author: DREW, J.

text:
    David HARTER and Jan Harter Pipkin, Plaintiff-Appellee, v. Earl M. HARTER, III, and Harter Oil Company, Defendant-Appellant.
    No. 50,942-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 10, 2016.
    Rehearing Denied 01/05/2017

      WILLIAM A. JONES, JR. and MICHAEL S. COYLE, Counsel for Appellant.
    HARPER LAW FIRM, By: Jerald R. Harper, Counsel for Appellee.
    Before WILLIAMS, DREW and STONE, JJ.
   DREW, J.

hln this intrafamily squabble, Earl M. Harter, III (“Mike”), and Harter Oil Company appeal a judgment concluding that this court’s earlier finding of a valid transfer of interests in mineral leases must stand and awarding $1,022,917.47 each to David Harter and Jan Harter.

David Harter and Jan Harter have answered the appeal arguing that the trial court erred in finding they were not entitled to penalties and attorney fees under La. R.S. 31:212.21, et seq., for the defendants’ alleged failure to make timely payments.

We reverse the judgment and dismiss the claims of David Harter and Jan Har-ter.

FACTS

Four children were born of the marriage between Earl Harter, Jr., and Marilee Davis Harter: David Harter, Jan Harter, Mike Harter, and Steven Harter (“Steve”).

Earl Harter, Jr., died in 1990. At some point, Marilee Harter granted a power of attorney to Steve. Marilee Harter died on December 24, 2005, and Steve was named as independent administrator of the estate. The four children were residuary legatees owning a one-fourth interest each.

David, Jan, and Mike had concerns about the way that Steve was handling the estate money and operating the family businesses, with some of these concerns predating Steve’s appointment. Jan wanted to hire attorney Joseph Greenwald, a friend of David’s, to represent her about removing | ^Steve’s power of attorney, but she ended up canceling a meeting that she had scheduled with Greenwald in November of 2004. Jan was acting alone at the time.

In the spring of 2006, Greenwald contacted the estate’s accountant, Robert King, regarding information that had been requested. On July 21, 2006, Greenwald wrote to David, Steve, Jan, and Mike about a meeting of the owners to discuss the family business entities.

On July 25, 2006, David emailed Mike concerning a shareholder’s meeting announcement that Mike was to receive. The purpose of the meeting was to start getting more information about the estate as there were concerns that Steve was using estate funds to pay his own business expenses. David asked Mike how much pressure he wanted David to apply to get the information from Steve. David also wanted Mike’s decision on whether they needed to play “hardball.”

On August 3, 2006, Greenwald wrote a letter to King in which he stated that Mike, David, and Jan had hired accountants Justin Ricou and Henry Gahagan to examine and audit the records of the family businesses.

Mike testified that he never hired Greenwald to represent him, did not meet with Greenwald in 2006, and did not ask Greenwald to make demands against the succession on his behalf. Furthermore, he did not participate with David, Jan, and Greenwald in 2006 and early 2007 in trying to get information from Steve.

laOn October 6, 2006, David emailed Steve to say that Mike and Jan had granted him two weeks to resolve the issue regarding the estate hiring lawyers and forensic accountants and to get all available information. David added Steve’s options were to work with him and Gahagan, or end up in court defending every move he made with the estate money. David also wrote that every one of the over seven attorneys that they had met with believed there could be “criminal wrongdoing or at least suspicious behavior.”

Steve replied by email that same day that David and Jan would be the real losers if it came to a court fight because the estate would have to sell assets to pay legal fees and all monthly payments to heirs would cease. Steve also wrote that the bank would call Mike’s, David’s, and his own demand notes for immediate payment. He finished by saying they may get him removed, but there would not be much money left, and King, who would be in charge, would treat them as if he were a trustee from the bank.

David replied to Steve in an undated email that Steve still did not understand the situation, and all they wanted was information. He further wrote that King told them at the meeting that according to Dykes, they would immediately sue if they saw the books. David added that he and Jan were prepared to lose everything, and that all the lawyers they had interviewed were willing to be paid if they received any inheritance.

The estate of Marilee Harter sues Mike

The estate sued Mike in December 2006 on three promissory notes from the late 1990s. He was the only one of the Harter children sued. On |4July 28, 2007, Mike settled with the estate. Mike agreed to pay $575,000 to satisfy what he owed. Mike also purchased the interests of Harter Energy, LLC, in oil and gas properties in LaSalle Parish for $1,000,000 cash. Mike agreed that because he raised the defense of partial confusion to the suit against him on the notes, he violated the provisions of his mother’s will and forfeited his interest in his mother’s estate. Mike also agreed to hold his siblings and the estate harmless for any claims that he had or may have against them. Mike testified at trial that the estate benefitted from the sale of the mineral interests because it needed cash at the time.

On July 28, 2007, Harter Energy and Harter Oil Company executed an assignment, bill of sale, and conveyance of the mineral leases. The effective date was July 1, 2007.

An effort to remove Steve

In August of 2007, David, Mike, and Greenwald met in Mike’s office to discuss what could be done regarding Steve. It was suggested that they could sue Steve for damages and to remove him as administrator. Greenwald recalled that David and Mike discussed an agreement for Mike to sell interests in the mineral leases he had acquired from the estate to David and Jan, and David and Jan would file a lawsuit against Steve. Mike would help fund the lawsuit since he could not be a party to it, with the condition that David and Jan reimburse him for their share of the expenses.

Mike met with David, Gahagan, and attorney Billy Pesnell on October 81, 2007. Pesnell had been working with David and Jan since early that year investigating a possible claim against the estate.

On November 30, 2007, David emailed Mike that Pesnell would be sending them a draft demand letter giving Steve 10 days to provide all the | ¿information about the estate or to resign his position. David also wrote that he and Jan needed to resolve their financial situation with Mike as soon as possible. They had several suggestions. First, they would each purchase 25% of the mineral interests that Mike had recently obtained from the estate, and they would receive their share of the revenue. David and Jan were dependent on their monthly payments from the estate, and they were fearful that these payments would cease when Steve received the demand letter. Second, Mike would receive the assets over and above the current two-thirds of the estate that he and Jan were to receive. Third, Mike would pay all legal and accounting fees incurred in their joint effort to gather information, replace Steve as executor, and do whatever else they decided was necessary to protect their position regarding the estate. They would repay 66% of those costs to Mike when they were able.

On December 7, 2007, Pesnell wrote to David and Jan regarding their engagement of his firm in the dispute with Steve. Mike guaranteed prompt and timely payment of all attorney fees and expenses owed by David and Jan to the firm.

Upon receiving the December 12 draft of Pesnell’s demand, Mike wrote several conditions on its last page. The conditions were for Steve to resign by January 1, 2008, to make all books available, and provide current financials by January 1, 2008. Jan signed the conditions and said David had okayed them.

On December 15, 2007, Mike wrote a personal check for $10,000 to Pesnell’s firm to retain Pesnell as counsel for David and Jan. Three days later, Pesnell mailed his demand letter to Steve. Pesnell requested a reasonable opportunity to inspect the books and records maintained by Steve | ¿relating to the administration and its assets, and to obtain answers to the questions posed by David and Jan. Following that, they would determine if a formal accounting was necessary. Pesnell asked Steve to respond within 10 days if he would allow the inspection.

On January 20, 2008, David wrote to Mike that he was attaching a copy of Pes-nell’s efforts, and that Steve had been served. He added that Gahagan wanted to meet with them concerning records from 2006 and 2007 that he had obtained.

On February 8, 2008, David faxed a note to Mike with a contract and a promissory note attached. David asked Mike to look at them and let him know if they were okay. David also wrote that he wanted separate agreements for Jan and himself.

David sent an email to Gahagan on February 19, 2008. David wrote that “the natives were restless” and “Jan and Mike are pushing hard.” He assumed that King had not provided all of the information requested, and he would be meeting with Pesnell the next day to get phase two started. Two days later, Gahagan forwarded to David an email received from King that day in which King explained the delay in providing the information.

On March 1, 2008, David emailed Mike that Pesnell would have a suit drafted shortly. Included with the email was a forwarded email from King to Gahagan, in which King wrote that Steve had given the final okay to send information for 2006 and 2007.

|7On March 18, 2008, David informed Mike by email that Pesnell had filed suit. He asked Mike to call him because they needed to meet with Gahagan and go over all of the information they had received from King.

Motion to compel and withdraw letters of independent administration

On March 19, 2008, Pesnell filed a motion in the Succession of Marilee Harter to compel production of records and to withdraw letters of independent administration.

On March 28, 2008, David emailed Mike that he assumed that Mike had received Pesnell’s paperwork. He wanted to know when Mike wanted to meet with Gahagan.

On March 27, 2008, David emailed Mike that Steve was going to produce all documents as soon as possible. He added that Pesnell told Steve’s attorney, Vernon Richie, that they would drop the motion if they analyzed the books and all was okay. David concluded by writing that Jan and he needed to get checks from Mike on April 1.

On April 1, 2008, David emailed Mike wanting to know when they could finalize their purchase of the oil properties. David asked Mike to modify the amount of money they were getting because they were having cash flow problems. Mike replied by email three days later that he would pass on all net income after $8,000 was paid on each note.

Later that month, Pesnell communicated with Richie regarding what he wanted made available for inspection, and that he was to start the inspection as soon as possible.

On May 18, 2008, David wrote to Mike that Pesnell was going to court the next day. David added that he would be in Shreveport that week and would get Mike up to speed. A stipulated order in response to the | amotion to compel was entered on May 19. Steve was ordered to produce for inspection all books and records of the estate relating to the administration and its assets. It was also ordered that Steve’s letters of independent administration were withdrawn.

Gahagan sent a bill to Mike on May 31, 2008, for $4,325. Mike paid it on June 24, 2008, with a check drawn on Harter Oil’s account.

On June 17, 2008, David sent a note to Mike and attached a Dixon Hughes accounting report concerning the family’s auto dealership. David wrote “here is the strongest evidence against Steve.” He added “this is gross mismanagement” and underlined the word gross. David finished by writing that Pesnell and Gahagan were moving to finalize the lawsuit. David sent an additional note that day saying that he would be in town and wanted Mike to call him.

Pesnell and Richie exchanged letters in July of 2008 concerning the estate’s assets, investments, loans, and expenses. One such letter from Pesnell stated that although the audit of the estate was not concluded, he had some points that he wanted to raise. The draft of that letter was faxed to David, Jan, and Mike on July 9.

On July 17, 2008, David wrote to Mike that he would be in town all weekend and wanted Mike to call him.

| JHarter Oil Company

Mike had told David that he would sell to David and Jan a 25% interest each in the mineral leases he acquired from the estate at the same pro rata price that he had paid for them. He also told them he would finance the purchase.

Rosalyn Hull was Harter Oil Company’s bookkeeper and office manager. In December of 2007 or January of 2008, Mike told Hull what he was planning to do, and that he wanted her to put David and Jan in the company books so they could keep track of the accounting in case the deal was completed. Initially, she kept track of everything on an Excel spreadsheet.

Mike contended that he never told Hull to enter David and Jan into the company records as working interest owners. However, because Hull found it difficult to use the Excel spreadsheet for this purpose, she entered David and Jan into the company’s software program. As a result, the program created regular documents such as joint interest billing statements as if David and Jan were actual working interest owners. There was never a written assignment of the mineral leases to David and Jan.

Mike conceded that although someone looking at the monthly reports and ownership decks would have thought David and Jan were owners of 25% interests, that was not his intent and it was done only for paperwork reasons. Mike also agreed that what Hull did made it appear that David’s and Jan’s information looked the same as the working interest owners.

Mike instructed Hull to set up loan accounts for David and Jan. Each loan account had an initial balance of $253,433, which included closing costs. Interest was charged on the loans.

hoDavid and Jan were treated as if the conveyance had occurred on July 1, 2007. Any production that would have been attributed to David and Jan from then until January 2008 was used to pay the purchase price financed by Mike. David and Jan each received an IRS Form 1099 for 2007 from Harter Oil Company in the amount of $148,187.58.

Mike started paying David and Jan the $6,000 a month that they told him that Steve would eliminate once they took action against him. Except for this $6,000 paid to each of them, all of the production payments attributed to their interests at that time were applied to the note. The first check for $8,000 to them was dated March 31, 2008.

In April of 2008, Mike agreed to apply $8,000 a month to each note and then pay them the remaining net income minus expenses. David and Jan each received a 1099 form for 2008 from Harter Oil Company in the amount of $236,712.35.

On August 7, 2008, Mike received a letter from a representative of Voyager Energy, LLC, inquiring about two of Mike’s leases that they wanted to purchase, the Urania G lease and the Harter Tensas Delta lease. Those two leases were part of the leases that he obtained from the estate.

In September, Voyager proposed paying $3,000,000 for the leases. On September 10, Mike expressed interest in selling at that price. Even though the records sent to Voyager showed David and Jan as working interest owners, Voyager accepted their explanations that David and Jan were not working interest owners.

In After receiving the Voyager inquiry, Mike instructed Hull to change the Harter Oil Company books as of August 2008 to take David and Jan out of the oil and gas program and to begin paying them on a monthly fee basis. After September 22, David and Jan stopped getting working interest production payments. They began to receive $12,000 a month, with the amount classified as a loan from Harter Oil.

On December 1, 2008, Mike sold the interests to Voyager for $2,058,619.73. David and Jan received none of the sale proceeds.

Ryka, a company related to Voyager, bought the remainder of Harter Oil Company’s leases on May 1, 2011. That sale included more than just the leases that Mike had obtained from the estate in the settlement.

Action demanded by Mike

On September 28, 2008, Mike sent a note to David and Jan. He wrote that it had been well over a year and very little had changed with the estate and Steve, and either they were not pushing hard enough or Steve’s lawyer was better. He added that he had done everything he said and more, including giving each of them $175,000 that year that was above their agreement. He suggested that maybe their motivation was lost with the large checks. He decided to give each of them $12,000 a month for the rest of the year, even though the original deal was for only $6,000 a month. Mike added that if Steve was still in the estate and not in jail or bankrupt by the end of the year, then they would reevaluate their deal.

On October 20, 2008, David forwarded to Mike an email that David sent to Pesnell earlier that day. David wrote to Pesnell that he and Jan agreed that writing an assessment letter was probably a waste of time and money, and, therefore, they wanted Pesnell to file suit to reclaim damages | iglost in “gross mismanagement” of estate. They felt there was enough documentation to justify the action. They also agreed that time was of the essence, and they could not emphasize the importance of filing the lawsuit as soon as possible. David wrote that November 1 was the critical date and whatever it took they must follow through and file by that date. Finally, he would drop off a $10,000 check to Pesnell in order to maintain their retainer account.

David emailed Mike on October 26, 2008, to let him know that he met with Pesnell on October 22 and gave him $10,000 to replenish the retainer fund. David wrote that Pesnell admitted to not having their case on the front burner, but said it would be placed there the next week. Pesnell was to have a draft of their suit distributed for approval by October 30. David wrote that even though Gahagan would be out of the country until November 1, he and Pesnell thought they had enough information to proceed without him.

David emailed Mike again the next day, putting “status” in the subject line. The email repeated much of what was written a day earlier. David did not think Gahagan’s absence was a factor, but Pesnell brought it up as a possible reason for not completing the suit. David added that he thought Pesnell finally understood the urgency of this “exercise” and would complete paperwork as promised. David said he would follow up and keep Mike informed.

On November 5, David emailed Mike that he had just spoken to Pesnell and he hoped to have the draft tomorrow.

David and Jan each received checks for $12,000 that were dated September 22, October 20, and November 20. Checks in that amount for | ^December were voided. After Harter Oil Company made its last payments to David and Jan, each loan had a remaining balance of $195,862,

Lawsuit against Steve

David and Jan filed suit against Steve on December 17, 2008, to recover damages for breach of fiduciary duty and mismanagement of the estate. On that same date, they also filed a motion to remove Steve as executor, alleging gross mismanagement of the estate and breach of Steve’s fiduciary duties. The hearing on the motion was set for February 2, 2009.

On January 9, 2009, Jan wrote to Mike that she needed to know his intentions regarding their original agreement. She said she knew about the drop in oil prices, but she wanted to keep her house. She asked Mike to contact her as soon as possible.

On January 14, 2009, Richie emailed Pesnell that he had received an email from Steve that the parties had met and reached a settlement.

Steve, David, and Jan executed a settlement agreement on January 20, 2009. Out of the cash at hand, David, Jan, and Steve were each to receive a distribution of $100,000. David and Jan would continue receiving their monthly payments from the estate.

David wrote to Mike on January 21, 2009, that as Mike was aware, Jan and he had settled with Steve. David also wrote that he wished that it had not happened, but he had no choice.

Present lawsuit

David and Jan filed this breach of contract lawsuit in 2010 claiming that defendants had unilaterally terminated their ownership interests in the leases. Following the presentation of plaintiffs’ case, Judge Leon Emmanuel granted an involuntary dismissal.

[ uThis court reversed the judgment of dismissal on the grounds that David and Jan had presented sufficient evidence to prove there was a valid oral transfer of the working interests. The matter was remanded for the receipt of defendants’ evidence and a decision on the entire record. Harter v. Harter, 48,426 (La.App. 2 Cir. 11/14/13), 127 So.3d 5, writ denied, 2014-2383 (La. 1/9/15), 157 So.3d 1112.

Judge Emmanuel retired following the remand, and Judge Michael Pitman was assigned the case. On June 11, 2014, David and Jan filed a motion to establish the order of presentation of evidence at trial. Two days later, Mike filed his own similar motion.

On July 23, 2014, the trial court granted Mike’s motion to establish the order of presentation of evidence at trial. A trial de novo was ordered to commence. The trial judge noted at the hearing on the motion that in order for him to get a grasp of the case and to judge the credibility of witnesses, he thought it would be appropriate to start from the beginning and would be a denial of due process to do otherwise.

On August 12, 2014, the trial judge vacated his earlier ruling and instead decided that a trial de novo would not be permissible under this court’s ruling. The defendants were ordered to proceed with their case in chief. The trial judge stated he changed his mind after reading this court’s opinion again. Mike sought supervisory review, but this court denied the writ on October 16, 2014. The supreme court denied a writ on January 9,2015.

In May of 2012, defendants filed a second supplemental answer to the supplemental and amended petition and recon-ventional demand, raising as additional affirmative defenses the failure of consideration, failure of cause, | ^failure to reduce the proposal to an executed writing, and, in the alternative, breach of contract. At the beginning of the second trial, defendants were given leave to amend their answer to allege the additional affirmative defense of misrepresentation.

Judgment in favor of David and Jan was rendered on August 6, 2015. David and Jan were each awarded $1,022,917.47. Costs were assessed against defendants. Defendants’ motion for new trial was denied, with the trial court noting they failed to carry their burden of proof in the asserted affirmative defenses. Defendants appealed.

Jurisdiction

David and Jan have filed a motion to dismiss the appeal on the grounds the appeal is not from the final judgment, but from the judgment denying the motion for new trial, which is an interlocutory ruling that is not an appealable judgment.

This motion has no merit. Courts consider the appeal of a denial of a motion for new trial as an appeal of the judgment on the merits, when it is clear from the appellants’ brief that the intent was to appeal the merits of the case. See Great West Cas. Co. v. State ex rel DOTD, 2006-1776 (La.App. 1 Cir. 3/28/07), 960 So.2d 973, writ denied, 2007-1227 (La. 9/14/07), 963 So.2d 1005; Smith v. Hartford Acc. & Indem. Co., 254 La. 341, 223 So.2d 826 (1969); 9029 Jefferson Highway, L.L.C. v. S & D Roofing, L.L.C., 2015-686 (La. App. 5th Cir. 2/24/16), 187 So.3d 522.

Such is the case here. The clear intent of defendants was to appeal the judgment on the merits. Defendants filed a motion for suspensive appeal conditioned on their furnishing bond for $2,500,000, and the only money judgment was the judgment on the merits.

|1fiWe note that the order denying the motion for new trial states that the court found that the defendants failed to carry their burden of proving their asserted affirmative defenses. Defendants had complained that the trial court did not address the defenses when ruling on the merits. In light of this, the defendants’ confusion was understandable. Accordingly, we deny the motion to dismiss.

DISCUSSION — BREACH OF CONTRACT

The assignments of error raised by Mike and Harter Oil Company are that the trial court: (1) erred in not conducting a trial de novo; (2) erred in shifting the burden of proof or persuasion to them; (8) erred in not requiring proof of each element of the contract; (4) was manifestly erroneous to the extent' that it found David and Jan did not breach the commutative contract; (5) erred as a matter of law to the extent it found that David and Jan were relieved of their contractual obligations by Mike’s alleged breach; (6) was manifestly erroneous tó the extent it found that David was authorized on Jan’s behalf to purchase the mineral interests; and (7) was manifestly erroneous in finding that Mike consented to the transfer of the mineral interests when he instructed Hull to make entries in the company records.

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La. C.C. art. 1906.

A contract is commutative when the performance of the obligation of each party is correlative to the performance of the other. La. C.C. art. 1911. A party to a commutative contract may refuse to perform his obligation if the other has failed to perform, La. C.C. art. 2022.

As a general rule, a party suing to recover on a commutative contract must allege and prove performance of his agreement. Charles C. Cloy, Gen’l Contrs., Inc. v. DiVincenti Bros., Inc., 308 So.2d 495 (La. App. 1st Cir. 1975), writ denied, 311 So.2d 262 (La. 1975). Before a person can have a contract canceled on account of a failure of the other party to perform, such person must allege and prove that he himself has performed or offered to perform his part of the contract. La. Farm Rice Bur. v. Miller, 389 So.2d 840 (La. App. 3d Cir. 1980), Racca v. Zwan, 194 So. 68 (La. App. 1st Cir. 1940).

Good faith governs the conduct of the obligor and obligee in whatever pertains to the obligation. La. C.C. art. 1759. A party to a contract has an implied obligation to make a good faith effort to fulfill the conditions of the contract. Bloom's Inc. v. Performance Fuels, L.L.C., 44,259 (La. App. 2 Cir. 7/1/09), 16 So.3d 476, writ denied, 2009-2003 (La. 11/20/09), 25 So.3d 800. When there are reciprocal obligations, the obligor of one may not be put in default unless the obligor of the other has performed or is ready to perform his own obligation. La. C.C. art. 1993.

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong”, and, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La. 1989). The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court; but, if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it 118would have weighed the evidence differently. Where there are two permissible views of- the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell, supra.

Progress of the case

Mike testified that he wanted to help Jan and David because he felt sorry for them and thought that Steve had bullied everyone and controlled the money. Mike would also have benefitted financially had the lawsuit been successful.

Mike testified that although they did not discuss specific dates, he was under the impression that within a month or two after hiring Pesnell they could file suit to remove Steve as executor. He thought David and Jan would want to move quickly because the estate was allegedly losing $20,000 a month. He was also under the impression that they had enough information to accomplish their goals in a short period. Mike would have expected a suit for damages and to remove Steve to be filed no later than 60 to 90 days.

Mike recalled that when he met with David and Greenwald in August of 2007, David told him it would be fairly easy and quick to remove Steve. Mike -believed that when he met with Jan, Pesnell, and Gaha-gan in December 2007, they decided at the meeting to proceed and get it done as soon as possible.

Mike felt that the three conditions he wrote in December 2007 were realistic goals that he wanted to hear from Jan and David since he was putting the money up. Jan signed the conditions, and said David had given his approval. Mike testified that the acceptance of these conditions was the only way he would pay Pesnell’s $10,000 retainer. Mike considered it a 11flbreach of the agreement when they had not filed suit to remove Steve by January 1.

Despite signing the conditions, Jan said she did not know Mike wanted a lawsuit filed in the first weeks or months of 2008. David did not expect to have Steve removed by January 1, 2008, but as soon as it was legally possible. David admitted telling Mike that time was of the essence regarding the succession. David testified that he was going to get the lawsuit filed as quickly as Pesnell could do it. David did not think he gave deadlines to Pesnell.

David recognized that time was important, as he noted in his February 19, 2008, email to Gahagan that “the natives were restless” and that Jan' and Mike were “pushing hard.”

On June 17, 2008, David wrote to Mike that Pesnell and Gahagan were meeting to finalize the lawsuit. Pesnell said he spoke with David over the phone in June 2008 about the status of the investigation. ■

Shown David’s June 17, 2008, note to Mike and asked if he and David were meeting to finalize the suit, Pesnell denied that they were moving at that time to finalize a suit or even draft one. After looking at the invoices, Pesnell stated that there was no question he was not finalizing a lawsuit in June 2008, and he would not have told David he was.

Mike expected David and Jan to tell Pesnell that time was of the essence and that a suit for damages and removal of the executor was required. - Jan denied that Pesnell was not told that part of the agreement with Mike was that Steve was to be removed as executor as soon as possible. She told Pesnell that herself.

| anJan wanted something done immediately, and they all wanted it done as fast as possible. Jan said she was on Pesnell more than anyone else about getting it done immediately.

Jan related that when she pushed Pes-nell very hard, he responded that they were not receiving information from the estate quickly enough, and then she and Pesnell would argue.

Pesnell did not recall getting any deadlines from David or Jan. He did not agree that David or Jan told him that time was of the essence. Pesnell said Mike did not tell him in December that he wanted the suit filed immediately or Steve removed by January 1. Pesnell could not recall a time-frame established by anyone.

Jan faxed the demand letter page with the conditions to Pesnell, but he never changed anything in the letter because he did not agree with the approach outlined in the conditions. He thought the page was faxed to him for his approval. Pesnell said it was not feasible to have Steve removed as executor by January 1, 2008.

Pesnell was unaware of the terms of the agreement between David and Mike. Nobody told him that David and Jan had an agreement with Mike that required the lawsuit to be filed within a short period.

There was no question in Pesnell’s mind that David and Jan wanted to move the case along as fast as they could, and they would have been delighted had the lawsuit been filed immediately, but he could not let desire to get the suit filed override his duty and responsibility to be sure there was a factual and legal basis for the claim.

| ⅞1 Pesnell did not see the need for immediate action since there was no prescription concern or other pending urgency, and would have referred them elsewhere if he saw the need for immediate action.

Pesnell felt the most important early goal was to get Steve relieved of his duties as independent executor because then they could manage the time since Steve could not do further damage to the estate. Mike did not think this alone would stop the estate from bleeding money because Steve was allegedly still receiving salaries from different companies, and situations where Steve could mishandle the money remained.

Pesnell said he could have possibly drafted the suit faster if it had been on the front burner; however, nobody gave him a compelling reason for that. Pesnell thought he moved the case along diligently and promptly in terms of what he thought they would have to prove in order to remove Steve.

Pesnell’s prior work for David and Jan

Mike claimed that he was unaware that Pesnell had already been working for David and Jan concerning the estate for almost a year before he signed his December 2007 guarantee. He did not know that Pesnell had opened a file on the estate in January of 2007. For example, Pesnell’s invoices show that on January 18, 2007, Pesnell had a telephone conference with David and Jan regarding the estate. Mike also did not know that Pesnell had met with Gahagan on February 27, 2007, about the estate, or that Pesnell was meeting with Greenwald around the same time he was meeting with Greenwald.

Mike testified that had he known the issues involving the estate were being discussed by David and Jan with Pesnell months before he went toJ^Pesnell’s office, he would not have gotten involved because David and Jan were previously doing what he agreed to support.

The September 28 letter spurs action

It seemed to Pesnell that as of the middle of July 2008, they had evidence that there was self-dealing between the estate and Steve, and it looked like Steve was using the succession funds as his own. However, Pesnell still did not believe as of that date that they had enough evidence to file a petition for damages against Steve, and was still looking for additional evidence. Pesnell regarded a suit for gross mismanagement or breach of fiduciary duty as a serious claim requiring a high degree of proof, which was lacking at that time.

Pesnell explained that the problem was not whether they had time to examine the records, but was when the records became available because they trickled in over a long period of time. That made it difficult to get a full picture of the issues.

Pesnell did not have an independent recollection of receiving any substantial evidence about the case in August, September, or October of 2008. He could not point to any document and say categorically that was the time he received it.

Jan took Mike’s September 28 letter seriously, so she talked to Pesnell and tried to push him even more. David knew he had a problem with Mike when he received the September letter. David regarded the letter as an emphatic “go after Steve immediately.”

A month after Mike’s September 28 letter, David emailed Pesnell to emphasize the importance of filing the lawsuit as soon as possible. David | ¡^mentioned that November 1 was the critical date, and that they must file by that date.

David emailed Mike on October 26 to let him know that Pesnell admitted not having the case on the front burner, but it would be placed there the next week. Pesnell was to have a draft of the suit to be distributed for approval by October 30.

In reference to this October 26, 2008, email, Pesnell said it was not likely true that he admitted not having the case on the front burner. It was also not likely true that he told David it would be placed on the front burner a few days later. He remembered that David began pressing him about that time to get the suit filed, but David never gave him a deadline for filing it. He also said it was highly unlikely that he told David that he would have a draft of a lawsuit to be distributed for their approval by October 30. He had not started drafting the petition on October 26, 2008. Pesnell did not think he would have promised a lawsuit as David represented in the October 26 email. David explained that he was only interpreting what Pesnell was telling him at the time.

On November 5, David emailed Mike to tell him that Pesnell hoped to have the draft ready the next day. The lawsuit was not filed until December 17.

Petition started

Pesnell thought David provided the impetus for him to start working on the petition on November 3, 2008. Prior to that, he did not see the need to move quickly on the petition for damages. Prescription was not an issue, and any major transaction would need to be approved by the court as a result |Mof Steve being removed as independent administrator, although he remained as executor.

Pesnell had a telephone conference with Gahagan on November 7 concerning the draft petition. Pesnell revised the draft petition after meeting with Gahagan and David on November 10. Pesnell would work on the case for 85.4 hours from November 3 through the date the petition was filed.

Lawsuit filed

Although the petition was the major part of the consideration for their agreement, Mike was not told that David and Jan filed a petition for damages and a motion to remove Steve as executor. Jan explained that she thought it was Pesnell’s job to tell Mike about the lawsuit. She also did not mention it in her January note to Mike.

Pesnell provided David with a copy of the petition and motion to remove before they were filed. David never mailed Mike a copy of the suit or asked Pesnell to mail him one. David explained Mike had not discussed what he wanted to do about reevaluating anything, so he just assumed that Mike was not going further and had already made his decision.

Settlement

Mike was not made aware of the settlement negotiations or that a settlement had been reached. Mike claimed that he found out about the lawsuit and the settlement a couple of years later. He denied receiving David’s email from January 21, 2009, that mentioned the settlement. Jan never brought up the settlement negotiations in her January 9 letter to Mike. Jan admitted that they settled the lawsuit without recovering any damages for Mike. Steve remained as executor.

|2J)avid claimed that the settlement negotiations were spontaneous, and he just decided one day that they could not wait any longer to see where the lawsuit was going, and the best opportunity for them at the time was to settle. David denied that he had any idea of the estate’s status when he first talked to Steve about settling. David believed he had no choice but to settle with Steve because they were at a point where he could not go forward with Pesnell, as Mike was not paying the legal bills.

Pesnell did not learn of the settlement until he was told by the estate’s attorney that an agreement had been reached. Neither attorney prepared the settlement document. In fact, nobody knows who prepared it. David and Steve wrote the settlement out in longhand over a couple of days, then the legal language was apparently added by a phantom attorney.

Pesnell was surprised about the settlement. He thought the petition for damages and the motion to remove Steve had merit after doing his due diligence in collecting all the evidence and conducting his investigations.

Jan explained that they settled the lawsuit because they could not afford to continue the litigation without Mike’s financial support. Pesnell had told David and Jan in December of 2008 that his costs would increase sharply now that he would have to start taking depositions. Pesnell also thought they would have to do extensive discovery to get the documents from the Tennessee accounting firm ready to be admitted into evidence. David complained that his seafood business was wiped out that September by Hurricane Ike, so his money went to reopening his business.

David and Jan thought they could no longer rely on Mike’s continued support in light of his letter, his not reimbursing them for the $10,000 they paid to Pesnell, and his note to Gahagan’s firm. David waited purposely |2Buntil January to see if Mike was going to pay them for January or meet with them to discuss the changes. He got no response from Mike, and thought a reasonable person would assume that he and Jan were on their own.

Mike explained that the intent of his September 28, 2008, letter to David and Jan was to find out if they were going to proceed with what they had talked about, because for over a year they had been telling him that they were going to get Steve removed and to file suit. Mike was very frustrated when he sent it. He thought David and Jan had lost their motivation from getting large monthly checks from Harter Oil Company without holding up their end of the bargain.

Mike testified that he was still willing to allow David and Jan the chance to respond to his September 28 letter. He continued to pay them through November, and felt they could still put the deal back together if they got in touch with him.

Jan thought it was prudent to wait until January 1 to try to resolve the issue with Mike and see what he was going to do. On January 9, 2009, Jan placed a note in the mailbox of Mike’s house, just a few blocks from her own house. Mike said he first became aware of this letter a couple of years later before the first trial when his wife brought it to his attention. They had been receiving a lot of sympathy cards in January of 2009 because of his son’s illness, and he did not want to look at them. In any event, this letter would have been around the time that settlement negotiations were taking place.

David sent several emails to Mike after September 28. None of these emails mentioned the letter. David also claimed that he called Mike and left several call-back messages for him at the office. Rosalyn Hull testified that 127Jan never called the office, and she remembered David calling a couple of times, but could not remember when. Mike testified that he never got a message from David or Jan that he was aware of on his cell phone, home phone, or office phone.

David claimed he had Pesnell file the suit on December 17 even though he thought Mike was no longer interested in going forward because he was hoping that Mike would call him on January 1 to discuss reevaluating the deal. However, that was an empty gesture as Mike was never told about the lawsuit.

Mike remarked that David and Jan had no trouble reaching him when they needed him to meet with Pesnell and guarantee the fees, or when David wanted him to meet with Greenwald.

Mike believed he complied in good faith with his obligation to pay the legal expenses. He stated that he never received another invoice from Pesnell, and was never asked to make another payment to Pes-nell or any other lawyer.

Mike testified that David did not ask him to reimburse the $10,000 that he and Jan paid to Pesnell. Mike also figured that he agreed to advance legal fees until they had the money, and at that point he had given them enough money to pay their share of the expenses. He was never repaid for the original expenses.

Jan did not ask Mike to pay any attorney fees after he sent the September 28 letter, even though she knew he had guaranteed the fees. David admitted that Pes-nell was not putting heat on them to pay the bill. David thought that Mike should have been aware that he and Jan had paid Pesnell because he mentioned it in several emails that he sent to Mike.

| asPesnell said he never asked Mike to make a payment of legal fees that he declined to pay. Mike would have been liable for the fees if the lawsuit had continued.

David did not tell Pesnell to send the bills to Mike because he had been told by someone, maybe Gahagan, that Mike was no longer going to be responsible for the accounting bills, and so he assumed that he was no longer going to be responsible for the legal bills.

Gahagan sent a bill to Mike on May 31, 2008, because Mike told him at the October 2007 meeting that he would guarantee payment of Gahagan’s bills. Harter Oil Company wrote a $4,325 check to Gaha-gan’s accounting firm on June 24, 2008. Enclosed with the check was a note that Mike would no longer pay for Gahagan’s services. Gahagan testified that he did not complete his work on analyzing the estate because of this.

Alleged breach by defendants

David and Jan contend that the settlement with Steve occurred three months after Mike and Harter Oil breached their agreement by terminating their ownership of the mineral leases. They argue that under Art. 1993, Mike and Harter Oil cannot be relieved of his obligations under the agreement when he had already breached it.

Defendants performed under the agreement by paying the initial legal and accounting expenses, paying revenues to David and Jan as if they were 129working interest owners, and financing the purchase. Defendants also performed by making the monthly payments that David and Jan feared would cease, even while the estate continued to pay them. The record reflects that David and Jan received $6,000 each from defendants in April of 2008, even though the estate continued to pay them through May of 2008. Mike would not have paid the $6,000 to each of them had he known that, and he considered this double-dipping to be a breach of the agreement. It is noteworthy that David asked for even more money in his April 2008 email. They each received $17,342; $18,645; $27,606; $31,651; and $22,561 in the following months after Mike agreed to David’s request. Mike then sent $12,000 for three months after sending his September 28 letter. Mike explained that he decided not to send the $12,000 payments for December because he was adjusting and changing the deal.

Mike testified that he told Hull to change the books and take them out as working interest owners and put them on the $12,000 flat fee before he wrote the September 22, 2008 check. They were still on the books on September 16, 2008.

Mike felt he was free to walk away from the agreement as of September 28 since there was not a written agreement, but he wanted to give them a few more months to perform. He thought he had given too much money to David and Jan, and this diminished their incentive to do anything. That was why he reduced the monthly payments to $12,000 and did not want to give them part of the proceeds from the sale of the leases.

hnMike testified that although the Voyager offer was one of the factors in his decision to remove David and Jan from his company’s books, he insisted that his frustration with David and Jan was the major factor. Mike claimed that the first letter from Voyager did not excite him because he often receives that type of letter. He was surprised about the price offer when he received the September 2 letter from Voyager, but still was not overly excited because the contract contained a price provision. Mike did not believe the deal would close because the price of oil was plummeting.

CONCLUSION

Based on our review of this extensive record, we conclude that the trial court was clearly wrong in not finding that the alleged breach by defendants was preceded by a breach by plaintiffs. Therefore, defendants were released from their performance obligations under the agreement and the agreement was canceled.

David wrote to Mike on June 17 that a lawsuit was being finalized, when in fact, a lawsuit would not even be prepared until nearly five months later. Moreover, it is interesting to note that a lawsuit was delayed because of gathering of documents, yet everything suddenly moved into high gear upon receiving Mike’s September 2008 letter when it was announced that the payments would be reduced. Even then, David continued to mislead, as shown by his October 26 email when he wrote that Pesnell would have a draft ready by October 30, when the reality was Pesnell would not start working on the draft for another week. Finally, the circumstances surrounding the settlement are incredible. Everyone won in the settlement except for the person who had financed the lawsuit and the plaintiffs for the past year. Mike’s manipulations concerning the status of David and Jan in |S1 Harter Oil’s books cannot serve as a justification for the quick settlement as David and Jan would not have even been aware of it at the time.

Because we reverse the judgment, it is unnecessary to consider the remaining assignments of error or plaintiffs’ answer.

DECREE

At the costs of David Harter and Jan Harter, the judgment is REVERSED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, DREW, MOORE, and STONE, JJ.

Rehearing denied.

MOORE, J., would grant rehearing.

      . Mike has owned Harter Oil Company for over 20 years.

      . The record shows that by 2008 the estate had lost over $5 million in value and was worth just over $2 million.

      .Greenwald testified at the first trial that he met with the estate's attorney, Bill Dykes, and Steve on David’s behalf one time, and although they were assured they would get copies of what they needed, they did not get what they requested.

      . Mike also testified that he did not hire Justin Ricou and Bud Gahagan in August 2006 to conduct work for him.

      . There was apparently a dispute concerning the interest rate.

      . The agreement was to be made retroactive to July 1, 2007. David agreed to purchase 25% of the leases for $250,000, which was the pro rata price Mike paid. All income from July 1, 2007, until February 15, 2008, was to be used to pay the note. After that, David would receive $6,000 a month, and then the remaining income would be applied to the repayment of the note.

      . Dixon Hughes was a Tennessee accounting firm specializing in evaluating auto dealerships.

      . In an undated handwritten note, David wrote to Mike that Gahagan said that an evaluation of the Lincoln dealership alone was enough proof that gross mismanagement occurred. David added that there was more, but that was most compelling. David also wrote that things had been slow, but were beginning to get up to speed.

      . Hull had written to Voyager on September 15 that the interests of David and Jan were in the name of Harter Oil and controlled- by Mike on all legal documents.

      . Gahagan never found misconduct by Steve that he felt warranted a lawsuit. Pesnell testified that Gahagan never told him that, but it would not have made a difference because Pesnell was going to form his own opinion of whether there was evidence of gross mismanagement.

      . While David disagreed with much of what Mike wrote in the September 28 note, he agreed with Mike’s statement that Mike had done everything he said he would do and more.

      . We are mindful that Pesnell never felt that David and Jan ever did anything during his representation of them that suggested that their action against Steve was just a sham, and that Gahagan never thought David was insincere in pursuing Steve.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Andrew Joseph CARIERE, Plaintiff-Appellee v. THE KROGER STORE, Defendant-Appellee
    No. 50,637-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 16, 2016

      ANDREW JOSEPH CARIERE, Counsel for Appellant
    THOMAS, SOILEAU, JACKSON, BAKER & COLE, LLP By: Steven E. Soileau, Counsel for Appellee
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

|, Andrew Cariere appeals a judgment which granted in part the motion for summary judgment filed by The Kroger Company (“Kroger”). Kroger answers the appeal regarding that portion of its motion for summary judgment which was denied. For the following reasons, we affirm the trial court’s judgment.

Facts

Andrew Cariere entered a Kroger grocery store in Shreveport, Louisiana, on August 22, 2013, and as he exited the store, he was detained by a store employee for allegedly shoplifting. According to the report by Shreveport police, Cariere had taken the price tag off of some crab legs (priced at $12.65) and placed it on a package of frozen tuna (priced at $35.82). Cari-ere submitted to questioning while waiting for Shreveport police. He confessed to shoplifting groceries to the Kroger store personnel and Shreveport police. He was turned over to the police and arrested. Cariere was ultimately charged with theft-shoplifting in Shreveport City Court under docket number 13-017025. The record reflects that the charges were ultimately dismissed.

As a result of this incident, Cariere filed suit against Kroger making claims of assault, battery, torture, defamation, false arrest, and false imprisonment. When Car-iere did not appear for his scheduled deposition, Kroger filed a motion for dismissal for failure to appear; however, the trial court ordered Cariere to appear for another scheduled deposition, which he did.

[¡^Subsequently, Kroger filed a motion for summary judgment on the grounds that Cariere could not prove the elements of battery, assault, torture, defamation, false arrest, and false imprisonment. Additionally, Kroger argued that Cariere could not overcome civil immunity given to merchants who use reasonable force to detain shoplifters on their premises pursuant to La. C.Cr.P. art. 215. Cariere opposed Kroger’s motion for summary judgment alleging several disputed material facts, which Kroger maintains contradicted his deposition testimony. A hearing was held on the motion, and Kroger’s summary judgment was granted in part, denied in part. The trial court dismissed Cariere’s claims of assault, torture, defamation, false arrest, and false imprisonment, but ruled that an issue of material fact existed regarding Cariere’s battery claim.

Cariere, appearing pro se, appeals that portion of the trial court’s judgment dismissing his claims, and Kroger answers the appeal regarding the battery claim.

Discussion

On appeal, Cariere argues that the trial court erred in its interpretation of La. C.Cr.P. art. 215 by concluding that Kroger had reasonable cause to believe that a theft had occurred, and it used reasonable force in detaining Cariere. As stated, the trial court concluded that an issue of material fact existed regarding whether the force used by Kroger’s employee was reasonable or whether it constituted a battery on Cariere. The trial court also determined Cariere had failed to prove his claims of assault, torture, false |aarrest, false imprisonment, and defamation, because he.could not provide any evidence of such. We agree.

Louisiana C.Cr.P. art. 215 states, in pertinent part:

A. (1) A peace officer, merchant, or a specifically authorized employee or agent of a merchant, may use reasonable force to detain a person for questioning on the merchant’s premises, for a length of time, not to exceed sixty minutes, unless it is reasonable under the circumstances that the person be detained longer, when he has reasonable cause to believe that the person has committed a theft of goods held for sale by the merchant, regardless of the actual value of the goods. The merchant or his employee or agent may also detain such a person for arrest by a peace officer. The detention shall not constitute an arrest.
(2) A peace officer may, without a warrant, arrest a person when he has reasonable grounds to believe the person has committed a theft of goods held for sale by a merchant, regardless of the actual value of the goods. A complaint made to a peace officer by a merchant or a merchant’s employee or agent shall constitute reasonable cause for the officer making the arrest.
* ⅝ * ⅜
C. As used in this Article, “reasonable under the circumstances” shall be construed in such a manner so as to include the value of the merchandise in question, the location of the store, the length of time taken for law enforcement personnel to respond, the cooperation of the person detained, and any other relevant circumstances to be considered with respect to the length of time a person is detained.

The above statute provides authority to merchants to detain and question an individual suspected of shoplifting when the merchant has reasonable cause to believe that a theft has occurred, without subjecting the merchant to civil suits by the detained person. Mitchell v. Dillard Dep’t Stores, Inc., 2000-328 (La. App. 5th Cir. 10/18/00), 772 So.2d 733, 736; Freeman v. Kar Way, Inc., 1996-8 (La. App. 3rd Cir. 11/06/96), 686 So.2d 51, 54, mit not cons., 1997-0524 (La. 04/18/97), 692 So.2d 429. Reasonable cause to detain is something less than probable cause and | requires that the detaining officer have articulable knowledge of particular facts sufficiently reasonable to suspect the detained person of criminal activity. Vaughn v. Wal-Mart Stores, Inc., 1998-1215 (La. App. 5th Cir. 04/27/99), 734 So.2d 156; McNeely v. Nat’l Tea Co., 1994-392 (La. App. 5th Cir. 03/28/95), 653 So.2d 1231, writ denied, 1995-1531 (La. 09/29/95), 660 So.2d 880.

To be entitled to civil immunity, a merchant must show that (1) the person effecting the detention must be a peace officer, a merchant, or a specifically authorized employee of a merchant; (2) the party making the detention must have reasonable cause to believe that the detained person has committed theft; (3) unreasonable force may not be used in detaining the suspect for interrogation; (4) the detention must occur on the merchant’s premises; and (5) the detention may not last longer than sixty minutes. Rhymes v. Winn-Dixie La., Inc., 2010-1357 (La. App. 3rd Cir. 03/09/11), 58 So.3d 1068, 1070; Freeman, supra.

Thus, the inquiry is whether Kroger’s employee exerted reasonable force in detaining Cariere, a suspected shoplifter. Here, the trial court noted, “I don’t know to what degree [Cariere] was injured. There is a question of fact as to whether or not the force used was unreasonable.” Further, the trial court observed, “I have seen nothing either way showing that there was a great degree of injury which would indicate what force was used, whether it was reasonable or not.” The trial court also remarked that medical records would have presented an objective indication of the extent of Cariere’s injury, tending to show the reasonableness of the force used.

The intentional tort of battery is a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a ^contact. Griffith v. Young, 46,184 (La.App. 2d Cir. 4/13/11), 62 So.3d 856, 859. However, under art. 215, if the Kroger employee’s force in detaining Cariere was reasonable, then he did not sustain a battery. Notably, summary judgment is ordinarily not an appropriate procedural device when there are issues that require the determination of the reasonableness of acts and conduct of parties under all the facts and circumstances.

In support of its motion for summary judgment, Kroger argued reasonable force was used in order to detain Cariere and that his version of the facts changed from his deposition to his affidavit in opposition to the summary judgment motion. Unfortunately, we do not have any testimony by the store employee who stopped Cariere or any other evidence to support Kroger’s contention that reasonable force was used. We do not know from the record what the store employee was thinking as there is no deposition testimony or statements from anyone other than Cariere, Thus, based on Cariere’s allegations and testimony that the Kroger employee manhandled him with the shopping buggy, we find that there are questions of material fact as to whether the store employee’s actions constituted reasonable force under the circumstances of this case. The trial court did not err and the denial of summary judgment as to this issue was proper.

Because the reasonableness of force used to detain Cariere is still at issue, Kroger may not enjoy immunity under art. 215 for the remaining claims Cari-ere has against it, those being, assault, torture, false arrest, false imprisonment, and defamation. However, we note that on a motion for summary judgment, if the mover will not bear the burden of proof at trial on the issue that is before the court, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, faction, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966.

As to his other claims, Cariere has provided no evidence regarding those. In his deposition, he provided no factual support tending to establish the existence of a genuine issue of fact regarding any of the claims. Likewise, Cariere’s opposition to Kroger’s motion fails to support his claims. The absence of factual support for one or more elements essential to Cariere’s claims is glaring. Once the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. Hutchinson v. Knights of Columbus, Council No. 5747, 2003-1533 (La. 2/20/04), 866 So.2d 228, 233; Sonnier v. Gordon, 50,513 (La.App. 2d Cir. 4/13/16), 194 So.3d 47, 52.

Notably, we observe that the police report indicates that Cariere admitted to shoplifting; thus, although there is some question as to the reasonableness of the force used to detain him for art. 215 purposes, Kroger was still authorized to detain him awaiting Shreveport police. In order to prevail on summary judgment, Cariere must present some evidence more than mere allegations of Kroger’s actions. In fact, he successfully opposed Kroger on the battery issue, because he was able to present at least his testimony in regard to the force used to detain him. Albeit slight, Cariere had some support for his battery claim — enough to prevent Kroger’s |7summary judgment on that issue. However, there is not a scintilla of evidence in this case that would indicate Kroger assaulted, tortured, falsely arrested/imprisoned, or defamed Cariere, and he failed to carry his burden to prevent the granting of summary judgment. Therefore, summary judgment dismissing those claims was not in error.

Conclusion

For the foregoing reasons, the judgment by the trial court granting in part and denying in part the motion for summary judgment by The Kroger Company is affirmed, Costs of this appeal are shared by the parties.

AFFIRMED.

      . The trial court’s judgment was a partial judgment and was not certified by the trial court as suitable for appeal pursuant to La. C.C.P. art. 1915(B). This court issued an order allowing the jurisdictional defect to be cured with an order of certification by the trial court. Such an order was obtained and filed in this court, allowing this appeal to proceed.


author: CARAWAY, J.

text:
    Rubiela KADLEC, Plaintiff-Appellant v. LOUISIANA TECH UNIVERSITY and/or State of Louisiana, through the board of supervisors for the University of Louisiana System and/or Board of Trustees State Colleges and University, Defendants-Appellees
    No. 50,841-CA
    Court of Appeal of Louisiana, Second Circuit.
    November 16, 2016
    Rehearing Denied 12/22/2016

      CHARLES W. SEAMAN, Counsel for Appellant
    JEFF LANDRY, Attorney General, KENNETH A. BRISTER, Special Assistant Attorney General, Counsel for Appel-lees
    Before CARAWAY, LOLLEY and STONE, JJ.
   CARAWAY, J.

h While carrying a box and garbage bag full of her son’s clothes, the plaintiff slipped and fell a few steps into the lobby of a dormitory operated by the defendants after having entered and exited the building at least once before while it was raining. Plaintiff suffered injuries to her left leg and knee and subsequently filed a negligence suit for failure to protect from the hazard or warn those entering the building. The defendant’s first motion for summary judgment was denied, but the Louisiana Supreme Court granted the defendant’s writ application and remanded for further consideration in light of Buf-kin v. Felipe’s Louisiana, LLC, 14-0288 (La. 10/15/14), 171 So.3d 851. After reconsideration, the trial court granted the defendant’s motion for summary judgment.

Facts

On August 25, 2012, Rubiela Kadlec (“Kadlec”) and her son, D.J. Morrison (“Morrison”), traveled from Provengal to Louisiana Tech University’s (“Tech”) campus in Ruston, arriving at some time around noon. Upon arriving, the two entered Graham Hall, a dormitory on campus, and met Devin Tant (“Tant”), a student and Hall Director for the dormitory. As a part of his job duties, Tant was tasked with checking in students who would be living in Graham Hall. In addition to checking in Morrison, Tant also informed Morrison of some of the improvements that had been made to the dormitory over the summer because Morrison was going to be working as a Resident Assistant in Graham Hall that year. Those improvements included work on the air conditioning units and ducts, new carpet in certain areas, and the floors being freshly waxed. Tant stated that he informed |2Morrison of the recent waxing because Morrison, as a Resident Assistant, would be required to put up a sign asking people not to drag luggage across the floor for fear of scratching it.

Graham Hall’s entrance consists of a set of glass double doors with a horizontal metal bar about half-way up as a push handle. A check-in desk is located immediately inside the doors on the left hand side, about 3-4 feet from the edge of the door. The doors use magnetic locks and Tech uses a key fob system which allows those residents with the fobs to scan them to unlock the door to enter. In order to avoid having to go around the end of the desk repeatedly to let people in that day, Tant used a wooden ehock to hold the door open. Immediately outside of the doors was a mat, but there was not one inside the building. The door is recessed from the rest of the building and an awning extends beyond the entranceway to provide approximately 5 feet of cover outside of the doorway. Before Kadlec’s accident occurred, the door had been open for at least a couple of hours.

After being checked in, Kadlec and Morrison spent approximately an hour and a half inside Graham Hall, during which time Morrison and Kadlec spoke with other students, parents, and some maintenance people who were friends of Morrison about the upcoming school year. There is a controversy between the plaintiff and defendant as to whether, during this period of time, a campus custodian, Dewanna Russell (“Russell”), spoke with Kadlec after noticing that she was wearing flip-flops and warned her “to be careful while wearing the flip-flops she had on her feet.” Russell has signed an affidavit to this effect; however, Kadlec signed an affidavit stating that such a conversation never occurred.

Is After Morrison finished speaking with the other students, he and Kadlec went out to the car to begin unloading some items he had brought to move in. The first trip was uneventful. On the second trip out to the car, the weather turned and it started to sprinkle according to Kadlec. By the time of the third trip out to the car, it had started to drizzle. Kadlec and her son were not walking together when making trips to the car, rather they were making alternate trips, with one going roughly as the other was coming in. On one of his trips into Graham Hall, Morrison slipped and almost fell while carrying a television, exclaiming that he had scared himself a bit. Kadlec was not present to see the slip.

On her third trip back into Graham Hall and while it was drizzling (or even “poured” according to her deposition), Kadlec carried a box and a garbage bag with some of Morrison’s dress shirts in it. She followed three other people who were ahead of her as she went up the steps to enter the building. Upon entering Graham Hall, Kadlec slipped and fell approximately 4 steps past the outside door mat. She exclaimed that she thought she had broken her leg. Tant, the Hall Director, was at the desk at the time of the fall, but was facing the key closet at the time of the fall and did not see the accident. After hearing Kadlec fall, he came around the desk to find her holding her knee. Another parent who was present and also happened to be a nurse came to assist and after removing Kadlec’s flip-flops and feeling her knee stated that she thought the knee was dislocated. No other action was taken until Louisiana Tech University police and first-responders arrived to take Kadlec to the hospital.

|4In her deposition, Kadlec stated that she did not see any water on the floor when she exited the building to make her third trip to the car. Further, she stated that any water there would have had to have occurred or gathered inside the doorway while she was on her way to or from the car. Tant’s deposition testimony stated that he believed the floor was slippery where Kadlec fell because there may have been some water on the floor and that any such water would have been tracked in from outside.

Much effort from both parties has been placed on the description and details of what exactly Kadlec was wearing when she fell, specifically her footwear. Unfortunately, deposition testimony states that the footwear was lost at some point during Kadlec’s visit to the hospital. It is agreed that she was wearing thong-style flip-flops at the time of her fall. That is to say that the footwear had a rubber sole and had straps that began between her big toe and second toe and then split and extended back to either side of her foot. There is some dispute as to whether the flip-flops had a leather strap that went around the back of Kadlec’s ankle. The flip-flops had a water-resistant texture on the bottom, and Kadlec had had them for about two years.

Procedural History

After the accident, Kadlec filed suit against Louisiana Tech University and the University of Louisiana System Board of Supervisors and Board of Trustees for the damages she incurred as a result of the fall. Following a discovery period, the defendants filed a motion for summary judgment asserting that there was no genuine issue of material fact as to a duty to protect because the hazard, if there was one, was open and obvious to all. The district court denied the motion for summary judgment, finding that | ¿genuine issues of material fact existed regarding the condition and any notice that Tech might have had. The defendants then filed a writ application to the Second Circuit Court of Appeals, which was denied. The defendants subsequently filed for a writ to the Louisiana Supreme Court. The Louisiana Supreme Court granted the writ and remanded the case to the district court for reconsideration “in light of Bufkin ..., which clarified our holding in Broussard v. State, 12-1238 (La. 4/5/13), 113 So.3d 175.”

Upon reconsideration, the trial court granted the defendant’s motion for summary judgment, applying the risk-utility balancing test from Bufkin to conclude that Louisiana Tech was under no duty to protect or warn of the condition. Plaintiff now appeals to this court assigning error in the district court’s finding that there were no genuine issues of material fact and that the condition was open and obvious to all who encountered it.

Summary Judgment

A de novo standard of review is required when an appellate court considers rulings on summary judgment motions, and the appellate court uses the same criteria that governed the district court’s determination of whether summary judgment was appropriate. Bank of New York Mellon v. Smith, 15-0530 (La. 10/14/15), 180 So.3d 1238, 1243. A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law, pursuant to La. C.C.P. art. 966. See Catahoula Parish School Board v. Louisiana Machinery Rentals, LLC, 12-2504 (La. 10/15/2013), 124 So.3d 1065, 1071.

| fiThe burden of proof on a summary judgment motion remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment should be granted. See La. C.C.P. art. 966(D)(1); Bufkin, supra.

Discussion

Before we address the case noted by the Supreme Court for this remand, we will review certain settings where rainy day slip and falls have been addressed in our jurisprudence. The temporary presence of the rainwater on the floor does not create a vice or defect inherent in the floor, building or “thing,” implicating Civil Code Articles 2317.1 and 2322. Likewise, in some settings such as the present, the defendant is not a merchant and therefore not under the express duty of La. R.S. 9:2800.6(A) “to keep his aisles, passageways, and floors in a reasonably safe condition” and to make a “reasonable effort” in monitoring the premises. Nevertheless, under our general negligence standard in Civil Code Article 2815, a nonmerchant, business owner owes a duty to visitors to exercise reasonable care to keep the premises in a safe condition commensurate with the particular circumstances involves. Flipping v. JWH Properties, LLC, 50,648 (LaApp. 2d Cir. 6/8/16), 196 So.3d 149, 156. The duty is less than that owed by a merchant, and the trial court'must consider the relationship 17between the risk of a fall and the reasonableness of the measures taken by the defendant to eliminate the risk. Grinnell v. St. Francis Med. Ctr., Inc., 48,249 (La.App. 2d Cir. 8/21/13), 156 So.3d 117, 122.

Under Louisiana law regarding slip and fall eases, merchants carry the highest duty to protect patrons from dangers. La. R.S. 9:2800.6 governs liability in this area, stating that “a merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition,” and this includes a duty to make “a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.” This burden of care is more clearly stated as requiring merchants to “exercise reasonable care to protect those who enter the store, keep the premises safe from unreasonable risk of harm, and warn persons of known dangers.” Ferlicca v. Brookshire Grocery Co., 50,000 (La.App. 2d Cir. 9/4/15), 175 So.3d 469, 472, citing Jones v. Brookshire Grocery Co., 37,117 (La.App. 2d Cir. 5/14/03), 847 So.2d 43; Ward v. ITT Specialty Risk Servs., Inc., 31,990 (La.App. 2d Cir. 6/16/99), 739 So.2d 251, writ denied, 99-2690 (La. 11/24/99), 750 So.2d 987. This is tempered by the admonishment that, although a merchant has such affirmative duties, he is not the insurer of the safety of patrons. See Turner v. Brookshire Grocery Co., 34,562 (La.App. 2d Cir. 4/4/01), 785 So.2d 161.

This court applied this high duty of care to a merchant’s conduct in a rainy day slip and fall case and found that the merchant had shown due care for the maintenance of the store entrance. Ward v. ITT Specialty Risk Seros., supra. In that case, a plaintiff slipped and fell as she reached for a shopping cart when entering a grocery store. It was undisputed that water had dripped [soff the shopping carts and accumulated in the entrance and that the manager of the store had seen the accumulation and called for a mop to clean it up just minutes before the accident. The store manager testified that, in order to protect against the dangers caused by the rain, extra mats were placed in the entrance area, six warning signs were placed around the entry, and periodic inspections of the floor occurred throughout the day, with one just 39 minutes before the accident. Looking to jurisprudence that considered whether a store exercised reasonable care where plaintiffs slipped and fell while entering stores during rainy weather, this Court determined that the factfinder was not clearly wrong in determining that the store exercised reasonable care upon a showing that the store had a procedure in place to deal with extra water resulting from rainy weather and that the procedure was followed. Id.; see also Dawson v. Brookshire Grocery Co., 31,042 (La.App. 2d Cir. 9/23/98), 718 So.2d 623; Tannehill v. Brookshire Grocery Co., 588 So.2d 1282 (La. App. 2d Cir. 1991), writ denied, 692 So.2d 1334 (La. 1992); Hall v. Kroger Co., 499 So.2d 469 (La. App. 2d Cir.1986); Johnson v. Tayco Foods, 475 So.2d 65 (La. App. 2d Cir. 1985), writ denied, 478 So.2d 149 (La. 1985); Crandell v. Winn-Dixie Louisiana, Inc., 580 So,2d 967 (La. App. 5th Cir. 1991).

Jurisprudence also demonstrates that when a store has inadequate or nonexistent procedures to deal with rain, it may be found to have failed to exercise reasonable care for the rain-wet floor. For example, in Barton v. Wal-Mart Stores, Inc., 97-801 (La.App. 3d Cir. 12/10/97), 704 So.2d 361, the court determined that a defendant store that did not follow its written rainy day procedure was liable for the damages caused when a plaintiff | flipped and fell upon entering the store on a rainy day. There the plaintiff slipped on accumulated rainwater and dirt that had been tracked into the store after wiping h'is feet on two different sets of maps. Id. at 363.

In Flipping, this court found no manifest error when a bench trial resulted in an assessment of equal fault after a plaintiff slipped and fell upon entering the defendant’s office building on a rainy day. Flipping, supra. The accident occurred immediately as the plaintiff stepped from the wet sidewalk into the building. The mat inside the building was apparently not placed close enough to the door and the slip occurred as plaintiffs foot first stepped on the tile floor. In reviewing the case to determine whether the defendant had a duty to protect against the hazard, the court used a duty-risk analysis to determine if the hazard was open and obvious as alleged by the defendants. The court first stated that the defendant had “a duty to have rainy-day safety measures that were prudent and reasonable at this customer entrance.”. Additionally, “the need for a mat and its reasonableness were conceded by [the defendant’s] having the mat present in the first place. The evidence supported a determination that the mat was not properly placed; therefore “in that overall setting with the customer escaping the rainy conditions outside, the failure of [the defendant] to maintain a mat for the customer stepping up and onto a damp floor amounted to a breach of its duty under these circumstances.” Id.

In King v. Allen Court Apartments II, 15-0858 (La.App. 1st Cir. 12/23/15), 185 So.3d 835, writ denied, 16-0148 (La. 3/14/16), 189 So.3d 1069, the court addressed an appeal from a trial court’s grant of summary judgment against a plaintiff who had sued the owners and insurers of his | inapartment complex after he fell on the wet tile flooring in the entranceway of the complex in which he lived. The facts of the case indicate that on a stormy night the plaintiff left his apartment to get food and returned approximately a half hour later. Upon returning, and while it was still windy and raining, he re-entered his apartment building through the same doorway he left and slipped and fell- on the tile floor, breaking his leg. After the plaintiff filed suit, the defendants filed a motion for summary judgment asserting no defect existed on the premises, or alternatively that the plaintiff could not establish that any defect caused the accident. According to the court of appeal, the evidence presented fell short of being able to prove a defect, and that the plaintiff “had to show more than a mere hazard was presented by the wet floor, but that the wet floor or rug could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances or that the wet floor and/or rug were unreasonably dangerous.” Id. at 841. Summary judgment in favor of the lessor was affirmed.

In Bergeron v. Southeastern Louisiana Univ., 610 So.2d 986 (La. App. 1st Cir. 1992), the First Circuit affirmed a trial court’s finding of negligence where a student slipped and fell when entering a dormitory lobby on a rainy day and while wearing flip-flops. Testimony at trial established that the university had a monitor stationed in the lobby to protect against dangerous conditions such as water on the floor and that there was a procedure involving mats and mopping ordinarily employed by the university that was not followed. Based on those circumstances, the court found the trial court was correct in finding that the plaintiff had successfully |nmade a showing of negligence under La. C.C. art. 2315. Because of the monitor, the university either knew or should have known of the condition. Although a percentage of fault was assigned to the plaintiff for his footwear, the First Circuit upheld the finding of negligence.

In three of these cases, Ward, Barton, and Flipping, rainwater on the floor was found to present a risk of harm that was within the defendant’s duty of care to keep the premises safe for patrons’ entries into the building. In contrast, King found that the wet floor was not evidence of a “defect” but simply a “mere hazard” that could not reasonably be expected to cause injury to a person using ordinary care. Last, Bergeron found a breach of duty by a university for rainwater on a dormitory floor.

The differences in the analysis of all of these cases may stem from differences in the relationships between the parties, from the merchant/customer setting, to the non-merchant/customer setting, to the lessor/lessee setting. When it comes to the unavoidable risk of rainwater tracked into the premises, Ward, Flipping, and Berger-on charged the defendant to take some protective measures regarding the expected wet floors. By contrast, in King, the routine entrance of tenants from the rain outside into the common passageway did not require the wet floor risk to be periodically monitored during the rainstorm. The two rulings of the First Circuit Court of Appeal, King and Bergeron, appear to conflict.

In Barton, Bergeron, and Flipping, the owners of the buildings with a rain-wet floor were held liable to patrons injured upon entering the business premises. This is because a wet floor was held to present an unreasonable risk of harm or unreasonably dangerous condition for which the owner owed | iaa duty to patrons to correct or warn. Nevertheless, on a rainy day, a person entering the building may also be expected to recognize that water tracked into the building by herself and others will be present on the floor. This raises the question of the open and obvious nature of the rainwater hazard which persons coming out of the rain must guard against.

In the Louisiana Supreme Court’s remand of this case to the trial court, it directed reconsideration in light of Bufkin, supra. Bufkin involved a construction dumpster placed by the defendant contractor on a street in the French Quarter of New Orleans while restoration work was occurring to a building. The pedestrian claimed that the dumpster blocked his vision in crossing the street, causing the accident and injury. The court granted summary judgment in favor of the defendant upon the following conclusions:

The evidence presented on motion for summary judgment established that any vision obstruction, caused by the dumpster, to a pedestrian crossing Conti Street at that mid-block location was obvious and apparent, and reasonably safe for persons exercising ordinary care and prudence. Moreover, because-the size of the dumpster was comparable to a pick-up truck, this particular situation was of the type any pedestrian might encounter on a regular basis. Thus, we conclude that Shamrock had no duty to warn of the obstruction presented to pedestrians by its pick-up-truck-sized dumpster, a large inanimate object visible to all.

Id., 171 So.3d at 858.

Bufkin’s holding that the dumpster was an open and obvious hazard raises the question of the open and obvious nature of rainwater at the entrance of a building. While clear water may not be actually seen, the person knows upon entering the building that she has water upon her shoes and that others may have also brought some water into the entryway. Nevertheless, such rainwater hazard as seen from the jurisprudence has [ 18never been held to be completely outside the duty of all building owners to keep their properties in a reasonable safe condition cn‘ to warn of a rain wet floor.

This is not a merchant/customer setting and is basically a lease arrangement for dormitory living. The duty of the owner of the dormitory is to keep the common entryway area of the building in a reasonably safe condition. Tech maintained a mat under the large awning area before the entry into the building. Yet, how dry that mat remained on this occasion, because of the lengthy period of rain, is unclear. Tech did not offer evidence that it routinely took steps on a rainy day to monitor the floor condition or to warn the residents by the use of cones. The residents of the dormitory continuously come and go through the common entryway, and the cost of preventing the harm of routine rainwater, a risk that is apparent to all on rainy days, weighs in Tech’s favor. The cost would be substantial, adding to the overall cost of dormitory housing.

Nevertheless, under the particular facts of this case, Tech did have a person at the scene of the accident and the accident occurred during the high traffic time for the moving day involving new students and their family members and friends. The evidence suggests that the rain had not just started prior to the accident. The amount of water on the floor at the time of the accident is not clearly shown and remains in dispute. Whether Tech should have been alerted to a hazard on this rainy day under all of these circumstances is not free from doubt, leaving material issues of fact in this summary judgment setting.

[ uiConclusion

Accordingly, we reverse the trial court’s judgment and remand the matter for trial. Costs of this proceeding are assessed to the defendant in the amount of $324.50, in accordance with La. R.S. 13:5112.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, DREW, LOLLEY and STONE, JJ.

Rehearing denied.

DREW, J., would grant .rehearing.