Bldgs., 12-1238 (La.4/5/13), 113 So.3d 175, 192. If the complained-of condition should be obvious to all, then it may not be unreasonably dangerous. Id. at 188. The focus on whether an alleged defect is open and obvious is “on the global knowledge of everyone who encounters the defective thing or dangerous condition, not the victim’s actual or potentially ascertainable knowledge.” Id. Focusing only on the plaintiffs awareness of that risk would undermine comparative fault principles. Id.

Upon review, we find that the trial court’s finding that the alleged defect in the area in which Mrs. Christiano fell was open and obvious to all is well supported by the record. Mrs. Christiano testified that she was being careful when she walked into the area covered with what appeared to be dried mud because that area was surrounded by “slop,” which she described as “oil and some other kind of substance.” She acknowledged that there was “slop” next to the dried mud, but she did not think or know that there was “slop” underneath the dried mud. She admitted that there were no holes or cracks on the cement where she fell; rather, it was the “slop” and mud that caused her to fall. Further, her testimony indicates that she could have requested a nearby employee, Mr. Carter, to assist her in retrieving the fallen can, and that she could have held on to the hopper as she walked into the area in question to retrieve the can. Moreover, Mrs. Christiano’s testimony that she saw the “slop” and took much care to walk on it, supports the trial court’s factual conclusion that this alleged defect was open and obvious to all and that it did not create an unreasonably dangerous condition. Thus, we find that the trial court’s finding that the alleged defect was open and obvious is not manifestly erroneous.

Having found there is a reasonable factual basis in the record for the trial court’s finding that the alleged defect was open and obvious, defendant had no |aduty to protect or warn plaintiff of the alleged defect. Thus, plaintiffs’ arguments regarding the trial court’s failure to apply the “proper negligence standard” and failure to apply comparative negligence analysis are without merit.

Plaintiffs further argue that the trial court erred in “an erroneous application of assumption of the risk.” In this assignment of error, plaintiffs contend that the trial court “suggested that defendant/ap-pellee may have been at fault but barred Mrs. Christiano’s recovery on the ground that she knew of the unreasonable risk created by Southern Scrap’s conduct and voluntarily chose to encounter it.” A clear reading of the transcript indicates that the trial court simply found the alleged defect, i.e., the dried mud covering “slop,” was open and obvious, explaining that there was “a small patch of some dried mud on top of some other mud that clearly is next to slop; it’s not unusual to assume that the slop is also underneath” the dried mud. There is nothing in the record to indicate that the trial court applied a duty-risk analysis. Thus, this argument is without merit.

Further, the trial court found that even if the alleged defect was not open and obvious, plaintiffs presented “no evidence whatsoever that defendant was aware of any kind of defect, and should have corrected it.” Mrs. Christiano admitted that she did not know how the “slop” got there; rather, she attempts to infer that Southern Scrap had knowledge of the “slop” because its employee was in the area. Further, Mrs. Christiano was unable to state how long the “slop” had been present.

The trial court went on to state that there was “no evidence that they acted negligence [sic] in their procedures.” We find that the record clearly supports this finding. Plaintiffs attempted to carry their burden of proving that Southern Scrap was negligent in their procedures to keep the walkway clean by pointing to the statement in Southern Scrap’s answer to interrogatories that “it is company policy to keep public areas free of debris.” Plaintiffs presented no testimony or 1 ^documentary evidence whatsoever that Southern Scrap was negligent in their procedures to keep the walkways clean. Hence, since there was no evidence that Southern Scrap was negligent, there was no reason for the trial court to apply a comparative fault analysis.

CONCLUSION

After considering the record before us in its entirety under the manifest error standard of review, we find that there is a reasonable basis in the record to support the trial court’s grant of Southern Scrap’s motion for an involuntary dismissal of the case. Accordingly, the judgment of the trial court under review is affirmed.

AFFIRMED.

      . Southern Scrap was incorrectly referred to in the petition as "Southern Scrap Recycling.”

      . Plaintiff's suit also named Southern Scrap's purported liability insurer, "XYZ Insurance Company”, as a party-defendant. The record does not reflect that plaintiffs ever amended their suit to identify and name as a party-defendant Southern Scrap's actual liability insurer.

      . Pictures admitted into evidence and testimony indicates that a hopper is a large open receptacle where the cans were placed in order to be weighed.

      . The record reflects that at the time of trial, Mr. Christiano was suffering from some type of heart illness and shortly after being called to the stand, he had difficulty answering questions. When questioned as to whether he was alright, he stated that he was nervous. Cross-examination began and a short break was taken. When questioning resumed, however, Mr. Christiano became nauseated and was handed a trash can. It appears from the record he became ill. After a bench conference, it was agreed that the questioning would stop and Mr. Christiano was released from the stand. Mr. and Mrs. Christiano then left the courtroom.