author: WILLIAMS, J.

text:
    BRIARWOOD GROUP, L.L.C., Plaintiffs-Appellants v. Hope Ryder CALHOUN and Chesapeake Louisiana, LP, Defendants-Appellees
    No. 51,732-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 18, 2018
    BURGESS LAW, L.L.C., By: Robert E. Burgess, Counsel for Appellants
    RHYS E. BURGESS, BETHARD & BETHARD, L.L.P., Counsel for Appellees, Hope Ryder Calhoun and Thomas A. Calhoun
    DAVID K. McCRORY, Counsel for Appellee, Chesapeake Louisiana, LP
    OTTINGER HEBERT, LLC, By: Benjamin D. Jones, JONES & ODOM, L.L.P., By: John S. Odom, Jr., Counsel for Appellee, CCH Investments, LLC
    Before BROWN, WILLIAMS, and MOORE, JJ.
   WILLIAMS, J.

The plaintiffs, Briarwood, LLC, Riemer Calhoun, Jr., and Marcia Calhoun, appeal a summary judgment in favor of the defendants, Hope Calhoun, Chesapeake Louisiana, LP, Carolyn Huckabay and Thomas Calhoun. The district court determined that Marcia and Riemer Calhoun had transferred their individual mineral interests in June 2010 and that the mineral leases are valid. For the following reasons, we reverse and remand for further proceedings.

FACTS

In May 1986, Hope Calhoun ("Hope"), Carolyn Calhoun Huckabay ("Carolyn") and Thomas Calhoun ("Thomas") each owned an undivided 1/3 interest in a 105-acre tract of land described as the South 1/2 of Section 34, Township 13 North, Range 11 West, lying North and East of Boggy Bayou and North and West of Butler's Slough, Red River Parish ("the property"). Hope was the wife of Riemer Calhoun, Sr., who was the father of Carolyn and Thomas.

In November 1988, Thomas conveyed his undivided interest in the property to Hope, Carolyn and Riemer Calhoun, Jr. ("Reimer"), and his wife Marcia Calhoun, who had previously established a separate property regime. Two months later, Carolyn and Riemer conveyed their undivided interests in the property to Hope as her separate property. In August 1995, Riemer Calhoun, Sr., died owning a 1/18th interest in the property. This interest passed equally to his surviving spouse, Hope, and his children, Riemer, Carolyn and Thomas, resulting in Hope owning a 65/72 interest in the property, Marcia owning a 4/72 interest, with Riemer, Carolyn and Thomas each owning a 1/72 interest.

In October 2004, Hope conveyed all of her interest in the "non-executive mineral rights" to RCSR, LLC ("RCSR"). In the conveyance, Hope reserved to herself the executive right to the mineral rights, "specifically reserving the right to grant mineral leases" as to her interest in the property. In February 2008, Hope executed a mineral lease covering 69 acres of the property with the lessee, Meagher Oil & Gas Properties, Inc. One year later, the lessee assigned the lease to Chesapeake Louisiana, L.P. ("Chesapeake").

In June 2010, RCSR transferred its non-executive mineral rights in the property in equal portions to Thomas, CCH Investments, LLC ("CCH") and Briarwood Group, LLC ("Briarwood"). This 2010 transfer provided that Hope, Thomas, CCH and Briarwood would each receive a 25% royalty interest and that Hope's royalty and executive right to the minerals would terminate at her death. The 2010 transfer was made subject to all valid and subsisting mineral leases which had been executed by any of the parties. On the signature page of the transfer, Marcia signed above language stating "Marcia Calhoun, member and manager of RCSR, LLC; member and manager of Briarwood Group, LLC and individually." Riemer signed the transfer above language stating "member and manager of Briarwood Group, LLC and individually." In September 2010, Hope signed a mineral lease with the lessee, Chesapeake, covering 36 acres of the property.

In August 2013, the plaintiff, Briarwood, filed a petition for declaratory judgment against the defendants, Hope and Chesapeake, alleging that Hope did not have the right to grant the 2010 mineral lease. After Chesapeake filed a motion for summary judgment, plaintiff filed the first amended petition adding Riemer and Marcia as party plaintiffs. Chesapeake's motion was continued. The second amended petition added Carolyn and Thomas as defendants. Plaintiffs sought cancellation of the 2008 and 2010 mineral leases to the extent they covered the alleged separate interests in the property owned by Riemer and Marcia. The defendants filed motions for summary judgment on the ground that Hope owned 100% of the executive right in the property when she executed the 2008 and 2010 mineral leases. Alternatively, Chesapeake sought partial summary judgment on the basis that Hope owned at least 65/72 of the property when she granted the mineral leases.

After a hearing, the district court issued an opinion that the individual interests of Riemer and Marcia were included in the 2010 transfer of mineral rights because they signed the document in their individual capacity. The district court rendered summary judgment in favor of the defendants, dismissing the plaintiffs' claims. The plaintiffs appeal the judgment.

DISCUSSION

The plaintiffs contend the district court erred in granting summary judgment in favor of the defendants. Plaintiffs argue that summary judgment is not appropriate because an issue of material fact exists as to whether Marcia and Riemer Calhoun intended to convey their individual interests in the property by signing the 2010 transfer of mineral rights.

The owners of separate mineral rights in the same land must exercise their respective rights with reasonable regard for the rights of other owners. La. R.S. 31:11. The owner of land may protect his rights in minerals against trespass, damage and other wrongful acts of interference by all means available for the protection of ownership. La. R.S. 31:12. A landowner may convey, reserve or lease his right to explore and develop his land for production of minerals and to reduce them to possession. La. R.S. 31:15. The executive right is the exclusive right to grant mineral leases of specified land or mineral rights. The owner of the executive right may lease the land or mineral rights over which he has power to the same extent as the owner of a mineral servitude. La. R.S. 31:105.

Appellate courts review summary judgments de novo , using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Whitaker v. City of Bossier City , 35,972 (La. App. 2 Cir. 4/5/02), 813 So.2d 1269. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge or malice. Jones v. Estate of Santiago , 2003-1424 (La. 4/14/04), 870 So.2d 1002 ; Benson v. State , 48,300 (La. App. 2 Cir. 10/9/13), 124 So.3d 544. One reason is that such factual determinations call for credibility evaluations and the weighing of testimony. Benson, supra . Summary judgment is inappropriate when there is a factual dispute as to intent. Harris v. Dunn , 45,619 (La. App. 2 Cir. 9/22/10), 48 So.3d 367.

In the present case, the plaintiffs produced evidence that after a number of transactions among the parties, Hope owned a 65/72 interest in the property, with Marcia owning a 4/72 interest and Riemer owning a 1/72 interest. The evidence presented by defendants did not specifically negate the asserted ownership interests of Marcia and Riemer. Instead, defendants submitted deposition testimony from another case involving these parties to support the argument that Marcia and Riemer intended to convey any mineral interest they owned by signing above the word "individually" in the 2010 transfer of mineral rights.

The 2010 transfer of mineral rights provides that RCSR, as the sole transferor, does "convey and deliver to CCH, Briarwood and Tommy ... all of transferor's mineral rights in and to" the tract in question. The document states that the "transfer of the property above described is made to CCH, Briarwood and Tommy in the portions of an undivided one-third interest each." The 2010 transfer provides that the transferor conveys to Hope a 25% mineral royalty and that a royalty of 25% each shall be paid to CCH, Briarwood and Tommy. The 2010 transfer further provides that Hope's royalty and the executive right which she retained in the prior conveyance to RCSR shall terminate upon her death.

The defendants contend the intent of the parties in executing the 2010 transfer of mineral rights was to recognize that Hope owned 100% of the executive right in the property. Contrary to the defendants' contention, the 2010 transfer language specifically refers to a conveyance of RCSR's mineral rights; the instrument does not provide, as it easily could have, that Hope is the owner of 100% of the executive right and does not expressly mention any conveyance of the individual interests owned by Marcia and Riemer.

Even though the language of the 2010 transfer does not expressly convey the ownership interests of Marcia and Riemer in the property, defendants assert that the intent of Marcia and Riemer to convey their property interests is shown by their act of signing the 2010 transfer in an individual capacity. However, the authority cited by defendants in their briefs does not support their assertion that an ownership interest in land is conveyed by a party's signature on an instrument which itself does not contain any express reference to that property interest. In addition, Marcia and Riemer submitted affidavits stating that they each own an individual interest in the property and did not convey their ownership interests in the 2010 transfer of mineral rights.

Based upon this record, we conclude that a genuine issue of material fact exists as to whether Marcia and Riemer intended to convey their ownership interest in the property by signing the 2010 transfer. In determining the intent of a party, the district court will be required to weigh evidence and assess the credibility of witnesses. Thus, the determination of intent is not appropriate for summary judgment and the district court erred in granting the defendants' motions for summary judgment. Consequently, we shall reverse the judgment and remand this matter for further proceedings.

CONCLUSION

For the foregoing reasons, the summary judgment is reversed. This matter is remanded to the district court for further proceedings. Costs of this appeal are assessed to the appellees, Thomas Calhoun, Hope Calhoun and Chesapeake Louisiana, L.P.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Winnifred H. JACKSON, Plaintiff-Appellant v. LOWE'S HOME CENTERS, L.L.C., et al., Defendant-Appellees
    No. 51,537-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered February 28, 2018.
    PIERRE & PIERRE, LLC, By: J. Rodney Pierre, Counsel for Appellant
    TAYLOR, WELLONS, POLITZ & DUHE, APLC, By: Chris W. Caswell, D. Scott Rainwater, Counsel for Appellees
    Before MOORE, PITMAN, and GARRETT, JJ.
   MOORE, J.

Winnifred Jackson appeals a partial summary judgment that dismissed her claim for lost wages and profits arising from the defective installation of a refrigerator. For the reasons expressed, we affirm.

FACTUAL BACKGROUND

Ms. Jackson, an attorney and the proprietor of Good Samaritan Funeral Home, bought an LG refrigerator from Lowe's Home Center on Airline Drive in Bossier City in June 2014. Lowe's employees delivered it to her house, in Oak Alley Subdivision in Bossier City, on June 13. According to her petition, Ms. Jackson immediately discovered during the installation that it was not the counter-depth unit that she expected. That evening, she went back to Lowe's and bought another LG fridge, one that would fit properly, and Lowe's employees delivered it on June 14. When they removed the first fridge, Ms. Jackson saw a pool of water on the floor under it and some dampness on the walls around it. She phoned the store manager, who came out to inspect, and said the moisture was condensation. The employees wiped up the puddle and installed the second fridge.

A few days later, however, Ms. Jackson discovered several planks of the reclaimed wood flooring in her kitchen and family room were warped. She called a plumber, who inspected and told her that both fridges had been improperly installed-the icemaker line was not correctly attached to the water line. Ms. Jackson then phoned Lowe's manager, who sent Custard Insurance Adjusters to the house; Custard confirmed that the damage resulted from faulty installation, and hired DKI, an emergency repair service, to extract the water from the wood floors. According to Ms. Jackson's petition, the extractors were placed in the kitchen and family room, making it impossible for her to use either room. In addition, the machines made such an "unbearable" noise that she had to vacate the house, incurring hotel and meal expenses.

After nine days of extraction, Custard decided the floors could not be repaired. According to Ms. Jackson's petition, Lowe's did not answer her informal demands to pay the cost of removal and replacement.

PROCEDURAL HISTORY

Ms. Jackson filed this suit, in proper person, against Lowe's Home Centers, in June 2015. She also named "Insurance Company A" as a defendant, but never joined any insurer. In addition to demanding costs of replacement, moving and storage, and cleaning, she alleged that because she could not stay in the house, she incurred costs for hotels and meals. She also demanded damages for mental anguish and attorney fees.

Lowe's filed an exception of no cause of action as to the demand for penalties and attorney fees: because Lowe's was not an insurer, it could not be liable for bad-faith adjustment of claims, La. R.S. 22:1892 and 1973.

Lowe's then filed a motion for partial summary judgment as to the demand for lost wages and mental anguish. In support, it filed portions of Ms. Jackson's deposition in which she testified that during the four months it took to replace the floor, she could not stay in the house, so she took a 28-day trip to Chicago, followed by short trips to Turks & Caicos, Miami, San Francisco and Los Angeles, San Antonio, and, finally, to Beverly Hills (for a "getaway weekend"); she felt that these trips caused her to lose between $95,000 and $120,000 in wages and profits. Lowe's argued that no reported case had ever approved lost wages as an element of damages for a property damage claim without bodily injury, and thus the award was not legally recognized. However, even if it were, Ms. Jackson could not meet the high standard of proving lost wages: "a plaintiff must prove that he would have been earning wages but for the accident in question," Boyette v. United Services Auto. Ass'n , 2000-1918 (La. 4/3/01), 783 So.2d 1276. Lowe's contended that by her own testimony, Ms. Jackson "voluntarily vacationed for reasons unrelated to the incident sued upon."

Ms. Jackson retained counsel and opposed both the exception and the MPSJ. As to lost wages, she argued she was entitled to all damages flowing from the defendant's conduct, under La. C.C. arts. 2316 and 2317, and these included lost wages. In support, she cited Orellana v. Louisiana Citizens Prop. Ins. Corp. , 2007-1095 (La. App. 4 Cir. 12/5/07), 972 So.2d 1252, writ denied , 2008-0041 (La. 10/24/08), 25 So.3d 777. Further, "when she could not live in the house, plaintiff was absent from work" and she "coordinated trips outside the city when construction work would last five days or more." She attached the affidavit of a CPA, Thomas Youngblood, which did not state a dollar amount of economic loss, but referred to computer-generated profit-and-loss statements for the funeral home and for Ms. Jackson's law practice, covering the years 2014, 2015 and part of 2016.

At a hearing in November 2016, the parties submitted the exception and the MPSJ on brief. Counsel for Ms. Jackson conceded that Lowe's "might be right" on the exception of no cause. He again cited Orellana and argued that "by analogy, Ms. Jackson's loss of wages is tethered to the negligence of the defense[.]" Counsel for Lowe's countered that Orellana involved an insurer subject to R.S. 22:1973 ; because Lowe's is not an insurer, it cannot be liable for bad-faith damages.

ACTION OF THE DISTRICT COURT

The court stated that, on close review, Ms. Jackson's petition alleged many items of damages, but "lost wages are not anything that ever is addressed." Further, the court found no "affidavits from anybody asserting any type of lost wages, what the amount of those would be, no expert provided anything * * *, there's nothing to support any claim for lost wages." Counsel for Ms. Jackson mentioned the "affidavit in the record with respect to lost wages," but the court replied that this item of damage was not asserted in the original or any supplemental petition; in addition, there was inadequate proof. The court noted Ms. Jackson's objection for the record.

The court rendered judgment sustaining the exception of no cause of action and granting the motion for partial summary judgment. The court later certified this as immediately appealable, under La. C. C. P. art. 1915 B.

Ms. Jackson has appealed, contesting only the grant of summary judgment as to her claim for lost wages and profits. She advances two assignments of error.

DISCUSSION

By her first assignment of error, Ms. Jackson urges her claim for lost wages and profits was protected under La. C. C. P. art. 1154 once the defendant acknowledged and received notice of the claim. Citing La. C. C. P. art. 966 B(2), she contends that she need produce only a genuine issue of material fact for trial, Monroe Surgical Hosp. LLC v. St. Francis Med. Ctr. , 49,600 (La. App. 2 Cir. 8/21/14), 147 So.3d 1234, writ denied , 2014-1991 (La. 11/21/14), 160 So.3d 975. She cites her deposition testimony that the renovations caused her to leave work and stay with relatives, or in hotels "outside the city," and her "tax returns" as sufficient proof of causation and damages to withstand the MPSJ. She does not mention that she omitted lost wages from her petition, but argues that once Lowe's filed the MPSJ as to that very issue, the pleadings were expanded under Art. 1154 to include it.

Lowe's responds that Art. 1154 does not apply, as Ms. Jackson never properly advised the district court that she had economic damage.

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. La. C. C. P. art. 1154. The law takes a liberal approach toward allowing amended pleadings in order to promote the interests of justice. Reeder v. North , 97-0239 (La. 10/21/97), 701 So.2d 1291. Amendment of pleadings should be liberally allowed, provided the mover is acting in good faith, the amendment is not sought as a delaying tactic, the opponent will not be unduly prejudiced, and trial of the issues will not be unduly delayed. Hibernia Nat'l Bank v. Antonini , 33,436 (La. App. 2 Cir. 8/23/00), 767 So.2d 143.

In Grant v. Boh Bros. Const. Co. , 2000-1227 (La. App. 4 Cir. 4/25/01), 785 So.2d 1041, the plaintiffs sued AIG Consultants, alleging breach of a contractual duty to provide safety inspections and a safe workplace for Boh Brothers' employees. AIG moved for summary judgment, urging that its contract did not provide for this, but also that it never assumed the duty to provide such services. The plaintiffs opposed, arguing that AIG did in fact assume the duty. The district court granted AIG's summary judgment, finding no contractual duty, but declined to consider the issue of assumption of duty. On appeal, the Fourth Circuit found that because both parties had raised the issue and offered summary judgment evidence for and against it, the pleading was expanded under Art. 1154. The Fourth Circuit considered the question of assumption of duty de novo (ultimately affirming the summary judgment).

The instant case is similar. Ms. Jackson's petition did not claim lost wages and profits as an element of damages. However, Lowe's moved for partial summary judgment specifically to "dismiss plaintiff's claims for lost wages." Ms. Jackson's opposition argued she was entitled "to all other losses related to the tortfeasor's negligence," and she attached her CPA's affidavit purporting to express a "professional opinion with respect to economic losses" suffered by the funeral home and the law practice. Both parties, therefore, raised the issue by MPSJ and argued it. As in Grant v. Boh Bros. , supra , the court erred in refusing to consider the pleadings expanded to encompass the issue. Ms. Jackson's first assignment of error has merit.

By her second assignment of error, Ms. Jackson urges that lost wages and profits are recoverable for breach of contract or for defective work. She cites La. C.C. arts. 1994 ("Obligor liable for failure to perform"), 1769 ("Contractor's liability for noncompliance with contract"), 2315 ("Liability for acts causing damage") and 2316 ("Negligence, imprudence or want of skill"), and argues that a breach of contract can indeed give rise to tort liability, as in Platt v. Interstate Dodge , 37,059 (La. App. 2 Cir. 4/9/03), 843 So. 2d 1178, and K&J Refrigeration v. Bowman , 41,098 (La. App. 2 Cir. 5/17/06), 930 So.2d 1141. She contends that Lowe's has never disputed that it negligently installed the refrigerators, or that it is liable for damage to her hardwood floors; by the same reasoning, she submits, Lowe's is also liable for her lost wages. She asks the court to reverse and remand.

Lowe's responds that the standard of proving lost wages is the but-for test enunciated in Boyette v. United Services Auto Ass'n , supra , and applied by this court in Whited v. Home Depot U.S.A. Inc. , 27,938 (La. App. 2 Cir. 8/3/96), 712 So.2d 97. It reiterates that the summary judgment evidence fails to show that the property damage prevented or precluded her from working; rather, it shows that she voluntarily vacationed, for reasons totally unrelated to the property damage. It also asserts that no case has ever extended the scope of negligent repairs to encompass lost wages, and requests affirmance.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Bank of New York Mellon v. Smith , 2015-0530 (La. 10/14/15), 180 So.3d 1238. Appellate review of summary judgments is de novo, with the appellate court using the same criteria that govern the district court's determination of whether summary judgment was appropriate, i.e. , whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. La. C. C. P. art. 966 A(3); Bank of New York Mellon v. Smith , supra , and citations therein.

To recover for actual wage loss, a plaintiff must prove that she would have been earning wages but for the accident in question. Boyette v. United Services Auto. Ass'n , supra ; Young v. Marsh , 49,496 (La. App. 2 Cir. 11/19/14), 153 So.3d 1245. In order to be awarded past wages, the plaintiff must prove positively that she would have been earning the wages but for the accident in question. Boyette v. United Services Auto. Ass'n , supra . The award can include only those wages lost because of the accident, not any lost for other, unrelated reasons, such as termination for sleeping on the job or for misconduct and theft. Lewis v. State Farm Ins. Co. , 41,527 (La. App. 2 Cir. 12/27/06), 946 So.2d 708 ; Corder v. Lively , 39,780 (La. App. 2 Cir. 6/29/05), 907 So.2d 824.

The summary judgment evidence, viewed de novo, does not establish, as a matter of law, that but for Lowe's negligence in installing the refrigerators Ms. Jackson would have been earning wages and profits. She stated in deposition that because of the repair work, she had to leave her house intermittently between June 2014 and April 2015. During these times she went to various out-of-town destinations, but she never said why she had to leave town and neglect her business interests. Her purported explanation was somewhat circular:

If you're not able to live in your home and you're traveling during the time period of people coming in to renovate the home, I'm not at work. I can't-I can't make money if I'm not at work, if I'm traveling.

In short, the summary judgment evidence does not establish the necessary causation between Lowe's conduct and Ms. Jackson's claimed loss of wages and profits; it shows that she elected to travel and take business losses. With this lack of evidence to create a genuine issue for trial, Lowe's is entitled to judgment as a matter of law.

CONCLUSION

For the reasons expressed, the partial summary judgment is affirmed. Ms. Jackson is to pay all costs.

AFFIRMED .

      In Ms. Jackson's deposition, taken in November 2015, she said it was actually her mother who was present when the delivery crew arrived, and allowed them to install the wrong-size refrigerator.

      She also attached Custard's estimate to repair and replace the floors, $18,417, and her own interior designer's estimate to redecorate the whole house, $58,614. In addition, she filed copies of receipts from her hotel stays, including charges such as a $518 "spa treatment" one day at Ritz-Carlton in Dallas, a $632 "massage" at Four Seasons in Chicago, and a $291 "pool bar" charge at Parrot City, Turks & Caicos.

      In light of this filing, it is somewhat disingenuous for Lowe's now to contend that the issue of lost wages was not placed before the court.

      Because of this disposition we decline to address Lowe's interesting argument that lost wages are not allowable for a breach of contract unaccompanied by physical injury. La. C.C. art. 1994 makes the obligor "liable for the damages caused by his failure to perform a conventional obligation," which could conceivably extend to some lost wages, but we are aware of no case that has ever awarded a homeowner lost wages for the negligent installation of a home appliance. Perhaps this is because the difficulty in meeting the but-for test of Boyette , supra , and perhaps because the bill of sale or installation agreement typically limits the company's liability to replacement cost, delivery fee and stipulated property damage.


author: WICKER, J.

text:
    NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-3 v. Triona M. POOLE, Walter Poole
    NO. 17-CA-473
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-3, Brian D. Roth, Metairie, Matthew M. McCluer
    COUNSEL FOR DEFENDANT/APPELLEE, WALTER POOLE, William G. Cherbonnier, Jr.
    Panel composed of Judges Fredericka Homberg Wicker, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore
   WICKER, J.

Plaintiff-appellant, the National Collegiate Student Loan Trust 2006-3 ("NCSLT"), seeks review of the trial court's judgment sustaining an exception of no right of action filed by defendant-appellee, Walter Poole, dismissing NCSLT's action against defendant with prejudice. Upon consideration of the parties' joint motion to dismiss the appeal, we hereby grant the parties' motion and dismiss the appeal.

On May 6, 2016, NCSLT filed suit against Triona and Walter Poole to collect on a student loan debt in the amount of $27,166.92. NCSLT filed into the record an "Affidavit and Verification of Account" executed by an employee of Transworld Systems, Inc., the designated custodian of records concerning the education loans at issue, attesting that National Collegiate Funding, LLC sold, assigned, and transferred defendants' student loans to plaintiff, NCSLT on September 28, 2006.

Poole subsequently filed an exception of no right of action, claiming that NCSLT lacked the procedural capacity to file suit and contended rather that the trustee for NCSLT must file suit on its behalf. Poole relied upon La. C.C.P. art. 699, which provides that, "the trustee of an express trust is the proper plaintiff to sue to enforce a right of the trust estate." Poole argued that NCSLT lacks the capacity to file suit in its own right and must, pursuant to La. C.C.P. art. 699, file suit through its trustee. On January 27, 2017, the trial court issued a judgment sustaining Poole's exception of no right of action but allowing NCSLT time to amend its petition to name the trustee as the plaintiff in accordance with La. C.C.P. art. 699 and La. R.S. 9:2222. After NCSLT failed to amend its petition within the time provided in the trial court judgment, Poole sought to have the suit dismissed. On March 8, 2017, the trial judge took judicial notice that more than 10 days had elapsed since the signing of the January 27, 2017 judgment, and dismissed NCSLT's petition against Poole with prejudice. This timely appeal followed.

On appeal, NCSLT contends that Delaware law should apply under the facts of this case and that, under Delaware law, NCLST is a business trust with the substantive and procedural capacity to file suit on its own behalf. NCSLT thus asserts that it is not subject to La. C.C.P. art. 699's requirement that an "express trust" file suit through its named trustee. Poole responds that Louisiana's Code of Civil Procedure sets forth the procedural means by which an entity may sue or be sued in Louisiana courts and that, under La. C.C.P. art. 699, the named trustee must file suit on NCSLT's behalf.

On the morning that this matter was docketed for oral argument, NCSLT forwarded correspondence to this Court, informing the Court that the parties had reached a compromise and would not be present for oral argument on that date. Subsequently, the parties filed a joint motion to dismiss the appeal. Upon consideration of the parties' joint motion, we hereby grant the parties' motion and dismiss this appeal.

APPEAL DISMISSED

      On November 30, 2016, the trial court issued a default judgment against Triona Poole in the total amount of $27,166.92, reserving all rights against Mr. Walter Poole, defendant herein. That judgment is not before this Court.

      La. C.C.P. art. 699 provides:
      Except as otherwise provided by law, the trustee of an express trust is the proper plaintiff to sue to enforce a right of the trust estate.


author: EDWARDS, JUDGE PRO TEMPORE, J.

text:
    STATE of Louisiana v. Jonathan M. LOPEZ
    NO. 17-KA-507
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA, Paul D. Connick, Jr., Metairie, Terry M. Boudreaux, Gretna, Darren A. Allemand
    COUNSEL FOR DEFENDANT/APPELLEE, JONATHAN M. LOPEZ, R. Steven Lemoine
    Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore
   EDWARDS, JUDGE PRO TEMPORE, J.

Appellant, the State of Louisiana, appeals a trial court's ruling that granted defendant's motion to quash the bill of information. For the reasons that follow, the State's appeal is dismissed, and we reserve the State's right to file an application for supervisory writs.

STATEMENT OF THE CASE

On March 27, 2017, the Jefferson Parish District Attorney's Office filed a bill of information charging defendant, Jonathan Lopez, with possession of marijuana, third offense, in violation of La. R.S. 40:966(C). Defendant pled not guilty at his arraignment on March 29, 2017. Thereafter, on May 12, 2017, defendant filed a motion to quash the bill of information, arguing that one of his prior convictions could not be used as a predicate conviction for enhancement purposes. The trial court granted defendant's motion following a hearing on May 30, 2017. The State timely sought the instant appeal.

ANALYSIS

Only a final judgment or ruling is appealable. La. C.Cr.P. art. 912(A). A final judgment is one which puts an end to the proceedings.

State v. Arceneaux , 13-953 (La. App. 5 Cir. 04/23/14), 140 So.3d 304, 306. A motion to quash an indictment or any count thereof may be appealed by the State. La. C.Cr.P. art. 912 (B)(1). When read and interpreted in reference to subsection A, a ruling on a motion to quash must be a final judgment that puts an end to the proceedings in order to be appealable. Arceneaux , 140 So.3d at 306. The quashing of a predicate offense does not put an end to the proceedings and, instead simply reduces the grade of the offense. State v. Millette , 14-76 (La. App. 5 Cir. 10/29/14), 164 So.3d 865.

In this case, the trial court's quashing of the 2009 predicate only reduced the grade of the offense from a possession of marijuana, third offense to a possession of marijuana, second offense. Therefore, it is not a final, appealable judgment. The State's proper avenue to seek review is by an application for a writ of review under our supervisory jurisdiction. Arceneaux, supra ; Millette, supra .

DECREE

Accordingly, we dismiss the present appeal. We reserve to the State the right to file a proper application for supervisory writs, in compliance with U.R.C.A. Rule 4-3, within fifteen days from the date of this decision. Further, we construe the motion for appeal as a notice of intent to seek a supervisory writ so the State is not required to file a notice of intent nor obtain an order setting a return date pursuant to U.R.C.A. Rule 4-3. State v. Donaldson , 13-703 (La. App. 5 Cir. 11/19/13), 130 So.3d 394.

APPEAL DISMISSED


author: JOHNSON, J.

text:
    Craig MOLLERE and Libby Mollere Englade v. Kevin P. MOLLERE, individually and his capacity as Executor of the Sucession of Earline Weber Mollere and as President and Sole Shareholder of Mollere Furniture and Appliances, Inc. and Mollere Furniture and Appliances, Inc.
    NO. 17-CA-494
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, CRAIG MOLLERE AND LIBBY MOLLERE ENGLADE, Robert R. Faucheux, Jr., Christophe L. Faucheux, LaPlace, Lindsay M. Faucheux
    COUNSEL FOR DEFENDANT/APPELLEE, KEVIN MOLLERE, William D. O'Regan, III
    Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson
   JOHNSON, J.

Plaintiffs/Appellants, Craig Mollere and Libby Mollere Englade, appeal the sustaining of an exception of no right of action that dismissed their action in favor of Defendant/Appellee, Keven P. Mollere, individually and in his capacity as executor of the Succession of Earline Weber Mollere and as president and sole shareholder of Mollere Furniture and Appliances, Inc., and Mollere Furniture and Appliances, Inc. (hereinafter referred to as "Mollere Furniture") from the 40th Judicial District Court, Division "C". For the following reasons, we overrule the exception of prescription raised by Keven in this appeal and affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

The facts pertinent to this appeal are as follows.

On November 6, 1980, Articles of Incorporation (hereinafter referred to as "the Articles") for Mollere Furniture were executed and adopted by Wilbert J. Mollere, Earline W. Mollere and Keven Mollere. Among the provisions set forth in the Articles was Article IX, which provided that in the event Wilbert predeceased Earline, Mollere Furniture would provide full maintenance, support and medical care for Earline until her death.

Wilbert died on April 27, 2003. Following Wilbert's death, Keven became the president of Mollere Furniture. In a judgment of possession rendered on September 25, 2003, Earline was awarded all of the community property that existed between her and Wilbert as the surviving spouse and the universal legatee of Wilbert. On October 21, 2015, Earline passed away. Keven was confirmed as the independent executor of Earline's succession on March 1, 2016.

On August 23, 2016, Plaintiffs filed a "Petition for Damages Caused by Breach of Fiduciary Duty and Breach of Contract" against Keven, individually and in his capacity as independent executor and as president and sole shareholder of Mollere Furniture. In their petition, Plaintiffs alleged Keven had been granted power of attorney by Earline to handle her affairs, and as power of attorney, Keven breached his fiduciary duty to Earline by failing to demand and seek enforcement of the maintenance and support provision of Article IX. Plaintiffs further alleged that Keven, as president and controlling officer in charge of the operations of Mollere Furniture, failed to take any steps to ensure that Mollere Furniture fulfilled its obligations to Earline under the maintenance and support provision of Mollere Furniture's Article of Incorporation. As a result of the breaches of fiduciary duties, Plaintiffs alleged that Keven's actions caused damage and diminution to the patrimony of Earline because she was forced to expend sums of her own money to provide for her own maintenance, support and medical care following the death of Wilbert.

After filing an Answer that denied the allegations of the petition, Keven filed "Peremptory Exceptions for No Cause of Action and No Right of Action" on December 8, 2016. In his exceptions, Keven asserted Plaintiffs had no cause of action because no power of attorney ever existed for Earline, and the succession of Earline had no legal basis for maintenance and support of Earline, since those obligations would not be required after Earline passed away. Keven further asserted Plaintiffs had no right of action because they had no right to challenge the legacy left to them in Earline's will, as Earline could have disposed of any and all of her personal property without the consent of any party.

A hearing on Keven's exceptions was held on February 9, 2017. During the hearing, the trial court overruled Keven's exception of no cause of action and took the no right of action under advisement. In a judgment rendered on February 16, 2017, the trial court sustained Keven's peremptory exception of no right of action and dismissed Plaintiffs' petition against Keven in each of his capacities with prejudice. In its reasons for judgment, the trial court found that the maintenance and care provision of Article IX of Mollere Furniture's Articles of Incorporation was a contract for the exclusive benefit of Earline, and the article was a strictly personal obligation between Mollere Furniture and Earline. "As legatees of Earline Weber Mollere," without mentioning their rights in other capacities, the trial court held that Plaintiffs lacked the right to pursue their causes of action. The instant appeal of that judgment followed.

PEREMPTORY EXCEPTION OF PRESCRIPTION

Keven Mollere has raised an exception of prescription in this appeal. He argues that Plaintiffs' breach of contract claim is prescribed, as any breach of the provisions in the Articles of Incorporation for Mollere Furniture would have began to run in April of 2003. Keven claims that a timely cause of action for the breach of contract claim would have had to be brought by Plaintiffs before April 27, 2013. Additionally, he argues that Plaintiffs' breach of fiduciary duty claim is also prescribed because it is a personal action with a ten-year prescriptive period, which also began in April of 2003. As a result, Keven contends the instant appeal should be dismissed with prejudice by sustaining the exception of prescription.

"Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years." La. C.C. art. 3499.

In this matter, the obligation to Earline arises from Mollere Furniture's Articles of Incorporation, Article IX, which stated that Mollere Furniture would provide for Earline's full maintenance, support and medical care until her death, in the event Wilber predeceased her. Although Wilbert Mollere's death in 2003 commenced the start of Mollere's Furniture's obligation to Mrs. Mollere, the ongoing obligation did not cease until Earline's death, which means that it could have been enforced from any point after Wilbert's death until Earline's death on October 21, 2015. Thus, the prescriptive periods for the breach of fiduciary duty and breach of contract actions, if heritable, would lapse ten years from the October 21, 2015 date of Earline's death.

Because the breach of fiduciary duty and breach of contract actions are not prescribed on the face of the petition, we overrule Keven's exception of prescription.

ASSIGNMENT OF ERROR

On appeal, Plaintiffs' sole assignment of error alleges the trial court erred in determining they do not fall within the class of persons to whom the law provides a remedy for their causes of action, sustaining Keven Mollere's peremptory exception of no right of action, and dismissing their actions against Keven with prejudice.

LAW AND ANALYSIS

Plaintiffs allege the trial court erred in finding they do not belong to the class of persons afforded a remedy for their breach of fiduciary duty and breach of contract causes of action against Keven Mollere. Plaintiffs argue the trial court only addressed whether they, as the heirs of Earline Weber Mollere, could bring a breach of contract claim and failed to determine whether they could bring the breach of fiduciary duty claim against Keven. Plaintiffs contend Keven's duties as the power of attorney for Earline and the independent executor for the succession conflicted with his positions as the president and sole shareholder of Mollere Furniture, and the conflicts, breaches of his fiduciary duties and inaction caused diminution and damage to the patrimony of Earline. They specifically contend that Earline's support, maintenance and medical care came out of her own personal funds, instead of the funds allocated to her through the Articles of Incorporation for Mollere Furniture, and Keven owed a duty to ensure that the provision of the contract was enforced against Mollere Furniture. Plaintiffs further argue that, as heirs of a succession who had their interests diminished due to an executor failing to pursue claims on behalf of Earline, they completely fall within the class of persons to whom the law provides a remedy for their causes of action.

Keven maintains the trial court did not err in sustaining his exception of no right of action because Plaintiffs have no direct interest in the diminution of the patrimony prior to the death of Earline, as Earline was entitled to use the entirety of her funds prior to her death without any restrictions. Furthermore, Keven asserts that there was no agency between himself and Earline because he did not have a power of attorney for Earline, and his ability to draft or sign checks on a joint account with Earline and Libby did not require a power of attorney.

An action can only be brought by a person having a real and actual interest which he asserts. Show-Me Constr., LLC v. Wellington Specialty Ins. Co. , 11-528 (La. App. 5 Cir. 12/29/11), 83 So.3d 1156, 1158, citing La. C.C.P. art. 681. The peremptory exception of no right of action tests whether the individual bringing an action has the capacity or legal interest in judicially enforcing the right asserted. Id. , citing La. C.C.P. art. 927A(5). A party has an actionable right, and consequently standing, if it can be said that the party has a legally protectable and tangible stake in the litigation. Id. , citing First Bank and Trust v. Duwell , 10-481 (La. App. 5 Cir. 12/14/10), 57 So.3d 1076, 1078. An appellate court reviews an exception of no right of action de novo . Id. An appellate court review of an exception of no right of action should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a valid cause of action for some person. Eagle Pipe & Supply, Inc. v. Amerada Hess Corp. , 10-2267 (La. 10/25/11), 79 So.3d 246, 256, rehearing denied , (La. 1/13/12).

Breach of contract claims are personal actions. Hotard's Plumbing, Elec., Heating & Air, Inc. v. Monarch Homes, LLC , 15-180 (La. App. 5 Cir. 3/16/16), 188 So.3d 391, 394. Actions based on breaches of fiduciary duties constitute personal actions. Spruiell v. Ludwig , 568 So.2d 133, 138 (La. App. 5th Cir. 1990).

An action does not abate on the death of a party, except for an action to enforce a right or obligation which is strictly personal. La. C.C.P. art. 428. An obligation is strictly personal when its performance can be enforced only by the obligee, or only against the obligor. La. C.C. art. 1766. When the performance is intended for the benefit of the obligee exclusively, the obligation is strictly personal on the part of that obligee. Id. The legal right that a person has against another person to demand the performance of an obligation is called a personal right.

Eagle Pipe & Supply, Inc. , 79 So.3d at 261. A personal right is effective only between the parties, as contrasted with a real right, which can be asserted against the world. Lomark v. LavigneBaker Petroleum, LLC , 12-389 (La. App. 5 Cir. 2/21/13), 110 So.3d 1107, 1111, writ denied , 13-654 (La. 4/26/13), 112 So.3d 848.

Here, Plaintiffs' breach of fiduciary duty and breach of contract claims arise from Mollere Furniture's Articles of Incorporation, Article IX, which provided, "In the event that Wilbert J. Mollere would predecease Earline W. Mollere, the corporation shall provide for Earline W. Mollere, full maintenance, support and medical care until her death." A plain reading of that language clearly provides that Mollere Furniture owed an obligation intended only for Earline while she was alive; thus, without being declared incapacitated, Earline was the only person who could enforce the obligation and demand its performance. The language of the provision created a strictly personal obligation from Mollere Furniture to Earline, and the obligation to provide full maintenance, support and medical care to Earline until her death was not heritable by Plaintiffs through the succession.

Therefore, upon de novo review, we conclude that Plaintiffs, in their capacities as legatees, are not included as members of the class of persons that have a legal interest in the breach of contract or breach of fiduciary duty actions, as both actions were strictly personal actions belonging to Earline against Mollere Furniture. Accordingly, we find the trial court properly sustained Keven's exception of no right of action.

DECREE

For the foregoing reasons, we overrule Keven Mollere's exception of prescription. Additionally, we affirm the trial court's judgment that sustained Keven Mollere's peremptory exception of no right of action and dismissed Plaintiffs' actions for breach of fiduciary duty and breach of contract with prejudice. Plaintiffs are assessed the costs of this appeal.

EXCEPTION OF PRESCRIPTION OVERRULED; AFFIRMED

      Although the caption of this case lists "Kevin P. Mollere," the correct spelling is "Keven P. Mollere."

      Wilbert was the president of Mollere Furniture, while Keven was the vice president and Earline was secretary and treasurer.

      Wilbert and Earline were husband and wife. The parties to this matter, Keven, Craig and Libby, are the children of Wilbert and Earline.

      We note that Plaintiffs did not allege that Earline was incapacitated or otherwise unable to file an action on her own behalf while she was living.


author: GRAVOIS, J.

text:
    BAYOU ORTHOTIC AND PROSTHETICS CENTER, L.L.C. v. MORRIS BART, L.L.C.
    NO. 17-CA-557
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, BAYOU ORTHOTIC AND PROSTHETICS CENTER, L.L.C., Joseph F. Lahatte, III
    COUNSEL FOR DEFENDANT/APPELLEE, MORRIS BART, L.L.C., Andrew A. Braun, Victoria E. Emmerling, New Orleans
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Marion F. Edwards, Judge Pro Tempore
   GRAVOIS, J.

Plaintiff/appellant, Bayou Orthotic and Prosthetics Center, L.L.C. ("Bayou"), appeals a trial court judgment which granted an exception of prematurity filed by defendant/appellee, Morris Bart, L.L.C. ("Bart"), and dismissed the case. For the reasons that follow, we affirm the trial court's judgment.

FACTS AND PROCEDURAL HISTORY

Bayou owns and operates a medical specialty business that provides medical prosthetics and related services and equipment. In 2006, Bayou provided Leroy Davis with an above-the-knee prosthesis after he had been injured in an accident in Orleans Parish on February 5, 2006. On September 19, 2006, Bart sent a letter to Bayou stating that it was representing Mr. Davis for injuries he sustained in said accident and it was requesting a copy of Mr. Davis's medical records. On January 4, 2007, Bart sent another letter to Bayou stating that it would protect Bayou's medical charges in the amount of $29,124.76 for the fitting of Mr. Davis's prosthesis, as outlined in an October 20, 2006 invoice, "out of any net settlement or proceeds obtained during this firm's representation in this matter as a result of any claims for damages" arising out of Mr. Davis's February 5, 2006 accident. On January 11, 2007, Bart sent a similar letter to Bayou, again assuring Bayou that it would protect the $29,124.76 "out of any net settlement or proceeds obtained during this firm's representation in this matter as a result of any claims for damages" arising out of Mr. Davis's accident. Bayou continued to treat Mr. Davis for almost ten years thereafter for a number of services valued by Bayou at $125,923.40.

On January 4, 2017, Bayou filed a Petition for Damages against Bart, claiming that it had not been paid any amount from Bart on Mr. Davis's outstanding balance for services rendered, despite assurances of payment having been made by Bart, both by letters and orally. In its petition, Bayou alleged that it had never agreed to an arrangement with Bart to operate on a "lien basis," nor to only be paid out of a settlement. Bayou argued that it was a specialty provider that did not operate in that manner. The petition made several claims against Bart, including detrimental reliance, breach of contract, negligence, and "promissory and equitable estoppel." Bayou prayed that it be compensated for the full value of all medical services it provided to Mr. Davis, "allowable" interest on the balance of Mr. Davis's account, and reasonable attorney's fees and costs.

In response to the petition, Bart filed various exceptions, including an exception of prematurity in which Bart argued that Bayou's claims were premature since its obligation to make payment to Bayou was dependent upon the occurrence of a suspensive condition-the payment to Bart of settlement proceeds-which had not yet occurred. In its memorandum in support of its exceptions, Bart acknowledged that through its January 4, 2007 and January 11, 2007 letters, it guaranteed payment to Bayou of $29,124.76 out of any net settlement or proceeds obtained during its representation of Mr. Davis. Bart further provided that on December 7, 2009, a settlement in the amount of $1,890,872.00 had been reached in Mr. Davis's personal injury case, and a stipulated judgment in the settlement amount had been rendered against the City of New Orleans on that date; however, to date, the City had not appropriated the funds to pay the judgment, and thus, no settlement proceeds had been obtained. Bart argued that since the obligation to pay the medical expenses was predicated upon the receipt of proceeds through settlement or judgment, which had not yet occurred, Bayou's suit was premature.

In opposition to the exception, Bayou argued that the agreement between the parties was based on a term, not on a suspensive condition, and accordingly, payment had to be made within a reasonable time. Bayou argued that Bart did not perform as agreed to at the time of the settlement, nor did it perform within a reasonable time after the settlement. Alternatively, Bayou argued that the term and/or condition is not based upon when Bart received the settlement or proceeds, but rather when Bart obtained a settlement or proceeds. Since Bart obtained the settlement on December 7, 2009, Bayou argued that the term had expired and/or the condition had occurred and was therefore enforceable.

The trial court conducted a hearing on the exceptions on May 24, 2017. At the end of the hearing, the trial judge orally sustained the exception of prematurity and dismissed the case. A written judgment to this effect was signed on May 31, 2017.

On appeal, Bayou assigns the following errors, to-wit:

1. The claims brought against Bart are not premature; the case needs a full trial based on the positions of both parties regarding the responsibility of payment.
2. The existence of a mandate would not preclude Bart from being bound to perform.
3. Bart is personally responsible by writing an expressed promise to pay.

ASSIGNMENT OF ERROR NUMBER ONE

The dilatory exception of prematurity questions whether the cause of action has matured to the point where it is ripe for judicial determination. La. C.C.P. art. 926 ; Buford v. Williams , 11-568 (La. App. 5 Cir. 2/14/12), 88 So.3d 540, 543, writ denied , 12-0624 (La. 4/27/12), 86 So.3d 630. "The functions of the dilatory exception, such as prematurity, permit raising the issue that a judicial cause of action has not come into existence because some prerequisite condition has not been fulfilled." Floyd v. East Bank Consol. Fire Prot. Dist. for the Parish of Jefferson , 09-780 (La. App. 5 Cir. 4/13/10), 40 So.3d 160, 163, writ denied , 10-1094 (La. 9/3/10), 44 So.3d 689 (citing La. C.C.P. art. 926(A)(1) and Steeg v. Lawyers Title Ins. Corp. , 329 So.2d 719, 720 (La. 1976) ). "A suit is premature if it is brought before the right to enforce the claim sued upon has accrued." Id. (citing La. C.C.P. art. 423 ). "Prematurity is determined by the facts existing at the time a suit is filed." Id. (Citations omitted.) The burden of proving prematurity is on the mover. Matherne v. Jefferson Parish Hospital Dist. No. 1 , 11-1147 (La. App. 5 Cir. 5/8/12), 90 So.3d 534, 536, writ denied , 12-1545 (La. 10/12/12), 98 So.3d 873. Appellate review of a judgment sustaining an exception of prematurity is usually manifest error. However, when resolution of an exception of prematurity involves a question of law, the appellate court undertakes a de novo review. Landis Constr. Co., LLC v. Reg'l Transit Auth. , 15-0854 (La. App. 4 Cir. 5/25/16), 195 So.3d 598, 602.

On appeal, Bayou relies on Tymeless Flooring, Inc. v. Rotolo Consultants , Inc. , 14-1392 (La. App. 4 Cir. 5/20/15), 172 So.3d 145, to argue that the alleged agreement is based on a "pay-when-paid" payment clause, which is a term of payment, and not a "pay-if-paid" payment clause, which is a suspensive condition. Bayou asserts that Tymeless provides that a "pay-when-paid" clause governs timing and requires that, though there may be a delay in the execution, payment must be made within a reasonable time. Id. at 150. Bayou argues that Bart did not perform as promised at the time of the settlement and judgment, nor did it perform within a reasonable time thereafter, since nearly ten years had passed since Bayou first treated Mr. Davis. Bayou further argues that although there was no formal agreement between the parties, only promises to protect one bill, Bart made oral assurances to Bayou that Bayou would be paid in full. Bayou also argues that it put Bart in default within a reasonable time.

Upon review, we find that the trial court did not commit manifest error in its granting of the exception of prematurity. The trial court was presented with Bart's letters that clearly state that Bart would only protect Bayou's charges "out of any net settlement or proceeds obtained" as a result of any claims for damages arising out of Mr. Davis's February 5, 2006 accident. Although Bayou argues that it never agreed to be paid on a lien basis and oral assurances from Bart led it to continue treating Mr. Davis, based on the evidence and arguments presented at the hearing on the exceptions, the trial court apparently did not credit Bayou's assertions of oral agreements between the parties, and for purposes of the exception, chose to believe that Bart's letters were the extent of the agreement reached by the parties. Upon review of the entirety of the record, we cannot say that the trial court was manifestly erroneous in its assessment of the evidence and arguments presented to it at the hearing on the exception of prematurity.

In brief, Bayou cites this Court to Tymeless , supra , in support of its argument that the contract in question contained a "pay-when-paid" clause, rather than a "pay-if-paid" clause. In Tymeless , the court focused on the language in the construction contract at issue to determine if the payment provision would qualify as a "pay-when-paid" clause or a "pay-if-paid" clause, and looked for definitive terms such as "unless and until" or even "if" when making its determination.

Upon review, we find that Tymeless is distinguishable from the present case. First, Tymeless deals with payment provisions of a construction contract, specifically the process of payment by contractors to subcontractors under a construction contract. Tymeless , 172 So.3d at 146. In contrast, the present case deals with an entirely different type of contract: an agreement between an attorney and a medical treatment provider in relation to a personal injury claim.

Second, in contrast to the language contained in the construction contract under review in Tymeless , Bart's letters to Bayou in the present case expressly include the "condition precedent" that payment would be made by Bart to Bayou out of any net settlement or proceeds "obtained" by Bart, an uncertain event which has not yet occurred, thus qualifying the language contained in Bart's letters to Bayou as a "pay-if-paid" clause, rather than a "pay-when-paid" clause.

Third, the court in Tymeless found that "pay-if-paid" language in the context of a construction contract resulted in the "harsh" consequence of shifting the risk of the owner's lack of payment from the contractor to the subcontractor. Id. at 152. In the present case, Bayou obviously appreciated and accepted the risk of nonpayment by its continued treatment of Mr. Davis after receipt of Bart's letters, as Bart's letters to Bayou provide that payment to Bayou was conditioned upon Bart's obtaining proceeds from a judgment or settlement in Mr. Davis's personal injury lawsuit, an uncertain event then and now.

Thus, based on the evidence presented for purposes of the exception, we find that the trial court did not err in granting the exception of prematurity. The "prerequisite condition" that Bart would pay "out of any net settlement or proceeds obtained," established in Bart's letters to Bayou, has not yet occurred, and therefore, Bayou's claim is premature: it was brought "before the right to enforce the claim sued upon has accrued." Floyd , supra .

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NUMBERS TWO AND THREE

Considering our finding that the trial court properly granted Bart's exception of prematurity, we pretermit any review or discussion of Bayou's remaining alternative assignments of error.

CONCLUSION

For the foregoing reasons, the trial court's judgment that granted Bart's exception of prematurity is affirmed.

AFFIRMED

      Bart had previously entered into a contingency fee contract with Mr. Davis to represent him in connection with his accident. In the contract, Mr. Davis granted Bart the authority to "guarantee payment of [his] outstanding medical bills and other expenses out of the net proceeds of any settlement or judgment." The contract further provided that the remaining bills not paid out of the settlement or judgment would remain Mr. Davis's responsibility.

      Mr. Davis was not named as a party-defendant in Bayou's suit.

      Bart also filed exceptions of no cause of action pursuant to the rules of mandate; no cause of action to any amount in excess of $29,124.76; vagueness and ambiguity of the petition; and failure to join a necessary and/or indispensable party, Mr. Davis.

      In its judgment, the trial court additionally denied the exception of no cause of action pursuant to the rules of mandate and denied the other exceptions as moot in consideration of the grant of the exception of prematurity.

      La. C.C.P. art. 926(A)(1) provides:
      A. The objections which may be raised through the dilatory exception include but are not limited to the following:
      (1) Prematurity.

      La. C.C.P. art. 423 provides:
      An obligation implies a right to enforce it which may or may not accrue immediately upon the creation of the obligation. When the obligation allows a term for its performance, the right to enforce it does not accrue until the term has elapsed. If the obligation depends upon a suspensive condition, the right to enforce it does not accrue until the occurrence or performance of the condition.
      When an action is brought on an obligation before the right to enforce it has accrued, the action shall be dismissed as premature, but it may be brought again after this right has accrued.

      La. C.C. art. 1767 defines a suspensive condition, providing in pertinent part:
      A conditional obligation is one dependent on an uncertain event.
      If the obligation may not be enforced until the uncertain event occurs, the condition is suspensive.

      The only evidence Bayou submitted at the hearing on the exceptions was an affidavit of Kenneth Bordelon, an owner of Bayou. The record reflects that the affidavit was admitted into evidence at the hearing, but was not filed into the record of the proceeding until nearly a month after the trial court had already ruled on the exceptions. In any event, in his affidavit, Mr. Bordelon asserted that upon receipt of the January 4, 2007 letter from Bart, he "discussed this letter with a lawyer from [Bart] who stated that [Bayou] would be paid by [Bart] for the medical services it provides to [Mr. Davis]." The affidavit further asserted that pursuant to Mr. Bordelon's "understanding" in conversations with Bart, Bayou would be paid for the services being provided to Mr. Davis by the Bart law firm, and that based on "statements" made by Bart, Bayou continued treating Mr. Davis for the past ten years.

      In Tymeless , 172 So.3d at 152, the court stated:
      The determinative factor in interpreting whether a payment provision is a "paid-when-paid" clause-a term of payment-or a "pay-if-paid" clause-a suspensive condition-is the language in the contract. Because of the harsh consequences of enforcing "pay-if-paid" clauses, the jurisprudence has imposed a requirement that to be enforceable, such clauses must contain " 'clear and unequivocal language set forth unambiguously on the face of the contract.' " Although no particular language is necessary, the jurisprudence has enforced "pay-if-paid" clauses that expressly include the following language: (1) payment to the contractor is a condition precedent to payment to the subcontractor; (2) the subcontractor is to bear the risk of the owner's nonpayment; or (3) the subcontractor is to be paid exclusively out of a fund the sole source of which is the owner's payment to the subcontractor.
      (Citations omitted.)

      It is undisputed that although Bart reached a settlement with the City of New Orleans, no settlement proceeds have been obtained.


text:
    IN RE: MEDICAL REVIEW PANEL PROCEEDINGS OF Rita FOSTER (D)
    NO. 17-CA-653
    Court of Appeal of Louisiana, Fifth Circuit.
    March 28, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, JODY M. TAYLOR, GWENDOLYN F. BOURGEOIS AND DONALD L. FOSTER, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF RITA FOSTER, Bobby R. Lormand, Jr., Baton Rouge
    COUNSEL FOR DEFENDANT/APPELLEE, CHARLES O. OLISA, M.D. AND SMITA S. PECHITTY, M.D., C. William Bradley, Jr., Benjamin J. Biller, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, SMITA PECHITTY, M.D., Thomas C. Cowan, Philip E. Reso, New Orleans
    Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
   WICKER, J.

In this medical malpractice action, plaintiffs, Jody Taylor, Gwendolyn Bourgeois, and Donald Foster, individually, and on behalf of their deceased mother, Rita Foster, appeal the trial court's August 15, 2017 judgment sustaining an exception of prescription in favor of defendants, Charles O. Olisa, M.D. and Smita S. Pechitty, M.D., and dismissing, with prejudice, only those claims plaintiffs made against them for survival damages. Because we find the judgment at issue is not a final, appealable judgment, we dismiss the appeal for lack of jurisdiction.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Rita Foster was hospitalized at Ochsner Medical Center Baton Rouge in August 2012, during which time defendant, Dr. Olisa, ordered a CT scan of her chest. The radiologist's report for the CT scan identified a "2 cm, irregular spiculated appearing opacity in the right apex" of the lung, and recommended that Ms. Foster undergo a follow-up CT scan in three to six months. According to plaintiffs, Dr. Olisa failed to report the radiologist's findings in any of his daily progress notes and failed to document the radiologist's recommendation of a follow-up chest CT scan anywhere in Ms. Foster's medical records. Plaintiffs aver that Dr. Olisa's omission contributed to the failure of subsequent health care providers within the Ochsner Health System to obtain the recommended follow-up CT scan of Ms. Foster's chest. The record reflects that Dr. Olisa did not provide any further treatment to Ms. Foster after August 10, 2012.

When Ms. Foster was discharged from Ochsner Medical Center Baton Rouge in September 2012, defendant, Dr. Pechitty, prepared her discharge summary, which was silent with regard to the CT scan of Ms. Foster's chest and the radiologist's findings. Plaintiffs aver that Dr. Pechitty's failure to document the radiologist's findings or recommendations in his discharge summary and/or instructions contributed to the failure of subsequent health care providers within the Ochsner Health System to obtain the recommended follow-up CT scan of Ms. Foster's chest. The record indicates that Dr. Pechitty's last treatment or evaluation of Ms. Foster occurred on September 5, 2012.

In the ensuing days and years following her discharge from Ochsner Medical Center Baton Rouge through the date of her death on May 30, 2016, Ms. Foster was treated for various conditions by other physicians and health care providers within (and without) the Ochsner Health System. Plaintiffs aver that the breakdown in communication among and between the Ochsner Health System's employee-physicians, due to either the lack of implementing policies and/or procedures by the Ochsner Health System or its employee-physicians' refusal to comply with them, resulted in their collective failure to order the recommended follow-up CT scan of Ms. Foster's chest during 2013, 2014, or 2015, and in their failure to inform Ms. Foster or her family of the need for a repeat CT scan.

In February 2016, due to progressing respiratory symptoms, Ms. Foster was evaluated by a pulmonologist and underwent a CT scan of her chest, which revealed a mass in her right lung and several nodules in the lobes of both lungs. Thereafter, Ms. Foster was treated by an oncologist, who explained to her and her daughter that, in his opinion, the CT scan indicated that Ms. Foster had metastatic lung cancer with lymph node involvement and a lesion in the T-9 thoracic vertebra. According to plaintiffs, this was the first time that Ms. Foster and/or her family had been advised of the "2 cm spiculated opacity" that was identified on Ms. Foster's initial August 2012 CT scan, which the oncologist purportedly opined represented "the primary source of the lung cancer that was found in the 2016 CT scan." Ms. Foster died approximately three months later on May 30, 2016. Plaintiffs aver that had Ms. Foster undergone the repeat CT scan of her chest between November 2012 and February 2013 as recommended by the radiologist in August 2012, she would have been diagnosed with cancer sooner and possibly would have had the opportunity for a more favorable outcome.

On February 1, 2017, plaintiffs filed a complaint with the Commissioner of the Louisiana Division of Administration to convene a medical review panel to investigate whether "Ochsner Clinic Foundation, the Ochsner Health System, including its corporate components, Ochsner Health System, Inc., the Ochsner Clinic, LLC, and the East Baton Rouge Medical Center, LLC d/b/a Ochsner Medical Center Baton Rouge, and its employees and members of its Ochsner physician network," including Drs. Olisa and Pechitty, "breached the standard of care when providing patient care services to Ms. Foster between August 10, 2012 and her death on May 30, 2016."

On May 25, 2017, Drs. Olisa and Pechitty alone filed a petition to institute discovery. On that same day, in response to plaintiffs' request to convene a panel, Drs. Olisa and Pechitty filed a limited exception of prescription alleging that, as to them, the survival action had prescribed under the three-year limitation period set forth in La. R.S. 9:5628. Drs. Olisa and Pechitty only sought dismissal of those claims brought against them on behalf of Ms. Foster for the survival damages she allegedly suffered during her lifetime as a result of their alleged malpractice. Of significance is the fact that Drs. Olisa and Pechitty did not move for a dismissal of any claims plaintiffs may have against them for the wrongful death of their mother and any damages they personally suffered as a result of Ms. Foster's death. No other defendant filed a petition to institute discovery or an exception of prescription.

The exception of Drs. Olisa and Pechitty came for hearing on August 15, 2017, with evidence being introduced by both plaintiffs and defendants. At the close of the hearing, the trial judge orally sustained defendants' exception of prescription dismissing plaintiffs' claims for survival damages against Drs. Olisa and Pechitty, with prejudice. Plaintiffs' claims against Drs. Olisa and Pechitty arising out of wrongful death remain intact; Drs. Olisa and Pechitty were not dismissed as parties from the action. The trial judge issued a written judgment that same day, but did not designate the judgment as final and immediately appealable.

Subsequently, on August 23, 2017, plaintiffs filed a notice of intent to apply for supervisory writs of the court's August 15, 2017 judgment, and obtained a signed order to fix the time for filing their application. Instead of filing an application for supervisory writs, however, plaintiffs filed a motion and order for devolutive appeal on September 22, 2017.

LAW AND ANALYSIS

Appellate courts have the duty to examine subject matter jurisdiction sua sponte , even when the parties do not raise the issue. Lynch-Ballard v. Lammico Ins. Agency, Inc. , 13-475, p. 4 (La. App. 5 Cir. 11/19/13), 131 So.3d 908, 910. This Court cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. Powell v. Gramercy Ins. Co. , 12-564, pp. 4-5 (La. App. 5 Cir. 3/13/13), 113 So.3d 343, 345 ; La. C.C.P. art. 2083.

Article 1915(B) of the Louisiana Code of Civil Procedure provides, in pertinent part, that when a judgment sustains an exception as to less than all claims between the parties, that judgment is not appealable unless the trial judge designates it as such. In the present case, it is manifest that there are remaining claims between the parties. Specifically, defendants concede that plaintiffs' alleged claims against Drs. Olisa and Pechitty for wrongful death damages arising out of any injuries they may have personally sustained as a result of the death of their mother still exist. It is evident, therefore, that the judgment on the exception of prescription in favor of Drs. Olisa and Pechitty deals with less than all of the issues and/or claims between the parties. Consequently, it is a partial judgment that is not appealable unless designated as such by the trial judge. Because there is no such designation in the record, we have no jurisdiction to consider this matter and the appeal must be dismissed. See Massi v. Rome , 08-1281, pp. 4-7 (La. App. 5 Cir. 6/23/09), 19 So.3d 485, 486-487 ; Pottinger v. New Orleans Heating & Cooling Specialists, Inc. , 06-701, pp. 2-4 (La. App. 5 Cir. 1/30/07), 951 So.2d 1224, 1225-26 ; Raspanti v. Raspanti , 05-738, 05-931, pp. 3-5 (La. App. 5 Cir. 3/3/06), 925 So.2d 676, 678.

Review of this judgment is properly taken under this Court's supervisory jurisdiction. However, this Court does not convert appeals into writ applications. See Meany v. Meany , 96-585 (La. App. 5 Cir. 11/26/96), 685 So.2d 356. Parties have thirty days from the date of the trial court's ruling to file a writ application.

Uniform Rules-Courts of Appeal, Rule 4-3. This Court, in the interest of justice, permits parties-who use the improper procedural vehicle of appeal instead of supervisory writ-to file a writ application when a motion for appeal is within thirty days of the trial court's ruling. In doing so, we construe the motion for appeal as a notice of intent to seek a supervisory writ.

Here, although plaintiffs' motion for appeal was not filed within thirty days of the trial court's judgment granting the exception, plaintiffs did timely file a notice of intent to apply for a supervisory writ; plaintiffs improperly pursued the appeal instead of going forward with the writ application. Plaintiffs, having timely filed a notice of intent, are hereby given thirty days from the date of this action within which to perfect a proper writ application that fully complies with Rule 4, Uniform Rules-Courts of Appeal. A copy of this opinion must be included in the writ application for compliance with Rule 4-3, Uniform Rules-Courts of Appeal.

Accordingly, we dismiss this appeal, without prejudice, for lack of appellate jurisdiction. Plaintiffs are permitted to file an application for supervisory writs within thirty days from the date of this decision.

APPEAL DISMISSED WITHOUT PREJUDICE; PLAINTIFFS ARE PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS FROM THE DATE OF THIS DECISION

      A notice of signing of judgment was issued by the trial court on August 17, 2017.

      La. C.C.P. art. 1915(B) provides, in pertinent part:
      (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
      (2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal ....


author: Judge Roland L. Belsome

text:
    Dwayne LEVINE v. ALLSTATE INSURANCE COMPANY, Kristyn Harris, Mark Harris, and Progressive Paloverde Insurance Company
    NO. 2017-CA-0896
    Court of Appeal of Louisiana, Fourth Circuit.
    April 18, 2018
    David D. Benoit, Justin R. Cantu, P.O. Box 877, Breaux Bridge, LA 70517, COUNSEL FOR PLAINTIFF/APPELLEE
    James L. Donovan, Jr., Paul M. Donovan, DONOVAN & LAWLER, APLC, 4640 Rye Street, Metairie, LA 70006, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Roland L. Belsome

This is a tort case arising out of a motor vehicle accident. The trial court found the Defendant driver, Kristyn Harris, liable for the accident and awarded the Plaintiff, Dwayne Levine, $87,652.20 in damages. The Plaintiff and Defendant, Allstate Insurance Company, appealed the trial court's judgment. For the following reasons, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The facts surrounding the accident are undisputed. Preceding this accident, the Plaintiff was under an orthopedist's care for a pre-existing ankle injury, which required two surgeries. Subsequent to this accident, the Plaintiff underwent a third surgery to his right ankle, wound debridement and a skin graft.

The Plaintiff later filed a Petition for Damages. After a bench trial and the submission of post-trial briefs, the trial court issued a judgment in favor of the Plaintiff. In awarding damages, the trial court attributed fifty percent of the need for the third surgery to the subject accident; however, it did not award damages for the skin graft. In total, the Plaintiff was awarded $87,652.20: $37,652.20 in medical special damages and $50,000.00 in general damages. The Plaintiff and the Defendant filed cross-appeals on causation and the resulting damages. The Defendant does not challenge liability on appeal.

LAW AND ANALYSIS

The sole issue before this Court in the cross-appeals involves the amount of damages awarded. In particular, the Defendant argues that the Plaintiff's damages award should be substantially reduced because he did not establish a causal link between the third surgery and the instant accident; while the Plaintiff argues that the award should be increased because he established a causal link for fifty percent of the third surgery and the skin graft.

"Causation is a factual issue." D'Angelo v. Guarino , 10-1555, p. 6 (La. App. 4 Cir. 3/9/12), 88 So.3d 683, 688. "Although the Louisiana Constitution extends appellate jurisdiction in civil cases to both law and facts, the exercise of this power is limited by the jurisprudential rule that factual determinations of the trier of fact will not be set aside by a reviewing court unless they are manifestly erroneous or clearly wrong." Brewer v. J.B. Hunt Transp., Inc. , 09-1408, p. 9 (La. 3/16/10), 35 So.3d 230, 237. "To reverse a factfinder's determination ... an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong." Brewer , 09-1408, p. 12, 35 So.3d at 239.

" 'The test for determining the causal relationship between an accident and a subsequent injury is whether the plaintiff proved through medical and lay testimony that it is more probable than not that the subsequent injuries were caused by the accident.' " D'Angelo , 10-1555, p. 6, 88 So.3d at 687 (citation omitted). "It is well settled in Louisiana that the trial court is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence." Lanasa v. Harrison , 02-0026, p. 4 (La. App. 4 Cir. 8/7/02), 828 So.2d 602, 605. "A trial court may accept or reject in whole or in part the opinion expressed by an expert." Id. And "[t]he effect and weight to be given to expert testimony is within the broad discretion of the trial judge." Id.

A review of the trial record reveals that the Plaintiff was involved in a previous accident in 2012 that required two surgeries to his right ankle: one for stabilization and one fusion. The triple arthrodesis (three bone fusion) took place in August of 2012. After the fusion, he was under the supervision of Dr. Ramon Rodriguez, his orthopedist, and was healing. In February of 2013, he saw Dr. Rodriguez and was doing well, reporting decreased pain. As a result, he was set for a follow-up visit in six months. The Plaintiff testified that during this time, his ankle was progressing "beautifully," in terms of healing; though he still had pain. He had recently started walking using a cane and was in the process of transitioning from a cam boot to a shoe.

On July 26, 2013, just before his six month check-up in August, the subject accident occurred. The Plaintiff explained that he re-injured his right foot in the subject accident when he slammed on the break in an effort to avoid the collision. Later in the evening, he began experiencing pain and went to the emergency room. He received a splint and pain medication until he could attend his August follow-up appointment with Dr. Rodriguez. At his follow-up visit with Dr. Rodriguez, he was given more pain medicine and physical therapy. A few weeks later, he saw Dr. Rodriguez again because he was "still in excruciating pain," and the pain was getting worse. The doctor's notation from this visit reflects that the Plaintiff had a contusion and complained of foot pain following the accident. A CT scan revealed that the sub-talar joint had not fused. As a result, Dr. Rodriguez performed a revision surgery in October of 2013 to fuse the joint and remove the metal implant from the previous surgery. The Plaintiff believed that he was having surgery because a "screw [that] was poking out of [his] skin." In late 2013, the Plaintiff underwent a graft procedure due to infection and wound care.

Dr. Rodriguez testified he could not definitely say one way or the other as to whether the non-union of the joint was caused by the accident. He did testify that the surgery was necessary due to the failure of the sub-talar joint to properly fuse and that most likely the joint never properly fused after the second surgery, which was related to the first accident.

However, Dr. Rodriguez also testified that he would not normally take out the metal implant, but since the Plaintiff had pain complaints, it was a cause for concern. He also testified that a trauma could dislodge the implant and cause pain. He ultimately testified that the implant removal could be related to the accident due to the increased pain complaints and discomfort. Significantly, he did not testify regarding the skin graft, other than that he sent the Plaintiff to wound care, where he believes the skin graft was performed before the Plaintiff's returning to him. No other medical expert testified at trial.

In support of his conclusion that causation was not met, the Defendant relies on Dr. Rodriguez's testimony that the third surgery was necessitated by the non-union of the sub-talar joint, which likely never fused after the second surgery. However, the Defendant ignores pertinent medical testimony that trauma could cause the metal implant to dislodge causing pain, and the implant removal could be related to the subject accident. This testimony coupled with the visible contusion and the Plaintiff's severe pain complaints after the accident support the trial court's judgment attributing fifty percent of the third surgery to the subject accident for the removal of the metal implant. Likewise, the lack of expert medical testimony in the record concerning the skin graft supports the trial court's decision that causation was not met relative to those damages.

The trial court weighed the strengths and weaknesses of the expert and lay testimony. Given that there is a reasonable basis in the record to support the trial court's conclusions concerning causation, we cannot say the trial court committed manifest error. Accordingly, the trial court judgment is affirmed.

AFFIRMED

      On July 11, 2013, the Defendant driver was traveling towards uptown New Orleans in the right lane on St. Charles Avenue, approaching Lee Circle, near the intersection of Howard Avenue. Though the right lane of traffic must turn right onto Howard Avenue, the Defendant driver proceeded straight into the roundabout. Meanwhile, the Plaintiff was traveling in the left lane on St. Charles Avenue. As the Plaintiff attempted to make a legal right hand turn from the left lane, his van collided with the back door and rear tire of the Defendant driver's vehicle, who was driving straight in the turn only lane. The investigating officer issued a citation to the Defendant driver for improper lane usage.


author: PENZATO, J.

text:
    Tamika MAJOR v. Corey MAJOR
    2017 CA 1077
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 27, 2018
    Ashley Greenhouse, Baton Rouge, Louisiana, Attorney for Plaintiff/Appellee, Tamika Major
    Nina S. Hunter, Baton Rouge, Louisiana, Attorney for Defendant/Appellant, Corey Major
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

This is an appeal from a judgment granting exclusive use of a Jeep Wrangler to Tamika Major. For the following reasons, we dismiss this appeal.

FACTS AND PROCEDURAL HISTORY

Tamika and Corey Major were married on February 18, 2006, and one child, C.M., was born on December 25, 2012. On January 23, 2015, Ms. Major filed a petition for divorce and to partition the community property. A judgment of divorce was rendered on November 2, 2016. On February 27, 2017, Ms. Major filed a petition to partition community property, seeking exclusive use and occupancy of the former matrimonial domicile and exclusive use of the community Jeep Wrangler, pending the partition.

The matter came before the court on March 14, 2017, at which time it was established that Ms. Major was the primary domiciliary parent. The trial court heard testimony at the hearing regarding the economic status of the parties. Mr. Major testified that he had worked for Turner Industry, but "was out on an injury." He also ran Brownies Kitchen and Grocery, a business he purchased for his nineteen-year-old daughter. In addition, Mr. Major worked at his cousin's car dealership, Los Amigos, selling used cars. With regard to the Jeep Wrangler, Mr. Major testified that he did not have the vehicle in his possession, but that he had been "in it" on Christmas and that he was thinking about purchasing it, or selling the vehicle to make a profit. He testified that the vehicle was owned by Los Amigos, and acknowledged that he had purchased parts to repair it. Ms. Major testified that she was certain that Mr. Major owned the Jeep Wrangler, and that he had never before denied that he owned it.

In its oral reasons for judgment at the conclusion of the March 14, 2017 hearing, the trial court stated that with regard to the Jeep Wrangler and considering the best interest of the family and the economic status of the parties:

I don't have a comfort level that Mr. Major has been ... straightforward and therefore, I'm going to grant exclusive use of the Jeep Wrangler ... to Ms. Major.
Because that's the only evidence I have is that he's driving it and buying parts. I don't have any evidence contradicting that, that it's not owned by him.

A judgment was signed on April 12, 2017, granting Ms. Major exclusive use and occupancy of the matrimonial domicile, and exclusive use of the Jeep Wrangler.

Mr. Major appeals only the part of the April 12, 2017 judgment granting exclusive use of the Jeep Wrangler to Ms. Major, asserting that the vehicle was not a community asset subject to the provisions of La. R.S. 9:374.

APPELLATE JURISDICTION

We must first determine whether the trial court's judgment is a final appealable judgment. Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc., 2011-0520 (La. App. 1 Cir. 11/9/11), 79 So.3d 1054, 1059, writ denied, 2012-0360 (La. 4/9/12), 85 So.3d 698. Our appellate jurisdiction extends to final judgments. La. C.C.P. art. 2083. A final judgment is one that determines the merits of a controversy, in whole or in part. In contrast, an interlocutory judgment does not determine the merits, but only preliminary matters in the course of an action. La. C.C.P. art. 1841.

The judgment herein awarded the use of a community movable pending partition of the property, pursuant to La. R.S. 9:374(B). A judgment that merely allocates certain community assets but does not make an accounting or valuation of the community, nor divide the community assets and liabilities between the parties, is not an appealable judgment. See Politz v. Politz, 2005-2568 (La. App. 1 Cir. 8/1/07), 2007 WL 2193547, at *3 (unpublished), writ denied, 2007-2137 (La. 1/7/08), 973 So.2d 728. To permit an appeal of such a judgment would encourage multiple appeals and piecemeal litigation, and prohibit expeditious disposition of community property cases. Id.

This court is authorized to treat an appeal as an application for supervisory writs and to rule on the merits of the application. However, there are limitations on this grant of authority. Best Fishing, Inc. v. Rancatore, 96-2254 (La. App. 1 Cir. 12/29/97), 706 So.2d 161, 166. In Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981), the Louisiana Supreme Court directed appellate courts to consider an application for supervisory writs under their supervisory jurisdiction, even though relief may be ultimately available to the applicant on appeal, when the trial court judgment was arguably incorrect, a reversal would terminate the litigation (in whole or in part), and there was no dispute of fact to be resolved.

For the reasons set forth above, the judgment of the trial court was not shown to be incorrect and reversal of the trial court's judgment would not terminate the litigation, in whole or in part, as the ultimate division of the community assets and liabilities remains pending between the parties. Therefore, we decline to convert this matter to an application for supervisory writs.

CONCLUSION

For the foregoing reasons, we dismiss the appeal of the April 12, 2017 interlocutory judgment, granting exclusive use of the Jeep Wrangler to Ms. Major. Costs of this appeal are assessed against Corey Major.

APPEAL DISMISSED.

      Louisiana Revised Statutes 9:374(B) provides as follows:
      When the family residence is community property or is owned by the spouses in indivision, or the spouses own community movables or immovables, after or in conjunction with the filing of a petition for divorce or for separation of property in accordance with Civil Code Article 2374, either spouse may petition for, and a court may award to one of the spouses, after a contradictory hearing, the use and occupancy of the family residence and use of community movables or immovables pending partition of the property or further order of the court, whichever occurs first. In these cases, the court shall inquire into the relative economic status of the spouses, including both community and separate property, and the needs of the children, if any, and shall award the use and occupancy of the family residence and the use of any community movables or immovables to the spouse in accordance with the best interest of the family. If applicable, the court shall consider the granting of the occupancy of the family residence and the use of community movables or immovables in awarding spousal support.


text:
    STATE of Louisiana v. Ruben Van DYKE
    2017 KA 1303
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 27, 2018
    Hillar C. Moore, III, District Attorney, Allison Rutzen, Assistant District Attorney, Baton Rouge, Louisiana, Attorney for Appellee, State of Louisiana
    Lieu T. Vo Clark, Mandeville, Louisiana, Attorney for Appellant, Ruben Van Dyke
    Ruben Van Dyke, Winnsboro, Louisiana, Pro Se
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

The defendant, Ruben Van Dyke, was charged by grand jury indictment with second degree murder, a violation of Louisiana Revised Statutes 14:30.1. He initially pled not guilty and filed various counseled pre-trial motions. Pursuant to a plea agreement, the defendant withdrew his former plea and pled guilty to manslaughter, a violation of Louisiana Revised Statutes 14:31. The defendant was then sentenced to twenty-four years at hard labor. He did hot move for reconsideration of sentence. The defendant filed an untimely motion for appeal, which was granted. Contending that there are no non-frivolous issues upon which to support the appeal, appellate counsel filed a brief raising no assignments of error. The defendant filed a pro se brief raising two assignments of error. For the following reasons, we affirm the conviction and sentence and grant appellate counsel's motion to withdraw.

FACTS

Since the defendant pled guilty, the facts were not fully developed in this case. During the defendant's Boykin hearing, the State indicated that on January 10, 2013, Baton Rouge Police Department officers were dispatched to Hollywood Street in reference to a shooting. Upon arrival, they observed a 2003 black Honda Accord that appeared to have been driven off of the roadway into an open field. Inside the vehicle was a black male, later identified as the victim Brandon Counts. The officers found the victim sitting in the driver's seat with multiple gunshot wounds. Police also observed cocaine with a street value of approximately $5,600.00 inside of the vehicle as well as a semi-automatic pistol on the floorboard. Officers interviewed Quentin Harris who advised them that on the date in question, he and the victim traveled to a shopping center to purchase cocaine from the defendant. Harris observed the victim and the defendant engage in a verbal dispute over the cocaine, and the defendant pulled a gun from his waistband. Harris pushed the defendant and fled the area on foot, but he heard multiple gunshots as he ran. Another witness told officers that he saw a black male enter a Chrysler Sebring after the shooting and the black male dropped a black hat that he was wearing as he fled the area. The DNA profile obtained from the hat was consistent with that of the defendant.

ANDERS BRIEF

Appellate counsel's brief contains no assignments of error and sets forth that it is filed to conform with State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam). Accordingly, appointed counsel requests to be relieved from further briefing in this case.

The procedure in Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), used in Louisiana, was discussed in State v. Benjamin , 573 So.2d 528, 529-31 (La. App. 4th Cir. 1990), sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam), and expanded by the Louisiana Supreme Court in Jyles , 704 So.2d at 242. According to Anders, 386 U.S. at 744, 87 S.Ct. at 1400, "if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." To comply with Jyles, appellate counsel must review not only the procedural history and the facts of the case, but must also provide "a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." Jyles, 704 So.2d at 242 (quoting Mouton, 653 So.2d at 1177 ). When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Thomas, 2012-0177 (La. App. 1st Cir. 12/28/12), 112 So.3d 875, 878.

Here, appellate counsel has adequately complied with the requirements necessary to file an Anders brief. Appellate counsel reviewed the bill of information, the procedural history, the Boykin examination, and the factual basis for the plea. Appellate counsel concludes in his brief that there are no non-frivolous issues for appeal. Further, appellate counsel certifies that the defendant was served with a copy of the Anders brief and notified of his right to file a pro se brief.

In his pro se brief, the defendant first contends that his arrest warrant was invalid because it was not issued by a "neutral and detached magistrate." He complains that the same judge who issued his arrest warrant was the same judge presiding over his case. This argument is without merit. Pursuant to Louisiana Code of Criminal Procedure article 202(A), "A warrant of arrest may be issued by any magistrate[.]" A magistrate means "any judge, a justice of the peace, or a mayor of a mayor's court." La. Code Crim. P. art. 931(D).

The defendant also argues in his pro se brief that the district court was without jurisdiction to accept his plea because his indictment failed to charge him with the offense to which he pled guilty, manslaughter. This argument is also without merit. The indictment filed by the State on May 9, 2013, properly charged the defendant with second degree murder, a felony. See La. R.S. 14:30.1 & 14:2(A)(4). (R. 12). Thus, the district court had exclusive original jurisdiction. See La. Const. art. V, § 16(A)(2). Thereafter, the defendant entered a guilty plea to manslaughter pursuant to a plea agreement with the State. The defendant, with the consent of the district attorney, may plead guilty to a lesser offense that is included in the offense charged in the indictment. La. Code Crim. P. art. 558. When the indictment charges second degree murder, guilty of manslaughter is a responsive verdict. La. Code Crim. P. art. 814(A)(3).

At the defendant's Boykin hearing, prior to the acceptance of his guilty plea, the district court informed him of the statutory elements and sentencing range for the offense. The defendant stated that he understood the offense and the sentencing range. The district court informed the defendant of his Boykin rights (right to trial by jury, right against compulsory self-incrimination, and right of confrontation), his right to an appeal, and that by pleading guilty, he would be waiving his rights. He indicated that he understood and waived his rights and accepted the State's factual basis. The defendant confirmed that he had not been intimidated, forced, or coerced to plead guilty. The district court imposed the sentence in accordance with the underlying statute.

This court has conducted an independent review of the entire record in this matter, including a review for error under Louisiana Code of Criminal Procedure article 920(2). Since the defendant pled guilty, our review of the guilty plea colloquy is limited by State v. Collins, 2014-1461 (La. 2/27/15), 159 So.3d 1040 (per curiam) and State v. Guzman, 99-1753 (La. 5/16/00), 769 So.2d 1158, 1162. We have found no reversible errors under Louisiana Code of Criminal Procedure article 920(2). Furthermore, we have found no non-frivolous issues or district court rulings that arguably support this appeal. Accordingly, the defendant's conviction and sentence are affirmed. Appellate counsel's motion to withdraw, which has been held in abeyance pending the disposition of this matter, is hereby granted.

CONVICTION AND SENTENCE AFFIRMED; MOTION TO WITHDRAW GRANTED.

      Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969).