author: CARAWAY, J.

text:
    Dan VOLENTINE and Diane Volentine, Plaintiffs-Appellants v. RAEFORD FARMS OF LOUISIANA, L.L.C., Columbia Farms of Georgia, Inc., House of Raeford Farms of Louisiana, L.L.C., House of Raeford Farms of Louisiana, Inc., Samuel LeNarz and Kelly Garris, Defendants-Appellees.
    No. 48,219-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 24, 2013.
    Rehearing Denied Sept. 19, 2013.

      Colvin & Smith, A.P.L.C. by James H. Colvin, Jr., Cole B. Smith, Shreveport, LA, Daniel N. Bays, Jr., Houma, LA, Newell & Newell by Daniel W. Newell, Houma, LA, for Appellants.
    Gold, Weems, Bruser, Sues, & Rundell, Alexandria, LA, by Randall L. Wilmore, Steven M. Oxenhandler, Christie C. Wood, for Appellees.
    Before CARAWAY, DREW and GARRETT, JJ.
   CARAWAY, J.

|! Plaintiff egg producer appeals the summary judgment which dismissed claims for breach of contract and unfair trade practices filed against a poultry company and two individual employees. The contracts between the parties had been in force for a number of years when the defendants determined to end the contracts by the exercise of an at-will termination provision. The defendants assert that the contracts were terminated in good faith due to the mismanagement of the farm by plaintiff. Finding material issues of fact, we reverse.

Facts

In January of 2004, Dan and Diane Vo-lentine (hereinafter “Plaintiffs”), entered into two Hatching Egg Production Contracts (hereinafter collectively the “Contract”) with Raeford Farms of Louisiana LLC (“Raeford”), for the raising and management of breeder hens for egg production. Dan Volentine (“Volentine”) was classified as a breeder farmer who managed the parent flock which produces eggs for the broiler crop, sold to consumers. The male and female chickens provided to Volentine produced eggs received by Rae-ford that were later hatched and raised as broilers.

Under the Contract, Volentine was required to provide housing, labor and equipment. Raeford agreed to provide flocks, feed and medication to Volentine. Volentine was paid for housing the chickens and egg production and awarded “hatchability” and feed conversion bonuses for certain levels of production. The breeder flock life period with the producer farms is 12about 44 weeks, after which time the flock is removed and a new flock delivered. The Contract provided no term of years for the parties’ agreement.

In carrying out the Contract, Volentine dealt with Raeford employees, Samuel Le-Narz, Live Operations Manager, and Kelly Garris, Breeder Manager for Raeford Farms. Inspections of the farm by Rae-ford employees occurred on a continuous basis. Garris participated in some of the inspections of the Volentine farm but the majority of them were done by another Raeford employee, Chris Ovitt.

In late spring (May 11) and early summer (June 8) of 2007, two catastrophic events occurred at the Volentine farm because of electrical power losses. Six thousand hens were lost. In response, Raeford requested correction of substandard conditions for the housing including the replacement of electrical breakers which regulated the temperature of the chicken houses.

By August of 2007, Raeford threatened to withhold placement of chickens due to uncorrected farm deficiencies. Specifically, Raeford required Volentine to install a working alarm system and noted issues with feed lines, feeding, water line, cool cells and fans. When the alarm system was not installed, Raeford withheld flock delivery scheduled for October of 2007.

Correspondence addressed to Volentine from Raeford on November 13, 2007, indicated that some progress had been made in the correction of deficiencies. Nevertheless, on November 16, 2007, Raeford again withheld [Rflock delivery due to Vo-lentine’s lack of complete compliance with requested repairs. Volentine expended $116,000 in repairs. Ultimately, flock delivery occurred on November 30, 2007, and an additional flock was delivered on January 4, 2008.

Thereafter, inspections of the Volentine farm through August of 2008 indicated continuous problems with lighting and fans, feeding times, fill tubs, egg collection, feed distribution and collection, dead bird collection, cool cell, water pressure, temperature and sanitation issues as well as new employee problems. On August 1, 2008, a meeting between Volentine, his banker, Wade Holloway, and Garris, Ovitt and LeNarz occurred. Raeford expressed continued concern with Volentine’s management practices and egg production rates. The meeting documentation indicates that Raeford announced its decision to no longer supply birds to Volentine. Raeford offered two options — lease or sale of the farm. Raeford declined to deal with Volentine’s son due to his poor management skills.

After the August meeting, the flocks were removed from Volentine’s farm in the normal course of business on September 3 and October 13, 2008. On October 2, 2008, Garris sent a letter to Volentine formally terminating the Contract between Volen-tine and Raeford, effective November 1, 2008, because Volentine had “breached” contractual duties and “defaulted under the terms and conditions of the contracts.” Raeford informed Volentine that his failure to remedy “numerous deficiencies” and “substandard conditions” after repeated requests to do so would result in no more deliveries of chickens.

RRaeford’s letter emphasized the deficiencies of Volentine’s management beginning in 2007. The termination letter indicated that “since that time,” Volentine had continued to breach the contract as follows:

You have continued to breach your contractual obligations by operating your farm in a substandard manner. Raeford Farms has repeatedly informed you of problems with birds being fed, eggs being gathered, fighting in the house, water fine issues, cooling cell issues and fans. You have continuously failed to remedy these problems despite being warned that your contracts would be terminated if these deficiencies were not corrected. Also in the contracts you agreed to properly dispose of dead birds, manure and poultry fitter in accordance with government regulations and Raeford Farms’ recommendations. You have been informed on several occasions that Raeford Farms observed violations with regard to your disposal of dead birds. You have chosen to ignore these warnings and have consistently failed to dispose of dead birds in an acceptable manner. In the contracts, you also agreed to use your best efforts to maintain the breeder hen flock in such a manner that maximum egg production and hatchability would result. You have not fulfilled this obligation as your egg production has consistently been below our acceptable farm average.
Raeford Farms has been very patient with you and has given you numerous opportunities to remedy the substandard conditions of your farm; however, you have continuously failed to address our concerns and correct the deficiencies in your farming operation. As a result of your actions which have endangered or impaired Raeford Farms’ property and your failure to comply with the provisions of your contracts, Raeford Farms has been left with no other option but to terminate your contracts. This decision to terminate your contracts is a final decision, and you have no appeal rights with respect to this decision.

Raeford offered to allow Volentine to sell or lease the farm to an approved contractor and again informed Volentine that his son’s purchase or lease of the farm was not a viable option.

On September 23, 2009, Volentine instituted suit against Raeford Farms of Louisiana, LLC, Columbia Farms of Georgia, Inc., House of Raeford Farms of Louisiana, LLC, House of Raeford Farms, Inc., Samuel | sLeNarz and Kelly Garris (collectively, “Raeford”), alleging claims of breach of contract, tortious interference with contractual rights, intentional interference with business relations and violations of the Louisiana Unfair Trade Practices Act (LUTPA) in violation of La. R.S. 51:1401, et seq. Volentine alleged that Le-Narz and Garris acted maliciously, deceptively, unfairly, with spite and ill will, and without good faith in their dealings with Volentine, as evidenced by: (1) instructing Ovitt to write at least three deficiencies every time he inspected the chicken houses; (2) alleging deficiencies when other nearby farms were not cited or noted for the same alleged deficiencies; (3) claiming deficiencies and problems which were nonexistent, false and/or unsubstantiated; (4) allowing Volentine to further encumber his personal property and incur additional debt when they knew the Contract would be terminated; (5) refusing to allow Volen-tine to lease the chicken houses to his son Kevin; (6) delaying or attempting to delay the implementation of the feed system and telephone alarm system when these matters were used as a basis for withholding chickens from Volentine; and (7) imposing unreasonable and unattainable conditions upon Volentine in the management and operation of the chicken houses as well as the termination of the Contract.

Based upon these allegations, Plaintiffs claimed that Raeford caused extreme emotional distress due to the loss of their livelihood of the past 20 years, loss of the family home and land which Volentine had inherited from his parents, embarrassment and humiliation associated with foreclosure proceedings and damage to his reputation in his community.

| (¡Relating to each specific cause of action, Volentine alleged that Raeford Farms, though LeNarz and Garris, as directors and officers, failed to administer and terminate the Contract in good faith, caused Raeford Farms to breach the Contract and/or make Volentine’s performance of the Contract impossible or more burdensome, intentionally interfered with Vo-lentine’s business relationship with Rae-ford Farms and was guilty of deceptive and unfair acts in trade or commerce that offended public policy.

The provisions of the Contract central to this dispute and Raeford’s termination of the Contract are, as follows:

2. Duties of the Producer.
⅜ * *
B. The Producer agrees to cooperate with the Company in adopting and/or installing new proven management practices and equipment.
F. The Producer will maintain all-weather roads to poultry houses and keep feed bins free of any overhanging wires or other obstacles and with adequate space to turn vehicles where necessary. Failure to provide such roads and turning area will make Producer liable for wrecker or towing charges in addition to any other damages the Company may sustain. Producer must provide approved pads for mechanical loading and unloading equipment.
G. The Producer agrees to properly dispose of dead birds, manure, and poultry litter in accordance with Government Regulations and Raeford Farms of Louisiana, LLC recommendations.
4. Best Efforts. The Producer and the Company agree to use their best efforts in maintaining the breeder hen flock in such a manner that maximum egg production and hatchability will result.
⅜ * ⅝
10. Events of Default. Any of the following events or occurrences shall constitute a default by the Producer under this Agreement:
A. Default under any separate but farm related financing agreement with a lending institution.
B. Actual or attempted levy, seizure or attachment of any of the Company’s property.
C. Use of abusive language, threat of physical harm or in any way impeding the Company or its authorized representatives from inspecting or examining the Producer’s facilities and flocks.
[7P. Insolvency or bankruptcy of the Producer.
E. Failure of the Producer to properly care for and protect any of the Company’s property.
F. The occurrence of any event which in the opinion of the Company endangers or impairs the Company’s property.
G. Failure of the Producer to comply with any provision of this contract.
H. Failure of Producer to consistently produce hatching eggs in an efficient competitive manner.
11. Remedies of Company. Upon default or breach of any of the Producer’s obligations under this agreement the Company may immediately cancel this Agreement by giving notice in writing, and the Company may, without further notice, delay or legal process, take possession of poultry, feed or other property owned by the Company. The Company shall have the right to utilize, without cost, the Producer’s hatching egg production facilities until the flock is ready for slaughter. The Company may also pursue any other remedies at law or equity.
16. Term of Contract. It is expressly understood and agreed between the parties hereto that the terms and conditions of this Agreement shall remain in effect unless terminated as herein provided. Either party may terminate this Agreement only at the time a particular flock of hens and cockerels is delivered to the Company prior to the Company’s placement of hens and cockerels with the Producer by delivering notice of termination by certified mail or personal delivery. Producer understands and agrees that no agent, servant or employee of the Company has authority to make any oral modifications to this Agreement. Modification of this Agreement may only be accomplished by written instrument fully executed by the Producer and an authorized representative of the Company.

On April 30, 2012, Raeford filed a Motion for Summary Judgment seeking dismissal of all claims. Attached to the motion were excerpts from Volentine’s deposition. Volentine discussed his problems at the farm in 2007 and the expenditures he made in updating his houses. He testified that LeNarz had personal issues with him resulting from the 2007 conflict.

Volentine admitted that in April of 2008, he had lost two long-time employees who collected eggs and disposed of dead birds. He hired new employees who did not possess the necessary job performance attributes. |sHe terminated them after three to four weeks and two other persons were employed. These employees worked for Volentine for less than three weeks. Thereafter Volentine and his wife began operating the houses from May through September of 2008 when the flocks were finally removed by Raeford. During that time Volentine had only part-time help. Volentine conceded that he also had chain feeder and cool cell problems for which Raeford supplied PVC pipe.

Volentine agreed that lighting in the houses was very important because it stimulated egg production. When shown photographs of the lighting on his farm, Volentine conceded that some were not working. He also agreed that it was a chronic issue on his farm that could not be corrected with birds in the houses.

Volentine admitted that Raeford paid a $7,700 electric bill for him in 2008. He stated that “it wasn’t that I couldn’t pay it. I just thought they ought to be involved in the — the issue.” Volentine indicated that he “just wasn’t going to spend no more.” He did not believe that the electric company would turn off the lights with birds in the houses. He felt the easier way was to let Raeford pay the bill and then he would pay them back. He understood that this was his obligation under the contract, but he had done it before.

Volentine indicated that Ovitt told him in the summer of 2008 that he was required to find three deficiencies every time he inspected the farm. Only Volentine and his wife witnessed the statement by the inspector. | gVolentine believed that LeNarz was behind Raeford’s repeated attempts to justify termination of the contract.

Portions of Garris’ deposition and her separate affidavit were submitted in support of the summary judgment. She became Broiler Manager for Raeford in 2000 and then Breeder Manager in September of 2007. Garris initially met Vo-lentine because of her supervision of his son Kevin’s broiler farm. Regarding breeder farming, she explained that pullets are placed on the egg hatching farms, fed a different regimen and then provided special lighting to precipitate egg production within four weeks. The eggs are collected and sent to a hatchery.

Garris testified that during the flock life of 44 weeks, an 88% survival rate of the flock is preferred. In all, she testified that the breeder would lose approximately 700-800 birds in the 44-week period. Mortality can be attributed to many things other than management.

Garris emphasized that Subsection 2B of the Contract provided that the producer (Volentine) agreed to cooperate with the company in adopting or installing new proven management practices and equipment. She explained that these provisions mean that the producer must cooperate with the company’s management suggestions. In other words, “if there’s proven practices that can increase his production, then that’s what we expect that we want done.”

Garris discussed the various problems concerning the Volentine farm. Mechanical and management problems were enumerated. She stated that 110the reason the Contract was terminated was because Vo-lentine would not address these problems. As to actual egg production, she stated that the decreased production was “somewhat” of a ground for default. She admitted that Volentine had been a good producer and very competitive in the past, but “things had changed.”

Garris stated that the average number of eggs expected by Raeford was 142 eggs per hen. The economics justified for that measure was not explained. The flock placed on Volentine’s farm on November 30, 2007, and sold on September 3, 2008, produced only 127.94 eggs per hen or 14.06 eggs less per hen than what is expected. The January 4, 2008 flock sold on October 13, 2008 produced only 127.86 eggs per hen or 14.14 less per hen than what is expected. Garris stated that she compared these two numbers to two other breeder farms which produced 146.51 eggs per hen and 141.15 eggs per hen. Garris described the Volentine deficiency as a significant number.

Garris identified photographs that she took of Volentine’s farm on July 11, 22, and August 17, 2008, which depicted the conditions on the farm, including improper bird disposal. The photographs taken by Garris were attached to the affidavit and show buckets of dead bird parts, dead birds on the premises, inside the houses and eggs strewn about the houses.

Portions of LeNarz’s deposition were included in support of the summary judgment. LeNarz testified that he became Raeford’s Live Production Manager in 2007. He oversaw both broiler and breeder farms including the Volentine farm. LeNarz testified that in his opinion farmers |ndid not “have to exert a lot of management” in order to qualify for bonuses. LeNarz stated that “Dan was lazy. Volen-tine did not require his hired help to comply with our expectations.” LeNarz testified that Volentine would not feed the birds, supply water to the birds or keep the birds cool. In his words, “they would not keep equipment operating. We had problems with the service road to the farm.” He explained that “we had a multitude of issues on that farm with dead bird disposal.” LeNarz determined that Volen-tine was a poor farmer within two months after taking the job. He stated that there were other farmers who were not meeting standards. He treated them all the same and worked with them to improve. Le-Narz stated that Volentine’s productivity would not increase because Volentine “would not conform.” LeNarz recalled that Volentine continued to be written up on service reports and “there would be discussions conducted with him.”

Additional exhibits which were excluded from the record in support of the summary judgment were supplemented to this court on February 28, 2013. These exhibits included:

(1) Unexplained Hen Report.
(2) March 25, 2008 letter from Garris to an unidentified Raeford employee regarding Raeford’s payment of $904.40 bill which was deducted from Volentine’s income.
(3) April 14, 2008 letter to the same employee from Garris that instructed the employee to deduct from Volentine’s income amounts paid by Raeford for rock and dirt work done on Volentine’s farm in the amount of $5400.
(4) July 28, 2008 memo from LeNarz to Dennis Beasley (Raeford co-owner) regarding Volentine Farm indicated that Volentine was “our worst producing farm.” The memo noted that the current situation on the farm was “atrocious” and that his production was below Raeford’s standards. The memo reviewed Volentine’s history through the end 11i;of 2007. The memo indicated that inspectors continued to find dirty egg pack, dead birds not picked up and rotting through slats. The notes indicated that suspected improper disposal of dead birds was occurring, that current production at 50 weeks was below the standard by 17.6 eggs per hen and at 55 weeks was below the standard by 13.9 eggs per hen. The memo also indicated that Raeford paid Volentine’s electric bill to avoid termination of power. Le-Narz indicated that “Dan is a terrible money manager,” who was selling cows to make ends meet. LeNarz felt that Volentine was on the verge of bankruptcy and did not seem to care. Notations regarding inspection findings indicated that coolers were off, lights were turned out and various other problems. Le-Narz proposed to buy him out or lease his farm or “shut him down and take the next batch of birds” to another company.
(5) Memo memorializing the August 1, 2008 meeting indicated that at the meeting events of 2007 were discussed. Gar-ris recapped issues continuing to take place on the farm. Problems included bird feeding, egg gathering, lights, cooler, cool cells, dead bird disposal and non-payment of bills. Memo indicated that Volentine’s “running average” was 142 which was 8 eggs below Raeford’s farm average and 14 eggs below the AgriStat average. Volentine was given two options, lease or sell the farm. A buyer or lessor was required within two weeks.

Volentine opposed the summary judgment specifically contending that issues of material fact remained as to the good faith termination and administration of the Contract. Volentine attached different portions of Garris’ deposition in opposition to the summary judgment. In those portions, Garris admitted that in some sense she would consider it a breach of the agreement if the producer failed to honor management wishes regarding the running of the houses. She explained, however, that there were different levels of management, minor mismanagement and gross mismanagement and that Raeford dealt with minor mismanagement every day. Violations of animal welfare laws were a form of gross mismanagement in Garris’ opinion. She admitted that Raeford was the sole arbiter of what constituted major or minor mismanagement.

11sGarris admitted that Volentine received feed conversion bonuses for both units for the final flocks in 2008 and a hatch bonus for one unit. She conceded that in 2007 there were 12 catastrophic events between the broiler, breeder and pullet farms. She could not say if any other farmers’ contracts had been terminated as a result of such events. She also admitted that Volentine was the only farmer terminated as a result of default.

Garris testified that Raeford required all producers to install dial-up paging alarm systems at the producers’ cost. Garris admitted that Volentine would not have gotten birds if 100 percent of the problem list had not been corrected in November of 2007. She knew that the repairs cost Vo-lentine a large amount of money. Garris was involved in some of the inspections that took place after the birds were placed. She did not recall that Volentine had spent $116,000 in 2007 in upgrades or that he was strapped for cash.

Portions of LeNarz’s deposition were included in opposition to the summary judgment. LeNarz explained that there were two types of incentives paid to producers at the end of their flocks based upon hatchability and feed conversion to encourage growers to manage their flocks efficiently to increase hatching. The standards were not very high and most of the producers got them. He explained that the “bars were low” such that if the producer got a bonus it did not mean he was doing a good job. If, however, the producer did not get a bonus it meant that he was probably doing a very poor job.

LeNarz stated that he would discuss a farm’s profitability with the farmer’s banker if there were concerns. He did not always inform the |14producer. He had met with several bankers including Volen-tine’s banker. LeNarz conceded that he contacted Wade Holloway without prior authorization. LeNarz requested that Holloway come to the August 1, 2008 meeting.

Volentine’s affidavit was submitted in opposition to the summary judgment. In it, he stated that in 2005, he spent in excess of $200,000 upgrading equipment. He indicated that in 2005 and 2006, he operated his farm without incident. In May and June of 2007, due to a loss of power, he lost chickens. During June through October of 2007, Volentine expended an additional $116,000 in upgrades to his farm.

A May 26, 2009 letter from Raeford, via LeNarz, to its producers was submitted in opposition to the summary judgment. The letter required the installation of dial-up paging alarm systems on every farm prior to July 3, 2009. Previously this requirement occurred only after catastrophic loss.

Numerous visitation reports of Volen-tine’s houses by Chris Ovitt and Garris are a part of the record as follows:

December, 21, 2007 (Ovitt) — rooster feeding problems, light out, birds look good.
December 28, 2007 (Ovitt) — light out in 1st house, make sure to follow feeding schedule, birds look good.
January 2, 2008 (Ovitt) — both houses have lights out, 2 fans with problems, birds look good.
January 11, 1008 (Ovitt) — middle door not staying closed, on Jan. 9, one house did not feed on time, fill system breaker was off, leak in fill tubs inside the house on the south wall, birds look good.
March 18, 2008 (Garris) — educate new farm help of importance of egg temps and collection, issues in unit 1, flies, grass, garbage. Overall better but still needs a lot of work. Keep at it.
May 20, 2008 (Garris) — cool cells not working properly — major concern. One light out inside house. Cool cells working very poorly. You are getting little to no effort from them this needs to be addressed ASAP. Dead bird drum is full and birds on ground. This | ^need to be composted daily. 6 lights out in house. 3 rooster pans off. Also some slat sticks need to be fixed. Each house has four lights not working; each house has male pans off. Cool Cells not working properly — filters on cool cells look clogged with algae. Dead bird drums are full with dead birds on ground. One good thing — collection room clean, coolers cool. These issues need to be addressed ASAP.

Deposition excerpts of Chris Ovitt were submitted in opposition to the summary judgment. Ovitt had no idea why the banker was called in for the August 1, 2008 meeting. Ovitt knew that Volentine expended large sums to do a lot of work on the farm. Ovitt stated that the bonuses were given to farmers for doing well. Ov-itt could not remember what happened regarding Volentine’s last two flocks. He had no part in the decision to terminate Volentine’s contract.

After these initial offerings of evidence by the parties, a second round of evidence in support of and in opposition to the summary judgment was allowed to follow. In a supplemental motion for summary judgment, Raeford offered portions of Holloway’s deposition. Holloway stated that Garris called him several times prior to the meeting but he could not recall who asked him to be at the meeting. Garris called him on a regular basis in early 2008 to complain about Volentine’s farm. Holloway had been out to Volentine’s farm five to six times to verify and inspect the problems. He was not concerned about the loan and everything out there looked fine to him. He did not see cool cell streaking issues as had been reported. He had gone to other farms and seen worse cases. He did not verify a single accusation including alleged problems with the driveway and roads.

The motion for summary judgment was heard on June 14, 2012. Counsel submitted the matter on the record without argument. On August | ml, 2012, the trial court rendered written reasons for judgment granting Raeford’s summary judgment on all claims. The court determined that “plaintiffs have failed to demonstrate any summary judgment evidence, other than speculation that the defendants acted with malice or without good faith in terminating the contracts with or without cause.” The court also ruled that no claim for breach of contract exists if the party terminating the Contract provided proper notice and that it was undisputed that Raeford had complied with the provisions of Paragraph 16 of the Contract. A written final appeal-able judgment followed on August 20, 2012. This appeal by Volentine ensued.

Discussion

On appeal, Volentine reurges the arguments made in opposition to the summary judgment. At issue are whether material fact issues remain relating to Volentine’s performance under the Contract and Raeford’s good faith termination of the Contract. Raeford asserts that it undisputedly established the two conditions of Paragraph 16 of the Contract for termination of the Contract “without cause.”

We review the grant of a motion for summary judgment de novo. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Dowdy v. City of Monroe, 46,693 (La.App.2d Cir.11/2/11), 78 So.3d 791; Beckham v. Jungle Gym, L.L.C., 45,325 (La.App.2d Cir.5/19/10), 37 So.3d 564. A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no |17genuine issue as to material fact and that the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(B). Only evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion. La. C.C.P. art. 966 E(2). A fact is material if it potentially ensures 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., 08-1491 (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).

The question of whether material issues of fact remain in this case turns upon Raeford’s right to seek dissolution of the Contract for Volentine’s nonperformance or its right to terminate the Contract without cause. The trial court placed much emphasis for its ruling on Paragraph 16 of the Contract which provides the right of at-will termination by either |1Rparty during the time between flocks when birds are not present on the Volentine farm. While Raeford announced its intention to terminate the Contract in August of 2008 with Volentine in possession of flocks, Volentine apparently continued to receive payments for eggs under the Contract thereafter until the birds were removed in September and October. Raeford then terminated the Contract effective November 1. If the at-will termination right of Paragraph 16 is absolute, the many facts regarding Volen-tine’s alleged mismanagement and nonperformance and Raeford’s harm and loss may be irrelevant for the consideration of summary judgment and whether material fact issues exist.

From our review of the Civil Code’s provisions on obligations and contracts, we find that the nature of the parties’ Contract falls in the category of contracts “for continuance and periodic performance.” See, La. C.C. arts. 1776, 1975, 2019, and 2024. The object of the Contract is not unlike the “output or requirements” contracts defined in Article 1975. Although there are other aspects to the Contract, each party entered this agreement understanding that quantities of eggs would be required for the ongoing future needs of Raeford’s poultry business and that Volen-tine’s output of that product was dedicated for delivery and sale to Raeford. Certainly, Volentine’s intent for a continuous and periodic performance from Raeford under the bilateral contract contemplated an agreement of 119future duration extending to allow a return on the sizeable fixed investment required of him under the Contract.

The Civil Code’s articles for the contract for continuous or periodic performance have specific provisions regarding the termination of such contracts. Article 1776 contemplates that the contract may be subject to a resolutory condition. Article 2024 provides in its suppletive law for termination similar to Paragraph 16 of the parties’ Contract, as follows:

A contract of unspecified duration may be terminated at the will of either party by giving notice, reasonable in time and form, to the other party.

La. C.C. art.2024. Finally and most significant, Civil Code Article 1770 addresses the exercise of a resolutory condition depending on an obligor’s will, as follows:

A resolutory condition that depends solely on the will of the obligor must be fulfilled in good faith.

La. C.C. art. 1770.

Contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. Contracts must be performed in good faith. La. C.C. art. 1983. Good faith shall govern the conduct of the obligor and the obligee in whatever pertains to the obligation. La. C.C. art. 1759. The term bad faith means more than mere bad judgment or negligence and it implies the conscious doing of a wrong for dishonest or morally questionable motives. MKR Services, L.L.C. v. Dean Hart Const., L.L.C., 44,456 (La.App. 2 Cir.7/8/09), 16 So.3d 562; Bond v. Broadway, 607 So.2d 865 (La.App. 2d Cir.1992), writ denied, 612 So.2d 88 (La.1993). Bad faith is an intentional and malicious failure to 120perform. Revision Comment (c), La. C.C. art.1997. The determination of whether a party acted in bad faith is a factual issue. N-Y Associates, Inc. v. Board of Com’rs of Orleans Parish Levee Dist., 04-1598 (La.App. 4th Cir.2/22/06), 926 So.2d 20, writ denied, 06-0666 (La.5/26/06), 930 So.2d 31; Weeks v. T.L. James & Co., 626 So.2d 420 (La.App. 3d Cir.1993), writ denied, 630 So.2d 794 (La.1994). Cf. Miller v. Conagra, Inc., 08-0021 (La.9/8/08), 991 So.2d 445.

In Revision Comment (f) to Article 1770, an at-will termination provision of a contract is addressed as follows:

[A] “termination at will” clause in a contract of long duration may be a fair clause properly bargained for or a trap set by the party with the greater bargaining power. The requirement of good faith stated in the second paragraph of this Article affords the protection needed by the victimized party in the latter kind of situation, and gives the courts necessary discretion to decide when to invoke it.
In order to comply with the requirement of good faith, a party exercising his right to terminate a contract at will should consider not only his own advantage, but also the hardship to which the other party will be subjected because of the termination. Thus, a party to a requirements contract that chooses to terminate it because he has an opportunity to sell the same things elsewhere at a higher profit could violate the good faith requirement if the other party cannot find an alternative source of supply.

La. C.C. art. 1770, Revision Comment (f).

Professor Litvinoffs commentary further discussed these contracts of long duration, as follows:

Modern law is aware of the distinction between contracts giving rise to obligations that are performed in just one act, whereby the parties bind themselves for a short term, and contracts giving rise to continuous relations between the parties for a long term. In contemporary terminology the expression ‘transactional ventures’ designates contracts of either instantaneous or short term 1¾1 performance, while the expression ‘relational ventures’ has been coined to mean contracts , entered in order to govern the parties’ relations for a long time.

Saul Litvinoff, Force Majeure, Failure of Cause and Théorie de L’Imprévision: Louisiana Law and Beyond, 46 La.L.Rev. 84-35 (1985). He concluded by emphasizing the duty of good faith, as follows:

The overriding duty of good faith that the parties owe themselves reciprocally is thus enhanced in contracts of long duration. The emphasis is displaced from the individual end pursued by each of the parties to the end pursued in common by all of them, as if the contract were a joint-venture where the idea of opposed interests yields to the idea of a certain union of interests among the parties.

Id., 46 La.L.Rev. at 37.

In the present case, Raeford entered the Contract with an understanding of the expected performance by both parties as a long-duration contract. This was evidenced by Raeford’s right to specify features for the initial installation of Volen-tine’s production facilities and continuous renovations to the houses. The Contract thus called for Volentine’s long-term investment with expectation of return on that investment through the parties’ continuous performance. Thus, despite the inclusion of the at-will termination provision in the Contract, its exercise by Rae-ford terminating its obligation to provide chickens and pay Volentine for the production of eggs is proper only upon a showing of Raeford’s good faith. La. C.C. art. 1770. Such termination is not merely automatic and absolute upon Raeford’s election, justifying summary judgment as a matter of law by the operation of the contract. There are factual considerations present for the measure of Raeford’s good faith.

|22In explaining its good faith termination of the Contract, Raeford did not offer facts of its economic condition as justification. For example, Raeford did not assert that because of an economic downturn in its poultry business, it needed to curtail its overall supply of eggs by exiting some of its breeder contracts. Instead, Raeford asserts that it acted in good faith to terminate the Contract because of Volentine’s mismanagement as a breeder farmer. For the following reasons, we find that material fact issues remain regarding Raeford’s termination of the Contract and Volentine’s mismanagement.

The facts concerning Volentine’s management of his last flocks in 2008 are most relevant to this dispute. The catastrophic loss of birds in 2007 did not result in a claim for dissolution of the Contract in 2007, but instead was resolved with Rae-ford’s additional requirement for improvements to Volentine’s facilities costing $116,000. The Contract continued.

While the record contains voluminous discussion of the activities in 2008 surrounding the last of Volentine’s flocks, we find no clear assessment of the extra cost or the measure of any actual economic loss by Raeford. In two unexplained exhibits submitted by the parties, it appears that in January of 2008, 28,154 hens were placed with Volentine, producing 2,836,080 eggs during their life cycle. Volentine compared this result with another farmer who was delivered the exact same number of hens in October of 2007. The | Mother farmer’s birds produced 2,840,882 eggs. Volentine’s submission of this comparison sought to show Raeford’s disparate treatment of the two farmers. Raeford’s only emphasis of this data was to argue that Volentine’s average production rate of 127.86 eggs per hen was below its expected average of 142 eggs per hen.

This is the only snapshot of an actual economic measure of Volentine’s farm for 2008. Yet, it remains largely unexplained and incomplete. The dollar amounts paid by Raeford to Volentine in 2008 for his delivery of eggs and the disputed bonus payments are never explained. His income from Raeford in 2008 is never revealed. If the 5.7 million eggs from the Volentine farm in 2008 cost Raeford more than they were worth, we might speculate that Volentine should have not been paid anything. On the other hand, Raeford’s large business enterprise has cost accounting measures that would reveal the value of the 5.7 million eggs which Volentine’s farm produced in 2008. Those eggs had a value within its production system for poultry products. Yet, there is no evidence comparing that value to the costs Raeford expended in 2008 on Volentine’s farm. From this lack of details of the economics of the parties’ relationship in 2008, the record only invites speculation. Yet, we find that information material for Raeford’s asserted good faith termination of the Contract.

Underlying Volentine’s opposition to the motion for summary judgment were certain facts and circumstances asserting that Raeford’s actions under the Contract were purely subjective and based upon ill will 124against him. He asserts that despite his $116,000 compliance in 2007, Raeford unreasonably delayed in providing him birds. That delay and his large capital expenditure placed him under financial stress. He testified that Ovitt admitted that he was instructed to highlight at least three management violations for every inspection in 2008. LeNarz admitted his personal conclusion formed after a short time period concerning Volentine’s poor management, despite Volentine’s prior history of satisfactory egg production for Raeford. Volentine asserts that his receipt of egg bonus payments in 2008 conflicts with Raeford’s unwarranted subjective scrutiny.

We find that Volentine’s opposition evidence along with the lack of explanation by Raeford of any monetary loss on Volen-tine’s 2008 egg production create material issues of fact regarding whether Raeford exercised good faith in its dealings with Volentine and its termination of the Contract. Volentine’s problems with management of his farm in 2008 may not have been sufficient to amount to a breach of the Contract requiring its complete dissolution. For the same reason, Raeford’s attempted exercise of the at-will termination may not have been exercised in good faith. Accordingly, summary judgment being improper, we reverse the trial court’s ruling.

Finally, because the trial court’s nonspecific granting of summary judgment on the remaining issues was apparently tied to its ruling that Raeford had an absolute right to terminate the Contract under Paragraph 16, we also reverse the summary judgment on those issues and remand for | ^further proceedings for resolution of the fact issues identified in this opinion.

Conclusion

Finding material issues of fact, the judgment of the trial court granting summary judgment is reversed. The case is remanded for a full trial on the merits. Costs of this appeal are assessed to Rae-ford.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, DREW, PITMAN and GARRETT, JJ.

Rehearing denied.

      . Garris explained that broilers are a meat type bird processed to sell to customers. Breeders are the parent flock to the broiler, producing eggs that are hatched into broilers.

      . La. C.C. art. 1975 provides: The quantity of a contractual object may be determined by the output of one party or the requirements of the other. In such a case, output or requirements must be measured in good faith.

      . The same amount of birds had been received by Volentine in November of 2007, filling his other houses.

      . Raeford’s unexplained and hardly legible Hen Report exhibit appears to show the other farmer producing an average of 127.70 eggs per hen.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    Ron WEBB, Plaintiff-Appellee v. ROOFING ANALYTICS, LLC, Defendant-Appellant.
    No. 48,248-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 24, 2013.

      Wellborn Jack, Jr., Shreveport, LA, Roland V. McKneely, III, for Appellant.
    Ayres, Warren, Shelton & Williams, by J. Todd Benson, for Appellee.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   STEWART, J.

liThe plaintiff, Ron Webb (“Webb”), sued the defendant, Roofing Analytics, LLC (hereafter “RA”), for unpaid wages, penalties and attorney fees. The trial court found in Webb’s favor and awarded him $16,175.25 in unpaid wages, $9,726.30 in penalty wages, $31,250 in attorney fees, and $1,285.46 in costs. Alleging fraud and ill practices, RA filed a motion for a new trial. Following the trial court’s denial of its motion, RA filed this appeal and Webb answered to seek an increase in attorney fees for the appeal. For the reasons explained in this opinion, we affirm in all respects and award additional attorney fees in favor of Webb.

FACTS

On December 1, 2011, Webb filed suit against RA, a business that sold new roofs and repairs to insured homeowners in storm-damaged areas. RA collected the insurance payments and deductibles from the homeowners for the roofing work, and it subcontracted the labor for the new roofs or repairs. Webb’s petition alleged that he was employed by RA from about May 1, 2010, until June 10, 2011. The record shows that his title was “Insurance Claims Specialist.” Webb alleged that his wages were based on commissions and that he was owed commissions totaling $18,718.06 when he ended his employment with RA. On August, 30, 2011, Webb, through counsel, made an amicable demand on RA for payment, but RA refused to pay. Webb alleged that RA had previously acknowledged that it owed him commissions; therefore, it had no good faith basis for refusing to pay. Pursuant to La. R.S. 23:631 et seq., Webb sought to be awarded the unpaid commissions, penalty wages, attorney fees, and costs.

| ¡Answering Webb’s petition, RA denied that Webb was ever an employee or that he was owed any wages. RA asserted that Webb was an independent contractor. It also asserted that Webb’s wife, Lauren Webb (“Mrs. Webb”), was involved in Webb’s business and that, at their request, checks from RA were made out to her. In a supplemental answer, RA asserted that Webb lied in his petition about being an employee. RA made allegations suggesting that Webb and Jeff Foster (“Foster”), who managed RA’s Shreveport branch, conspired against its interest and sought to start their own business before Webb’s relationship with RA ended.

RA also filed a reconventional demand against Webb and a third-party demand against Mrs. Webb, alleging that they conspired to convert and / or converted funds by cashing checks from customers without authorization. RA also alleged that it actually overpaid Webb in the amount of $4,002.83. RA sought an undetermined amount from the Webbs for the checks they allegedly cashed without its permission.

What was meant to be a summary proceeding was tried over three days. The primary issues were whether Webb was an employee and the amount of unpaid commissions, if any, owed to him. The trial court heard testimony from both Webbs; Brad Cook (“Cook”), RA’s chief witness; Scott Patton (“Patton”), who worked for RA for a short time during the summer of 2010; and Wesley Marshall (“Marshall”), a member of RA, whose brief rebuttal testimony was presented to show prior inconsistent statements by Webb. Both parties introduced numerous exhibits.

|sOn May 16, 2012, the trial court rendered a written ruling that thoroughly addressed and disposed of this “convoluted mess” in favor of Webb. The trial court completely rejected the testimony of Cook, the key witness for RA. The trial court found Cook lacking in credibility and described his testimony as self-serving, internally inconsistent, and contradictory. The trial court also rejected the efforts of RA to characterize Webb as a liar or unethical. It generally found RA’s various defenses and claims to be untenable and without any merit.

Having rejected Cook’s testimony, the trial court found no merit to RA’s claim that Webb was an independent contractor without any rights under La. R.S. 23:621 et seq. Instead, the trial court found that Webb had been RA’s employee. This finding was based, in part, on a document entitled “Schedule for Percentage of Payment and Advancement” that was signed by Webb and Foster on May 11, 2010, and introduced by Webb as Plaintiffs Exhibit D. The trial court found that this document referred to duties expected of Webb and the consequences that would result from his failure to perform his duties. Though RA sought to prove that Webb was an independent contractor based on the involvement of his wife in their business relationship, the trial court accepted the Webbs’ explanation that Mrs. Webb handles the paperwork and banking for their family and is better at these tasks. The trial court recognized that the situation was “a bit unorthodox” but concluded that the Webbs’ division of labor in their family did not preclude a finding that Webb was an employee.

|4The trial court also found that Webb produced sufficient proof of the amount of unpaid commissions owed to him. The trial court referenced Plaintiffs Exhibit H, which included calculations of commissions due from each job sold by Webb. At trial, Webb reduced the amount claimed to $16,175.25 by crediting draws and other amounts received from RA. The trial court noted that “the Webbs did the best job that anyone could do in attempting to reconstruct what happened” and that RA did not produce any credible evidence to contradict their proof. Therefore, the trial court found that Webb was' entitled to judgment in the amount of $16,175.25.

The trial court found no merit to any of RA’s defenses and found that it failed to conduct any accounting until March 2012, when it produced the “unintelligible” accounting introduced as Defendant’s Exhibit 4. The trial court concluded that RA did not act in good faith and that Webb was entitled to statutory penalties in the amount of $9,726.30. Finally, the trial court awarded attorney fees totaling $31,250, noting that the case was complicated “due to the position taken by the defendant” and that Webb’s counsel had to “spend a-great deal of time on this case.” A judgment in accordance with the written ruling and assessing costs to RA was signed by the trial court on May 29, 2012.

On June 5, 2012, RA filed a motion for a new trial seeking to nullify the judgment for fraud and ill practices. As grounds, RA alleged that Webb’s counsel made misrepresentations to the trial court concerning the availability of certain canceled checks requested during discovery and that the trial court relied partly on this misrepresentation in finding that Webb | ¿met his burden of proof at trial. RA also alleged that Webb committed perjury by testifying contrary to what he had previously stated under oath during a deposition. In response to the motion for a new trial, Webb filed a motion for sanctions against RA and its counsel.

After arguments, the trial court denied RA’s motion. It found no perjury by Webb and no deception by Webb’s counsel regarding discovery. Webb dismissed his motion for sanctions without prejudice. This appeal by RA followed, and Webb answered the appeal to seek additional attorney fees for defending the appeal.

DISCUSSION

RA presents seven assignments of error for review. These pertain to the denial of its motion for a new trial, the denial of its right to impeach Webb with his prior inconsistent statements in a deposition, the finding that Webb was an employee, the finding that Webb proved his damages, and the award of statutory penalties and attorney fees. We will address each issue as presented in the appellate brief, though related issues will be grouped together.

Issue 1: Denial of New Trial

Asserting that Webb lied under oath, RA contends that the trial court erred in not granting a new trial based on fraud or ill practices. RA seeks to have the judgment in favor of Webb declared a nullity and a new trial granted.

In Pollock v. Talco Midstream Assets, Ltd., 44,629 (La.App.2d Cir.9/23/09), 22 So.3d 1033, this court held that alleged grounds for [¡¡nullification could be considered through a motion for a new trial and did not have to be raised in a separate action for nullity. However, the decision of whether to grant a motion for a new trial is a matter within the trial court’s discretion. Atkins v. Louisiana Mut. Medical Ins. Co., 47,374 (La.App.2d Cir.11/7/12), 105 So.3d 781, writ denied, 2013-0341 (La.4/1/13), 110 So.3d 585.

Nullification based on fraud or ill practices under La. C.C.P. art.2004 is not limited to cases of actual fraud or intentional wrongdoing. Rather, it encompasses all situations where a judgment is rendered through some improper practice or procedure. Kem Search v. Sheffield, 434 So.2d 1067 (La.1983). Whether a judgment has been rendered through fraud or ill practices and is subject to nullification depends on (1) whether the circumstances under which the judgment was rendered show that the litigant seeking relief was deprived of legal rights and (2) whether it would be unconscionable or inequitable to enforce the judgment. Belle Pass Terminal, Inc. v. Jolin, Inc., 2001-0149 (La.10/16/01), 800 So.2d 762. A judgment will not be annulled if the alleged fraud or ill practice pertained to a matter of no relevance to the basis of the decision. Id.

In asserting that Webb lied, RA refers to four specific instances where it claims that his trial testimony differed from statements he made during a deposition. First, RA claims that Webb lied under oath by testifying that Cook and Marshall stated that Foster was a general manager when Webb had testified in his deposition that he never heard Cook or Marshall say this [7about Foster. Even assuming that Webb’s testimony did differ from what he previously stated during a deposition, Foster’s title is of no relevance to the determination that Webb was RA’s employee and entitled to collect unpaid commissions. In fact, Cook eventually conceded, after much evasiveness, that Foster was a general and/or regional manager.

Second, RA asserts that Webb stated during his deposition that he was to be paid based on each job, but he then testified at trial that he should have been paid based on time. At trial, counsel for RA asked Webb, “You deny that your pay was based on the job, not time; correct?” Webb answered, “Yes.” It is obvious from the record that Webb either misunderstood the question or mistakenly answered in the affirmative. Webb has claimed, from the initial filing of his petition, to be owed commissions by RA. He has never claimed to have been paid based on time or to be entitled to such pay.

Third, RA claims that Webb stated in his deposition that he wrote one contract for his new roofing business prior to ending his relationship with it, whereas he testified at trial that he did not write any such contracts. RA argues that this is a material misrepresentation because it shows that Webb was in business for himself during the time he was allegedly employed by it. The record does not support RA’s claim that Webb was in business for himself during his employment with RA. Webb testified that he and Foster had discussions about starting a roofing business together. These discussions took place before Webb terminated his employment with RA, but their plans did not come to fruition. Webb did eventually start his own ^business, but the record does not establish that he did this while employed by RA. Even if one contract had been written for a new business, this would have little to no bearing on whether Webb had been RA’s employee and on RA’s obligation to pay the commissions that it owed Webb for jobs he sold on its behalf.

Fourth, RA asserts that Webb testified at trial that he quit, but stated in his deposition that he was terminated. RA further asserts that the distinction between quitting and being terminated is key in determining whether someone was an employee. We disagree. Both could quit a job or be terminated. The relevant distinction, as discussed infra, is that an employee is, in the absence of a contract providing otherwise, free to quit at will or is subject to termination at will by his employer, whereas an independent contractor relationship would typically subject the parties to liability in the event of a breach of the contract resulting from termination or resignation before the work is complete. Moreover, whether an employee resigns or is terminated has no bearing on the employer’s duty to pay the amount due under the terms of the employment as required by La. R.S. 28:631.

Describing the above allegations as involving “knit-picky little minor details,” the trial court rejected RA’s claim that Webb perjured himself. We agree. None of these four instances show fraud or ill practice by Webb in obtaining the judgment. The alleged “lies” are not relevant to the determination of whether Webb was an employee and whether he was owed unpaid commissions.

|aRA also argues that an “unintentional misrepresentation” by Webb’s counsel to the trial court concerning discovery constitutes fraud or ill practice in obtaining the judgment. In discovery, RA sought information on all of Webb’s income since May 1, 2010, along with production of all canceled checks and other evidence of such income. Counsel for Webb responded that the request was overly broad, unduly burdensome, and not calculated to lead to the discovery of admissible evidence. RA also requested the names of all Webb’s customers and production of everything Webb had concerning these customers. Webb’s counsel responded that the customer files could be viewed at his office or that arrangements could be made to copy the files at RA’s expense. Apparently, any copies of checks received by Webb from these customers, which appears to be what RA was actually seeking, would have been in the files. RA declined to take advantage of either option.

In reviewing the relevant discovery requests and responses, we find no misrepresentation by Webb’s counsel regarding whether RA had access to Webb’s customer files and any checks contained therein. Though RA complains that Webb’s counsel objected to producing copies of “canceled checks,” the record does not show that it filed any motion to compel discovery of these items.

The record does not support RA’s claim of fraud or ill practice. It was not deprived of any legal rights, and it is neither unconscionable nor inequitable to enforce the trial court’s judgment. We find no abuse of discretion by the trial court in denying the motion for a new trial.

Issue 2: Exclusion of Webb’s Deposition

RA asserts that the trial court erred by denying it the right to impeach Webb with extrinsic evidence of his prior inconsistent sworn statement. RA is referring to a deposition that had not been completed prior to trial, was ruled inadmissible by the trial court, and was not proffered.

Referring to La. C.C.P. art. 1636, this court has previously stated, “It is incumbent upon the party who contends its evidence was improperly excluded to make a proffer, and if it fails to do so, it waives its right to complain of the exclusion on appeal.” Hudspeth v. Smith, 42,647, p. 8 (La.App.2d Cir.11/7/07), 969 So.2d 793, 798. In the absence of a proffer of the incomplete deposition, we will not consider on appeal the complaint that the trial court improperly ruled it inadmissible. But we do observe that the record supports the trial court’s ruling. The record shows that Webb’s deposition was started by counsel for RA but stopped before Webb’s own counsel had the opportunity to ask questions. The deposition was twice rescheduled, but RA canceled both times. Explaining the cancellations to the trial court, counsel for RA stated, ‘Tour Honor, the reason the depositions were canceled are privileged between my clients, and I think it would prejudice my clients to disclose that.” By not completing the deposition, Webb was not allowed the opportunity to explain or correct any answers he gave under questioning by RA’s counsel, and he was deprived the opportunity to read and sign the deposition as provided by La. C.C.P. art. 1445. These factors support the trial court’s exclusion of the incomplete deposition.

| tissue No. 3: Finding that Webb was an Employee

RA asserts that the trial court erred in finding that Webb was an employee. It asserts that the Webbs’ testimony was so “internally inconsistent” that their testimony cannot constitute proof. It also asserts that the trial court’s refusal to allow the impeachment evidence (the incomplete deposition) prevented it from making a proper credibility determination. RA contends that the trial court’s improper exclusion of Webb’s deposition means that a de novo review is warranted.

We find no merit to RA’s contention that a de novo review is warranted. As previously stated, because the deposition was not proffered, the issue of its exclusion is not properly before this court on appeal. The determination that Webb was an employee, rather than an independent contractor, is a factual determination that is decided on a case-by-case basis and is reviewed under the manifest error standard. Jeansonne v. Schmolke, 2009-1467 (La.App.4th Cir.5/19/10), 40 So.3d 347.

Under the manifest error standard, the reviewing court does not determine whether the trier of fact was right or wrong, but whether its conclusion was a reasonable one. Stobart v. State, through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). Findings based on credibility determinations are entitled to great deference. Foley v. Entergy Louisiana, Inc., 2006-0983 (La.11/29/06), 946 So.2d 144. Where conflict exists in the testimony, reasonable evaluations of credibility and inferences of fact should not be disturbed on review. Stobart, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989). But a finding based on a credibility determination may |iabe manifestly erroneous where documents or objective evidence so contradict the witness’s story or the story is so internally inconsistent or implausible that a reasonable trier of fact would not give it credence. Foley, supra; Rosell, supra. Still, if the findings of fact are reasonable in light of the record viewed in its entirety, the appellate court may not reverse even if, acting as a trier of fact, it would have weighed the evidence differently. Stobart, supra. Where there are two permissible views of the evidence, the trier of fact’s choice cannot be manifestly erroneous or clearly wrong. Id.

La. R.S. 23:631 provides that upon the discharge or resignation of “any laborer or other employee of any kind whatever,” the employer shall pay the amount then due under the terms of employment. La. R.S. 23:631 (A)(1)(a) and (b). Whether someone is an employee or an independent contractor is determined on a case-by-case basis. Jeansonne, supra. The major factor for determining whether there is an independent contractor or employer-employee relationship is the employer’s control over the work. Hickman v. Southern Pac. Transport Co., 262 La. 102, 262 So.2d 385 (La.1972). The court explained that “it is not the supervision and control which is actually exercised which is significant, the important question is whether, from the nature of the relationship, the right to do so exists.” Id. at 391.

In addition to the power of control, other factors indicative of an employer-employee relationship include selection and engagement, the payment of wages, and the power of dismissal. Jeansonne, supra. No single factor controls the determination. Id. The totality of the | isrircumstances must be considered, and the party seeking to establish that an employer-employee relationship exists bears the burden of proof. Id. Notably, our courts have regarded commissioned salespeople as employees, not as independent contractors. Tri-Star of Louisiana v. Touchet, 520 So.2d 989 (La.App. 3d Cir.1987); Gresham v. Speights, 133 So.2d 846 (La.App. 2d Cir.1961).

An independent contractor relationship presupposes a contract between parties for a specific piecework as a unit to be done according to the independent contractor’s own methods, without control and’ direction by the principal except as to the final result. The independent contractor’s work is of an independent nature allowing him to employ nonexclusive means in accomplishing it. As agreed upon by the parties, there is a specific price for the undertaking, and there is a specific time or duration. Neither side may terminate or discontinue at will without risk of incurring liability for the breach. Hickman, supra at 390-391; Jeansonne, supra; Ledent v. Guaranty Nat. Ins. Co., 31,346 (La.App.2d Cir.12/28/98), 723 So.2d 531.

Cook testified that, during a dinner at a steakhouse, he and Webb entered a verbal contract for Webb to be an independent contractor. He claimed that Webb later signed an independent contractor agreement, but no such contract signed by Webb was offered into evidence. Even so, the existence of an independent contractor agreement is not dispositive of whether one is an independent contractor or an employee under the law. Powell v. Fuentes, 34,666 (La.App.2d Cir.5/9/01), 786 So.2d 277, writ denied, 2001-1675 (La.9/21/01), 797 So.2d 674; Stroder v. Horowitz, 34,048 (La.App.2d Cir.12/20/00), 775 So.2d 1175.

In rejecting RA’s claim that Webb was an independent contractor, the trial court found that RA’s primary witness, Cook, lacked credibility. The record supports this finding and does not show, as argued by RA, that the Webbs’ testimony was so inconsistent as to lack credibility.

The record shows that Webb met the burden of proving that he was an employee. He signed a written agreement on May 11, 2010, around the time he began working for RA, entitled “Schedule for Percentage of Payment and Advancement.” This agreement, which was also signed by Foster as general manager, identifies Webb as an “Insurance Claims Specialist” and sets forth the requirements for his advancement from a 20 percent commission to a maximum of 35 percent. The agreement states that “[n]egative counseling may hinder advancement,” that “[t]he severity of the incidents will be directly proportional to the corrective action taken,” and that appeals from negative counseling can be made to higher management levels. Failing to return customer calls or to respond timely to emails and texts, as well as causing conflicts with homeowners and coworkers are identified as incidents that could result in negative counseling. Though Cook denied that this agreement pertained to RA, Scott Patton, a witness for RA, testified that it looked like the same agreement he signed when he went to work for RA for a short time during the summer of 2010. This agreement establishes RA’s right as the employer to exercise control over the work done by Webb.

|1fiWebb sold roofing jobs to insured customers in the Shreveport and Bossier City areas and was to be paid commissions based on his sales. His business cards identified him as an insurance claims specialist with RA, not as an independent contractor. The cards had contact information for RA’s Shreveport office. Webb explained that RA had a chain of command. He reported to Foster, who reported to Cook. He testified that he was instructed to solicit in certain areas, such as neighborhoods that had experienced hailstorms. Webb signed contracts with customers on behalf of RA. These were form contracts provided by RA. Once a customer contracted with RA, Foster obtained the necessary work permits, purchased the materials, and hired crews to do the work. Webb’s testimony indicates that he sometimes performed these duties when Foster was unavailable to do so.

One atypical aspect of this case is the involvement of Mrs. Webb in Webb’s employment with RA. As shown by over 200 pages of emails, texts, and other correspondence introduced into evidence by Webb, which detail his yearlong relationship with RA, Mrs. Webb often communicated on his behalf with RA, primarily about his pay or lack thereof. Webb testified that his wife helped him because she is better at handling bookkeeping and paperwork, whereas he is not good at these things. The record also indicates that Mrs. Webb had ready access to a computer all day, while Webb was usually out soliciting customers, dealing with insurance adjusters, and making sure the work customers contracted for was being done. The Webbs also asked that RA make Webb’s commission checks out |into Mrs. Webb, who testified that she handles the family’s banking. RA agreed to do this and has not claimed to have had any employment-related relationship with Mrs. Webb. Like the trial court, we view this arrangement as á “bit unorthodox,” but find that it does not preclude the factual finding that Webb was an employee.

Contrary to RA’s argument, none of the factors indicative of an independent contractor relationship are present here. There was no contract between the parties for a specific piecework as a unit, no specific price for any such undertaking, and no agreed upon time or duration for such work. Neither Webb nor RA was subject to liability for breach upon termination of their relationship. Though Webb was not subject to a particular daily schedule, the record does indicate that RA had the right to control Webb in the performance of his job.

The testimony and evidence at trial establishes that Webb was a commissioned salesman for RA and did not work as an independent contractor. From our close review of this record, we find no manifest error in the trial court’s finding that Webb was an employee.

Issues U and 5: Proof of Entitlement to Payment Due

RA argues that the trial court erred in finding that Webb proved his entitlement to “damages,” apparently referring to the amount of unpaid commissions owed upon his resignation/termination. RA complains that Webb did not call Foster to testify and that he did not introduce copies of customer checks that he received and cashed. Therefore, RA contends that such evidence must be presumed to have been unfavorable to Webb and that 117the Webbs’ self-serving testimony, alone, was not sufficient to prove the amount of “damages” by a preponderance of the evidence. We find no merit to this argument.

RA bases it argument on jurisprudence pertaining to proof of loss of earnings or earning capacity. In general, a plaintiffs detailed, though uncorroborated, testimony as to loss of earnings is sufficient support for an award, but such testimony will not suffice if it is shown that corroborative evidence was available but was not produced. Mormon v. Stine, Inc., 95-615 (La.App.3d Cir.11/2/95), 664 So.2d 600; Miller v. Mahfouz, 563 So.2d 1223 (La.App. 1st Cir.1990), writ denied, 569 So.2d 967 (La.1990).

This is not a loss of earnings case, and there is sufficient evidence to support the trial court’s factual finding that Webb was entitled to $16,175.25 in unpaid commissions. First, we note that RA cannot complain that Webb did not call Foster to testify when it did not as well. Foster was RA’s manager in Shreveport and was represented by RA’s counsel when its relationship with Webb terminated. Second, Webb introduced evidence to support his testimony as to the amount of unpaid commissions owed by RA. For purposes of La. R.S. 23:631, commissions are considered wages. Dugas v. Aaron Rents, Inc., 2002-1276 (La.App.3d Cir.3/5/03), 839 So.2d 1205. To support his claim, Webb introduced Exhibit H, which included summary sheets for each of his customers. These summaries show the total amount collected from the insurer and the homeowner’s deductible minus the cost of materials and labor. A 25 percent commission was calculated on the net amount remaining. Mrs. Webb, who began keeping records and | ^rebuilding files on Webb’s customers in March 2011, testified that some of the figures were estimates, that some were based on documents from the insurers, and that she did not factor in “supplemental payments” by insurers, which would have increased the amount of commissions due. Though the customer files compiled by the Webbs and upon which the summaries were based were not offered into evidence, these are the same files that, as discussed supra, were made available to RA during discovery. Also, as noted by the trial court, RA did not object to the admission' of Exhibit H into evidence.

Though RA complains that the Webbs failed to produce corroborating evidence, it too failed to produce any backup evidence for its financial summaries. In fact, Cook testified that RA’s bank records and records reflecting payments to Webb had been lost. However, email offered as evidence shows that Cook assured Webb in the latter part of May 2011 that he would be paid what he was owed once all jobs were fully collected. Webb was likewise assured of payment upon completion of all jobs in a June 14, 2010, letter from counsel for RA.

The record shows that RA was a poorly run business. The plethora of emails and communications introduced by Webb show ongoing problems with collecting his commission payments over the course of his employment with RA. The trial court noted that the Webbs did the best they could in attempting to reconstruct what happened. We agree. The trial court ultimately based its award on the summaries in Plaintiff’s Exhibit H and testimony that Webb did receive a few draws and other small payments |iaduring his year of employment. Viewing this record as a whole, we find no manifest error in the trial court’s award of $16,175.25 for unpaid commissions.

As an additional argument, RA asserts that Webb did not prove his claim “when the record shows that Lauren Webb performed most of the work, but she admitted that she was not an employee of Roofing Analytics, LLC.” The record does not show that Mrs. Webb did most of the work. It does show that she often communicated, mostly by email, with Foster, Cook, and other RA personnel on Webb’s behalf. The record also shows that the assistance she provided to her husband regarding his job was done with RA’s full knowledge and acquiescence. Mrs. Webb’s efforts to assist her husband have no bearing on whether he proved entitlement to unpaid commissions. This argument is wholly without merit.

Issue 6-7: Statutory Penalties and Attorney Fees

To recover penalties under La. R.S. 23:632, a claimant must establish that wages were due and owing, that demand for payment was made where the employee was customarily paid, and that the employer did not pay upon demand. Becht v. Morgan Bldg. & Spas, Inc., 02-2047 (La.4/23/03), 843 So.2d 1109, cert. denied, 540 U.S. 878, 124 S.Ct. 289, 157 L.Ed.2d 142 (2003); Jeansonne, supra. Because La. R.S. 23:632 is penal in nature, it must be strictly construed. Smith v. Acadiana Mortg. of Louisiana, Inc., 42,795 (La.App.2d Cir.1/30/08), 975 So.2d 143. A claim for penalty wages may be defeated by an equitable defense. Id. However, this requires a defense that is in good faith and nonarbitrary so as to provide a reasonable | ?nbasis for resisting liability. Id., Carriere v. Pee Wee’s Equipment Co., 364 So.2d 555 (La.1978).

Reasonable attorney fees shall be allowed and taxed as costs against the employer for a well-founded suit filed by the employee after the lapse of three days from the time of making a first demand following discharge or resignation. La. R.S. 23:632. A “well-founded suit” is one where the employer succeeds in recovering wages. Jeansonne, supra. In such cases, an award for reasonable attorney fees is mandatory. Id.

RA asserts there was a bona fide dispute as to the amount of commissions due Webb. It claims not to have known how much, if any, money was due Webb, because Webb controlled the money. RA claims that Webb cashed checks intended for it and that it has no way of knowing the value of these checks. In fact, the record shows that Webb did collect and cash checks from customers, mostly for a short time while Foster was away from the country in May 2011. Webb testified, and emails introduced into evidence show, that Webb or his wife cashed the checks, then Webb used the money to buy roofing materials for the jobs and money orders to pay laborers or contractors doing the work. Webb then turned the remainder over to Rick Foster, Foster’s father who acted as manager of the Shreveport branch while Foster was away. The record also shows that this mode of operation was done with Cook’s knowledge. Moreover, RA introduced as exhibits copies of checks allegedly collected and cashed by Webb along with receipts for money orders from the post office. There is no proof that 121Webb cashed any checks other than these. Nothing in the record supports RA’s outrageous claim that Webb, basically, stole from it.

RA also argues that no penalty wages or attorney fees should have been awarded because Webb did not make a proper demand for payment. RA claims that Webb’s written demand for payment was made to Foster, not to it.

The record shows that Webb’s relationship with RA ended due to lack of payment and an argument with Foster concerning this ongoing issue. Shortly after the argument, defense counsel, purporting to represent both Foster and RA, wrote to Webb on June 14, 2010, concerning the termination of RA’s relationship with him. The letter informed Webb that he would be “paid when all jobs are completed and your pay will be issued twice a month.” The letter also informed Webb that a “Final Invoice Form” would accompany his pay along with “supporting records and a brief explanation of your pay based on performance.” Webb received no pay as promised in this letter. So, on August 30, 2011, Webb, through counsel, wrote to RA through its attorney to demand payment of funds owed “by Mr. Foster, individually, and on behalf of Roofing Analytics, LLC.” Because RA and Foster were represented by counsel in their dealings with Webb, the written demand was properly made by a letter to RA’s counsel. We are not persuaded by the argument that the reference to Foster means that Webb did not make a demand for payment on RA. The letter is clearly a demand for payment made to RA and Foster, who was its Shreveport manager and Webb’s superior. Notably, RA did not sever ties or revoke Foster’s | ^authorization to act on its behalf until March 2012, according to the testimony of Marshall, RA’s rebuttal witness.

The record shows that commissions were due and owing, that a proper demand for payment was made, and that no payment was forthcoming. Therefore, the trial court did not err in awarding penalty wages. Attorney fees were also properly awarded for this well-founded suit.

Answer to the Appeal:

Webb answered the appeal to request an award of attorney fees for appellate work. The trial court awarded $31,250 in attorney fees under the mandate of La. R.S. 23:632. Counsel requests an additional $7,500 for defending this appeal. He bases this on an estimate of 30 hours of preparation and work at a rate of $250 per hour.

It is within the appellate court’s discretion to award or increase attorney fees for defending an appeal. Nesbitt v. Nesbitt, 46,514 (La.App.2d Cir.9/21/11), 79 So.3d 347, writ denied, 2011-2301 (La.12/2/11), 76 So.3d 1178. The skill exercised by the attorney and the time and work done on the appeal are factors considered in determining the amount of the award for attorney fees. Id.

Considering the work required in defending this appeal, which addressed multiple issues and the full scope of the trial court’s judgment, we find that an increase in attorney fees is warranted in the amount of $4,750, bringing the total award of attorney fees in this matter to $35,000.

[^CONCLUSION

For the reasons set forth in this opinion, we affirm the trial court’s judgment and award additional attorney fees to Webb for defense of the appeal. Costs of appeal are assessed against the defendant, Roofing Analytics, LLC.

AFFIRMED.

      . The trial court’s ruling notes that one of the witnesses (Cook) described the controversy as such. The trial court agreed with that description, as do we.

        . As discussed infra, this deposition had not been completed and was ruled inadmissible at trial.


author: LOLLEY, J.

text:
    Amanda G. LAWSON, Plaintiff-Appellant v. Berley G. LAWSON, Defendant-Appellee.
    No. 48,296-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 24, 2013.

      Pugh T. Huckabay, III, Shreveport, LA, for Appellant.
    Robert I. Thompson, III, Shreveport, LA, for Appellee.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

| ,Amanda Lawson appeals a judgment of the 39th Judicial District Court, Parish of Red River, State of Louisiana, regarding custody of her minor child with her previous husband, Berley Lawson. For the following reasons, we affirm the trial court’s judgment.

Facts

At issue is the custody of the 14-year-old son of Amanda Lawson and Berley Lawson. Amanda and Berley separated on November 20, 2006. The following day, Amanda filed a petition for divorce and for the determination of incidental matters. On December 11, 2006, a consent judgment (the “initial judgment”) and joint custody implementation plan was entered, in which the parties agreed to joint custody of the child. In the initial judgment, Amanda was designated as the domiciliary parent, with Berley having visitation every other weekend, Wednesdays during the week he did not have the previous weekend visit, and one-half of the holiday time.

At some point after the initial judgment was entered, Amanda received a job offer in Caddo Parish, Louisiana, and in February 2007, after providing notice to Berley, she and the child moved to Shreveport, approximately 40 miles from her former residence. In response, Berley filed a motion to enforce the joint custody plan. In that motion, Berley alleged that Amanda had not complied with La. R.S. 9:336, requested that Amanda be held in contempt, and sought for the child to remain enrolled in his school in Red River Parish. Shortly thereafter, Berley filed a motion to modify the joint custody plan, referencing his previous motion and requesting that the child custody plan in force be modified to name him as | ^domiciliary parent (collectively, “Berley’s motions”). Berley’s motions were not immediately addressed by the trial court.

Berley’s motions were ultimately scheduled for trial in February 2009, but were upset and continued to June 2009. The parties finally appeared in court in connection with the “several issues that have been pending since 2007.” The parties evidently reached an agreement in a pretrial status conference, which agreement was read into the record. The main change in this new agreement from the initial judgment was that the parties would equally share custody of their child on an alternating weekly basis. Amanda would remain the designated domiciliary parent. The issue of the child’s school was deferred for a year. The parties again appeared for trial in August 2010, but at that time, after hearing testimony from the child regarding where he wanted to attend middle school, the trial court judge re-cused himself. Judgment (the “2010 judgment”) was entered in accordance with the agreement reached in June 2009, concerning the modification to visitation, but the child’s school was not changed. Judge Andrew Gallagher then was appointed as judge ad hoc to preside over the matter.

No action was taken by either party until Berley moved to reset for trial the outstanding rules of both parties, which motion was set to be considered on March 21, 2012. The trial proceeded, and in October 2012, a judgment was entered. In that judgment, the trial court concluded that Berley had failed to prove a material change in circumstance or that the relief he requested was in the child’s best interest. Further, the trial court ^ordered that the 2010 judgment remain in place and denied Berley’s request to change the child’s school, but deferred a final decision on his school until May 2013, allowing the child to complete middle school where he had been attending. Finally, both parties were ordered to submit to Dr. John Simo-neaux for an updated psychological evaluation. This appeal by Amanda ensued.

Discussion

Judgment in Effect

Amanda’s first two assignments of error are both related to the trial court’s conclusion that the 2010 judgment would remain in effect. She submits that the trial court erred in so ordering when it concluded that (1) Berley had not shown the requisite material change in circumstances necessary to modify the original judgment of child custody and visitation, and (2) the relief requested by Berley was not in the best interest of the child. Amanda correctly argues that both of these elements must be proved by the party seeking a modification when the original custody decree is a stipulated judgment. She maintains that in making a judicial conclusion that there was no material change in circumstances and the relief sought was not in the best interest of the child, the trial court should not have allowed the 2010 judgment to remain in place. She argues that upon making that finding the trial court should have dismissed Berley’s motion and reverted the parties to the order of the initial judgment. We disagree.

The award of custody, whether “in a proceeding for divorce or thereafter,” is simply a judgment of custody. La. C.C. art. 131; Trettin v. Trettin, 37,260 (La.App.2d Cir.03/17/03), 839 So.2d 1272, 1274. As further explained in Trettin:

Such judgment is provisional only in the sense that custody may be altered later, after material changes in circumstances occur, as illustrated in cases such as Evans v. Lungrin, 1997-0541 (La.02/06/98), 708 So.2d 731 and Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). The award is therefore a final judgment. It is governed substantively under La. C.C. art. 131, which enunciates the best interest of the child test, and procedurally under La. C.C. art. 2592(8), which provides for trial by summary process. (Emphasis added).

Here, among other things in connection with the parties’ divorce action, the initial judgment set forth a visitation schedule with the child. However, the June 24, 2009, hearing resulted in a modification to the initial judgment. Prior to appearing in court, the parties attended a status conference where they reached another agreement to change the custody agreement set forth in the initial judgment. At that hearing, Amanda’s attorney verified to the trial court: “[T]he parties have agreed today, after a status conference with the Court, to enter another interim agreement. That agreement will be that the parties will try or attempt a shared custody situation, where the visitation will be a week with each parent.” In addition to the shared custody agreement, several other issues were agreed to, and Amanda’s attorney further noted that “the final judgment rendered in December 2006 shall remain in full force and effect except as modified herein.” (Emphasis added). Bertels attorney clarified that the agreement was “an interim order to carry us through the next school year. The child will remain in the same school where he was last year. And, it’s our understanding that next summer, when this matter comes before the Court | ¡-.again, that the Court will interview the child as a witness in that matter.” Among other things, the parties agreed Amanda would remain the domiciliary parent. Most notably, the visitation was changed with the parents maintaining an alternating week visitation schedule, allowing Berley more time with the child. The parties agreed that the child would remain in the school he was attending, and that sole issue would be revisited. When the parties returned to court the next year, a judgment entitled “Interim Judgment” memorializing the agreement, was signed on August 10, 2010. The matter did not come back up before the trial court until May 2012-after the parties had been living and cooperating according to their agreement since June 2009.

In this case, although the 2010 judgment was designated an “interim judgment,” it was a final judgment as to every issue except the choice of school for the child. The 2009 hearing transcript indicates the parties agreed to it; thus, it would be considered a consent judgment and is final until one of the parents sought a modification or they both agreed to a change. Amanda’s contention that the trial court erred in allowing the 2010 judgment to remain in effect is misplaced. The trial court concluded that Berley failed to meet his burden of proof to modify the judgment that was in effect, i.e., the 2010 judgment. Amanda does not argue that the trial court’s substantive finding on that issue was incorrect. Although the 2010 judgment may have been titled “interim,” the record reflects that the parties had reached an agreement as to its terms in court in 2009, and they happily abided by that agreement for basically three years. Thus, when Berley |Bfailed to meet his burden of proof (again, finding Amanda does not dispute), the trial court correctly left the 2010 judgment in effect. Amanda’s assignments of error on this issue have no merit.

Determination of Child’s School

Initially, we note that it is evident both parents love and care deeply for their child and sincerely desire the best for him. Except for the limited issue before us, it also appears that the parents have co-parented successfully, and all the parties, Amanda, Berley and their child, agree that the alternating-week custody situation is working well for this divided family. We commend the parents on doing a fine job of seeing to their child’s well-being despite their differences of opinion. In this case, it appears that the issue of the child’s school has been the primary bone of contention between these two well-intentioned parents. In Berleys motions, his main complaint was which parent would choose the child’s school, and the child has testified twice on the matter. With that in mind, we note the following.

Amanda argues that the issue of the child’s school was not properly before the trial court, thus it was error for it to make a determination on that issue. Amanda’s contention is baseless. We note that the procedural aspect of this ease has been handled piecemeal all along (through no fault of the current ad hoc judge), making it difficult to ascertain exactly which motions have been before the trial court at what time. Certainly, Berley had raised the issue of school in his motions previously. Although those motions technically may have been dispensed with partially, the record reflects that[7the issue of the child’s school continued to raise its head. Specifically, Berley’s attorney stated at the June 2009 hearing that the matter was not decided by the agreement made at that time. Moreover, the trial court addressed the issue both in 2010 and 2012 when the child testified precisely on that point, and Amanda made no objection to her child’s testimony then. If we are to consider the best interest of the child as dictated by La. C.C. art. 131, the trial court was certainly within its province in considering the matter. This assignment of error is without merit.

Amanda also maintains that the trial court erred in deferring until May 2013 a final determination on the choice of school for the child, because she argues that under La. R.S. 9:335(B)(3), she has the right to choose the school as the domiciliary parent. We disagree that the trial court erred on this point.

The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent, which would include the choice of schools, are subject to judicial review upon motion by the nondomiciliary parent. In the judicial review, it is presumed that all major decisions made by the domiciliary parent are in the best interest of the child and the burden of proving they are in fact not in the best interest of the child is placed on the nondomiciliary parent who opposes the decision. La. R.S. 9:335(B)(3); Bergeron v. Bergeron, 44,210 (La.App.2d Cir.03/18/09), 6 So.3d 948 (overruled on another point of law).

| ^However, in any child custody matter, the paramount consideration is the best interest of the child. La. C.C. art. 131; Earle v. Earle, 43,925 (La.App.2d Cir.12/03/08), 998 So.2d 828, writ denied, 2009-0117 (La.02/13/09), 999 So.2d 1151. The court is to consider all relevant factors in determining the best interest of the child. La. C.C. art. 134. Factors that may be considered are set forth in Article 134, but the court is not bound to make a mechanical evaluation of each. Rather, a custody dispute must be decided in light of its peculiar set of facts and the relationships involved in order to reach a decision that is in the best interest of the child. Wages v. Wages, 39,819 (La.App.2d Cir.03/24/05), 899 So.2d 662.

Courts have inherent power to determine a child’s best interest and to tailor a custody order that minimizes the risk of harm to the child. The trial court’s findings in child custody matters are entitled to great weight and will not be disturbed on review without a showing of clear abuse. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

Here, the issue of the child’s choice of school was before the trial court on Ber-ley’s motions, he being the nondomiciliary parent. Most recently, the trial court, in its discretion, concluded that it was not in the child’s best interest to move him for his 8th grade year from Elm Grove Middle School to Riverdale Academy School in Red River Parish, noting:

[The child] is at a crucial developmental stage and this Court finds that this case requires periodic monitoring to ensure that the best interest of [the child] are met and that he feels that his opinion concerning his education are heard. Such periodic monitoring will allow the Court to exercise its broad discretion under [La. C.C. art. 134(9) ].... [The child] has been doing well in school academically and has taken great steps to develop socially outside of his comfort zone; he deserves the ^opportunity to finish middle school with the same classmates he has attended school with for the past two years. The Court notes that [the child] will continue to have the opportunity to participate in extracurricular activities that involve students from both Elm Grove and Riverdale.

However, regarding the future educational needs of the child, the trial court deferred its decision, stating the following well-considered reasons:

High school is an all too different developmental stage from the one in which [the child] is currently in. He would be eligible to apply for a driver’s license in less than two years and -will be freer to pursue his interests than he ever has been. At trial, [Berley] stated strongly that he wished the minor child to attend Riverdale before graduating and attending college; [Amanda] did not offer much as to her intentions other than to state that the most obvious choice for [the child] would be Parkway High School if he were to stay in the Bossier Parish school system. [Amanda] also stated her desire for [the child] to attend college.
[T]he Court declines to decide the route of [the child’s] high school education until it receives an updated [psychological] evaluation.... A year’s time will allow for [the child] to continue developing socially, particularly through football, 4H and his classes. It might also allow for [Berley and Amanda] to reach some common ground concerning the minor child’s high school education ....

In August 2010, the child expressed a preference for attending Riverdale Academy, but the decision was made then that he would remain in a Bossier Parish school. Almost two years went by, apparently with the parents cooperating and making their agreed upon custody plan work for them and their child. When the parties reappeared before the trial court at the 2012 hearing, the child again expressed his desire to attend school at Riverdale Academy for many of the same reasons as his father. At that time, the child had attended Elm Grove Middle School (“Elm Grove”) in Bossier Parish for two years and was set to finish 8th grade there. The trial hpcourt heard testimony from Elm Grove’s principal, as well as the child’s English teacher. The evidence and testimony showed that the child was performing well at Elm Grove, a top-performing school in the parish and state. Most telling of his overall well-being was the fact that his grades and standardized test scores were well above average. The principal and teacher noted that he had no behavior problems, and he participated in school sports and other extracurricular activities. This record reflects that the child is well-adjusted and happy. From the child’s testimony, it appears that he wants to be around children more “like him.” The child characterized the children in Bossier Parish as being more “city,” whereas he is interested in guns for competitive shooting and hunting. But for those observations by the child, the record does not indicate that he is unhappy or maladjusted at Elm Grove. The evidence offered by Berley as to Riverdale Academy also failed to show that it offered the same opportunities and academic excellence as Elm Grove. Thus, the trial court determined that Berley failed to show it would be in the child’s best interest to move him for 8th grade, but deferred a decision for high school until the following year.

It is evident that the trial court’s reason for its action in deferring a decision was keeping with the primary consideration in child custody matters — the best interest of the child. Choosing a teenager’s high school is an important decision, which is usually made by informed parents along with input from a child as to his/her desire. The trial court wisely deferred a long-term decision regarding whether the child would remain in school in Bossier Parish permanently, especially with no evidence before it regarding | „the child’s potential Bossier Parish high school choice. Amanda correctly argues that a domiciliary parent has the decision-making right for certain matters under La. R.S. 9:335(B)(3); but in considering the best interest of the child, the decision of the trial court was clearly not an abuse of discretion. However, the desire of the child should be weighed in light of the objective information used by the parents in their respective decision-making process. Again, the best interest of the child is the paramount goal, and much can happen in a year regarding the maturity of a young teenager. The trial court wisely deferred for a year the choice of school for Amanda, Berley, and their child. Such a decision was not an abuse of discretion.

Psychological Evaluations

Finally, in her fifth assignment of error, Amanda maintains that the trial court erred when it ordered the parties submit for an updated evaluation with Dr. John Simoneaux, with all costs to be split equally between the parties. Amanda has not briefed that issue on appeal, and thus, it is abandoned. See, Uniform Rules— Court of Appeal, Rule 2-12.4, where an appellant fails to brief an assignment of error, the appeal court may deem that assignment abandoned.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed, with all costs of this appeal assessed to Amanda G. Lawson.

AFFIRMED.