author: MOORE, J.

text:
    Juanita MAHONEY, Plaintiff-Appellant v. EAST CARROLL PARISH POLICE JURY, Defendant-Appellee.
    No. 47,494-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 2012.
    Rehearing Denied Nov. 8, 2012.

      Anthony J. Bruscato, Monroe, LA, for Appellant.
    Gold, Weems, Bruser, Sues, & Rundell, Alexandria, LA, by Brandon Sues, Eugene J. Sues, for Appellee.
    Before BROWN, DREW and MOORE, JJ.
   MOORE, J.

11After refusing to consider the plaintiffs opposition memorandum and supporting materials served six days after the extended deadline date set by the court had passed, the trial court granted the defendant’s motion for summary judgment. The court noted that it would have granted the summary judgment even had it considered the opposition materials proffered. For the following reasons, we affirm.

Facts

The plaintiff, Juanita Mahoney, was involved in a one-car accident on March 10, 2008, in which her vehicle went off the rural road and hit an embankment causing her injuries. She sued the East Carroll Parish Police Jury (“Police Jury”) on March 10, 2009, alleging that the accident was caused by a pothole on Perry Road, located in East Carroll Parish. By amended petition she subsequently alleged that incomplete work of the “Zipper,” an asphalt road resurfacing machine demonstrated to the Police Jury on a 100-foot section of Perry Road 13 days prior to the accident, created the unreasonably dangerous conditions that caused the accident. Mahoney added Asphalt Zipper, Inc. as a defendant in the amended petition.

The Police Jury filed a motion for summary judgment on January 6, 2011, alleging that there were no material facts in dispute, the road was not defective, nor did it present an unreasonable risk of harm. Alternatively, it alleged that the plaintiff could not prove that the Policy Jury had actual or constructive notice of the defect prior to the accident, and, furthermore, the alleged defect was not the cause of the accident. The court set the matter for a hearing on August 1, 2011, seven months after the motion was filed.

| aThe statutory deadline for the plaintiff to submit an opposition to the motion was July 24, 2011, which was eight days prior to the August 1 scheduled hearing on the motion. La. C.C.P. art. 966(B) and Rule 9.9. The plaintiff did not oppose the motion for summary judgment prior to the August 1, 2001 hearing. However, on July 29, 2011, just three days prior to the scheduled hearing, the plaintiff moved for a continuance on grounds that it needed more time for discovery. Specifically, the plaintiff argued that it was unable to depose a key witness until two days prior to the July 24 deadline to file its opposition, and it had not received a transcript of the deposition to submit in opposition to the motion.

At the August 1, 2011 hearing, the court noted that the plaintiffs motion for a continuance was not filed until after the eight-day deadline for submitting an opposition had already passed. Mr. Bruseato, counsel for the | ^plaintiff, told the court that he was still conducting discovery important to his case, having deposed Mr. Pas, the representative of Asphalt Zipper, Inc., just two days prior to the deadline, and he had not received a transcript of the deposition. After questioning Mr. Bruseato regarding the relevancy of the deposition to the plaintiffs opposition, it reluctantly granted the motion for continuance, but expressed its desire to reschedule the hearing 30 days hence. Mr. Bruseato agreed that he would be able file his opposition timely. After a short recess to determine what calendar date in September would be available (for all parties concerned) to hold the hearing, the court reset the hearing on the motion for summary judgment for September 20, 2011. However, the court told plaintiffs counsel to file its opposition on or before September 6, 2011, stating:

And the minutes should reflect that plaintiff will make any filings that it wishes for the Court to consider at the September 20 hearing on or before September 6, 2011. All right, does there need to be anything in it about any responses by Police Jury? (Emphasis supplied.)

At this point, the Police Jury agreed to abide by the four-day response time provided by the Code of Civil Procedure. The court then responded:

Okay. All right, well, we’re just not mak[ing] any further orders, just go by whatever the Code requires. If it’s four days that’s fine. But Mr. Bruseato'⅛, anything filed is by the 6th. The hearing is on the 20th at 1 o’clock p.m. (Emphasis supplied.)

Mr. Bruseato responded:

Right. Thank you Your Honor.

The plaintiff filed no opposition on or before September 6, but filed its opposing materials on September 12, 2011. This was six days past the | September 6 deadline set by the court and agreed to by the parties, although there were still eight days prior to the scheduled hearing, which is the minimum time period to serve an opposition under C.C.P. art. 966(B) and District Court Rule 9.9.

On September 16, 2011, the police jury filed a responsive motion that included a motion to strike the late-filed opposition and exhibits.

The court held a hearing as scheduled on September 20, 2011, first considering the defendant’s motion to strike all or parts of the opposition. The court heard lengthy arguments, including the merits, from both parties. Mr. Sues, representing the Police Jury, argued that, in addition to the untimely opposition, several exhibits were not in proper (affidavit) form and constituted hearsay. Mr. Sues argued that parts of Mrs. Mahoney’s affidavit contradicted her deposition testimony and should be excluded, and many of the conclusions reached in the affidavit of the plaintiffs expert, Ron Hasty, were irrelevant because they were based on an erroneous assumption of a wet road. The affidavits of Linda Hicks and Marvin Hicks regarding the condition of the road at the time of the accident were also irrelevant because they were not based on personal knowledge-they did not witness the accident.

Mr. Bruscato argued that he had complied with La. C.C.P. art. 966(B) and Rule 9.9 by submitting his opposition memorandum and supporting exhibits eight days prior to the scheduled hearing. He showed the court his calendar, which contained no entry of anything due on September 6, 2011. He defended the exhibits objected to, such as the brochure from Asphalt |fiZipper, Inc., noting that it was a response to discovery by Asphalt and was part of the record. Regarding the dispute over whether the road was wet, even though Mrs. Mahoney said it was a clear, sunny day when the accident occurred, Mr. Bruscato argued that the pothole contained water from a previous rain and, because the road had not been sealed with any kind of coating, the subsurface of the road was still wet and rendered the road slippery. The same argument was made regarding the slippery condition of the road and the relevancy of the affidavit from plaintiffs expert regarding the road surface.

Counsel for the Police Jury noted that the plaintiff lived on Perry Road and had traveled over the road dozens of times after the work of the Zipper was done, even the day of the accident. The Police Jury contended that it had no notice of any vice or defect in the road; it had not received any complaints about the road, and there was no evidence of the length of time the pothole in the road was present such that the Police Jury would be deemed to have constructive notice. It also argued that plaintiffs own expert stated that applying sealant to the road was optional, and he did not state that the road was defective without a sealant, nor did he find that the condition of the road caused the accident.

Mr. Bruscato argued that the Police Jury had notice of the defective condition of the road when the demonstration was completed without performing the added step of sealing the surface of the road.

After a short recess, the court reviewed the transcript of the August 1, 2011 hearing and noted that it had granted the plaintiff a 45-day extension |fi(from the original July 24 deadline) to file its opposition by September 6, 2011. The court recited a provision in C.C.P. art. 966(B), which states that “[f|or good cause, the Court shall give the adverse party additional time to file a response, including opposing affidavits or depositions.” The court granted the motion to strike the opposition and exhibits, and, after determining that there were no material facts in dispute, granted the Police Jury’s motion for summary judgment.

The court went on to say that it would have granted the Policy Jury’s motion even if it included for consideration the items tendered by the plaintiffs in opposition to the motion. It stated that “nothing in the record proves that the road was defective at the time of the accident ... or raises a germine issue of that allegation”. It also found no proof of actual or constructive notice of the defects.

The court signed a judgment dismissing the action with prejudice. This appeal followed.

Discussion

By her first assignment of error, the plaintiff contends the trial court erred in granting the Policy Jury’s motion to strike and in treating the motion as unopposed. First, she argues, the summary judgment opposition was timely filed and served under La. C.C.P. art. 966 and Rule 9.9. Secondly, the defense did not show that it was prejudiced by the late filing. Thirdly, the trial court abused its discretion by making the decision to strike the opposition instead of imposing a lesser penalty for plaintiffs counsel’s inadvertent error.

17Counsel’s position is that the district court exceeded its authority by setting the deadline to file its opposition to the motion for summary judgment on September 6, 2011, which was 14 days prior to the scheduled hearing on September 20, 2011. The mandatory provisions of C.C.P. art. 966 and District Court Rule 9.9 require a party who is opposing a motion for summary judgment to file its opposing memorandum and supporting affidavits “at least eight calendar days before the hearing, unless the court sets a shorter time.” Rule 9.9(b).

Plaintiff states that its failure to file the opposition by September 6, 2011 was simply an inadvertent error by counsel and the penalty of excluding the opposition is unduly harsh. It argues that Mrs. Maho-ney should not lose her cause of action as a result of an inadvertent oversight. Furthermore, the defendant did not show how it was harmed by the opposition being filed eight days prior to the hearing, which complies with the statutory requirements.

Finally, the plaintiff contends that the court exceeded its authority by granting the motion to strike. The statute provides only two penalties for a late filing: forfeiture of oral argument or imposition of costs, or both. (See District Court Rule 9.9(d), supra at footnote 1).

The Police Jury responds that the district court had discretion to refuse to consider the late opposition to its motion, citing Woodall v. Weaver, 43,050 (La.App. 2 Cir. 2/13/08), 975 So.2d 750. In Woodall, the trial court refused to consider the defendant’s opposition to the plaintiffs motion for summary judgment, where the defendant filed its opposition less [8than eight days prior to the scheduled hearing on the motion. On appeal, a panel from this court affirmed the summary judgment, finding no abuse of the trial court’s discretion in refusing to consider the late-filed opposition to the motion for summary judgment, citing the supreme court decision in Buggage v. Volks Constructors, 06-0175 (La.5/5/06), 928 So.2d 536.

Buggage, supra, and numerous other cases indicate that appellate courts review for abuse of discretion a trial court’s exclusion of an opposition to a motion for summary judgment. Woodall, supra; Von Drake v. Rogers, 43,546 (La.App. 2 Cir. 10/8/08), 996 So.2d 608; Hubbard v. North Monroe Medical Center, 42,744 (La.App. 2 Cir. 12/12/07), 973 So.2d 847.

La. C.C.P. art. 966(B) provides, in pertinent part:

B. The motion for summary judgment, memorandum in support thereof, and supporting affidavits shall be served within the time limits provided in District Court Rule 9.9. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1313 within the time limits provided in District Court Rule 9.9.

District Court Rule 9.9 provides, in pertinent part:

A party who opposes an exception or motion shall concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing. The opposition memorandum shall be served on all other parties so that it is received by the other parties at least eight calendar days before the hearing, unless the court sets a shorter time.

(Emphasis supplied.)

| ^Additionally, Rule 1.4 of the District Court Rules provides:

An individual judge may, in the interest of justice and upon notice to all parties, permit deviations from these Rules in a particular proceeding. Any such deviation shall be noted on the record in open court and in the presence of all parties or by written order filed into the record of the proceedings and mailed to all parties or their counsel of record.

The purpose of requiring the opposition memorandum to be served on the mover “at least” eight days before the hearing is to allow both the court and mover sufficient time to narrow the issues in dispute and prepare for argument at the hearing. The provisions use the mandatory language “shall,” and, absent the court setting a shorter time period (less than eight days), the opposition must be filed a minimum of eight days prior to the hearing. Buggage, supra; Woodall, supra.

The statutory language “at least eight days” indicates that a party opposing the motion for summary judgment may elect to submit its opposition more than eight days prior to the scheduled hearing. If a party may elect to submit its opposition more than eight days prior to the hearing, it follows, then, that he or she may agree to submit its opposition more than eight days prior to the scheduled hearing. Moreover, our reading of Rule 1.4 authorizes a district court judge to allow parties to deviate from the rules “in the interest of justice and upon notice to all parties.”

In this instance, the district court, after noting its concern that the plaintiff had moved to continue the scheduled hearing because it had not timely filed its opposition to the motion, agreed to reschedule the hearing, thereby allowing the plaintiff additional time to file its opposition. Since the matter had already been pending for more than six months, in fairness to 110the defendant, the court also wanted to set a specific deadline agreeable to the parties in which an opposition memorandum and supporting materials must be filed and served. The court indicated initially that it intended to reset the hearing in 30 days in order to give the plaintiff additional time to file an opposition to the motion for summary judgment. This time period was agreeable to plaintiffs counsel, and he stated that he would timely file his opposition.

The court offered Friday, September 2, 2011, as a hearing date, but defense counsel could not be there on that date due to a speaking engagement. Because Judge Crigler sits in three parishes and would be conducting court in Madison Parish for the two weeks subsequent to that date beginning the week of September 6, the next date in East Carroll Parish that would be available was September 20, 2011, on which day he had a trial scheduled, but would interrupt the trial proceedings at 1:00 p.m. that day to hear arguments on the motion. Both parties agreed. Judge Crigler then set September 6, 2011, as the deadline for the plaintiff to file an opposition. This date was apparently his last day in East Carroll Parish before serving in Madison Parish. Both parties agreed to that date and, as noted previously, the court reiterated the September 6, 2011, deadline in open court to plaintiff’s counsel.

The procedural deadlines set by the court were accepted and agreed to in open court by all the parties involved, which gave Mr. Bruscato an additional 45 days to file an opposition to the motion for summary judgment. The specific date set by the court complied with the formal ^requirements of Rule 1.4 for deviating from the time period set by Rule 9.9, and provided a reasonable period of time for the plaintiff to file its response to the motion. Adequate notice was given to all parties involved. The plaintiff made no objection that the specific date to file its opposition resulted in more than the eight days provided for by Rule 9.9. All the parties agreed to that date.

We conclude, therefore, that the September 6, 2011, deadline to file an opposition was mandatory. Mr. Bruscato cannot now fall back on the statutory provisions to assert that his opposition was timely served. Plaintiffs argument that the court exceeded its authority in setting the September 6, 2011, date to file an opposition is without merit.

The plaintiff also argues that the defendant has not shown that it was prejudiced by the late-filed opposition. Since Buggage v. Volks Constructors, supra, supreme court and appellate court decisions indicate that it is not an abuse of discretion to disallow the late-filed materials because of the mandatory language of La. C.C.P. art. 966(B) and Rule 9.9. For example, in Guillory v. Chapman, 10-1370 (La.9/24/10), 44 So.3d 272, the supreme court held that the trial court, which refused to consider a late-filed affidavit, did not abuse its discretion in “choos[ing] to follow the mandatory language of La. C.C.P. art. 966(B)(2), which requires a party opposing the motion for summary judgment to serve opposing affidavits and any memorandum in support thereof ‘at least eight days prior to the date of the hearing.’ ” See also, Woodall, supra. In Bug-gage, supra, rather than holding that untimely affidavits must be excluded by the trial court, the 112supreme court specifically stated that such affidavits “can” be excluded by the trial court, and noted that the trial court “acted within its discretion” in excluding the opposition. Buggage, 928 So.2d at 536. Other courts of this state have also indicated that district courts have discretion to consider late-filed opposition materials, absent prejudice to the mover, in application of this otherwise mandatory time period. See Phillips v. Lafayette Parish Sch. Bd., 10-373 (La.App. 3 Cir. 12/8/10), 54 So.3d 739; James Constr. Group, L.L.C. v. State ex rel. Dep’t of Transp. and Dev., 07-225 (La.App. 1 Cir. 11/2/07), 977 So.2d 989; Savoie v. Savoie, 03-893 (La.App. 5 Cir. 12/30/03), 864 So.2d 742. Hence, because the statutory language requiring a party to file its opposition at least eight days prior to the scheduled hearing, unless the court sets a shorter period, is mandatory, a district court has the discretion to allow the filing, unless the mover is prejudiced, but it is not required to make a finding of prejudice to disallow late-filed opposition documents.

The same reasoning applies to the instant case. The September 6, 2011, deadline for the plaintiff to file its opposition was a mandatory time limitation set by the trial court in agreement with the parties in open court. The district court therefore properly exercised its discretion in refusing to consider the late-filed opposition materials. Woodall, supra. To this, we add the fact that the summary judgment motion had been pending for seven months in a case already 28 months old. Ample time for discovery had passed, and the initial deadline to file an opposition to the motion had passed when the plaintiff moved to reset the hearing date and gain more 113time to file an opposition.

Finally, the plaintiff contends that the district court’s exclusion of the opposition materials was excessive and constituted an abuse of discretion. Because we have already concluded, based upon the discussion of the statutes and cases above, that the trial court had the discretion to disallow the late-filed opposition materials, there was no abuse of discretion. Bug-gage, supra; Woodall, supra.

The plaintiff contends, however, that the court exceeded its authority under Rule 9.9(d), which states that a party who fails to comply with Rule 9.9(a) or (b) “may forfeit the privilege of oral argument” or “the court may order the late-filing party to pay the opposing side’s costs” caused by the untimeliness.

We note that the language in these provisions is not mandatory. Although the court “may” apply the penalties suggested, it has already been determined in the cases cited above that a district court can disallow late-filed opposition materials because of the mandatory language in Rule 9.9(b). See, e.g., Buggage, supra; Woodall, supra.

For these reasons, we conclude that the trial court did not abuse its discretion in disallowing the plaintiffs opposition memorandum and supporting materials served after the deadline date set by the court and agreed to by the parties. Accordingly, this assignment is without merit.

By her second assignment of error, the plaintiff contends that the trial court erred in granting the defendant’s motion for summary judgment.

|14We review the grant of a motion for summary judgment de novo. Sehroeder v. Board of Sup’s of Louisiana State University, 591 So.2d 842 (La.1991); Beckham v. Jungle Gym, L.L.C., 45,325 (La.App. 2 Cir. 5/19/10), 37 So.3d 564; Moore v. Oak Meadows Apartments, 43,620 (La.App. 2 Cir. 10/22/08), 997 So.2d 594. A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(B). 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 of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. King v. Illinois Nat. Ins. Co., OS-1491 (La.4/3/09), 9 So.3d 780.

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. La. C.C.P. art. 966(C)(2).

| ^Plaintiff s claim is governed by Art. 2317.1 of the Louisiana Civil Code. This article provides that:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Article 2317.1 actions require proof that the thing was in the defendant’s custody, that the thing contained a defect which presented an unreasonable risk of harm to others, that this defective condition caused the damage and that the defendant knew or should have known of the defect. Beckham, supra; Pamplin v. Bossier Parish Community College, 38,533 (La.App. 2 Cir. 7/14/04), 878 So.2d 889, writ denied, 04-2310 (La.1/14/05), 889 So.2d 266.

There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. The trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Simply put, the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify its potential harm to others. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362.

The courts have recognized that it is common for the surfaces of streets, sidewalks and parking lots to be irregular and that it is not the duty of the party having garde of these locations to eliminate all variations in 11fielevations existing along the countless cracks, seams, joints and curbs. These surfaces are not required to be smooth and lacking in deviations because such a requirement would be impossible to meet. Reed, supra; Beck-ham, supra. This fact alone, however, is insufficient to eliminate the defendant’s liability under the unreasonable risk analysis. Reed, supra Beckham, supra. Not every imperfection or irregularity will give rise to liability, but only a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Netecke v. State, through Dept. Of Transp. and Dev., 98-1182 (La.10/19/99), 747 So.2d 489.

Defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of condition should have been obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff.

In determining whether a condition is unreasonably dangerous, courts have adopted a four-part test. This test requires consideration of: 1) the utility of the complained-of condition; 2) the likelihood and magnitude of the harm, which includes the obviousness and apparentness of the condition; 3) the cost of preventing the harm; and 4) the nature of the plaintiffs activities in terms of its social utility, or whether it is dangerous by nature. Dauzat v. Curnest Guillot Logging, Inc., 08-0528 (La.12/2/08), 995 So.2d 1184. A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care, or which was as obvious to a visitor as it was to |17the landowner. Id.

In this case, with its motion for summary judgment, the Police Jury submitted a statement of material facts not in dispute. These included the following facts:

Mrs. Mahoney had lived on Perry Road since 2007 and drove on the road on a daily basis. The accident occurred less than a mile from her home. She drove over that portion of the road over 100 times and never had an accident, including two times on the day of the accident. On the third time, the accident occurred.

The Police Jury’s expert, Mr. Richard Robertson, reviewed and analyzed the depositions and photographs taken on the day of the accident. He inspected the road and accident site. He concluded that the accident was caused solely by Mrs. Mahoney’s careless operation of her vehicle. His affidavit was attached with the defendant’s motion.

The defendant also asserted in its list of material facts that Perry Road was not defective and did not present an unreasonable risk of harm on the date of the alleged accident.

Finally, defendant asserts as a material fact that plaintiff cannot show that the Police Jury had actual or constructive knowledge of any defect, and there was no condition of the road that caused the accident.

The Police Jury also attached excerpts from Mrs. Mahoney’s deposition and the affidavits of Mr. Robertson and Norris Chase, the East Carroll Parish Police Jury Road Superintendent at the time of the accident.

11sLa. C.C.P. art. 967(B) provides that when a motion for summary judgment is supported, “an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial.” If the adverse party does not respond, summary judgment, if appropriate, shall be rendered. Because the court did not consider the late-filed opposing affidavits and other materials which may have created a disputed issue of material fact, the result was that there was no opposition to the Police Jury’s motion for summary judgment.

We conclude that summary judgment is appropriate. It is an undisputed fact that Perry Road was not defective and did not present an unreasonable risk of harm, nor is it disputed that the Police Jury had knowledge of any alleged defect in the road, or that the condition of the road caused the accident. Accordingly, this assignment is without merit.

Because we have determined that the district court did not abuse its discretion by refusing to consider the plaintiff’s opposition materials and summary judgment was appropriate in this case, it is not necessary to consider the plaintiffs third assignment of error regarding striking individual exhibits.

CONCLUSION

For the foregoing reasons, the judgment of the district court is affirmed. Costs of appeai are assessed to the plaintiff.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, CARAWAY, DREW and MOORE, JJ.

Rehearing denied.

      . La. C.C.P. art. 966(B) provides:
      B. The motion for summary judgment, memorandum in support thereof, and supporting affidavits shall be served within the time limits provided in District Court Rule 9.9. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Art. 1313 within the time limits provided in District Court Rule 9.9. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, 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.
      Louisiana District Court Rule 9.9 states, in pertinent part, that

        (b) A party who opposes an exception or motion shall concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing. The opposition memorandum shall be served on all other parties so that it is received by the other parties at least eight calendar days before the hearing, unless the court sets a shorter time.

      (d) Parties who fail to comply with paragraphs (a) and (b) of this Rule may forfeit the privilege of oral argument. If a party fails to timely serve a memorandum, thus necessitating a continuance to give the opposing side a fair chance to respond, the court may order the late-filing party to pay the opposing side’s costs incurred on account of the untimeliness.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    Edward D. GUTIERREZ v. David M. BALDRIDGE, et al. A & A Construction, LLC v. Edward Donovan Gutierrez.
    No. CA 12-138.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2012.
    Rehearing Denied Nov. 14, 2012.

      Burniee Gerald Weeks, The Weeks Law Firm, Pineville, LA, for Plaintiff/Appellee, Edward D. Gutierrez.
    Cade Aaron Evans, Allen & Gooch, APLC, Lafayette, LA, for Defendants/Appellants, David M. Baldridge, A & A Construction, LLC.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   PETERS, J.

| ,In these consolidated cases, David M. Baldridge appeals the trial court’s rejection of his claim against Edward D. Gutierrez for recovery of certain financial obligations associated with a partnership agreement entered into between the two individuals; A & A Construction, LLC appeals the trial court’s rejection of its monetary claim against Edward D. Gutierrez based on a real estate mortgage. For the following reasons, we affirm the trial court judgment.

DISCUSSION OF THE RECORD

Procedural History

On March 26, 2009, Edward D. Gutierrez brought a suit for damages against David M. Baldridge and his wife, Alexis R. Baldridge. In his suit, Mr. Gutierrez claimed that he and Mr. Baldridge entered into a partnership agreement on July 17, 2007, wherein they agreed to conduct business under the name of A & A Construction, LLC (A & A), a preexisting business entity wholly owned by David and Alexis Baldridge. Mr. Gutierrez asserted in his petition that through his connections and expertise, he obtained a number of contracts for the partnership which resulted in gross receipts to A & A of $5,000,000.00 and estimated profits in excess of $1,400,000.00. According to Mr. Gutierrez’s pleadings, he discovered during the partnership dissolution process that Mr. Baldridge had diverted the profits into numerous other businesses he personally owned. These included entities known as Safe House Technologies, LLC; A & A Pest Control of LA, LLC; and David M. Baldridge, Inc. Mr. Gutierrez claimed $700,000.00 as his share of the net profit of the partnership, and sought judgment against Mr. and Mrs. Baldridge for that amount.

Mr. and Mrs. Baldridge answered the petition on May 6, 2009, by acknowledging the existence of the partnership as well as the legal entities identified in the petition, but denying that the partnership participated in any lucrative contracts or years of steady work. In addition to raising a number of affirmative defenses, Mr. hand Mrs. Baldridge asserted that the partnership relationship ceased due to Mr. Gutierrez’s failure to perform his partnership obligations and that any amounts owed to Mr. Gutierrez were offset by his financial obligations to them.

A reconventional demand, filed by Mr. Baldridge alone, accompanied the answer to Mr. Gutierrez’s petition. In his recon-ventional demand, Mr. Baldridge asserted that the partnership agreement became null and void under its terms on April 80, 2008, when Mr. Gutierrez ceased communicating with him or any representative of A & A and ceased providing services to A & A. He further asserted that on August 13, 2008, Mr. Baldridge sent Mr. Gutierrez a letter demanding payment of two separate debts:

(1) $62,324.80, being Mr. Gutierrez’s share of outstanding debts owed by the partnership to A & A.
(2) $190,000.00 owed by Mr. Gutierrez to A & A, being a loan from A & A to Mr. Gutierrez for the purchase of his personal residence at 102 Saddlewood in Lafayette, Louisiana.

In his reconventional demand, Mr. Bal-dridge sought a personal judgment for the amount associated with the partnership, but not with the real estate loan. In his answer to the reconventional demand filed on May 20, 2009, Mr. Gutierrez acknowledged that he received the demand letter, but denied the remainder of the allegations.

On May 15, 2009, or nine days after the filing of the answer and reconventional demand to Mr. Gutierrez’s petition, A & A filed a separate suit against Mr. Gutierrez captioned as a “PETITION FOR FORECLOSURE BY ORDINARY PROCESS.” In that petition, A & A asserted that it was the holder and owner of a promissory note in the original principal sum of $180,000.00 which had been executed by Mr. Gutierrez on May 19, 2008; that the promissory note was made payable on demand to the order of the bearer of the note; that it bore interest at the rate of seven percent per annum; and that it had been “paraphed Ne Varietur for identification with and secured Rby a Collateral Mortgage” executed the same date and affecting immovable property situated in Lafayette Parish, Louisiana. A & A attached copies of the mortgage and note to its petition, and in its prayer for relief, sought a judgment against Mr. Gutierrez for the amount due on the promissory note, including interest and attorney fees, and for recognition of the mortgage against the immovable property.

In his April 12, 2010, general denial answer to this petition, Gutierrez admitted that he had executed the collateral mortgage and note, but asserted that the indebtedness represented by the promissory note had been cancelled pursuant to a written act of release of the mortgage dated May 19, 2006, the same day as its execution.

On April 19, 2010, Mr. and Mrs. Bal-dridge filed a motion to set their matter for trial. On April 26, 2010, the trial court set the matter for trial on September 13, 2010. However, when the motion was filed, there was a pending motion filed by Mr. and Mrs. Baldridge seeking consolidation of both actions. On the same day the trial court set a trial date, it also granted the motion to consolidate. The trial court executed a judgment granting the consolidation of the actions on April 30, 2010.

Some of the issues raised in the pleadings were resolved after an August 30, 2010, hearing wherein the trial court dismissed all of Mr. Gutierrez’s claims against Mr. and Mrs. Baldridge. This judgment which was executed by the trial court on September 3, 2010, is not before us in this appeal. Thus, when the matter went to trial on September 13, 2010, the only claims before the trial court were Mr. Bal-dridge’s claim against Mr. Gutierrez for reimbursement under the partnership ^agreement and A & A’s claim against Mr. Gutierrez associated with the real estate transaction.

Mr. Gutierrez did not appear at the September 13, 2010, trial, but after hearing all of the evidence presented by Mr. Baldridge and A & A, the trial court rejected their demands. The trial court executed a judgment dismissing their claims on May 13, 2011, and denied their subsequent motions for new trial by a written judgment dated November 7, 2011. Thereafter, Mr. Baldridge and A & A timely perfected this appeal.

Evidence Presented at Trial

Mr. Gutierrez sought and was denied a continuance of the September 13, 2010, trial. Without any appearance by him or his counsel, the matter went to trial and was decided based solely on the evidence presented by Mr. Baldridge and A & A. In addition to the testimony of Mr. Bal-dridge and Rebecca K. Miller, Mr. Bal-dridge’s administrative assistant at A & A, Mr. Baldridge and A & A offered the following exhibits as evidence at trial:

1. A copy of the collateral mortgage note dated May 19, 2006.
2. A certified copy of the collateral mortgage paraphed for identification with the collateral mortgage note. '
3. A copy of the August 13, 2008 demand letter together with the attached certified mail receipt reflecting delivery to Mr. Gutierrez on August 14, 2008, and a single page attachment purporting to be a summary of assets and liabilities of the partnership as of April 30, 2008.
4. A copy of the partnership agreement dated July 17, 2007, as well as one addendum to the agreement dated the same day.
5. A copy of a September 30, 2009, letter from the Lafayette Parish Sheriffs Department notifying A & A, as mortgage holder, that the. immovable property securing its mortgage had been sold at tax sale on May 6, 2009, and was subject to redemption through May 19, 2012.
6. A certified copy of a tax redemption deed dated and recorded October 23, 2009, reflecting that the immovable property subject to the collateral mortgage had been redeemed by the payment of $1,977.55.
7. A four-page document entitled “SUMMARY OF ASSETS AND LIABILITIES” and purporting to be a summary for A & A as of April 30, 2008. The document suggests a net worth of a negative $137,209.70.
|fi8. A six-page document entitled “SUMMARY OF PARTNERSHIP DEBT AS OF 4/30/08” and purporting to be a summary of the partnership financial activity giving rise to a total partnership debt of $184,678.81.
9. A copy of a cancelled check dated May 11, 2006, drawn on the A & A Construction account for $190,000.00, and made payable to Mark B. Tompkins, Attorney.
10. An A & A bank statement covering the period between April 22 and May 19, 2006, and reflecting that the $190,000.00 check was cashed on May 12, 2006.

Mr. Baldridge testified that he met Mr. Gutierrez in 2008, authorized A & A to loan Mr. Gutierrez the funds necessary to purchase his home in May of 2006, and personally entered into the partnership agreement on July 17, 2007. Nothing was ever paid to A & A for the home loan, and the partnership lasted less than one year.

With regard to A & A’s claim, Mr. Bal-dridge testified that he was present on May 19, 2006, when Mr. Gutierrez executed both the collateral mortgage note and the collateral mortgage, but that he never acquired possession of the note itself on behalf of A & A. He further testified that while his efforts to find the original note in the records of the attorney who handled the transaction proved unsuccessful, he had no evidence to suggest that the note had been given to anyone else. As further proof of the transaction, he offered as evidence a copy of the collateral mortgage note, a certified copy of the collateral mortgage, and a copy of a $190,000.00 check dated May 11, 2006, made payable to Mark Tompkins, Attorney. The trial court allowed the latter two exhibits to be introduced, but rejected his evidentiary offering of the copy of the May 19, 2006, collateral mortgage note in lieu of the original, and refused to allow the record to remain open for the introduction of further evidentiary filings to cure the court’s objection to the offering. The trial court allowed A & A to introduce evidence that, on at least one occasion, it had redeemed the property after a tax sale when Mr. Gutierrez failed to pay the annual property taxes.

IfiMs. Miller testified that she began working for A & A and Mr. Baldridge in the latter part of 2006 and only became aware of the real estate transaction when she began recreating the 2006 records in January of 2007. In that process, she came across the $190,000.00 check made payable to Mr. Tompkins and when she questioned Mr. Baldridge concerning the purpose of the payment, he replied that it was a real estate loan to Mr. Gutierrez. She flagged the transaction for consideration by the company’s accountant because she had no category in her bookkeeping records to enter the payment.

With regard to the partnership settlement claim, Mr. Baldridge testified that when he sent the August 13, 2008 demand letter, the amount due from Mr. Gutierrez was $62,324.80 as evidenced by the attachments to the letter. He acknowledged being a party to both the July 17, 2007 written partnership agreement and addendum introduced into evidence, and asserted that these documents contained the intended terms of the relationship created. However, he testified that Mr. Gutierrez failed to provide any significant services to the partnership although “[h]e did round up two or three little jobs.” According to Mr. Baldridge, in March of 2008 Mr. Gutierrez simply stopped coming to work. He testified that his attempts to contact Mr. Gutierrez by telephone were unsuccessful, but that ultimately Ms. Miller made contact.

Ms. Miller testified that it was the last day of April of 2008, not March of 2008 as testified to by Mr. Baldridge, when Mr. Gutierrez ceased coming to work. Several days later she contacted him and he informed her that he had quit “because there was no money to be made.”

Ms. Miller assisted Mr. Baldridge in compiling the financial documents attached to the August 13, 2008 demand letter. However, the exhibits and her testimony revealed internal contradictions concerning the calculation of the amount owed to A & A as of April 30, 2008. The August 13, 2008 demand letter suggested that Mr. Gutierrez’s share of liability was $62,324.80 based on some minor [ 7adjustments made to the four-page exhibit introduced in evidence which purports to show A & A’s net worth on April 30, 2008, as -$137,209.70. In direct conflict with this calculation is the six-page exhibit also introduced in evidence which purports to show that the total partnership debt as of April 30, 2008, was $184,678.81. Ms. Miller acknowledged that the six-page document had not been attached to the demand letter, but testified that the actual amount owed by Mr. Gutierrez was one half of the larger amount, or $92,339.39. This adjustment was based on a reevaluation of some of the debt categories. In response to questions by the trial court, she further acknowledged that if one considered the amount set forth in the demand letter to be the more accurate figure, it still should be reduced by $2,500.00. Further questioning by the trial court caused Ms. Miller to acknowledge that other categories needed adjusting and, if adjusted, would generate an increase of $2,881.00 in the amount owed by Mr. Gutierrez.

Ms. Miller also confirmed that in the latter part of 2008 a number of limited liability companies owned solely by Mr. Baldridge were consolidated into one corporation: David Baldridge, Incorporated. These included A & A, as well as A & A Insulation, LLC; Real Construction, LLC; Safehouse, LLC; and A & A Pest Control, LLC. Ms. Miller testified that, while technically the umbrella corporation assumed all the assets and liabilities of the limited liability companies, only A & A had any debts.

In reaching its decision to reject Mr. Baldridge’s request for reimbursement, the trial court did not consider the discrepancies in the accounting documents. Instead, based on its interpretation of the partnership language, the trial court concluded that an accounting was not yet available because A & A continued to do business, although in another name. The trial court concluded that the partnership agreement did not provide an accounting remedy until A & A ceased to do business. Additionally, the trial court noted that the partnership agreement provided that in the event that either party ceased to perform his obligations within the partnership, the 1 spartnership was to be considered null and void. Based on the inability of A & A to produce an original promissory note and its further failure to show compliance with the requirements of La. R.S. 13:3741, the trial court also rejected its claim for judgment against Mr. Gutierrez.

Assignments of Error

In their appeals, Mr. Baldridge and A & A jointly raise five assignments of error:

1. The trial court erred when it failed to consider A & A’s breach of contract theory and only considered the claim for enforcement of the note.
2. The trial court erred when it found that A & A failed to properly establish the existence of the indebtedness owed to it by Gutierrez.
3. The trial court erred when it failed to accept into evidence a copy of the Collateral Mortgage Note.
4. The trial court erred when it denied Baldridge’s unopposed motion to leave the case open or to continue the trial so that proof sufficient to establish the lost note could be presented.
5. The trial court erred in its interpretation of the Partnership Agreement between Baldridge and Gutierrez.

OPINION

A & A’s Assignments of Error

The first four assignments of error address A & A’s claim against Mr. Gutierrez and will be considered together. However, we choose not to consider them in the order in which they are presented.

Assignment of Error Numbers Three and Four

These assignments of error address the trial court’s refusal to allow A & A to introduce a copy of the collateral promissory note at trial, and its refusal to leave the record open to allow A & A the opportunity to remedy the defect in the offering as recognized by the trial court. We find no error in either of these assignments.

[nThe trial court rejected A & A’s offering based on La.R.S. 13:8741, which provides in pertinent part that “[i]n every case where a lost instrument is made the foundation of a suit or defense, it must appear that the loss has been advertised within a reasonable time in a public newspaper and proper means taken to recover the possession of the instrument[.]” A & A acknowledges through the testimony of Mr. Baldridge that it does not have the original note, has no knowledge of its whereabouts, and did not comply with the advertisement provisions of La.R.S. 13:3741 before attempting to introduce it into evidence. In fact, despite A & A’s assertion in its petition that it was the holder and owner of a promissory note executed by Mr. Gutierrez and secured by a collateral mortgage, Mr. Baldridge testified that he never acquired possession of the note on behalf of A & A. The trial court did not err in refusing to allow the copy of the collateral promissory note to be introduced into evidence.

Nor do we find that the trial court erred in refusing to allow the record to remain open for further filings by A & A. This request for relief ignores Mr. Baldridge’s testimony to the effect that A & A never had possession of the original collateral promissory note. Therefore, he cannot now assert that he has lost what he never had and it would be a vain and useless act to hold the record open.

Assignment of Error Number Two

In this assignment of error, A & A asserts that the trial court erred in concluding that A & A failed to establish the existence of the debt owed to it by Mr. Gutierrez. Taking this assignment in context with all the other assignments, and in particular with the assertions in the first assignment of error, we interpret the merit of this assignment of error within the context of its specific allegations in the pleadings. As previously noted, those pleadings assert a cause of action based on a promissory Imnote secured by the property described in the May 19, 2006 collateral mortgage executed by Mr. Gutierrez.

The supreme court has explained the nature of the collateral mortgage as follows:

The collateral mortgage, though now recognized by statute, is a form of conventional mortgage that was developed by Louisiana’s practicing lawyers and has long been recognized by Louisiana courts. Levy v. Ford, 41 La.Ann. 873, 6 So. 671 (La.1889); Merchants’ Mut. Ins. Co. v. Jamison, 25 La.Ann. 363 (La.1873); Succession of Dolhonde, 21 La.Ann. 3, 1869 WL 4559 (La.1869). The collateral mortgage arose out of the need for a special form of mortgage to secure revolving lines of credit and multiple present and future cross-collat-eralized debts for which there was no provision in the Civil Code. David S. Willenzik, Future Advance Priority Rights of Louisiana Collateral Mortgages: Legislative Revisions, New Rules, and a Modem Alternative, 55 La. L.Rev. 1, 7 (1999). The collateral mortgage was designed “to create a mortgage note that can be pledged as collateral security for either a pre-exist-ing debt, or for a debt created contemporaneously with the mortgage, or for a future debt or debts, or even for a series of debts.” Max Nathan, Jr. & H. Gayle Marshall, The Collateral Mortgage, 33 La. L.Rev. 497 (1973). One advantage it holds for creditors is that liabilities are ranked from the date of the original pledge of the collateral mortgage note (assuming the mortgage has been recorded), rather than from the date of the individual, subsequent advances. Further, the creditor is able to secure multiple present and future loans and obligations on a cross-collat-eralized basis.
This Court discussed the fundamentals of a collateral mortgage in First Guaranty Bank v. Alford, 366 So.2d 1299, 1302 (La.1978), as follows:
A mortgage is an accessory right which is granted to the creditor over the property of another as security for the debt. La.Civ.Code arts. 3278, 3284. Mortgages are of three types: conventional, legal and judicial. La. Civ.Code art. 3286. Within the area of conventional mortgages, three different forms of mortgages are recognized by the Louisiana statutes and jurisprudence: an “ordinary mortgage” (La.Civ.Code arts. 3278, 3290); a mortgage to secure future advances (La.Civ.Code arts. 3292, 3293); and a collateral mortgage. See Thrift Funds Canal, Inc. v. Foy, 261 La. 573, 260 So.2d 628 (1972). Unlike the other two forms of conventional mortgages, a collateral mortgage is not a “pure” mortgage; rather, it is the result of judicial recognition that one can pledge a note secured by a mortgage and use this pledge to secure yet another debt.
A collateral mortgage indirectly secures a debt via a pledge. A collateral mortgage consists of at least three documents, and takes several steps to complete. First, there | nis a promissory note, usually called a collateral mortgage note or a “ne varietur” note. The collateral mortgage note is secured by a mortgage, the so-called collateral mortgage. The mortgage provides the creditor with security in the enforcement of the collateral mortgage note.
Up to this point, a collateral mortgage appears to be identical to both a mortgage to secure future advances and an ordinary mortgage. But a distinction arises in the collateral mortgage situation because money is not directly advanced on the note that is paraphed for identification with the act of mortgage. Rather, the collateral mortgage note and the mortgage which secures it are pledged to secure a debt.
366 So.2d at 1302 (emphasis in original).
Pledge is an accessory contract by which one debtor gives something to a creditor as security for the debt. La. Civ.Code art. 3133; Texas Bank of Beaumont v. Bozorg, 457 So.2d 667, 671 n. 4 (La.1984). Invariably, the thing given as security for the debt is a movable, in which case the contract is more accurately called pawn. La.Civ.Code arts. 3134 and 3135. A person may give a pledge not only for his own debt, but also for that of another. La.Civ.Code art. 3141. The pledge secures only that debt or debts contemplated in the contract between the pledgor and pledgee. Alford, 366 So.2d at 1304 (quoting Durham v. First Guaranty Bank of Hammond, 331 So.2d 563, 565 (La.App. 1st Cir.1976)); see also Peter S. Title, Louisiana Real Estate Transactions, Second Edition, § 14.9 (2000).
A collateral mortgage is not a “pure” mortgage; instead, it combines the security devices of mortgage and pledge into one. First Federal Savings & Loan Ass’n v. Moss, 616 So.2d 648, 654 (La.1993). It is important to remember that the collateral mortgage does not directly secure a debt; instead, the collateral mortgage device “is designed to create a mortgage note for a fictitious debt that can be pledged as collateral security for a real debt.” Bozorg, 457 So.2d at 671; see also David S. Willenzik, Louisiana Secured Transactions, § 2:13 (2000) (“The borrower’s mortgage secures a fictitious collateral mortgage note, which is payable to bearer on demand. The collateral mortgage note is then pledged under a collateral pledge agreement to secure the borrower’s true indebtedness under one or more hand notes.”). Because the mortgagor, after executing the collateral mortgage and the collateral mortgage note, then pledges the collateral mortgage note as security for a debt, usually represented by a separate hand note, the collateral mortgage package combines the security devices of pledge and mortgage. Bozorg, 457 So.2d at 671 (citing Nathan & Marshall, The Collateral Mortgage, 33 La.L.Rev. at 498).

Diamond Services Corp. v. Benoit, 00-0469, pp. 5-9 (La.2/21/01), 780 So.2d 367, 370-72 (footnotes omitted).

112In the matter now before us, A & A not only failed to produce the original collateral promissory note, but it also failed to produce the promissory note to which the collateral promissory note should have been pledged as security. Therefore, we find no merit in this assignment of error.

Assignment of Error Number One

In this assignment of error, A & A asserts that even if one should conclude that it failed to meet its burden of proof regarding the cause of action raised in its pleadings, the other evidence sufficed to support a breach of contract claim which should have been considered by the trial court. Specifically, A & A asserts that its prayer for “all general and equitable relief’ together with the language of La. Code Civ.P. art. 862 allows it to assert a breach of contract theory separate and apart from the suit on note with security claim made in its petition.

In ordinary proceedings “[n]o technical forms of pleadings are required.” La. Code Civ.P. art. 854. Still, “[a]ll allegations of fact of the petition ... shall be simple, concise, and direct, and shall be set forth in numbered paragraphs. As far as practicable, the contents of each paragraph shall be limited to a single set of circumstances.” Id. Additionally, the petition “shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation[.]” La.Code Civ.P. art. 891(A) (emphasis added).

A & A argues that, notwithstanding the mandate of La.Code Civ.P. art. 891(A) that the petition shall state all causes of action arising out of the transaction at issue, La.Code Civ.P. art. 862 allows it to rely on the less specific language of its prayer in allowing evidence on a cause of action not stated. Louisiana Code of Civil Procedure Article 862 provides:

Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if 113the party has not demanded such relief in his pleading and the latter contain no prayer for general and equitable relief.

Nevertheless, “when the party’s failure to request a particular form of relief, and the party’s trial conduct, improperly and substantially prejudice its adversary’s presentation of a defense, it is not entitled to relief under this rule.” T.L. James & Co., Inc. v. Kenner Landing Inc., 562 So.2d 914, 915 (La.1990). Louisiana Code of Civil Procedure Article 862 has as its goal “to enable all litigants to make the same realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation.” Id. at 918.

In making its argument to this court that it should be able to rely on La.Code Civ.P. art. 862 to expand its pleadings to assert a separate cause of action, A & A does not cite the phrase “Except as provided in Article 1703....” to the court. Louisiana Code of Civil Procedure Article 1703 refers to a situation where a plaintiff is attempting to obtain a judgment by default and provides that such a judgment “shall not be different in kind from that demanded in the petition.” (emphasis added). While that Article could probably be applied by analogy given the failure of Mr. Gutierrez to appear at trial, we find La. Code Civ.P. art. 1154 to be more compelling. That Article provides in pertinent part that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had- been raised by the pleadings.” (emphasis added). In the matter now before us, there was neither express nor implied consent to enlarge the pleadings because neither Mr. Gutierrez nor his counsel was present to consent or waive objection.

We do not find that La.Code Civ.P. art. 862 supports A & A’s position on this issue and find no merit in this assignment of error.

1 uMr. Baldridge’s Assignment of Error

This final assignment of error addresses Mr. Baldridge’s attempt to secure a judgment for amounts he claims are due under the July 17, 2007 partnership agreement. That agreement reads in pertinent part as follows:

[David M. Baldridge and Edward D. Gutierrez] hereby enter into a business partnership agreement as outlined below:
Both parties are working and participating individuals in A & A CONSTRUCTION LLC, a Louisiana Limited Liability Corporation which is registered in the State of Louisiana with DAVID M. BALDRIDGE as the owner and registered agent of said corporation.
This agreement includes all activities of A & A Construction LLC as well as all activities generated from A & A Insulation, REAL Inspections and Safe-house Technologies LLC and A & A Pest control of La.
IT IS HEREBY AGREED that all assets and liabilities owned by A & A Construction will be shared equally by both parties excluding the 2001 Ford F250 pick-up VIN # 1FTNW20S81ED39045, the 1999 Ford F150 pick-up VIN # 1FTRX17W4XKA25565, and the 1997 Chevrolet S-10 pick-up VIN # 1GCCS1945V8148107.
IT IS FURTHER AGREED that any purchases and/or transactions conducted by A & A Construction LLC and any of the aforementioned entities in excess of $3,000.00 will be determined by both parties herein unless either party is not available to consult prior to the need of a decision being made.
IT IS FURTHER AGREED by both parties that this agreement will be deemed null and void if either party herein does not perform his equal share of the marketing of services and management of day to day operations of said corporation and does not contribute a minimum of thirty five (35) hours per week to the operations of said company.
IT IS FURTHER AGREED that all expenses incurred by A & A CONSTRUCTION LLC will be deducted and profit and loss statement will be provided before any proceeds of profits will be paid to either party herein.
IT IS FURTHER AGREED that if A & A CONSTRUCTION LLC should cease its operations and shut down all facilities, that a statement of liabilities will be provided by a non-participating party in this agreement and each party herein agrees to pay fifty percent (50%) of any outstanding debts either through his share of any funds remaining in the accounts of A & A CONSTRUCTION LLC and if there are no funds available through the accounts of said company, each individual will pay 50% of the debts outstanding until all debts have been satisfied.

11fiIn rejecting Mr. Baldridge’s claim for reimbursement, the trial court stated the following:

Well, I’ve read the document. And, based on the document, I find that you have failed to prove by a preponderance of the evidence that Mr. Gutierrez, at this point, is responsible for any of the debts of A & A Construction, because your agreement says that the partnership is going to be nullified when the other party does not perform his share.
And the only provision for payment of outstanding indebtedness comes when the business ceases, which there’s been no evidence that it ceased. So I’m denying any recovery on the basis of indebtedness owed to the partnership.

Mr. Baldridge asserts that regardless of the ongoing nature of A & A, the partnership terminated at the end of April 2008 when Mr. Gutierrez ceased coming to work and that this event gave rise to an accounting.

A partnership as defined by La.Civ.Code art. 2801 “is a juridical person ... created by a contract!.]” As such, it is to be interpreted pursuant to the rules governing the interpretation of contracts and the principle determination “is the determination of the common intent of the parties.” La.Civ.Code art. 2045. To that end, “[w]hen 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.” La. Civ.Code art. 2046.

With regard membership within a partnership, La.Civ.Code art. 2818(B) provides in pertinent part that “[a] partner also ceases to be a member of a partnership in accordance with the provisions of the contract of partnership.” Louisiana Civil Code Article 2826 provides that included within the ways a partnership is terminated is the situation where it “terminates in accordance with provisions of the contract” as well as by “the reduction of its membership to one person.” Additionally, “[w]hen a partnership terminates, the business of the partnership ends except for the purpose of liquidation.” La.Civ.Code art. 2828.

We interpret the partnership agreement to mean that the partnership may be terminated in either of two ways: (1) when A & A ceases operations and shuts down all of its facilities, or (2) when either of the partners ceases to perform his duties under the agreement and fails to contribute a minimum of thirty-five hours per week to the partnership activity associated with the operation of A & A. The first means of termination provides a specific method of satisfying the obligation to contribute to the outstanding debts arising from the partnership operation, while the second is silent as to how the partnership debts would be satisfied.

With regard to the first reason for termination, the trial court correctly concluded that Mr. Baldridge could not rely on that language in the agreement because A & A had not yet ceased operations, nor was there any evidence that it shut down its facilities. It simply merged into another legal entity: David Baldridge, Incorporated. The trial court read the performance requirement in conjunction with A & A operational status and concluded that Mr. Baldridge could not maintain his action until A & A ceased its operations and shut down its facilities even though Mr. Gutierrez had ceased to perform pursuant to the agreement. Thus, without specifically saying so, the trial court concluded that Mr. Baldridge did not yet have a cause of action against Mr. Gutierrez for contribution to the debts of the partnership. La.Code Civ.P. art. 927(A)(5). The trial court can raise the peremptory exception of no cause of action on its own motion. La.Code Civ.P. art. 927(B).

We find, however, that the trial court erred in failing to find that the partnership terminated when Mr. Gutierrez ceased contributing thirty-five hours per week to its operation through A & A. Louisiana Civil Code Article 2050 provides that “[e]aeh provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” Thus, the error before us is not a factual error governed by the manifest error/clearly wrong standard of review as set forth in Rosell v. ESCO, 549 So.2d 840 (La.1989); contractual interpretation 117questions are questions of law which require a de novo review of the evidence presented. Boykin v. PPG Industries, Inc., 08-117 (La.App. 3 Cir. 6/18/08), 987 So.2d 838, unit denied, 08-1640 (La.10/31/08), 994 So.2d 537. Our de novo review of the matter before us leads us to conclude that Mr. Baldridge has failed to meet his burden of proof.

According to the partnership agreement, Mr. Gutierrez’s failure to perform his obligations rendered the partnership agreement “null and void”; the agreement fails to provide the method of liquidation in the event a partner fails to perform. “In the absence of contrary agreement, a partnership is liquidated in the same manner and according to the same rules that govern the liquidation of corporations.” La.Civ. Code art. 2834. The specific procedure for the liquidation of a corporation is found in Part XIV of the Louisiana Corporation Law, La.R.S. 12:141, et seq. Neither party to this litigation made any effort to comply with that procedure. In fact, the difficulty in evaluating the claims of each litigant is that they have ignored, in both operation and termination, the juridical personal nature of their partnership, of A & A, and of the other three limited liability companies listed in the partnership agreement. They have treated these entities simply as vehicles of convenience and flow-through entities for their own business activities. However, there are no procedural exceptions before us on appeal, and we will treat the remaining issue as the parties have — a dispute between two litigants that happens to flow through a number of juridical persons.

When Mr. Baldridge forwarded Mr. Gutierrez the August 13, 2008 demand letter, he claimed a balance owed of $62,324.80. Although there is some confusion concerning exactly what was attached to the letter, he did attach at least one page purporting to justify the balance demanded. On that single sheet of paper, he did not 11sdetail the individual liabilities of A & A, but combined them and asserted one half of the company’s negative net worth was $68,604.80, and that after some minor adjustments shown on the attachment, Mr. Gutierrez’s share was $62,324.80, the amount asserted in the demand letter.

Ms. Miller testified that an additional four-page document was also attached to the demand letter which better itemized the sources of the figure representing A & A’s negative net worth. In addition to a more detailed summary sheet, the second document included a page setting forth the individual accounts payable (totaling $179,530.06), a page setting forth the total accounts receivable as well as cash on hand (totaling $9,205.46), and a page listing A & A’s equipment and product inventory ($33,115.00). However, Ms. Miller also testified that an additional six-page document exists, which was prepared sometime after the four-page document and purports to show payments made by A & A on the debts listed on that four-page document. The preparation of this document resulted in an adjustment of A & A’s negative net worth upward to $184,678.82, thereby adjusting Mr. Gutierrez’s share upward to $92,339.39.

The record clearly establishes that A & A was a functioning company long before the partnership was formed, yet we are provided with no base line by which to evaluate the difference between the company worth on July 17, 2007, and its worth on April 30, 2008. Further, no effort has been made by Mr. Baldridge to differentiate between the A & A expenses associated with the partnership and its other endeavors, nor did he set forth the activity of the other three companies listed in the partnership agreement despite the fact that two of the three are listed under the accounts receivable page of the four-page exhibit. In fact, that same page suggests that an accounts receivable item from A & A to itself exists.

The four-page exhibit lists accounts payable in the amount of $179,530.06 as of April 30, 2008, and a total of $9,205.46 as cash on hand and accounts receivable on | 19the same date. However, the six-page exhibit not only suggests significant upward changes to the accounts payable, but also asserts that over the next year, A & A paid in excess of $76,000.00 on these debts while asserting that on April 30, 2008, it had slightly over $9,000.00 in liquid assets on hand. There is no explanation in the record of what caused this financial windfall over such a short period of time in what is purported to be a failed company. Simply stated, we find that Mr. Baldridge failed to present sufficient evidence to support his claim.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s judgment in favor of Edward D. Gutierrez and against David M. Bal-dridge, dismissing Mr. Baldridge’s claims in full. We assess all costs of this appeal to David M. Baldridge.

AFFIRMED.

      . The petition provides the legal description of the mortgaged property as Lot 7 of Points of View Subdivision in Lafayette Parish, Louisiana. There seems to be no dispute but this Iegal description is that of a piece of property bearing a municipal address of 102 Saddle-wood in Lafayette Parish.

      . The merits of this judgment were considered on appeal by this court in a prior opinion, and those issues are not now before us. See Gutienez v. Baldridge, 10-1528 (La.App. 3 Cir. 5/11/11), 65 So.3d 251, writ denied, 11-1589 (La. 10/7/11), 71 So.3d 319.

      . The attorney died before trial began.

      . The brief on appeal suggests that this is Mr. Baldridge’s assignment of error, but it addresses only the claim asserted by A & A.

      . This represents an unfortunate phraseology choice in the partnership agreement. Black’s Law Dictionary defines this phrase as "a common redundancy," and states that the use of the adjective "null” refers to something as "[hjaving no legal effect: without binding force; VOID.” To interpret the contract in this context would lead to an absurd consequence. As mandated by La.Civ.Code art. 2045, we look to the common intent of the parties and interpret this phrase to mean that the partnership agreement is terminated at this point rather than being declared of no legal effect.


text:
    A & A CONSTRUCTION, LLC v. Edward Donovan GUTIERREZ. Edward D. Gutierrez v. David M. Baldridge, et al.
    No. CA 12-139.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2012.
    Rehearing Denied Nov. 14, 2012.
    Burnice Gerald Weeks, The Weeks Law Firm, Pineville, LA, for Plaintiff/Appellee, Edward D. Gutierrez.
    Cade Aaron Evans, Allen & Gooch, APLC, Lafayette, LA, for Defendants/Appellants, David M. Baldridge, A & A Construction, LLC.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   PETERS, J.

liFor the reasons set forth in No. 12-138, Edward D. Gutierrez v. David M. Baldridge, (La.App. 3 Cir. 10/3/12), 105 So.3d 156, we affirm the trial court judgment in favor of Edward D. Gutierrez and against A & A Construction, LLC, in all respects. We assess all costs of this appeal to A & A Construction, LLC.

AFFIRMED.