source: Caselaw Access Project

license: Public Domain

text:
    John PALIR, III v. GUIDEONE INSURANCE COMPANY, et al.
    17-904
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2018
    Jack W. Caskey, Attorney at Law, 704 Ryan Street, Lake Charles, LA 70601, (337), 439-8854, COUNSEL FOR PLAINTIFF/APPELLANT: John Palir, III
    Ryan N. Ours, Dodson, Hooks & Frederick, P.O. Box 14503, Des Moines, IA 50306, (225) 372-6473, Mark R. Pharr, III, Patricia K. Penny, Galloway, Johnson, Tompkins, Burr & Smith, 328 Settlers Trace Boulevard, Lafayette, LA 70508, (337) 735-1760, Keith L. Richardson, Guglielmo, Marks, Schutte, Terhoeve & Love LLP, 501 Louisiana Avenue, Baton Rouge, LA 70821, (225) 387-6966, COUNSEL FOR DEFENDANTS/APPELLEES: GuideOne Insurance Company, Topsy United Pentecoastal Church
    Daniel McKean Livingston, Payne & Fears, LLP, 4 Park Plaza, 11th Floor, Irvine, CA 92614, (949) 851-1100, Lawrence G. Pugh III, Pugh, Accardo, Haas, Radecker & Carey, L.L.C, 1100 Poydras, Suite 3200, New Orleans, LA 70163-1132, (504) 799-4500, COUNSEL FOR DEFENDANT/APPELLEE: ITT Corporation
    Court composed of Marc T. Amy, Shannon J. Gremillion, and Candyce G. Perret, Judges.
   GREMILLION, Judge.

The plaintiff-appellant, John Palir, III, appeals the jury's verdict awarding him $192,277.45 in general and special damages and assessing him with 50% of the fault in the explosion of a barbecue trailer. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Palir, who was the pastor of the Topsy United Pentecostal Church (the Church), was burned following the June 2009 explosion of the church-owned barbecue trailer. Palir and Deacon Clifton Reeves were attempting to light the barbecue pit in preparation for a barbecue chicken fundraiser the following weekend. Deacon Reeves depressed the pilot button; at the same time Palir lit the pilot with a lighter wand and a ball of fire ignited and blew Palir out of the barbecue trailer and into Terry Reeves, Deacon Reeves's grandson, who was standing in the doorway of the barbecue trailer when the explosion occurred. Palir filed suit against the Church and its insurer, GuideOne Insurance Company, in February 2012. On that same date, Palir filed a motion and order to consolidate Terry Reeves's suit, filed in January 2012, with his own. In June 2012, Palir added the manufacturer of the regulator controlling the pilot lighting system, ITT Corporation, as a defendant. In October 2012, Palir and Reeves file a joint amending and supplemental petition for damages citing the malfunction of the regulator and the negligence of the Church in causing injuries to Reeves and Palir.

In March 2017, Palir filed a motion in limine to prevent a jury instruction on his fault based on the summary judgment granted in the consolidated matter of Reeves v. GuideOne Insurance Co. , Docket No. 2012-0135 (Reeves matter). Palir was named as a defendant in the Reeves matter. In October 2012, in the Reeves matter, the trial court granted summary judgment in favor of Palir and dismissed all claims against him. Neither a record of the hearing on the motion nor reasons for judgment are included in the record before us. In the motion in limine, Palir urged that in granting the summary judgment in Palir's favor in the Reeves matter, the trial court determined that he was "not at fault" and the Church could not relitigate the issue based on the doctrine of res judicata.

This matter proceeded to trial in March 2017. Palir's motion in limine to preclude any instruction to the jury relating to him being assessed fault, urging that res judicata barred any such evidence, was granted in part and denied in part. The Church was allowed to introduce evidence of Palir's negligence, but not evidence regarding whether Palir knew or should have known of a defective or hazardous condition in the barbecue trailer pursuant to La.Civ.Code art. 2317.1.

Following a jury trial, the jury assessed Palir with 50% of the fault, and the Church with 50% of the fault. The jury made the following damage awards to Palir:

1) PAIN AND SUFFERING, PAST AND FUTURE $60,000 2) MENTAL ANGUISH, PAST AND FUTURE $30,000 3) LOSS OF ENJOYMENT OF LIFE, PAST AND FUTURE $10,000 4) MEDICAL EXPENSES $81,477.45 5) LOST WAGES $10,800.00

The trial court rendered a judgment in June 2017, in favor of Palir in the amount of $96,138.72 based on the allocation of 50% of the fault to him. Palir now appeals. For the following reasons, we affirm.

ASSIGNMENTS OF ERROR

1. The trial court erred by allowing the jury to assess fault to John Palir, III;
2. The jury erred by assessing or apportioning 50% fault to John Palir, III.

DISCUSSION

Res Judicata

Palir argues that the summary judgment rendered in the Reeves matter precluded any fault from being rendered against him in this matter based on res judicata. In reviewing the trial court's denial of Palir's motion in limine relating to the issue of res judicata, we accord great discretion to the trial court. Heller v. Nobel Ins. Group , 00-0261 (La. 2/2/00), 753 So.2d 841 ; Scott v. Dauterive Hosp. Corp. , 02-1364 (La.App. 3 Cir. 4/23/03), 851 So.2d 1152, writ denied , 03-2005 (La. 10/31/03), 857 So.2d 487. Louisiana Revised Statutes 13:4231 provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The Church argues that the summary judgment in the Reeves matter only pertained to the issue of whether Palir was negligent as an employee of the Church, thereby making it vicariously liable for his tortious actions. The Church states that summary judgment was granted in favor of Palir and was unopposed by the Church relating to the vicarious liability issue in the Reeves matter. Terry Reeves settled with the Church before trial. The Church argued that the summary judgment did not preclude a determination of Palir's fault in his own action against the Church.

The following colloquy occurred between counsel and the trial court:

TRIAL COURT: But let's look at that. Let's make sure the judgment says what y'all think it says or exactly what it says. I mean, you are saying there is no way he could ever be found at fault. That's what the judgment says. There is no way he could have been found at fault at all, or did it have to do with his knowledge of the defect?
COUNSEL FOR PALIR: Let me look at that, Your Honor.
TRIAL COURT: Okay, it could be, I mean, those are two different issues. And I believe that's what counsel for the Defendant is saying, and I think they are actually-I understand that they're actually agreeing with you about saying they don't believe that he can-or they are not going to try to based on that Summary Judgment, the granting of that Motion for Summary Judgment, that they recognize that they can't come in say that he knew or should have known because that's what the judgment said.
But they were saying, there may be some other negligence that he's responsible for in the way he carried out the act of lighting that barbecue pit that day, that they may have an opportunity to present evidence on.
...
Was that not the issue on the Motion for Summary Judgment; is whether as the pastor he was-is there evidence to show that he knew or should have known?
COUNSEL FOR CHURCH: Your Honor, the judgment in that case just said, "Granted as prayed for."
So you have to go back to the Motion itself.

The Church's counsel goes on to state that Palir argued in that motion that he did not have custody or control of the barbecue trailer and did not know of a defect.

The trial court further found:

I guess just to be clear for the record, as far as the Motion in Limine by Mr. Palir, I guess I will say I am granting it in part, only with regard to the issue of whether Mr. Palir knew or should have known of the defect; but I'm denying it as it relates to any other negligence, actions on his part if the Defendant has the evidence to present on that issue.

In Burguieres v. Pollingue , 02-1385, p.8 (La. 2/25/03), 843 So.2d 1049, 1054, the supreme court reviewed the jurisprudential underpinnings of the legal theory of res judicata and concluded that the "identity of parties" requirement mandates that the "parties must appear in the same capacities in both suits." The parties to the suits here undoubtedly are not appearing in the same capacities; in the Reeves matter Palir was a defendant for purposes of determining the Church's liability under La.Civ.Code art. 2317.1, whereas in this matter, Palir is asserting his own claim for damages against the Church. We note, though, that although the judgment granting summary judgment in favor of Palir is in the record, it states only that summary judgment is being granted in his favor. There are no reasons for judgment nor any documents submitted into evidence in this case relating to the substance of the granting of summary judgment in Palir's favor. Nevertheless, based on the testimony of counsel relating to the summary judgment in the Reeves matter and the trial court's findings, we find no error in the trial court's partial denial of Palir's motion in limine relating to the res judicata effect of the former judgment. Even without the record of the summary judgment granted in the Reeves matter, it is clear that the requirement that "the parties must appear in both suits in the same capacities" is simply not met in this case. Burguieres v. Pollingue , 843 So.2d at 1055.

Fault Apportionment

Alternatively, Palir argues that if res judicata does not apply, the jury manifestly erred in assessing any fault for the explosion to him. In Jolivette v. Hebert , 16-246, pp. 6-7 (La.App. 3 Cir. 10/12/16), 203 So.3d 400, 405-06, we stated:

In reviewing fault allocation, the factfinder's allocation is a factual determination that is owed deference and is subject to the manifest error/clearly wrong standard of review. Clement v. Frey, 95-1119, 95-1163 (La. 1/16/96), 666 So.2d 607. The supreme court recently summarized the manifest error standard of review:
This court has announced a two-part test for the reversal of a factfinder's determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). See Mart v. Hill , 505 So.2d 1120, 1127 (La.1987). This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's findings. See id. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. See id. Lobell v. Rosenberg , 15-247, p.10 (La. 10/14/15), 186 So.3d 83, 90.
In reviewing the factfinder's allocation of fault, the supreme court has set forth various factors for consideration:
(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.
Watson v. State Farm Fire & Cas. Ins. Co. , 469 So.2d 967, 974 (La.1985). In Clement , 666 So.2d at 611, the supreme court instructs that: "After the court of appeal finds a 'clearly wrong' apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court's discretion."

In accordance with La.Civ.Code art. 2317.1, the jury returned a verdict finding that the barbecue trailer was in the custody of the Church, that it presented an unreasonable risk of harm to Palir, and that the Church knew or should have known of the defect. It further found Palir 50% at fault in causing his own damages.

Dana Reeves

Dana Reeves, Clifton Reeves' daughter, and a twenty-three year member of the Church who had been the secretary for the ten years prior to trial, testified that the Church has no employees. She said she works as a bus driver and before that as a phlebotomist for fourteen years. Dana testified that Palir was voted in by the congregation and receives a "love offering" if there is enough money. She said the Church did not provide him with a vehicle, clothing allowance, or a rectory but he does receive a housing allowance. Dana said the Church had twenty-five members, including children.

Dana testified that her father and Chris Dronet kept up the barbecue trailer at the Church. She said the barbecue trailer had been donated to the Church in the late nineties by another church. She said that the barbecue trailer has never been inspected nor repaired since the time of the donation; however, church members ensure that it is cleaned before each use. Of the three church board members including her father, Dronet, and Palir, none receive any monies save for Palir. She said he received about $650 a week at the time of the accident. She said that all church members pitch in and help out and that Palir helped and used the barbecue trailer as much as anyone else. Dana said that no one had experienced problems with the barbecue trailer before this incident and it had been used just a few weeks before the incident.

Clifton Reeves

Clifton was eighty-four years old at the time of trial and had known Palir for about twenty to twenty-five years. He said the board of directors does not give a list of duties to incoming pastors. He stated that as a spiritual leader of a small church there are no official duties or responsibilities but that Palir would help out. Clifton said that no one at the Church "maintained" the barbecue trailer except for filling the propane bottles and cleaning the pit. He said he filled the propane bottles.

Clifton then described the accident:

Well, they opened the windows and the doors on the pit. I went to the front and turned the valve on the propane bottle and walked back around and got in the trailer, and Pastor Palir got in with me. I got over to where the pilot light was to push the button down for the pilot light to light and to ignite.
Before I pushed it down, the door was opened; and normally that pilot light has to be warmed up a little bit before it will catch. But anyhow, as soon as I pushed the button down, he [Palir] struck the striker, and it blew him out of the trailer.
And Terry was standing behind him, and it blew him out with him. A big ball of fire came out of there....

Clifton described the burns Palir received that "looked like a glove coming off, his skin falling off his hand." Clifton said that no one has ever had any problems using the barbecue trailer and that if he had any idea that something was wrong with it, he would not have used it. He said it was used frequently, most recently in May 2011. Clifton testified that he and Palir lit the pilot light the same way they had always done it before. He said there were no indications that this accident was about to occur. Clifton testified that no one was officially in charge of the barbecue trailer and that there was no maintenance committee, but that he and Palir used the barbecue trailer the most of anyone at the church.

Allen Dudden

Dudden, an expert in the field of propane delivery systems, testified that he had been retained in hundreds of cases. Dudden testified that he conducted two on-site inspections in this case and read numerous depositions. Dudden concluded that the rotary rack oven, including the gas valve, gas trains, and delivery systems, was an "unlisted appliance" that was never tested for safety, performance, or construction. It had no manufacturer labels or lighting instructions. He noted that the condition of the barbecue trailer was deteriorating and rusting, was not maintained, and did not comply with codes. Dudden said the regulator was a single-stage regulator instead of a two-stage regulator and that the tank itself was "illegal" in that, after 2002, propane tanks lacking an overfill prevention device (OPD) should not have been in use. Dudden opined that the lack of an OPD valve could have caused the accident and that the single-stage versus double stage "definitely" could have caused this accident.

Dudden then discussed the lack of maintenance to the barbecue trailer itself and the propane delivery system. He said regulators have a ten-year life span and that propane tanks should be regularly checked. Additionally, Dudden found the hoses that were used were not for use with propane or gases, the valve control had excess pressure for the load it was designed for, the gas piping was corroded, the oven's electrical system was not to code, the bottom of the oven was rusted and there were holes through it in the combustion chamber, the interior was excessively dirty, and the racks were not cleaned. Dudden then described testing he conducted of the unit at a later date.

Dudden concluded that the barbecue trailer "definitely did not comply with codes and standards." When asked whether a person without superior knowledge of propane systems would know that the unit was not in compliance, Dudden testified:

They shouldn't be working with it. So they wouldn't know that, that is correct. And that's why the instructions are so important in labeling the appliance. And why they should have called a propane company out to inspect that and guide them as to how they should have used it.

Regarding the propane tank no longer meeting regulations, Dudden testified: "The church would not have known that, but the station that filled that tank, refilled it, would have been aware of it; and they should not have filled it." Dudden again testified that if a propane supplier had been called out to inspect "this whole setup" a change to a two-stage regulator would have been the correct recommendation. When questioned if this accident would not have occurred if a two-stage regulator had been in place, Dudden testified:

That's a hard one to answer because accidents can occur even if everything is operating properly. Okay. So in all probability, if this had been properly installed and the unit had been properly maintained and that safety control been verified on a periodic basis that it was functioning properly, and had the pilot been in the proper location, then it's most likely it would have operated properly.

Dudden was of the opinion that any qualified propane inspector would have noted the numerous deficiencies in this unit. He said the Church should have had the unit inspected when they received it and instructions should have been prepared for it if it had none.

John Palir, III

Palir, who was fifty-seven years old at the time of trial, testified that he is an auto and frame specialist and manages a body shop. He had been pastor of the Church since 2008, but had been an assistant pastor of the Church in the 1990s when the barbecue trailer was gifted to the Church. He testified that he was not an employee of the Church but an independent contractor and files a Schedule C with the IRS. Palir said he pays self-employment tax on "love offerings" that he receives from the Church. He said there was no set amount for the love offerings and that sometimes he received no money. He said that he does receive a housing allowance up to $15,000 per IRS regulations. Palir said his obligation to the Church was as its "spiritual leader" and that he had never received any other official duties or responsibilities relating to the inspection and maintenance of the Church, but that he helps where he can. He said the Church has no employees and that everyone volunteers.

Regarding the barbecue trailer, Palir said the congregants took care of it and it was never his duty to take care of it. When asked to pick a person that took the most responsibility for it, he identified Clifton Reeves. Palir said that Reeves was the person who had the propane tank refilled.

Regarding the day of the accident, Palir said that upon entering the barbecue trailer, the rotisserie was working. He did not adjust any valves or make changes to anything in the barbecue trailer. He had the wand lighter and had to get down on the ground to light the pilot. Palir said that when you light the pilot you have to turn the striker on. He testified that at that point he saw the pilot and lit it and instantaneously a ball of fire knocked him and Terry Reeves out of the barbecue trailer and into the church yard.

Palir testified that he had no knowledge of anyone ever having problems with the barbecue trailer and that if he had any idea something was wrong with it he would not have used it. He said that he lit the pilot light the way he always had in the past and never had any problems. Palir said that he and Clifton Reeves were the people at the Church who most used the barbecue trailer. He admitted that neither he nor Reeves nor anyone else at the church had any expertise in propane delivery systems.

In reviewing the evidence, we cannot say that the jury erred in assigning Palir 50% of the fault in causing his own injuries. It was undisputed that he and Reeves were the people most familiar with the barbecue trailer, that the barbecue trailer was decades old, and that it had never been serviced. Palir had been an assistant pastor of the Church in the 1990s when the barbecue trailer had been gifted to the Church, thus he was aware of the age of the unit. As a member of the three-person church board, the pastor, and the leader of the church, Palir had a duty to act reasonably in all matters pertaining to the Church and his continued use of a barbecue trailer for such an extended period of time without ever having it inspected could reasonably be construed as independent negligence on the part of Palir. Palir's own expert testified regarding the deteriorating condition of the barbecue trailer, which did not require propane system expertise to determine. Based on its age and condition, a jury could conclude that a reasonable person would be required to regularly have it inspected and serviced in order that it is safe for use. Accordingly, we cannot find that the jury manifestly erred in assessing Palir with 50% of the fault.

CONCLUSION

The trial court's judgment denying Palir's motion in limine in part, relating to his being free from all fault, is affirmed. The judgment in favor of Palir in the amount of $96,138.72 is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, John Palir, III.

AFFIRMED .

      We refer to the Reeves family members by first name to differentiate amongst them.

      Dudden's deposition was read into the record.


author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Lucille PERRY v. DEPARTMENT OF LAW
    NO. 2017-CA-0787
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 4, 2018
    JOEL P. LOEFFELHOLZ, 862 Crystal Street, New Orleans, Louisiana 70124, Counsel for plaintiff/appellant
    ELIZABETH S. ROBINS, DEPUTY CITY ATTORNEY, ISAKA R. WILLIAMS, ASSISTANT CITY ATTORNEY, REBECCA H. DIETZ, CITY ATTORNEY, 1300 Perdido Street, City Hall-Suite 5E03, New Orleans, Louisiana 70112, Counsel for defendant/appellee
    (Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Tiffany G. Chase,)
   JAMES F. MCKAY III, CHIEF JUDGE

Plaintiff, Dr. Lucille Perry ("Dr. Perry"), appeals the May 30, 2017 ruling of the Civil Service Commission for the City of New Orleans ("CSC"), which determined that Dr. Perry was not owed any back pay upon her reinstatement to employment due to an offset from her interim earnings. Finding no error in the CSC's ruling, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The facts of this case are taken from the appeal Perry v. City of New Orleans , 2011-0901, pp. 1-4 (La. App. 4 Cir. 2/1/12), 104 So.3d 453, 454-55. (" Perry I ").

Appellant [Dr. Perry] began working for the City of New Orleans, Department of Health, as a classified employee with permanent status beginning April 17, 1988, with the class code C5317 and the title of "Senior Environmental Technician." Subsequently, Appellant's class code was changed to C5311, titled "Environmental Tech 1" and then to an "Environmental Specialist III." According to Appellant's testimony, her job duties included handling "crisis cases" with the housing and health inspectors, typically involving elderly abuse, abandoned children, and other social issues. (footnote omitted).
On March 30, 1998, Appellant was transferred from the Department of Health to Municipal Court, with the new classified position of "Medical and Social Services Coordinator," class code C0295. Appellant's workplace also changed from City Hall to Municipal Court, and her new Appointing Authority was George P. Wells, the Municipal Clerk of Court. Appellant worked in victim services in connection with domestic violence cases and held the title "Victim Services Coordinator."
On January 6, 2003, Appellant's supervision shifted from Municipal Court to the Department of Law. According to Appellant's testimony at the hearing, the determination was reached that it was a conflict of interest for the Victim Services Coordinator to be within Municipal Court because it could reflect a potential bias of the court; therefore, the position was transferred to the Department of Law. Appellant asserts that her job duties remained the same. According to the Civil Service Commission's decision, the need for the administrative transfer was precipitated by a change in funding, as the salary for Appellant's position was funded by a grant which was transferred from the budget of the Municipal Court to the Department of Law.
Also on this date, January 6, 2003, a transfer document was executed, wherein Appellant's civil service status was changed from classified to unclassified, with the new job title of "Asst. Attorney I." According to the testimony of the human resources director/legal budget and finance manager, Vanessa Caliste Swafford, "Attorney I" was a newly created position under class code U0020AA ("U" representing "unclassified"). Appellant denies ever seeing this transfer document and submits that her actual job duties never changed. There is no provision for an employee signature anywhere on the transfer document. (footnotes omitted).
On April 1, 2007, Appellant's position was changed within the Department of Law to the position of "Urban Policy Specialist," class code U0167.
In the fall of 2008, Appellant was disciplined for an incident that occurred in Municipal Court on July 31, 2008, between Appellant and a Municipal Court Judge. As a result of this incident, Appellant was suspended for one week without pay, and received a disciplinary letter dated September 10, 2008, from City Attorney Penya Moses-Fields. The disciplinary letter included the language: "Lastly, as a reminder, members of the unclassified staff serve at the pleasure of the Administration...." Appellant signed the letter in the receipt/acknowledgement section, which was dated September 10, 2008. Appellant did not appeal her discipline.
Appellant continued to work in the Department of Law. On January 27, 2010, Appellant received a letter of termination from City Attorney Penya Moses-Fields, her Appointing Authority, advising of the lack of funding for her position and her termination date of February 12, 2010. Appellant asserts that this was the first time she learned that her position was unclassified.
Appellant appealed her termination, and the Appointing Authority filed a Motion for Summary Disposition. On June 21, 2010, the Civil Service Commission issued an order stating that the matter would be referred to the Hearing Examiner "for the purpose of engaging in fact-finding regarding Appellant's appointment to and official status in the classified service during the term of her employment with the City of New Orleans and the facts and propriety of the changes made thereto." The order further provided that upon issuance of the Hearing Examiner's report, the matter would be re-submitted to the Civil Service Commission.
On August 19, 2010, the Hearing Examiner conducted a fact-finding hearing. On January 17, 2011 the Hearing Examiner issued a report recommending that Appellant's appeal should be denied. In the report, the Hearing Examiner determined that Appellant never questioned her status as an unclassified employee until after she received notice of her termination, and that evidence was presented of Appellant's actual knowledge of her unclassified status via the September 10, 2008 disciplinary letter, which was signed by the Appellant and was not appealed. The Hearing Examiner noted that Appellant testified that she did not notice the mention of her unclassified status in the disciplinary letter and insisted that she was unaware of her unclassified status until she received notice of her termination. The Hearing Examiner concluded that because all positions within the Law Department are unclassified, Appellant knew or should have known that her position was unclassified prior to her termination.
On May 4, 2011, the Civil Service Commission denied Appellant's appeal with written reasons substantially similar to those detailed by the Hearing Examiner. This appeal followed.

In Perry I , this Court reversed the CSC, finding that Dr. Perry was wrongfully deprived of her classified civil service status without due process. Id. at p. 7, 104 So.3d at 457. Citing La. R.S. 49:113 , we further stated that Dr. Perry "shall be entitled to reinstatement effective February 12, 2010, with all emoluments, and is also entitled to full back pay with a set-off for any wages earned in private employment ." (emphasis added). Id. at p. 8, 104 So.3d at 458.

The matter was remanded to the CSC to determine the amount of back pay owed Dr. Perry after considering any wages and salaries earned in private employment during the period of separation. Id. at p. 10, 104 So.3d at 458.

On remand, the CSC issued a Back Pay Order on June 3, 2014, providing, in pertinent part, as follows:

1. The Appointing Authority is ordered to calculate all back pay including all pay increases from the period of termination until reinstatement based upon the last salary received as a classified employee.
2. The Appointing Authority is ordered to deduct from the calculated back pay all interim earnings. Interim earnings include all gross pay received as an employee and/or independent contractor during the relevant period in excess of what the Appellant would have earned moonlighting if her employment with the Appointing Authority had not terminated. The parties will use the 12 month period prior to the Appellant's termination to determine the amount of pay the Appellant would have earned moonlighting. (emphasis added).

The City filed a writ application from the CSC's June 3, 2014 ruling, arguing that pursuant to La. R.S. 49:113, the City is entitled to an offset for all of Dr. Perry's gross interim earnings. See Perry v. City of New Orleans Law Department , unpub., 2014-1094, (La. App. 4 Cir. 12/15/14), ("Perry II" ). In Perry II , we determined that the CSC's Back Pay Order did not use the statutory language cited by this Court in Perry I . More specifically, we held that the language used in the Back Pay Order "is improper as it allows for a credit or set-off for a portion of wages earned, rather than all interim gross pay as provided for in the statute." (emphasis in original). The matter was remanded to the CSC for a determination of back pay in compliance with the orders of this Court.

The matter was brought back before the CSC on May 15, 2017. In a ruling rendered May 30, 2017, the CSC considered all interim earnings, and concluded that Dr. Perry "is not entitled to back pay as her interim earnings between February 10, 2010 and April 29, 2013 completely offset an award of back pay." The CSC calculated that Dr. Perry's back pay for the time period at issue was $144,063.00. The total amount of interim earnings from her second job was calculated at $153,165.30. Thus, because Dr. Perry's interim earnings exceeded her back pay, the CSC determined that no back pay was owed. Dr. Perry's timely appeal followed.

LAW AND ANALYSIS

Standard of Review:

In a CSC case, a "multifaceted" standard of review applies. McMasters v. Dep't of Police , 2013-0348, p. 9 (La. App. 4 Cir. 5/15/15), 172 So.3d 105, 113 (citing Walters v. Dep't of Police of New Orleans , 454 So.2d 106, 113-14 (La. 1984) ). Summarizing the multifaceted standard of review, this Court in Russell v. Mosquito Control Bd. , 2006-0346, pp. 7-8 (La. App. 4 Cir. 9/27/06), 941 So.2d 634, 639-40, stated as follows:

First, the review by appellate courts of the factual findings in a civil service case is governed by the manifest error or clearly erroneous standard. Second, when the Commission's decision involves jurisdiction, procedure, and interpretation of laws or regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard. Instead, on legal issues, appellate courts give no special weight to the findings of the trial court, but exercise their constitutional duty to review questions of law and render judgment on the record. A legal error occurs when a trial court applies the incorrect principles of law and such errors are prejudicial. Finally, a mixed question of fact and law should be accorded great deference by appellate courts under the manifest error standard of review. See Stern v. New Orleans City Planning Comm'n , 03-0817, pp. 5-6 (La. App. 4 Cir. 9/17/03), 859 So.2d 696, 699-700.

Assignment of Error:

In her only assignment of error, Dr. Perry asserts that the CSC erred in using the interim earnings from her secondary job to offset her back pay. For the reasons set forth below, we find no merit in this assignment of error.

Dr. Perry argues that her second job, held for years prior to and throughout the termination period, should not be counted to offset her back pay. Dr. Perry explains that for years before she was terminated from her classified position, she held a second job as a counselor at Orleans Parish Prison; a position she has continued to hold. Thus, Dr. Perry was earning two salaries at the time of her termination. She maintains that the CSC's ruling penalizes her by reducing her to one income during the period of separation.

Dr. Perry submits that La. R.S. 49:113 was never intended to be penal in nature. She argues that the purpose of back pay pursuant to La. R.S. 49:113 is to make her whole. In support of this argument, Dr. Perry cites Hebbler v. New Orleans Fire Department , 310 So.2d 113 (La. 1975).

In Hebbler, the Court held that a reinstated firefighter was entitled to state supplemental pay that was withheld during the period of wrongful termination. The Court reasoned that the state supplemental pay was part of a firefighter's salary and wages within the intendment of R.S. 49:113, and thus, compensable as back pay. Hebbler, 310 So.2d at 115. The Court recognized that the legislative intent of La. R.S. 49:113 was "to make the reinstated employee whole." Id.

We find Hebbler to be distinguishable from the present case. Hebbler dealt with statutorily imposed state supplemental pay to all firefighters, which was part of the firefighter's salary. The pay at issue in the present case is supplied by Dr. Perry's secondary employer, unrelated to her position with the City.

The City argues that the CSC's ruling represents a proper application of Perry I , which held that pursuant to La. R.S. 49:113, the City is entitled to offset all gross interim earnings during the period of separation. We agree.

In considering La. R.S. 49:113, this Court has consistently held that an illegally discharged city employee is entitled to back pay, minus a credit for all monies received by the employee from other employment during his separation from the City. Carroll v. New Orleans Police Dept. 2004-0122, p. 4 (La. App. 4 Cir. 9/29/04), 885 So.2d 636, 639 (citing Perkins v. Sewerage and Water Board, 95-1031 (La. App. 4 Cir. 2/29/96), 669 So.2d 726, 730 ).

The issue of offset was considered by this Court in Perry I , and the details concerning Dr. Perry's second job were known to the Court at the time. Within that context, we remanded to the CSC for a calculation of back pay after taking into consideration any wages and salaries earned by Dr. Perry in private employment during the period of separation. In Perry II, we again addressed the issue of offset, finding that the CSC erred in failing to offset all of Dr. Perry's interim earnings as provided for in La. R.S. 49:113. On remand from Perry II , and in line with this Court's directive, the CSC offset all of Dr. Perry's interim earnings in calculating her back pay. We find no error in the CSC's ruling.

CONCLUSION

For the foregoing reasons, we find no error in the CSC's ruling, which determined that after considering her interim earnings, Dr. Perry is not entitled to back pay. Accordingly, we affirm.

AFFIRMED

      La R.S. 49:113 provides: "Employees in the state or city civil service, who have been illegally discharged from their employment, as found by the appellate courts, shall be entitled to be paid by the employing agency all salaries and wages withheld during the period of illegal separation, against which amount shall be credited and set-off all wages and salaries earned by the employee in private employment in the period of separation."

      On application for rehearing, because the record indicated that Dr. Perry's classified position no longer existed, we remanded to the CSC to reinstate Dr. Perry to a comparable position.


author: JUDGE SANDRA CABRINA JENKINS

text:
    SUCCESSION OF Mancil Joseph BARROIS
    Succession of Antoinette Bernice Cognevich Barrois
    NO. 2017-CA-0560 NO. 2017-CA-0561
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 6, 2018 Rehearing Denied May 15, 2018
    John F. Shreves, Andrew C. Wilson, SIMON PERAGINE SMITH & REDFEARN, L.L.P., 1100 Poydras Street, 30th Floor, New Orleans, LA 70163-3000, COUNSEL FOR APPELLANT
    Jack M. Alltmont, SESSIONS FISHMAN NATHAN & ISRAEL, L.L.P., 400 Poydras Street, Suite 2550, New Orleans, LA 70130, COUNSEL FOR APPELLEE
    (Court composed of Judge Terri F. Love, Judge Roland L. Belsome and Judge Sandra Cabrina Jenkins )
   JUDGE SANDRA CABRINA JENKINS

This appeal arises from a dispute between the executors of two successions over the right to receive settlement payments for damage to oyster leases caused by the Deepwater Horizon oil spill in 2010. Appellant, Helen Scott Ehle Barrois ("Helen"), is the executrix of the succession of Antoinette Bernice Cognevich Barrois ("Bernice"). Appellees, Russell E. Barrois, Jr. and Kenneth B. Barrois, Jr. (the "Mancil Executors"), are the co-executors of the succession of Bernice's husband, Mancil Joseph Barrois ("Mancil"). Helen appeals the trial court's judgments: (1) granting the Mancil Executors' Motion for Summary Judgment; (2) denying her Motion for New Trial; and (3) denying her Exception of Prescription. For the reasons that follow, we amend the judgment granting summary judgment in favor of the Mancil Executors and, as amended, affirm. We also affirm the judgment denying Helen's Motion for New Trial, and the judgment denying Helen's Exception of Prescription.

FACTUAL AND PROCEDURAL BACKGROUND

The Barrois Successions

In 1930, Mancil and Bernice were married, and thereafter resided in Plaquemines Parish. In the 1960s and 1970s, during their marriage, Bernice applied for and acquired eight oyster leases from the State of Louisiana. In 1975, Mancil died testate, and in 1978, Mancil's succession (the "Succession of Mancil") was judicially opened in the 25th Judicial District Court for the Parish of Plaquemines. In 1981, Bernice died intestate, and in 1983, Bernice's succession (the "Succession of Bernice") was judicially opened in Plaquemines Parish. The two successions were consolidated in 1984. To date, both successions remain open. In forty years, no judgments of possession have been rendered.

Before Mancil's marriage to Bernice, he had been married twice, first to Melanie Bruney ("Melanie"), from whom he was divorced, and second to Flora Messimore ("Flora"), who predeceased him in 1929. There were four children born of Mancil's first two marriages. The Mancil Executors are the direct descendants of Mancil and his second wife, Flora. During Mancil's third marriage to Bernice, two children were born, Austin Francis Barrois ("Austin") and Bernita Joan Barrois ("Bernita").

In 1989, Austin was named sole administrator of Bernice's estate. In 1990, Bernita renounced her mother's succession, and all of Bernita's interest was adjudicated to her brother, Austin. Austin died testate in 2011, and bequeathed his entire estate to his wife, Helen. In 2012, Helen opened Austin's succession (the "Succession of Austin") in Plaquemines Parish, and was named independent testamentary executrix. In December 2014, Helen was named the independent executrix of the Succession of Bernice.

BP Oil Spill Settlement

In 2013, Helen retained attorneys to file a $384,000.00 claim with the Deepwater Horizon Claims Center ("BP Claims Center") for damage to the Barrois oyster leases caused by the BP oil spill in 2010. As of the date of the summary judgment at issue in this case, the BP Settlement Trust ("BP Trust") had paid Helen an initial disbursement of $384,000.00, and a second payment of $155,725.33, for a total of $539,725.33. Helen deposited these funds in her personal checking account. With these funds, Helen paid her attorneys $137,874.46 (20 percent), purchased a $200,000.00 annuity, and then depleted the remaining funds. Helen did not pay any of these BP settlement funds to the Mancil Executors.

Lawsuit by Mancil Executors

On April 1, 2014, the Mancil Executors filed a "Petition for Delivery of Funds and Property, for Accounting, for Declaratory Judgment, for Sequestration, for Damages and for Other Relief" (the "Petition") against Helen individually, and as the independent testamentary executrix of the Succession of Austin. In the Petition, the Mancil Executors asserted that, because the oyster leases were the community property of the Mancil and Bernice successions, Helen had: (1) wrongfully asserted full ownership of the oyster leases; (2) wrongfully converted monetary compensation owed to the Succession of Mancil; (3) wrongfully failed to turn over such compensation to the Succession of Mancil; and (4) wrongfully failed to account to the Succession of Mancil for proceeds derived from the oyster leases.

Motions for Partial Summary Judgment

In January 2015, Helen, individually, and as the independent executrix of the Succession of Bernice, filed a Motion for Partial Summary Judgment seeking a declaration that the oyster leases were the separate property of Bernice and, upon her death, were the separate property of the Succession of Bernice. In March 2015, the Mancil Executors filed a Cross Motion for Partial Summary Judgment seeking a declaration that the oyster leases were community property, and that the money derived from the oyster leases, including the BP settlement funds, were community property. The Cross Motion for Partial Summary Judgment further stated, "[i]f the Court grants partial summary judgment as requested, the Mancil Succession further moves the Court to order [Helen] to deliver one-half of all payments and distributions from [the BP settlement fund] to the co-executors of the Mancil Succession."

On April 10, 2015, the trial court granted the Mancil Executors' Motion for Partial Summary Judgment, and denied Helen's Motion for Partial Summary Judgment. In the judgment, the trial court decreed that the oyster leases acquired by Bernice during her marriage to Mancil were community property. The trial court, however, did not order Helen to pay the Mancil Executors one half of the BP payments. On April 21, 2015, the Mancil Executors filed a Motion to Amend and Supplement the Judgment, asking the trial court to order Helen to pay one half of the BP settlement funds to the Succession of Mancil. The trial court denied the motion pursuant to La. C.C.P. art. 1951, which authorizes amendment of judgments only to "alter the phraseology of the judgment, but not its substance, or to correct errors of calculation."

In May 2015, Helen appealed the April 10, 2015 judgment. The Mancil Executors filed an Answer to Appeal in which they asked the court to modify the trial court's judgment to instruct Helen to pay one half of the BP settlement funds to the Succession of Mancil.

Fourth Circuit: Oyster Leases Are Community Property

On January 6, 2016, this court affirmed the trial court's April 10, 2015 judgment declaring that the oyster leases were community property. In re Succession of Barrois , 15-0692, 15-0693 (La. App. 4 Cir. 1/6/16), 184 So.3d 230, writ denied , 16-0395 (La. 4/15/16), 191 So.3d 592. The court found that "because oyster lease rights are heritable, under both Louisiana community property law and Louisiana oyster lease law, an undivided one-half interest in the leases passed into Mancil's succession and a one-half interest passed into Bernice's succession." Id. , 15-0692, p. 6, 184 So.3d at 234. The appeals court agreed with the trial court that "the oyster leases acquired during the marriage of Bernice and Mancil Barrois are community property," and that "upon Mancil's death, one-half interest of those leases became part of his estate." Id. , 15-0692, 184 So.3d at 235. The court denied the Mancil Executors' Answer to Appeal.

Second Motion for Summary Judgment

On August 10, 2016, the Mancil Executors filed a second Motion for Summary Judgment seeking: (1) a full and complete accounting from Helen as to all money or other things of value that Helen had received from the oyster leases; (2) a "money judgment" in favor of the Mancil Executors and against Helen in the amount of 50% of all monies or other things of value received by Helen from the oyster leases; and (3) a judgment that Helen immediately pay over to the Mancil Executors 50% of the amount of all monies or other things of value received by Helen from the oyster leases.

On October 19, 2016, the Mancil Executors filed a Supplemental and Amended Motion for Summary Judgment, requesting the following supplemental relief: (1) a "money judgment" in favor of the Mancil Executors and against Helen in the amount of 50% of all money or other things of value received by Helen, or which Helen receives in the future, from the oyster leases; (2) a judgment declaring that the Mancil Executors are entitled to receive the next $539,725.33 paid by the BP settlement fund, and after the payment of this amount, are entitled to 50% of all further payments made.

On December 29, 2016, the trial court signed a judgment granting the Mancil Executors' Motion for Summary Judgment. Specifically, the judgment in favor of the Mancil Executors and against Helen provides the following relief:

(1) Ordering that Helen immediately provide a full and complete accounting for all money or other things of value that Helen has received relating in any manner to the oyster leases at issue in the lawsuit.
(2) A money judgment in favor of the Mancil Executors and against Helen in the amount of 50% of all monies or other things of value received by Helen with regard to the ownership, use or damage to the oyster leases that are the subject of this lawsuit.
(3) Judgment ordering that Helen immediately pay over to the Mancil Executors 50% of all monies or other things of value received by Helen with regard to the oyster leases that are the subject of this lawsuit.
(4) A money judgment in favor of the Mancil Executors and against Helen in the amount of 50% of all money or other things of value received by Helen or which Helen receives in the future with regard to the ownership, use or damage to the oyster leases that are the subject of this lawsuit.
(5) Judgment declaring that the Mancil Executors are the owners of and are entitled to receive from the Deepwater Horizon Settlement Program the next $539,725.33 to be paid from the Settlement Program on the claims previously asserted in the name of Austin F. Barrois (who is now dead and whose successor claimant is Helen E. Barrois) with regard to the oyster leases whether as a result of a Seafood Program claim or as a result of a claim under the HESI Punitive Damages and Assigned Claims Settlement and the Transocean Punitive Damages and Assigned Claims Settlement Agreement. Further the judgment is to declare that after payment to the Mancil Executors of that $539,725.33, the Mancil Executors are then entitled to payment from any further settlement 50% of all further payments with regard to the Austin/Helen claims.
(6) Costs as to their motion are assessed against Helen Barrois.

Helen's Motion for New Trial

Thereafter, Helen filed a Motion for New Trial, arguing that the December 29, 2016 judgment should be vacated because the Mancil Executors failed to post a security bond, as required for a writ of sequestration. Helen also argued that because she did not receive all of the $539,725.33 from the BP settlement fund, the Mancil Executors were not entitled to half of this sum as their share of the community property. On January 19, 2017, the trial court denied Helen's Motion for New Trial.

Helen's Exception of Prescription

On October 19, 2016, Helen filed a Peremptory Exception of Prescription, arguing that the right of recovery of Mancil's heirs from his first two marriages was barred by the 30-year liberative prescriptive period in La. C.C. art. 3502. According to Helen, because these heirs "had not filed a pleading, document or record of any kind in Mancil's Succession," their claims are prescribed, so that she is the sole successor (as the universal legatee of Austin) to all property of both the Mancil and Bernice estates. On February 14, 2017, the trial court denied Helen's Exception of Prescription.

On March 17, 2017, Helen filed a Motion for Devolutive Appeal of the December 29, 2016 judgment granting the Mancil Executors' Motion for Summary Judgment, the January 19, 2017 judgment denying Helen's Motion for New Trial, and the February 14, 2017 judgment denying Helen's Exception of Prescription.

DISCUSSION

In this appeal, Helen lists four assignments of error:

(1) The trial court erred by improperly granting summary judgment despite the presence of disputed issues of material fact and the complete absence of legal authority for its actions.
(2) The trial court erred by improperly issuing a sequestration order with no bond.
(3) The trial court's judgment improperly ordered payment of 50% of all BP settlement funds released to date as well as $539,725.33 in future funds, which constitutes a double or triple open-ended award of the maximum amount possibly at issue.
(4) The trial court erred in denying Helen's Peremptory Exception of Prescription, which would have terminated this litigation.

Assignment of Error Nos. 1 and 3: Motion for Summary Judgment

We address these two assignments of error together, as they both relate to the trial court's summary judgment.

Appellate courts review the granting of a motion for summary judgment under the de novo standard of review. Filmore Parc Apartments II v. Foster , 16-0568, pp. 3-4 (La. App. 4 Cir. 2/15/17), 212 So.3d 621, 624. "Appellate courts use the 'same criteria that govern the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.' " Id. , 16-0568, p. 4, 212 So.3d at 624 (quoting Weintraub v. State Farm Fire & Cas. Co. , 08-0351, p. 2 (La. App. 4 Cir. 10/29/08), 996 So.2d 1195, 1196-97 ).

Helen contends that the trial court made factual and legal errors in granting summary judgment in favor of the Mancil Executors. First, she argues that there is a disputed issue of material fact as to how much money she received from the BP settlement fund. Helen asserts that she received only $401,850.87, which were the "net" proceeds after payment of her legal fees. We disagree. The record reflects that, up through the date of the summary judgment at issue here, BP paid Helen in two disbursements of $384,000.00 and $155,725.33 as compensation for her claim for damage to the oyster leases. Helen, who hired several attorneys to represent her in the claims process, then allowed her attorneys to deduct $137,874.46 from the settlement to pay her attorney's fees. It is not disputed that the entire $539,725.33 was paid to Helen.

Helen also argues that, as a matter of law, upon Austin's death, she became the owner of at least a 7/9th share of the oyster leases and BP payments, and that the Mancil heirs (other than Austin) own at most 2/9th of the oyster leases and BP payments. According to Helen, the trial court erred in not awarding her 7/9th of the $401,850.87 "net" proceeds (after payment of her legal fees), or approximately $309,425.00. She also contends that the trial court should have awarded the Mancil Executors only 2/9th of this amount, or approximately $92,425.00.

Helen is confusing two separate issues in this case. The issue before this court on summary judgment is how the BP settlement proceeds are to be split between the two successions. The issue of what fractional share of the BP proceeds will go to each Barrois heir/legatee after administration of the two successions is not before the court. Helen, nevertheless, spends much of her brief explaining how to calculate her share of the BP settlement funds that will be disbursed personally to her through a judgment of possession in the Mancil and Bernice successions. She also devotes a significant part of her brief addressing whether the heirs' fractional shares are to be taken from the "net" or the "gross" settlement proceeds (before and after payment of attorney's fees). We find that Helen's argument is premature, and thus is immaterial for purposes of our review of the trial court's summary judgment.

Despite the mathematical complexities presented by Helen, the resolution of this issue is relatively straightforward. In 2016, this court established that, as a matter of law, the Succession of Mancil owns 50% of the community-property oyster leases, and the Succession of Bernice owns the other 50%. In granting summary judgment, the trial court found that the Succession of Mancil is entitled to 50% of the total compensation paid by BP for damage to the oyster leases, and the Succession of Bernice is entitled to the other 50%. The trial court, therefore, split the past and future BP proceeds 50/50 between the two successions. We find no error in that decision.

Double/Triple Recovery

Helen contends that the trial court improperly awarded the Mancil Executors "double or triple" the amount due by requiring Helen to pay them 50% of all amounts already paid to her, and then giving the Mancil Executors "the next $539,725.33." We agree.

The trial court correctly rendered a "money judgment" in favor of the Mancil Executors and against Helen in the amount of 50% of all money or other things of value already received by Helen, or which Helen may receive in the future, with respect to the oyster leases, which includes the BP settlement proceeds. The relief awarded in Section 3 and Section 5 of the judgment, however, creates inconsistencies within the judgment.

Section 3 orders "that Helen immediately pay over to the Mancil Executors 50% of all monies or other things of value received by Helen with regard to the oyster leases." Section 5 declares that the Mancil Executors are entitled to receive the "next $539,725.33 to be paid from the BP Settlement Fund." We understand that, because additional BP settlement payments were anticipated, the trial court's intent was to "equalize" the amounts due to the two successions by ordering that the Mancil Executors be paid the next $539,725.33 from the BP settlement payments (the same amount already received by Helen).

The result, however, is that Helen must "immediately pay over" to the Mancil Executors the sum of $269,862.66, and thereafter, the Mancil Executors shall receive the "next" $539,725.33 paid by BP. The Mancil Executors, therefore, will receive $809,587.99, while Helen will receive only $269,862.66. Thereafter, the two successions will split the BP payments on a 50/50 basis. The trial court's judgment plainly does not "equalize" the payments to each succession.

Pursuant to the authority granted under La. C.C.P. art. 2164 to "render any judgment which is just, legal, and proper upon the record on appeal," we accordingly amend the December 29, 2016 judgment to strike out Section 3. We also strike Section 2, which is repeated in Section 4. Accordingly, we amend the trial court's judgment as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment by the Mancil Executors and against Helen is hereby GRANTED. Accordingly, there is Judgment herein in favor of the Mancil Executors and against Helen Scott Ehle Barrois as follows:
(1) Ordering that Helen immediately provide a full and complete accounting for all money or other things of value that Helen has received relating in any manner to the oyster leases at issue in the lawsuit. The leases "at issue in this lawsuit" include but are not limited to the following listed leases:A. Lease 2746699 containing approximately 4 acres, Bayou Rucich, Plaquemines, LA;
B. Lease 2746799 containing approximately 13 acres, Scofield Bay, Plaquemines, LA;
C. Lease 2884807 containing approximately 162 acres, Scofield Bay, Plaquemines, LA;
D. Lease 3272407 containing approximately 4 acres, Scofield Bay, Plaquemines, LA;
E. Lease 3272507 containing approximately 1 acre, Scofield Bay, Plaquemines, LA; and
F. Lease 3272607 containing approximately 8 acres, Scofield Bay, Plaquemines, LA.
The accounting is to specifically include any and all money received from British Petroleum ("BP") or from the Deepwater Horizon Settlement Program relating to the 2010 oil spill. The accounting shall include a complete statement of all money received, all fees or other expenses paid in connection with the receipt of that money, the disposition of the money, the current whereabouts of the money or of any other things of value purchased by use of the money. If the money has been spent or donated, the accounting must include the details of all such expenditures or donations including particularly the names, addresses, email addresses, and phone numbers of recipients of any such money. The accounting shall also include the production of all documents relating to the receipt, disposition, use and current whereabouts of the money and of anything of value purchased or obtained by use of the money.
(2) A money judgment in favor of the Mancil Executors and against Helen in the amount of 50% of all money or other things of value received by Helen or which Helen receives in the future with regard to the ownership, use or damage to the oyster leases that are the subject of this lawsuit.
(3) Judgment declaring that the Mancil Executors are the owners of and are entitled to receive from the Deepwater Horizon Settlement Program the next $539,725.33 to be paid from the Settlement Program on the claims previously asserted in the name of Austin F. Barrois (who is now dead and whose successor claimant is Helen E. Barrois) with regard to the oyster leases whether as a result of a Seafood Program claim or as a result of a claim under the HESI Punitive Damages and Assigned Claims Settlement and the Transocean Punitive Damages and Assigned Claims Settlement Agreement. Further the judgment is to declare that after payment to the Mancil Executors of that $539,725.33, the Mancil Executors are then entitled to payment from any further settlement 50% of all further payments with regard to the Austin/Helen claims. The Deepwater Horizon Settlement Program claim designation that is the subject of this order is:Claimant Name: Austin F. Barrois (Austin F. Barrois is now deceased and his successor claimant is Helen E. Barrois)
Claimant ID: 100091915
Claim Type: Seafood Compensation Program
Claim ID: 129796
(4) Costs as to their motion are assessed against Helen Barrois.

As amended, and in all other respects, we affirm the trial court's December 29, 2016 judgment.

Assignment of Error No. 2: Sequestration Without Bond

Helen contends that the Mancil Executors' Petition, "in effect," was an improper writ of sequestration without a bond. Helen also argues that, because this Court in 2014 reversed the trial court's sequestration order against Helen on the grounds that the Mancil Executors did not post a bond, this Court should likewise vacate the trial court's December 29, 2016 judgment.

On April 1, 2014, the Mancil Executors filed a "Rule for Sequestration" without bond, in which they sought an order directing the Sheriff to seize all funds received by Helen from the BP settlement, and placing the sum of $384,000.00 in the registry of the court. On July 24, 2014, the trial court signed a judgment ordering Helen to deposit $40,000.00 in cash into the registry of the court within five business days. The trial court also decreed that Helen could not sell, transfer, encumber, or otherwise alienate the $200,000.00 annuity contract that she purchased in July 2013. Helen filed an application for supervisory writs. On August 21, 2014, this Court granted Helen's writ application, and vacated the July 24, 2014 judgment based on the trial court's failure to set an appropriate bond under La. C.C.P. arts. 3574 (sequestration) and 3610 (injunction). Succession of Barrois , 14-0846 (La. App. 4 Cir. 8/21/14) (unpub.).

On August 11, 2015, after the trial court's April 10, 2015 judgment decreeing that the oyster leases acquired by Bernice during her marriage to Mancil were community property, the Mancil Executors filed a "Motion to Sequester Funds and to Set Security for Sequestration." Again, the Mancil Executors sought a court order directing Helen to deposit into the registry of the court one-half of the money she received from the BP settlement. On August 13, 2015, the trial court denied the Motion to Sequester for failure to comply with La. C.C.P. art. 3501, which requires that the applicant furnish security.

Sequestration is a provisional remedy available for the seizure of property as to which the seizing party claims a property, possessory, or security interest, to prevent the disposal or concealment of the property by another party. La. C.C.P. arts. 3501, et seq. The writ of sequestration is "intended to preserve property pending the outcome of a judicial proceeding." Grantt Guillory Enters., Inc. v. Quebedeaux , 12-931, p. 9 (La. App. 3 Cir. 2/6/13), 110 So.3d 182, 189 (citation omitted).

In 2014 and 2015, when the Mancil Executors filed their rules for sequestration, the trial court had not yet rendered its judgment ordering Helen to pay 50% of the BP settlement funds to the Succession of Mancil. A writ of sequestration, therefore, was the appropriate procedural mechanism to prevent Helen from dissipating the settlement funds pending the outcome of the Mancil Executors' claim for these proceeds.

On December 29, 2016, however, the trial court rendered a money judgment in favor of the Mancil Executors and against Helen in the amount of 50% of all money already received by Helen, or received in the future, with regard to the ownership, use, or damage to the oyster leases. This judgment was not a provisional remedy to preserve the status quo pending a judgment on the merits. This was a judgment on the merits.

Accordingly, we find no merit to this assignment of error.

Assignment of Error No. 4: Exception of Prescription

Helen argues that because the claims of the other Mancil heirs are prescribed, she is the sole heir to the Succession of Mancil.

When no evidence is introduced to support or controvert a peremptory exception of prescription, "the judgment is reviewed simply to determine whether the trial court's decision was legally correct." Wells Fargo Fin. Louisiana, Inc. v. Galloway , 17-0413, p. 8 (La. App. 4 Cir. 11/15/17), 231 So.3d 793, 800. A de novo standard of review applies. Id.

Louisiana Civil Code article 3502 provides:

The action for the recognition of a right of inheritance and recovery of the whole or part of a succession is subject to a liberative prescription of thirty years. This prescription commences to run from the day of opening of the succession.

Helen contends that because Mancil died in 1975, the 30-year prescriptive period ended in 2005. According to Helen, at that time none of the Mancil heirs had filed a pleading, document or record of any kind in Mancil's Succession for recognition of their right of inheritance and recovery.

The Mancil Executors cite Fleniken v. Allbritton, 566 So.2d 1106 (La. App. 2d Cir.1990), in which the court held that the liberative prescription period of 30 years applicable to an action for recognition of the right of inheritance and recovery of whole or part of a succession does not accrue when the parties hold the succession property as co-heirs or co-owners in indivision. This Court agreed with Fleniken in In re Succession of Moore , 97-1668, 97-1669, p. 19 (La. App. 4 Cir. 4/1/98), 737 So.2d 749, 759-60. See also La. C.C. art. 3502, Editor's note (" article 3502 should not be read to mean that non-action by a successor for thirty years operates as a liberative prescription on an heir claiming ownership of property he inherited from the decedent").

"Succession occurs at the death of a person." La. C.C. art. 934. "Immediately at the death of the decedent, universal successors acquire ownership of the estate...." La. C.C. art. 935. "Universal successors" is a term of art defined in La. C.C. art. 3506(8) to include heirs by intestacy and general and universal legatees. "Ownership of the same thing by two or more persons is ownership in indivision," or co-ownership. La. C.C. art. 797. Thus, we find that all of the Mancil heirs (which include Helen) are co-owners in indivision of the succession property of Mancil. The 30-year prescriptive period in La. C.C. art. 3502, therefore, does not accrue. Accordingly, the trial court's decision to deny Helen's Exception of Prescription is legally correct.

CONCLUSION

For the reasons stated above, we amend the trial court's December 29, 2016 judgment granting the Mancil Executors' Motion for Summary Judgment and, as amended, we affirm. We also affirm the trial court's January 19, 2017 judgment denying Helen's Motion for New Trial, and the February 14, 2017 judgment denying Helen's Exception of Prescription.

JUDGMENT ON SUMMARY JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED; JUDGMENT DENYING MOTION FOR NEW TRIAL AFFIRMED; JUDGMENT DENYING EXCEPTION OF PRESCRIPTION AFFIRMED

      After the trial court's December 29, 2016 judgment was rendered, BP made a third payment to Helen of $149,336.54. Out of this, Helen paid her attorneys $29,889.31. On March 9, 2017, Helen's attorney filed a Motion to Deposit Funds into Registry of the Court. On March 10, 2017, the trial court ordered that the remaining $119,520.23 be deposited in the registry of the court. On March 22, 2017, the Mancil Executors filed a Motion to Withdraw the $119,520.23 from the registry of court, which the trial court granted on March 28, 2017. In its summary judgment, the trial court did not consider this third disbursement, and it cannot be considered here. See State v. Lewis , 95-0209, p. 2 (La. App. 4 Cir. 4/13/95), 654 So.2d 761, 763.

      Attached to the Supplemental Motion for Summary Judgment was a Third Party Claim filed on October 19, 2016, by the Mancil Executors with the BP Claims Center. The Mancil Executors intervened in Helen's claim, asserting that they were entitled to receive the next $539,725.33 to equalize the payments already made to Helen, and thereafter to receive 50% of any further distributions. In response, the BP Claims Center told the Mancil Executors that they needed a final judgment decreeing that Helen is indebted to the Succession of Mancil.

      Helen incorrectly appeals the trial court's written reasons for judgment issued on January 30, 2017. "Appeals are taken from the judgment, not the written reasons for judgment." Greater New Orleans Expressway Comm'n v. Olivier , 02-2795, p. 3 (La. 11/18/03), 860 So.2d 22, 24.

      In accordance with succession law, the Mancil Executors and Helen eventually will pay all estate debts from the succession property, and then distribute the remaining succession proceeds to the rightful heirs of Mancil and Bernice. See Succession of Comberrel v. Comberrel , 12-1589, p. 4 (La. App. 4 Cir. 6/12/13), 119 So.3d 897, 900.

      Under La. C.C.P. art. 3573, "[the] court on its own motion may order the sequestration of property the ownership of which is in dispute without requiring security when one of the parties does not appear to have a better right of possession than the other."