author: CALLOWAY, J.

text:
    Frank MCGEE, as Trustee of the TRPLT Unsecured Creditors’ Trust v. DENHAM HOLDINGS, L.L.C. d/b/a Performance Insurance Services, et al.
    2016 CA 0766
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 17, 2017

      William E. Steffes, Barbara B. Parsons, Baton Rouge, Louisiana, and Kenneth H. Hooks, III, H. Price Mounger, III, Baton Rouge, Louisiana, Attorneys for Appellant Plaintiff—Frank McGee, as Trustee of the TRPLT Unsecured Creditors’ Trust •
    Justin P. Lemaire, Maggie A. Brous-sard, New Orleans, Louisiana, Attorneys for Appellee Defendant—Catlin Specialty Insurance Company
    BEFORE: PETTIGREW, McDonald, and Calloway, JJ.

      . Hon. Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   CALLOWAY, J.

Un this suit for damages arising from a dispute regarding Towing and Recovery Professionals of Louisiana Trust’s (“TRPLT”) engagement of Denham Holdings, L.L.C., d/b/a Performance Insurance Services (“Performance”) to provide insurance agency services to the TRPLT, the plaintiff (“UCT” later identified in more detail) appeals a judgment of the trial court sustaining a peremptory exception raising the objection of peremption and dismissing the plaintiffs claims, with prejudice. Based on the following, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Bankruptcy and Federal District Court Proceedings

The TRPLT was formed in 2003 as an alternative to traditional liability insurance, providing a means by which professional towing, automobile liability, in town on-hook towing, physical damage, and other public liability claims or judgment arising therefrom against participating members of the sponsoring association, the TRPLT, could be paid or settled. The TRPLT was funded through premiums paid by its participants and was managed by its Board of Trustees in accordance with the terms and conditions of the TRPLT Trust Agreement. The TRPLT contracted with Performance to serye as the exclusive “servicing agent” for the TRPLT in soliciting, selling, renewing, and negotiating indemnity coverage for the TRPLT. Performance executed its duties as “servicing agent” through May 2010.

The TRPLT voluntarily filed for Chapter 11 bankruptcy on May 17, 2010, in United States Bankruptcy Court for the Middle District of Louisiana. A reorganization plan for liquidating its assets was approved and a confirmation order was signed on February 28, 2011, effective March 15, 2011. The reorganization plan provided for ,the creation of the TRPLT Unsecured Creditor’s Trust, and Frank McGee was appointed as Trustee (collectively, “UCT”).

Shortly before the reorganization plan was confirmed, the TRPLT filed a separate adversary proceeding against Performance on February 25, 2011, in the bankruptcy court. See Towing and Recovery Professionals of Louisiana Trust, et al. v. Denham, Holdings, LLC, d/b/a Performance Insurance Services, et al., Case No. 11-740 (M.D. La.). The TRPLT also filed an adversary proceeding against Lu-den Burkett, the Executive Director of the TRPLT. That matter was consolidated with the adversary proceeding against Performance; however, the Burkett case is not at issue in this appeal. See Towing and Recovery Professionals of Louisiana Trust, et al. v. Lucien Burkett, Case No. 11-732 (M.D. La.). The adversary actions involved state law claims for breach of fiduciary and contractual duties and claims for excess and unauthorized payments allegedly made, to Performance, Burkett, and the insurance broker, British-American Insurance Group Ltd. (hereinafter, “BAIG”). The parties agreed the reference to the bankruptcy court should be withdrawn in the wake of the United States Supreme Court’s opinion in Stern v. Marshall; accordingly, the bankruptcy court ordered the reference withdrawn, and the adversary proceedings moved from the bankruptcy court to the federal district court.

Thereafter, Performance and Burkett sought to have the proceedings dismissed due to lack of subject matter jurisdiction or, alternatively, to have the federal district court invoke an abstention. In a “Ruling and Order” signed on October 16, 2012 (hereinafter “Abstention Order”), the federal district court expressly stated that it had jurisdiction over the claims brought by the TRPLT against Performance and Burkett in the adversary proceedings, despite the fact that some of the claims “arise under bankruptcy law.” The court denied Performance and Burkett’s motions to dismiss for lack of subject matter jurisdiction.

Also in the Abstention Order, the federal district court stated that it would “permissively abstain from all of the claims [brought by the TRPLT in the adversary proceedings] except those made in Counts VI and VII (to recover avoidable transfers made to Burkett...).” As to the other claims, the court referenced a class action pending in Louisiana state court—Roadrunners Towing and Recovery, Inc., etc. v. Lucien Burkett, et al., Suit No. 595,-553, filed in 2010 in the Nineteenth Judicial District Court on behalf of the members of the TRPLT against Burkett and trastees of the TRPLT, seeking damages for negligence and breach of fiduciary duties, including refund of premiums and return of any profits. Neither the TRPLT, the UCT, nor Performance were parties to the class action. In the Abstention Order, the federal district court found that “the state court action was brought prior to these proceedings,” and that “the claims in both forums involve[d] state law issues which essentially stem from the same operative facts.... ” The court further stated that “all of the parties are either involved in the state court proceedings or they can be made party to those proceedings,” noting “the only forum that can effectively entertain all of these claims is the state court,” and that “there is a strong possibility of inconsistent results should the matters proceed in separate forums.” Accordingly, the federal district court granted the motions to abstain filed by' Performance and Burkett as to “all claims other than Counts VI and VII” in the Burkett proceeding, Case No. 11-732, which the court stayed, pending resolution of the state court proceedings.

Thereafter, the federal district court signed an order on May 15, 2013, administratively terminating the matter, stating “this case has been stayed until the state court proceedings have been resolved” (hereinafter, “Administrative Closure Order”). The Administrative Closure Order expressly stated “[t]his order shall not be considered a dismissal or disposition of this matter, and should further proceedings in it become necessary or desirable, any party may initiate it in the same matter as if this order had not been entered.” State District Court Proceedings

On September 25, 2013, the UCT filed a petition for damages in Louisiana state court against Performance, its insurer, Catlin Specialty Insurance Company (hereinafter, “Catlin”), and its sole members/owners, Debra LaLa and Charles Burkett. The suit, filed in the Nineteenth Judicial District Court, asserted nearly identical claims against Performance as were alleged in the adversary action in federal district court by the UCT’s predecessor in interest, the TRPLT.

|fiCatlin filed a motion for summary judgment on April 14, 2014, arguing that the UCT’s claims were excluded from the errors and omissions coverage provided by Catlin to Performance. Following a hearing, the trial court denied Catlin’s motion.

Thereafter, Catlin filed a peremptory exception raising peremption or, alternatively, a motion for summary judgment. Catlin argued that the UCT’s claims were extinguished through peremption because the UCT failed to commence its state court action within the peremptive period set forth in La. R.S. 9:5606. Following a hearing, the trial court sustained the peremption objection in a judgment signed on November 17, 2015, and dismissed the UCT’s claims with prejudice. The UCT then filed a motion for new trial, which the trial court denied in a judgment signed on February 1, 2016.

The UCT moved for a devolutive appeal from the judgment denying the motion for new trial. Catlin filed a motion to dismiss the appeal with this court. In an order signed on September 22, 2016, this court maintained the appeal, but reserved a final determination as to whether the appeal was to be maintained to the panel to which the appeal was assigned.

JURISDICTION

Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc., 2011-0520 (La. App. 1 Cir. 11/9/11), 79 So.3d 1054, 1059, writ denied, 2012-0360 (La. 4/9/12), 85 So.3d 698. Our appellate jurisdiction extends to “final judgments.” See La. C.C.P. art. 2083. A judgment must be precise, definite, and certain. Laird v. St. Tammany Parish Safe Harbor, 2002-0045 (La. App. 1 Cir. 12/20/02), 836 So.2d 364, 365. Moreover, a final appealable judgment must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. See Carter v. Williamson Eye Center, 2001-2016 (La.App. 1 Cir. 11/27/02), 837 So.2d 43, 44. These determinations should be evident from the | language of the judgment without reference to other documents in the record. Laird, 836 So.2d at 366. In relevant part, a final appealable judgment “must contain appropriate decretal language disposing of or dismissing claims in the case.” State in Interest of J.C., 2016-0138 (La.App. 1 Cir. 6/3/16), 196 So.3d 102, 107.

As an appellate court, we are obligated to recognize any lack of jurisdiction if it exists. This court’s appellate jurisdiction extends to “final judgments,” which are those that determine the merits in whole or in part. La. C.C.P. arts. 1841 and 2083; see Van ex rel. White v. Davis, 2000-0206 (La.App. 1 Cir. 2/16/01), 808 So.2d 478, 483. However, a judgment that only partially determines the merits of an action is a partial final judgment and, as such, is immediately appealable only if authorized by La. C.C.P. art. 1915. Rhodes v. Lewis, 2001-1989 (La. 5/14/02), 817 So.2d 64, 66.

The UCT appealed only the judgment rendered February 1, 2016, which was the judgment denying its motion for a new trial. The denial of a motion for new trial is not an appealable judgment absent a showing of irreparable harm. Morrison v. Dillard Dept. Stores, Inc., 99-2060 (La. App. 1 Cir. 9/22/00), 769 So.2d 742, 744, writ denied, 2000-3379 (La. 2/2/01), 784 So.2d 646. However, the supreme court has directed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits as well, when it is clear from the appellant’s brief that he intended to appeal the merits of the case. See Reno v. Perkins Engines, Inc., 98-1686 (La.App. 1 Cir. 9/24/99), 754 So.2d 1032, 1033, writ denied, 99-3058 (La. 1/7/00), 752 So.2d 863; Smith v. Hartford Acc. & Indem. Co., 254 La. 341, 348-49, 223 So.2d 826, 828-29 (1969); Fruehauf Trailer Co. v. Baillio, 252 La. 181, 190, 210 So.2d 312, 315 (1968). It is obvious from the UCT’s brief that it intended to appeal the November 17, 2015 judgment sustaining the peremption objection and dismissing its claims with prejudice. Thus, we will treat the appeal accordingly. See State ex rel. Div. of Admin., Office of Risk Management v. National Union Fire Ins. Co. of Louisiana, 2013-0375 (La.App. 1 Cir. 1/8/14), 146 So.3d 556, 561 n.8. Based on the foregoing, Catlin’s motion to dismiss is denied, and the appeal is maintained.

| .STANDARD OF REVIEW

Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La. C.C. art. 3458. Peremption may not be renounced, interrupted, or suspended. La. C.C. art. 3461. The objection of per-emption is raised by the peremptory exception. La. C.C.P. art. 927(A)(2).

Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. However, if peremption is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not perempted. Satterfield & Pontikes Construction, Inc. v. Breazeale, Sachse & Wilson, LLP, et al., 2015-1355 (La.App. 1 Cir. 1/10/17), 212 So.3d 554, -, 2017 WL 105953.

At a hearing on a peremptory exception of peremption pleaded prior to trial, evidence may be introduced to support or controvert the exception. La. C.C.P. art. 931. If evidence is introduced at the hearing, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Accordingly, if those findings are reasonable in light of the record reviewed in its entirety, an appellate court cannot reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Satterfield, 212 So.3d at 559-60, 2017 WL 105953.

In the absence of evidence, an exception of peremption must be decided based upon the facts alleged in the petition with all of the allegations accepted as true. Atain Speciality Ins. Co. v. Premier Performance Marine, LLC, 2015-1128 (La. App. 1 Cir. 4/8/16), 193 So.3d 187, 190. If no evidence is introduced to support or controvert the exception, the manifest error standard of review does not apply, and the appellate court’s role is to determine whether the trial court’s ruling was legally correct. Atain, 193 So.3d at 190.

[sLAW

The time limit for filing an action for damages against an insurance agent, broker, solicitor, or other similar licensee is set forth in La. R.S. 9:5606(A), which provides that such actions must be filed in a court of competent jurisdiction and proper venue within one year of the date of the act, omission, or neglect, or within one year of the date of discovering the act, omission, or neglect and within three years of the date of the act, omission, or neglect. Louisiana Revised Statutes 9:5606(D) further provides that both the one-year and three-year periods of limitation provided in Subsection A are peremptive periods within the meaning of La. C.C. art. 3458, and in accordance with La. C.C. art. 3461, cannot be renounced, interrupted, or suspended. Klein v. American Life & Cas. Co., 2001-2336 (La.App. 1 Cir. 6/27/03), 858 So.2d 527, 530, writs denied, 2003-2073, 2003-2101 (La. 11/7/03), 857 So.2d 497, 499. Official Revision Comment (c) to Article 3461 states that while peremption may not be interrupted or suspended, “when an action asserting a right subject to peremption has been commenced or served as provided in Article 3462, the right has been exercised and so long as the action is pending the lapse of the period of peremption does not extinguish the right.”

DISCUSSION

On appeal, the UCT argues the trial court: (i) erred in granting Catlin’s objection of peremption, and (ii) erred in dismissing the UCT’s claims with prejudice in lieu of entering a dismissal without prejudice. The UCT argues its claims are still pending in federal district court, which bars a finding of peremption in state court. Pursuant to La. R.S. 9:5606, the UCT’s predecessor in interest, the TRPLT, timely asserted its claims against Performance, Catliris insured, in a court of competent jurisdiction and proper venue through the filing of the federal court adversary proceeding on February 25, 2011. The federal district court permissively abstained from hearing the claims of the UCT later filed in state court; however, the federal district court did not dismiss any of the UCT’s claims in the Abstention Order. The UCT argues that the state court erred in likening the | Abstention Order to an order of dismissal, especially since the federal district court expressly stated in the Abstention Order, “(t]his order shall not be considered a dismissal or disposition of this matter.” Once the federal adversary proceeding was administratively closed, the UCT argues its claims were stayed and remain pending before the federal district court to this day. Accordingly, the UCT argues that it timely filed suit against Performance in state court on September 25, 2013, well within the peremptive periods provided for in La. R.S. 9:5606; therefore, the UCT’s claims were not extinguished through peremption.

In opposition, Catlin argues that when the federal district court permissively abstained from hearing the UCT’s claims against Performance, the federal district court relinquished its jurisdiction over those claims in the Abstention Order, retaining jurisdiction only over the claims against Burkett. Thus, at the time the Administrative Closure Order was issued, Catlin argues the only claims that remained pending in federal court were the bankruptcy claims filed by the UCT against Burkett. Catlin argues there is no authority for the proposition that a former federal suit, over which the federal district court has relinquished jurisdiction, can interrupt, suspend, or otherwise affect the peremptive period provided for in La. R.S. 9:5606. Thus, Catlin argues the last day the UCT could have commenced its state court action before its claims were extinguished through peremption pursuant to La. R.S. 9:5606 was either February 25, 2012 (one year from the filing of the UCT’s initial federal court suit against Performance), or May 17, 2013 (three years from the filing of the TRPLT’s bankruptcy case in federal bankruptcy court).

It is undisputed that the UCT’s claims against Performance were timely filed in the federal court adversary proceeding on February 25, 2011, and there is no dispute that the UCT’s claims in the state court action are the same, if not substantially the same, as those asserted in the federal court adversary proceeding. Furthermore, venue was likewise proper in the federal district court. See 28 U.S.C § 1409(a). The threshold issue for this court’s consideration in order to determine whether the UCT’s claims filed in state court on September 25, 2013 were filed in a court of competent jurisdiction and Improper venue and within the peremptive periods provided for in La. R.S. 9:5606(A), is what effect the pendency, of the UCT’s claims in federal district court had on the same claims filed in state court, if any. We must therefore examine the federal district court’s Abstention Order and Administrative Closure Order.

The subject matter jurisdiction of federal district courts and bankruptcy judges is conferred by 28 U.S.C. § 1334. Section 1334(a) grants original and exclusive jurisdiction over “all cases under title 11” except as provided in Subsection (b). Section 1334(b) grants original, but not exclusive, jurisdiction “of all proceedings arising under title 11, or arising in or related to cases under title 11.” Section 1334(c)(1) authorizes permissive abstention, while Section 1334(c)(2) authorizes mandatory abstention. The court in which a case under title 11 is commenced or is pending has exclusive jurisdiction over all claims or causes of action that involve title 11. See 28 U.S.C. § 1334(e)(2).

Under the permissive abstention doctrine, 28 U.S.C. § 1334(c)(1), federal district courts have broad discretion to abstain from exercising subject matter jurisdiction over state law claims “arising under” or “arising in or related to a case under title 11” whenever appropriate in the interest of justice, or in the interest of comity with state courts or respect for state law. In re Gober, 100 F.3d 1195, 1206 (5th Cir. 1996). Courts look to the following factors to determine whether to exercise permissive abstention: (1) the effect, or lack of effect, on the efficient administration of the bankruptcy estate if discretionary abstention is exercised; (2) the extent to which state law issues predominate over bankruptcy issues; (3) the difficulty or unsettled nature of the applicable state law; (4) the presence of related proceedings commenced in state court or other non-bankruptcy courts; (5) the jurisdictional basis, if any, other than 28 U.S.C. § 1334; (6) the degree of relatedness or remoteness of the proceedings to the main bankruptcy case; (7) the substance rather than the form of an asserted “core” proceeding; |n(8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court; (9) the burden on the bankruptcy court’s docket; (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties; (11) the existence of a right to jury trial; (12) the presence in the proceeding of non-debtor parties; (IB) comity; and (14) the possibility of prejudice to other parties in the action. In re Phoenix Diversified Inv. Corp., 439 B.R. 231, 245-46 (Bankr. S.D. Fla. 2010).

In the Abstention Order, the federal district court expressly stated, “the court finds that it has jurisdiction” without specifically referring to the claims against Performance or the claims against Burk-ett. The court then stated that it “will permissively abstain from all of the claims except those made in Counts VI and VII,” ie., the Burkett claims. As to the claims against Performance, the court explained its permissive abstention, stating:

[T]he state court action was brought prior to these proceedings; the claims in both forums involve state law issues which essentially stem from the same operative facts; all of the parties are either involved in the state court proceedings or they can be made party to those proceedings; the only forum that can effectively entertain all of these claims is the state court; and there is a strong possibility of inconsistent results should the matters proceed in separate forums. Additionally, the state law issues predominate and there is a jury demand in state court action.

Administrative closure is a procedural device used to remove from a court’s pending cases suits which are temporarily active elsewhere (such as before an arbitration panel) or stayed (such as where a bankruptcy is pending). The effect of an administrative closure is no different from a simple stay, except that it affects the count of active cases pending on the court’s docket; ie., administratively closed cases are not counted as active.” See Mire v. Full Spectrum Lending Inc., 389 F.3d 163, 166 (5th Cir. 2004).

In the Administrative Closure Order, the federal district court stated, “[c]onsidering that this case has been stayed until the state court proceedings have been resolved,” the court ordered the administrative termination of the actions without prejudice to the right of the parties to reopen the proceedings. Then court then expressly stated, “[t]his order shall not be considered a dismissal or disposition of this matter, and |12should further proceedings in it become necessary or desirable, any party may initiate it in the same manner as if this order had not been entered.”

There is nothing in the record or applicable law that supports the argument that when a federal district court abstains from exercising jurisdiction over certain claims the court relinquishes jurisdiction over those claims, absent an order of dismissal. When an actual controversy is before a federal district court, the court must decide whether the dispute should be decided, stayed, or dismissed. Montpelier U.S. Ins. Co. v. Henry, Case No. 6:13-CV-00773, 2014 WL 1713407, at *4 (W.D. La. Apr. 29, 2014). When deciding whether to abstain from exercising jurisdiction, or postponing the exercise of jurisdiction, the United States Supreme Court has indicated that a stay is a preferable choice because it assures that the federal action can proceed without risk of a time bar. Wilton v. Seven Falls Co., 515 U.S. 277, 288, 115 S. Ct. 2137, 2143, 132 L.Ed. 2d 214 (1995); see also Montpelier, 2014 WL 1713407, at *4; Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S. Ct. 1236, 1244, 47 L.Ed. 2d 483 (1976). Thus, if a federal district court is not deciding a matter before it, or is not staying a matter based on the abstention doctrine, the only other option would be for the court to dismiss the case. In this matter, the federal district court did not dismiss any of the UCT’s claims against Performance. The federal .district court expressly indicated its intent that the Administrative Closure Order was not a dismissal or disposition of the case. Although the federal district court, in its discretion, permissively abstained from exercising jurisdiction over the UCT’s claims against Performance, the abstention does not operate as a relinquishment of its jurisdiction over those claims.

Therefore, under La. R.S. 9:5606(A), the UCT’s action for damages involving state law claims for breach of fiduciary and contractual duties and claims for excess and unauthorized payments, was filed in a court of competent jurisdiction and proper venue within the peremptive periods provided for in La. R.S. 9:5606(A). We hold that the trial court erred in sustaining Catlin’s peremptory exception raising the objection of peremption and dismissing the UCT’s claims with prejudice. We therefore reverse the | ^November 17, 2015 judgment of the trial court and remand the matter for further proceedings consistent herewith.

DECREE

Catlin Specialty Insurance Company’s motion to dismiss the appeal is denied, and the appeal is maintained. The November 17, 2015 judgment of the trial court sustaining Catlin Specialty Insurance Company’s peremptory exception raising the objection of peremption and dismissing the UCT’s claims with prejudice is hereby reversed. The case is remanded to the trial court for further proceedings . consistent herewith. All costs of the appeal are cast to the appellee, Catlin Specialty Insurance Company.

MOTION TO DISMISS DENIED, APPEAL MAINTAINED; REVERSED AND REMANDED.

      . BAIG was the insurance broker responsible for obtaining reinsurance for the TRPLT on a surplus line basis through AON Benfield.

      . Stern v. Marshall, 564 U.S. 462, 131 S.Ct 2594, 180 L.Ed.2d 475 (2011) (wherein the Supreme Court questioned the authority of bankruptcy courts (Article I courts) to adjudicate certain matters relegated solely to Article III courts holding, “Congress may not bypass Article III simply because a proceeding may have some bearing on a bankruptcy case.” 564 U.S. at 500, 131 S.Ct. at 2618.).

      . Catlin, as the insurer, and alleged solidary obligor, of Performance, may raise any defense available to Performance that is not personal to Performance, including the objection of peremption. See La. C.C. art. 1801 and OXY USA Inc. v. Quintana Prod. Co., 2011-0047 (La.App. 1 Cir. 10/19/11), 79 So.3d 366, 377-79, writ denied, 2012-0024 (La. 3/2/12), 84 So.3d 536.

      . We note that statements contained in the official comments are not part of the statute, and are not binding on this court, although we do not discount them entirely. Terrebonne Par. Sch. Bd. v. Castex Energy, Inc., 2004-0968 (La. 1/19/05), 893 So. 2d 789, 797.

      . Under the mandatory abstention doctrine, 28 U.S.C. § 1334(c)(2), the court must abstain over non-core, state law claims "related to” a case under title 11, when there is a state court action where the claims can be adjudicated timely. Mandatory abstention applies when there is no independent basis for jurisdiction; the claims are non-core; the state court action encompasses the claims and it can adjudicate these matters timely. In re Gober, 100 F.3d at 1206. No party has suggested that the mandatory abstention provisions of 28 U.S.C. § 1334(c)(2) apply. Therefore, our abstention analysis focuses solely on permissive abstention under Section 1334(c)(1).


source: Caselaw Access Project

author: THERIOT, J.

license: Public Domain

text:
    Kenneth LOPEZ, Sr. v. Marlon COSEY and Gramercy Insurance Company d/b/a GoAuto Kenneth Lopez, Jr. v. Marlon Cosey, Gramercy Insurance Company, Kenneth Lopez, Direct General Insurance Company of Louisiana
    NO. 2016 CA 0812
    NO. 2016 CA 0813
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 17, 2017

      Mark D. Plaisanee, Thibodaux, Louisiana, Counsel for Defendants/Appellants, Marlon Cosey and Citadel Insurance Company, the successor-in-interest to Gramer-cy Insurance Company, d/b/a GoAuto Insurance Company
    Craig J. Fontenot, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellee, Kenneth Lopez, Sr.
    Kelly E. Balfour, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellee, Kenneth Lopez, Jr.
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   THERIOT, J.

[¡¡The defendants-appellants, Marlon Co-sey and Citadel Insurance Company, the successor-in-interest to Gramercy Insurance Company, d/b/a GoAuto Insurance Company (“GoAuto”) (collectively “the defendants”), appeal a judgment rendered in favor of the plaintiffs-appellees, Kenneth Lopez Sr. and Kenneth Lopez Jr. (collectively “the Lopezes”), assigning 95% fault to Mr. Cosey and awarding the Lopezes damages for injuries they sustained in an automobile accident. For the following reasons, we reverse in part and affirm in part.

FACTS AND PROCEDURAL BACKGROUND

This dispute arises from an automobile accident that occurred on November 9, 2012, in Baker, Louisiana, along Groom Road, near its intersection with Clermont Street. The accident involved a 2010 Dodge Charger driven by Mr. Cosey and a 2003 Dodge Stratus driven by Mr. Lopez Sr. and occupied by his son, Mr. Lopez Jr. The accident occurred shortly after Mr. Lopez Sr. backed out of his driveway and into the westbound lane of Groom Road, whereupon his vehicle was struck in the rear by Mr. Cosey’s vehicle. Mr. Cosey pleaded no contest to a charge of driving while intoxicated. Mr. Lopez Sr. received and paid citations for careless operation and failure to yield.

Mr. Lopez Jr. was treated at the scene of the accident by emergency personnel and was transported to Lane Memorial Hospital, where he was prescribed pain medication and released. Mr. Lopez Jr. later sought chiropractic treatment from the Family Chiropractic Clinic in Baton Rouge, Louisiana, for neck, back, and knee pain. After approximately four months of treatment, Mr. Lopez Jr. was discharged from chiropractic care in March |4of 2013. Mr. Lopez Sr. was not treated at the scene of the accident, but likewise sought chiropractic treatment from the Family Chiropractic Clinic for back pain and stiffness. Mr. Lopez Sr. was also discharged from chiropractic care in March of 2013.

Two separate lawsuits were filed as a result of the accident. In February of 2013, Mr. Lopez Sr. filed suit against Mr. Cosey and his liability insurer, GoAuto, for injuries he sustained in the accident. In October of 2013, Mr. Lopez Jr. filed suit against Mr. Cosey, GoAuto, Mr. Lopez Sr., and Mr. Lopez Sr.’s liability insurer, Direct General Insurance Company of Louisiana (“Direct General”), for injuries he sustained in the accident. The Lopezes both claimed that Mr. Cosey was intoxicated at the time of the accident and prayed for an award of punitive or exemplary damages pursuant to La. C.C. art. 2315.4.

In March of 2014, the trial court ordered the two lawsuits to be consolidated and proceed together to trial, since the causes of action arose out of a common occurrence and involved the same parties, witnesses, and issues of fact and law.

In February of 2015, the trial court signed a partial summary judgment in favor of GoAuto. The trial court ordered the dismissal of the Lopezes’ claims for punitive or exemplary damages against GoAu-to, as the liability insurer of Mr. Cosey, on grounds that GoAuto could not be held liable for these damages under the terms of its insurance agreement with Mr. Cosey.

|sThe matter ultimately proceeded before the trial court for a bench trial on the merits on March 24, 2015. The trial court accepted evidence and heard testimony from Mr. Lopez Sr., Mr. Lopez Jr., Mr. Cosey, and Officer Ryan Lowe, the police officer who investigated the accident. The trial court took the matter under advisement and allowed the parties to submit post-trial memorandum. In October of 2015, after the trial, but before the rendition of final judgment, Mr. Lopez Jr. voluntarily dismissed his claims against Mr. Lopez Sr. and Direct General. The trial court signed its final judgment in the matter on December 29, 2015. The trial court assigned 5% fault to Mr. Lopez Sr. and 95% fault to Mr. Cosey; awarded Mr. Lopez Sr. $30,000.00 in general damages, $4,097.34 for medical expenses, $5,000.00 for loss of use, and $60,000.00 in punitive damages; and awarded Mr. Lopez Jr. $7,658.46 for medical expenses, $40,000.00 for pain and suffering, and $60,000.00 in punitive damages. The defendants now appeal.

ASSIGNMENTS OF ERROR

The defendants raise the following assignments of error:

1. ' A vehicle entering a highway from a private driveway must yield to all approaching vehicles. This duty is heightened for a backing vehicle. Because Mr. Lopez Sr. backed from his private driveway onto a superior highway—he was ticketed and pleaded guilty to failing to yield— the trial court erred in holding Mr. Cosey 95% at fault.
2. A driver’s intoxication is only relevant if it is a cause-in-fact of the accident. Because the Lopezes never proved that Mr. Cosey’s intoxication was a cause-in-fact of the accident, the trial court erred in considering his intoxication in deciding its assessment of negligence.
3. A trial court has vast discretion in the award of damages. However, the awards of $40,000.00 and $30,000.00, respectively, in damages for four months of chiropractic care is beyond that which a reasonable trier of fact could award for the effects of the particular injury to the Lopezes. Thus, the trial court erred in its awards of damages.
|fi4. A trial court can award damages as prayed for and proven. Because Mr. Lopez Sr. admitted he did not own the vehicle damaged in the accident, presented no proof of loss of use, and did not specifically pray for this element of damages, the trial court erred in awarding him $5,000.00 for loss of use.

STANDARD OF REVIEW

Louisiana appellate courts review a trial court’s findings of fact under the manifest error or clearly wrong standard of review. See Mack v. Wiley, 07-2344 (La.App. 1 Cir. 5/2/08), 991 So.2d 479, 487, writ denied, 08-1181 (La. 9/19/08), 992 So.2d 932. In order to reverse a trial court’s factual finding under the manifest error standard of review, the appellate court must review the record in its entirety and 1) find that a reasonable factual basis does not exist for the finding, and 2) further determine that the record establishes that the fact finder was clearly wrong or manifestly erroneous. Detraz v. Lee, 05-1263 (La. 1/17/07), 950 So.2d 557, 561.

DISCUSSION

Allocation of Fault

In the defendants’ first and second assignments of error, taken together, they contend that the trial court committed manifest error in assigning 95% fault to Mr. Cosey. The defendants argue there was no evidence Mr. Cosey’s intoxication was a cause-in-fact of the accident, and they aver that, based upon the evidence presented at trial, Mr. Lopez Sr. should have been assigned with a higher percentage of comparative fault.

In allocating comparative fault, the trier of fact is bound to consider the nature of each party’s wrongful conduct and the extent of the causal relationship between the conduct and the damages claimed. Townes v. Liberty Mut. Ins. Co., 09-2110 (La.App. 1 Cir. 5/7/10), 41 So.3d 520, 529 (citing Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La.1985)). In assessing the conduct of the parties, the courts are guided by |7the factors articulated in Watson, 469 So.2d at 974, including: 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. Townes, 41 So.3d at 529.

Generally speaking, all motorists owe a duty to observe what should be observed. Harbin v. Ward, 13-1620 (La. App. 1 Cir. 5/29/14), 147 So.3d 213, 217. Additional duties may arise depending on the motorist’s movements on the roadway in relation to other vehicles. Id. Relevant to this case are those duties and presumptions associated with entering a roadway from a private driveway, following a motorist, and driving while intoxicated.

First, La. R.S. 32:124 provides, in pertinent part, that the driver of a motor vehicle about to enter or cross a highway from a private road, driveway,' alley, or building shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across any alleyway or driveway, and shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard. The driver entering the highway has the primary duty to avoid a collision. The case law requires such motorist to exercise unusual, extreme, and high care with respect to the favored traffic. Harbin, 147 So.3d at218.

Second, La. R.S. 32:81(A) provides that the driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic and condition of the highway. The ease law has established a rebuttable presumption that | sa motorist who strikes a preceding motorist from the rear has breached the_ standard of care prescribed by La. R.S. 32:81 (A) and is therefore liable for the accident. Harbin, 147 So.3d at 218. This rule is based on the premise that a following motorist who rear-ends a preceding motorist has failed in his responsibility to maintain a sharp lookout or has followed at a distance that is insufficient to allow him to stop safely under normal conditions. Id.

Finally, all motorists have a duty not to drive while intoxicated. Various criminal and civil statutes, including La. R.S. 14:32.1, 39.1, 39.2, and 98, proscribe the act of driving a motor vehicle under the influence of alcohol. Toston v. Pardon, 03-1747 (La. 4/23/04), 874 So.2d 791, 802. However, a finding of intoxication, even gross intoxication, does not mandate a finding of liability, and is merely a factor to be considered under Louisiana’s comparative negligence scheme. Id. (citing Petre v. State ex rel. Dept. of Transp. & Develop., 01-0876 (La. 4/3/02), 817 So.2d 1107, 1113-14).

The photographic evidence in this case established that the driver’s front quarter of Mr. Cosey’s vehicle struck the passenger’s rear quarter of Mr. Lopez Sr.’s vehicle, but the witnesses provided conflicting testimony regarding the exact movements of the vehicles prior to the moment of impact. Mr. Lopez Jr. testified at trial that Mr. Lopez Sr. completely backed out onto the roadway and began moving forward in the westbound lane of Groom Road before the accident. Mr. Lopez Jr. testified that he looked back before his father began backing out and did not see Mr. Cosey’s vehicle. Mr. Lopez Jr. also stated that he did not hear anything, such as the sound of a horn or brakes, which may have indicated that a collision was imminent,

Mr. Lopez Sr. similarly testified that he looked back before backing his vehicle out onto the roadway and did not see Mr. Cosey’s vehicle. Mr. | ¡¡Lopez Sr. stated the accident happened after he completely backed up onto the roadway, placed his vehicle into “drive,” and advanced forward approximately two or three car lengths. Mr. Lopez Sr. acknowledged on cross-examination that he received and paid traffic citations for careless operation and failure to yield, but maintained that his vehicle was completely within the westbound lane of Groom Road at the time of the accident.

Officer Lowe first testified that Mr. Lopez Sr.’s vehicle was completely within the westbound lane of Groom Road at the time of the accident, but then admitted on cross-examination he was unsure whether the vehicle was actually within the westbound lane or was moving forward at the time of the accident. Officer Lowe testified that Mr. Cosey had the right of way, but stated that Mr. Cosey was intoxicated and impaired to operate a motor vehicle. Officer Lowe testified that he arrested Mr. Cosey, performed a field sobriety test, and determined that Mr. Cosey had a blood alcohol concentration of 0.168%—over double the legal limit of 0.08% as per La. R.S. 14:98(A)(1)(b).

Mr. Cosey testified that he was traveling westbound along Groom Road at the posted speed' limit before the accident. Mr. Cosey stated Mr. Lopez Sr. suddenly backed his vehicle out onto the roadway when his own vehicle was approximately one car length behind the driveway. Mr. Cosey testified he did not have time to stop, Mr. Cosey admitted he had been drinking around the time of the accident, but denied he was intoxicated. Mr. Cosey also denied that Mr. Lopez Sr.’s vehicle was completely within the westbound lane or was moving forward at the time of the accident. He testified that Mr. Lopez Sr.’s vehicle was “back[ed] up over one lane to my lane.”

I mThe trial court ultimately assigned 95% fault to Mr. Cosey and 5% fault to Mr. Lopez Sr. The trial court explained that Mr. Lopez Sr. was “less than attentive,” but concluded that “the defendant failed to even apply his brakes to try and avoid impact.” The trial court specifically found that Mr. Coseos “faculties were somewhat impaired, as a result, with the consumption of alcoholic beverage.” The trial court’s allocation of comparative fault is reasonably premised upon its factual findings concerning the nature of each party’s wrongful conduct and the extent of the causal relationship between the conduct and the accident. See Townes, 41 So.3d at 529. Mindful that the trial court is entitled to great deference in its allocation of fault, see id., and that we may not substitute our own judgment for that of the trial court when the trial court’s ruling is based on a reasonable interpretation of the evidence, see Inzinna v. Walcott, 02-0582 (La.App. 1 Cir. 11/21/03), 868 So.2d 721, 726-27, in light of the totality of the evidence, we cannot say that the trial court’s allocation of fault is manifestly erroneous. The defendants’ first and second assignments of error do not merit relief.

Quantum

In the defendants’ third assignment of error, they contend that the trial court manifestly erred in awarding $40,000.00 and $30,000.00, respectively, in general damages to Mr. Lopez Jr. and Mr. Lopez Sr. The defendants point out that the Lopezes only received approximately four months of chiropractic care after the accident. The defendants argue that the trial court’s general damage awards are excessive and unsupported by the evidence.

General damages are those damages that cannot be fixed with any degree of pecuniary exactitude, but which instead involve mental or physical Inpain or suffering, inconvenience, the loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle, which cannot really be measured definitively in terms of money. See McGee v. A C & S, Inc., 05-1036 (La. 7/10/06), 933 So.2d 770, 774. General damages are inherently speculative in nature. Miller v. LAMMICO, 07-1352 (La. 1/16/08), 973 So.2d 693, 711. Much discretion is left to the trier of fact in the assessment of general damages. See La. G.C. art. 2324.1.

In assessing general damages in a personal injury dispute, the trier of fact must consider the severity and duration of the injured party’s pain and suffering. See LeBlanc v. Stevenson, 00-0157 (La. 10/17/00), 770 So.2d 766, 772. The primary objective is to restore the injured party in as near a fashion as possible to the state he or she was in at the time immediately preceding injury. Turner v. Ostrowe, 01-1935 (La.App. 1 Cir. 9/27/02), 828 So.2d 1212, 1224, writ denied, 02-2940 (La. 2/7/03), 836 So.2d 107.

In this case, Mr. Lopez Jr. testified at trial that the accident was “massive” and that he began to experience pain and stiffness in his neck immediately after the impact. Mr. Lopez Jr. stated he was “tossed forward” and his right knee struck the glove compartment. Mr. Lopez Jr. stated he was treated at the scene of the accident by emergency personnel, who pulled him from the car, stabilized his neck, and transported him to Lane Memorial Hospital. Mr. Lopez Jr. further stated that he received approximately four months of chiropractic treatment. He indicated that although he was discharged from chiropractic care in March of 2013, he still had lingering complaints of neck and back as of the date of trial. Mr. Lopez Jr. submitted his medical records into evidence, which corroborated his testimony regarding emergency medical treatment and proved he was treated twenty-eight times by the Family Chiropractic Clinic.

112Mr. Lopez Sr. testified that although he did not receive emergency medical treatment at the scene of the accident, he began experiencing back pain and stiffness the following morning. Mr. Lopez Sr. testified that he never had back pain prior to the accident. He stated that he sought chiropractic care to deal with the back pain. Mr. Lopez Sr. testified that the chiropractic treatment helped alleviate, but did not resolve, his back pain. Mr. Lopez Sr. also submitted his medical records into evidence, which proved he was treated twenty-seven times by the Family Chiropractic Clinic.

Following the trial, the trial court awarded Mr. Lopez Jr. $40,000.00 in damages for pain and suffering and awarded Mr. Lopez Sr. $30,000.00 in general damages. The trial court’s general damage awards are admittedly on the high side, but, considering the record as a whole, including the medical evidence and the testimony presented at trial, wherein the Lo-pezes both stated that they had lingering complaints of pain nearly two-and-one-half years after the accident, we cannot say that the awards constitute an abuse of the “vast discretion” accorded to the trier of fact. See Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). The deféndants’ third assignment of error does not merit relief.

Loss of Use

In the defendants’ fourth assignment of error, they assert Mr. Lopez Sr. admitted he did not own the vehicle damaged in the accident, presented no proof of loss of use, and did not specifically pray for this element of damages. Therefore, they contend the trial court erred in awarding Mr. Lopez Sr. damages for loss of use. Relatedly, the defendants filed an exception of no right of action with this court during the pendency of the | ,sappeal, wherein they contend Mr. Lopez Sr. did not enjoy a right of action to recover damages for loss of use.

In this case, Mr. Lopez Sr. testified at trial that the vehicle involved in the accident, which was registered under his wife’s name, was rendered inoperable and had never been repaired. Mr. Lopez Sr. responded in the affirmative when asked by counsel whether he had been inconvenienced in “getting from .., Point A to Point B to work and all” by the loss of use of the vehicle. However, no additional evidence was offered to substantiate the alleged inconvenience. The trial court nevertheless determined that Mr. Lopez Sr. “was denied the use of his vehicle by which defendant is responsible!!,]” and awarded Mr. Lopez Sr. $5,000.00 in damages for loss of use.

We find that the trial court’s award of damages for loss of use is unsupported by the evidence and must be reversed. The record is devoid of evidence that Mr. Lopez Sr. suffered actual damages or incurred expenses, such as a car rental, as a direct result of the loss of use of the vehicle involved in the accident. In the absence of proof of actual damages suffered by Mr. Lopez Sr. as a result of the loss of use of the vehicle, we are constrained to conclude that the trial court committed manifest error in awarding $5,000.00 in damages for loss of use. See Wartell v. Hartford Ins. Co., 219 So.2d 221, 222-23 (La. App. 1 Cir. 1969) (reversing award of $300.00 to plaintiff for loss of use of his car where there was no showing plaintiff suffered actual damages). See also Pellegrin v. Hebert, 107 So.2d 853, 857 (La. App. 1 Cir. 1959) (affirming decision of trial court denying plaintiffs claim for loss of use of a vehicle where the damaged vehicle was | Mnever repaired and the claim for inconvenience suffered was too speculative). The defendants’ final assignment of error has merit.

DECREE

For the foregoing reasons, we deny the exception of no right of action and reverse that portion of the trial court’s judgment granting $5,000.00 in damages for loss of use to Kenneth Lopez Sr. In all other respects, the trial court’s judgment is affirmed. Costs of this appeal are to be split between the defendants-appellants, Marlon Cosey and Citadel Insurance Company, the successor-in-interest to Gramercy Insurance Company, d/b/a GoAuto Insurance Company, and the plaintiffs-appellees, Kenneth Lopez Sr. and Kenneth Lopez Jr.

EXCEPTION DENIED; JUDGEMENT REVERSED IN PART, AND AFFIRMED IN PART.

      . Mr. Cosey’s vehicle is occasionally misidentified in the record as a 2010 Dodge Challenger.

      . Louisiana Civil Code art. 2315.4 states that in addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause-in-fact of the resulting injuries.

      . According to the minute entry for July 27, 2015, the trial court held an additional hearing with respect to the issue of quantum on this date. However, the record only includes a transcript of the trial on the merits, and does not contain a transcript of any subsequent hearing.

      . Having found that Mr. Lopez Sr. failed to present sufficient proof of damages for loss of use, we decline to consider whether he enjoyed a right of action to recover damages for loss of use under the rules governing the management of community property and enforcement of community rights as set forth by La. C.C. art. 2351 and La. C.C.P. art. 686. We recognize the relevance of La. C.C. art. 2351 and La. C.C.P. art. 686 as it pertains to a claim for property damage in a personal injury dispute, see generally, Banks v. Rattler, 426 So.2d 362, 364-65 (La. App. 2 Cir. 1983), but pretermit decision as to whether or not Mr. Lopez Sr. enjoyed a right of action to pursue damages arising from the loss of use of the vehicle, since, under the facts of this case, even if he did enjoy a right of action to pursue damages for loss of use, the record does not support the trial court’s award of damages. Therefore, we deny the exception of no right of action as moot.


author: HIGGINBOTHAM, J.

text:
    James E. SHIELDS, Jr., Christine F. Shields, James E. Shields, III, and Joseph Luke Shields v. ALVIN R. SAVOIE & ASSOCIATES, INC. d/b/a Savoie Construction, Foster-Taylor Fireplaces, Inc., Lennox Hearth Products LLC, American Empire Surplus Lines Insurance Company, The Travelers Indemnity Company of Connecticut, and ACE American Insurance Company ASI Lloyds as Subrogee of James and Kristin Shields v. Savoie Construction, Inc., Savoie Construction and Development, LLC, and Foster-Taylor Fireplaces, Inc.
    NO. 2016 CA 0825
    No. 2016 CA 0826
    Court of Appeal of Louisiana, First Circuit.
    FEBRUARY 17, 2017

      James E. Shields, Jr., James E. Shields, Sr., Gretna, LA, Attorneys for Plaintiffs-Appellants, James E. Shields, Jr., Christine F. Shields, James E. Shields, III, and Joseph Luke Shields
    George J. Richaud, Metairie, LA, Attorney for Defendant-Appellee, Alvin R. Sa-voie & Associates, Inc. d/b/a Savoie Construction
    Christopher R. Teske, Eric S. Charleston, New Orleans, LA, Attorneys for Defendant-Appellee, American Empire Surplus Lines Insurance Company
    Sean M. Casey, Mandeville, LA, Attorney for Defendants-Appellees, Foster-Taylor Fireplaces, Inc. and the Travelers Indemnity Company Connecticut
    BEFORE HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

IsThis consolidated matter involves issues surrounding payments made to homeowners for damages due to a residential home fire, including the Louisiana New Home Warranty Act (NHWA) and subro-gation. The homeowners appeal the summary judgment dismissal of their builder.

FACTS AND PROCEDURAL HISTORY

This litigation has been long and contentious, arising out of the custom build of a new home in Slidell, Louisiana. The building contract was executed in January 2005 with an original contract price of $393,000.00, but unfortunately, the house was not completed before the devastation brought to the area by Hurricane Katrina in August 2005. The home was eventually completed by the builder, Alvin R. Savoie <& Associates, Inc., d/b/a Savoie Construction (Savoie Construction), sometime between August and September 2006, at an increased total cost of $414,000.00, due to elevated post-Katrina construction costs. The homeowners, James E. Shields, Jr. and Christine F. Shields, along with their two sons (the Shields), took occupancy of the home when it was completed. The event that led to this litigation occurred approximately four-and-a-half years later, on January 22, 2011, when the entire house was destroyed by a fire that originated near an outdoor fireplace on the patio of the home. The fireplace was manufactured by Lennox Hearth Products, LLC (Len-nox), and was installed by Foster-Taylor Fireplaces, Inc. (Foster-Taylor), pursuant to the original plan in the construction contract between the Shields and Savoie Construction.

After the fire, the Shields made a claim against their homeowners’ insurance policy issued by ASI Lloyds (ASI) for damage to the home caused by the fire. Two Rmonths later in March 2011, ASI issued checks to the Shields totaling $430,000.00 in payment for property damages. Mr. Shields subsequently executed a subrogation agreement in August 2011 that assigned over to ASI “any and all claims or causes of action ... to recover against any person or persons as the result of [the fire], to the extent of the payment [made by ASI.]” Despite the initial payment by ASI amounting to more than the purchase price of the house, the Shields filed suit against ASI in January 2012 for consequential damages related to the fire, bad faith penalties, and attorney fees. As a result of that lawsuit, ASI paid the Shields another $129,000.00 in December 2012 and the Shields eventually settled all of their claims against ASI for an additional amount of $290,000.00, expressly reserving the right to pursue their claims against Savoie Construction. The Shields’ lawsuit against ASI is not a part of this consolidated appeal.

In January 2012, the Shields filed another lawsuit in the 22nd Judicial District Court, Trial Court Number 2012-10392, against Savoie Construction, Foster-Taylor, Lennox, and their liability insurers. At the time of the fire, the insurer of Savoie Construction was American Empire Surplus Lines Insurance Company (American Empire). Also in January 2012, ASI, as subrogee of the Shields, filed a separate lawsuit in the 22nd Judicial District Court, Trial Court Number 2012-10262, against Savoie Construction and Foster-Taylor. The two lawsuits were subsequently consolidated in the trial court for all purposes on May 7, 2012. ASI ultimately settled its subrogation claims against Savoie Construction and Foster-Taylor, thereby extinguishing those rights. Those parties were dismissed from Trial Court Number 2012-10262 by separate orders of the trial court in January and February 2014, | ¿leaving only the claims that remained in the Shields’ lawsuit against Savoie Construction, Foster-Taylor, Lennox, and their respective insurers.

Savoie Construction and its insurer, American Empire, filed separate motions for summary judgment with support in January and February 2015, both maintaining that the Shields’ claims for defective and negligent construction against the builder, Savoie Construction, were barred by the exclusivity of the NHWA provisions that specifically exclude consequential damages and limit a builder’s liability for defective work to damages that do not exceed the purchase price of the home. Savoie Construction and American Empire also argued that pursuant to the NHWA, the Shields’ claims were perempted, because the Shields asserted their claims against Savoie Construction more than five years after they occupied their new home. Further, American Empire maintained that it was not legally obligated to pay any damages to the Shields since their claims against its insured, Savoie Construction, were barred by the NHWA and were per-empted.

The Shields opposed the motions for summary judgment, arguing that they had a valid claim against Savoie Construction for breaching an agreement in the construction contract that obligated Savoie Construction -to extend the NHWA warranty period from five to ten years. The Shields also argued that Savoie Construction ignored manufacturer warnings about replacing rather than repairing flood-damaged fireplaces. Savoie' Construction and American Empire countered that even if the Shields could prove a breach of contract claim, which was denied, all of the Shields’ claims arose out of an alleged defect in the construction or materials in the home (not a breach of contract). Savoie Construction and American Empire noted that such claims are exclusively limited under the NHWA, which warranties were never waived.

After a hearing, the trial court signed a judgment on May 6, 2015, granting summary judgment in favor of Savoie Construction and American Empire in part, |fidismissing all of the Shields’ claims against Savoie Construction and American Empire other than those warranty claims covered by the NHWA. All of the other claims that the Shields may have had against other defendants were specifically reserved in that judgment. The May 2015 judgment was not designated as a final judgment and no writ of review or appeal was immediately taken after that particular judgment was rendered.

A short time late, on June 25, 2015, American Empire filed a second motion for summary judgment, maintaining that the Shields had subrogated to their homeowners’ insurer, ASI, any and all possible claims they may have had under the NHWA against Savoie Construction and therefore, the Shields had no remaining claims against Savoie Construction or American Empire as Savoie Construction’s insurer. On July 17, 2015, Savoie Construction filed a similar second motion for summary judgment, also arguing that the Shields did not have a viable NHWA claim against Savoie Construction because those claims were perempted and had been sub-rogated or assigned to ASI. The Shields filed oppositions to both of the second motions for summary judgments, primarily arguing that they were not “made whole” by ASI’s payments; therefore, the Shields argued that ASI was only partially subro-grated to their claims against Savoie Construction and that they had priority in receiving any other payments.

At a hearing on August 18, 2015, the trial court initially denied American Empire and Savoie Construction’s second motions, but then reconsidered the motions pursuant to a rehearing on January 7, 2016. At the hearing, both American Empire and Savoie Construction argued that the Shields’ NHWA claims were subrogat-ed to ASI and since ASI had settled those rights, the NHWA claims were extinguished by subrogation. They also strongly urged that the Shields’ NHWA claims were perempted. The Shields countered that they had reserved all of their NHWA claims when they settled with ASI, and they again argued that they have not |7been made whole by the ASI payments, which they maintained was a disputed material fact that precluded summary judgment. The trial court agreed with American Empire and Savoie Construction, signing a final judgment on January 7, 2016, that granted summary judgment in favor of Savoie Construction, and another final judgment on January 26, 2016, that granted summary judgment in favor of American Empire. The cumulative effect of the two January 2016 judgments was the dismissal of all of the Shields’ remaining claims against both Savoie Construction and American Empire. The Shields’ filed a motion for new trial, which was denied. The trial court issued written reasons for its judgments, focusing on the subrogation analysis rather than the per-emption issue.

The Shields have appealed three judgments, the two January 2016 summary judgments that are final because all of the Shields’ remaining claims against Savoie Construction and American Empire were dismissed, and the May 2015 partial summary judgment that was interlocutory, limiting the Shields’ claims against Savoie Construction and American Empire to those that they may have had under the NHWA. The appeals were docketed in this court with four appellate docket numbers that were partially consolidated. The appeals pertinent to Savoie Construction, docket numbers 2016 CA 0825 and 2016 CA 0826, relate to the January 7, 2016 judgment in favor of Savoie Construction and the May 6, 2015 judgment partially in favor of Savoie Construction. The connected appeals, docket numbers 2016 CA 0827 and 2016 CA 0878, focus on the January 26, 2016 judgment |8in favor of American Empire and the May 6, 2015 judgment partially in favor of American Empire. The Shields filed identical briefs in all of the consolidated appeals, raising nine assignments of error focusing on the trial court’s failure to find that the Shields had not been made whole in their damages and therefore, the Shields had higher preference than ASI’s subrogation lights asserted against Savoie Construction. The Shields also maintain that Savoie Construction breached a contractual agreement to obtain additional warranties above the minimum NHWA warranties.

SUMMARY JUDGMENT LAW

A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. Art. 966(B)(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determihation of whether summary judgment is appropriate. Temple v. Morgan, 2015-1159 (La.App. 1 Cir. 6/3/16), 196 So.3d 71, 76, writ denied, 2016-1255 (La. 10/28/16), 208 So.3d 889, 2016 WL 6777472.

The burden of proof on a motion for summary judgment is on the mover. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. | BThereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at tidal. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. P. Art. 966(C)(2); Temple, 196 So.3d at 76.

In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765-66. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Allemand v. Discovery Homes, Inc., 2009-1565 (La.App. 1 Cir. 5/28/10), 38 So.3d 1183, 1186. In this case, the NHWA is the applicable substantive law governing the fire damage claims between the Shields, as homeowners, and Savoie Construction, as the builder.

THE NHWA

The NHWA provides the exclusive remedies, warranties, and peremptive periods as between a builder and a homeowner relative to home construction, and no other provisions of the law relative to warranties and redhibitory vices and defects apply. La. R.S. 9:3150. The applicable version of the NHWA is the one in effect on the date that the homeowners first occupy their new home. Siragusa v. Bordelon, 2015-1372 (La. App. 1st Cir. 4/15/16), 195 So.3d 100, 104. Louisiana courts have consistently recognized the NHWA’s exclusive application to claims between a builder and a homeowner relative to construction defects in a new residence. Carter v. Duhe, 2005-0390 (La. 1/19/06), 921 So.2d 963, 970.

There is no dispute in this case that the Shields are the original homeowners and Savoie Construction is the builder of their home that was ultimately destroyed by fire. Because the Shields’ claims against Savoie Construction all pertain to an alleged defect in the workmanship surrounding the construction of the outdoor fireplace or the materials used for the outdoor fireplace at their custom-build home, we agree with the trial court that the NHWA provided the exclusive remedy and warranties as between the Shields and Savoie Construction. See Siragusa, 195 So.3d at 105. Thus, we find no error in the trial court’s rendering of the May 2015 partial summary judgment that dismissed all of the Shields’ claims against Savoie Construction and its insurer, American Empire, except for any claims covered by the NHWA. ■

The NHWA’s “minimum required warranties,” set forth in La. R.S. 9:3144(A), are mandatory and cannot be waived by the homeowner or reduced by the builder. La. R.S. 9:3144(C); Barnett v. Watkins, 2006-2442 (La.App. 1 Cir. 9/19/07), 970 So.2d 1028, 1034, writ denied, 2007-2066 (La. 12/14/07), 970 So.2d 537. Every builder warrants to the homeowner that one year following the warranty commencement date (the date that legal title is conveyed to the initial purchaser or the date the home is first occupied, whichever occurs first), the home will be free |nfrom any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards. La. R.S. 9:3144(A)(1) and 3143(7). Additionally, the builder warrants to every homeowner that two years following the warranty com mencement date, the heating and ventilating systems exclusive, of any appliance, fixture, and equipment will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards. La. R.S. 9:3144(A)(2). The builder further warrants to every homeowner that five years following the warranty commencement date, the home will be free from major structural defects due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards. La. R.S. 9:3144(A)(3) and 3143(5). The NHWA specifically excludes (unless the parties otherwise agree in writing) consequential damages or incidental expenses related to relocation during the repair of the home. See La. R.S. 9:3144(B)(15) and (17). Additionally, an action to enforce any warranty provided under the NHWA is subject to a peremptive period of thirty days after the expiration of the appropriate time period provided in La. R.S. 9:3144. See La. R.S. 9:3146.

Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the per-emptive period. La. Civ. Code Art. 3458. Peremption may not be renounced, interrupted, or suspended. La. Civ. Code Art. 3461. It may, however, be pleaded or supplied by a court on its own motion at any time prior to final judgment. La. Civ. Code Art. 3460. Public policy requires that rights to which peremption periods attach are to be extinguished after passage of a specified period. See Robinson v. Wayne and Beverly Papania and Pyrenees Investments, LLC, 2015-1354 (La.App. 1 Cir. 10/31/16), 207 So.3d 566. Additionally, a peremptive statute totally destroys or extinguishes the previously existing right with the result that, upon expiration of the prescribed period, a cause of action or substantive right no longer exists to be enforced. See Borel v. Young, 2007-0419 (La. 11/27/07), 989 So.2d 42, 49; Pounds v. Schori, 377 So.2d 1195, 1198 (La. 1979), superseded by statute on other grounds, La. Acts 2005, No. 192, Sec. 1, as recognized in, Pociask v. Moseley, 2013-0262 (La. 6/28/13), 122 So.3d 533, 539.

| iaIt is undisputed that the Shields moved into their newly constructed home sometime in August or September 2006. The fire that destroyed the Shields’ home occurred on January 22, 2011, after nearly five years of the Shields using/enjoying their outdoor fireplace. A defect in the workmanship and/or materials surrounding the construction and installation of the outdoor fireplace is the alleged cause of the fire that destroyed the Shields’ home. There is absolutely no evidence in the record that the fire was caused by a major structural defect in the home so as to fall within the ambit of the five-year warranty provided under La. R.S. 9:3144(A)(3) and 3143(5). Thus, to the extent that the outdoor fireplace contained a defect in workmanship or materials, the Shields’ claims against Savoie Construction are clearly perempted under the NHWA as more than thirty days and one year- has elapsed since the warranty commencement date. See La. R.S. 9:3146, 3144(A)(1), and 3143(7). See also Binning v. Boudinot, 2011-1091 (La.App. 1 Cir. 12/21/11), 2011 WL 6779597, *2 (unpublished). Furthermore, the record does not bear out whether the alleged defect in the outdoor fireplace would constitute a “heating” or “ventilating” system in the house, but even if it were qualified as such, the Shields’ claims were clearly urged well after thirty days and two years had elapsed since the warranty commencement date. As such, those potential NHWA claims are perempted as well. See La. R.S. 9:3146, 3144(A)(2), and 3143(7).

Given that the Shields’ NHWA claims against Savoie Construction had already perempted after one or at the most, two years, the fact that Sa-voie Construction may have failed to provide an extended warranty from five to ten years is immaterial because all of the Sheilds’ damages arose from the alleged defective workmanship or materials connected to the outdoor fireplace, not by any breach of contract for failing to provide an extended warranty period. Under the plain language of the NHWA, the Shields no longer have any viable claim against Savoie | ^Construction (or by extension, its insurer, American Empire) for damages arising out of defective workmanship or defective materials in their home that do not constitute major structural defects. For these reasons, albeit different from those expressed by the trial court, which focused on the extinguishment of the Shields’ claims by subrogation of rights rather than peremption, we conclude that the trial court did not err in granting the summary judgments in favor of Savoie Construction.

DECREE

The trial court’s judgments granting summary judgment in favor of Savoie Construction and dismissing all of the Shields’ claims against Savoie Construction are affirmed. All costs of this consolidated appeal are assessed against the Shields.

AFFIRMED.

      . This consolidated appeal is closely related to another consolidated appeal decided this same date, which involves the same parties and same issues: Shields v. Alvin R. Savoie & Associates, Inc., and American Empire Surplus Lines Insurance Company, 2016-0827 c/w 2016-0828 (La. App. 1st Cir. 2/17/17), 217 so.3d 420, 2017 WL 658746. The parties sought to consolidate all four appeals, but that request was denied by this court on September 27, 2016. However, the four appeals were assigned for consideration by the same panel on the same docket.

      . The Shields also reserved rights against Foster-Taylor and Lennox and their insurers, but those claims are not currently before us.

      . Foster-Taylor’s insurer is Travelers Indemnity Company of Connecticut and Lennox’s insurer is ACE American Insurance Company. The Shields’ claims against those parties are not relevant to this consolidated appeal.

      . While the Shields did not have the right to an immediate appeal of the May 2015 partial summary judgment without the designation of the judgment as final, they did not lose their right to appeal after a final judgment was rendered adjudicating all of their claims, demands, issues, and theories of their case against Savoie Construction and American Empire. See La. Code Civ. P. Art. 1915(B); Cortes v. Lynch, 2002-1498 (La.App. 1 Cir. 5/9/03), 846 So.2d 945, 949. Since the January 2016 judgments completely dismissed all of the Shields’ claims against Savoie Construction and American Empire, they are final judgments that are immediately appealable under La. Code Civ. P. Art. 1915(A)(1) and (A)(3). See Motorola, Inc. v. Associated Indent. Corp., 2002-0716 (La.App. 1 Cir. 4/30/03), 867 So.2d 715, 717-18. When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment appealed. In re T.A.S., 2004-1612 (La.App. 1 Cir. 10/29/04), 897 So.2d 136, 139. Therefore, we will consider the arguments advanced by the Shields concerning all three judgments.

      . Louisiana Code of Civil Procedure Article 966 was amended and reenacted by Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of Article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act. See Acts 2015, No. 422, §§ 2 and 3. Because the second motions for summary judgment in this case were pending adjudication on the effective date of the Act, we refer to the former version of the article in this case.

      . By extension, the NHWA is the Shields’ exclusive remedy against American Empire as the liability insurer of Savoie Construction. See Barnett, 970 So.2d at 1038. If Savoie Construction has no liability in this case, then it follows that American Empire can have no liability by operation of law. See Marsh Engineering, Inc. v. Parker, 2004-0509 (La.App. 3 Cir. 9/29/04), 883 So.2d 1119, 1127, writ denied, 2004-2669 (La. 1/28/05), 893 So.2d 73. Similarly, if Savoie Construction has a valid defense of statutory peremption, then that defense is available to American Empire as Sa-voie Construction's insurer. See Id.

      . A court of appeal may affirm a judgment for reasons different than those assigned by the trial court if the result is correct. See Wooley v. Lucksinger, 2009-0571 (La. 4/1/11), 61 So.3d 507, 572. We further note that an appellate court may find peremption on its own motion at any time before final judgment is rendered. See La. Civ. Code Art. 3460.


author: Judge Joy Cossich Lobrano BELSOME, J.,

text:
    Courtney Bell FRANKOWSKI v. Jan FRANKOWSKI
    NO. 2016-C-1313
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 22, 2017

      Bennett Wolff, LAW OFFICES OF WOLFE & WOLFE, 3017 21st Street, Suite 100, Metairie, LA 70002, COUNSEL FOR DEFENDANT/RELATOR
    Kim Ngan Nguyen, LOWE STEIN HOFFMAN ALLWEISS & HAUVER, L.L.P., Mitchell J. Hoffman, 701 Poydras St., Suite 3600, New Orleans, LA 70139, COUNSEL FOR PLAINTIFF/RESPONDENT
    (Court composed of Judge Dennis R. Bagneris, Sr., Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Marion F. Edwards, Pro Tempore)
   Judge Joy Cossich Lobrano

| Relator, Jan Frankowski seeks review of the district court’s October 31, 2016 ruling granting exceptions of res judicata, no cause of action, and vagueness filed by Respondent, Courtney Bell Frankowski. Courtney Bell Frankowski filed these exceptions in response to a motion filed by Jan Frankowski which sought to reduce the amount of interim child support and interim spousal support he was paying under an interim consent judgment (the “Interim Judgment”) entered into on March 2, 2016.

The standard of review of an exception of res judicata requires an appellate court to determine if the district court’s decision is legally correct. Fletchinger v. Fletchinger, 2010-474, p. 4 (La. App. 4 Cir. 1/19/11), 56 So.3d 403, 405. In Louisiana, the doctrine of res judicata is stricti juris; any doubt regarding the application of the doctrine must be resolved against its application. Id., 2010-474 at p. 5, 56 So.3d at 406. The Interim Judgment is not a final judgment; thus, res judicata does not preclude a modification of it. See, e.g., Poole v. Poole, 41,960, p. 4 (La.App. 2 Cir. 1/24/07), 948 So.2d 382, 384 (stating, “Interim custody orders are interlocutory judgments and are not appealable as a result of an express ^provision of law.”). Because the Interim Judgment is subject to modification, we reverse the district court’s judgment granting the exception of res judicata.

An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Industrial Cos., Inc. v. Durbin, 2002-0665, p. 7 (La. 1/28/03), 837 So.2d 1207, 1213. Because exceptions of no cause of action present legal questions, they are reviewed using the de novo standard of review. O’Dwyer v. Edwards, 2008-1492, p. 3 (La. App. 4 Cir. 6/10/09), 15 So.3d 308, 310 (internal citations omitted). Because Jan Frankowski has sufficiently pled a change in circumstances such that he may be able to prove that he is entitled to relief, we find that the district court erred by granting this exception. We thus reverse the district court’s judgment granting the exception of no cause of action.

Lastly, the purpose of the dilatory exception of vagueness is to allow a defendant to be placed on notice of the cause of action and prevent its future re-litigation after a judgment is obtained. Joseph v. Wasserman, 2016-0528 (La.App. 4 Cir. 12/7/16), 206 So.3d 970, 973 (citing Smart v. Gold, Weems, Bruser, Sues and Rundell, 2006-1414, p. 5 (La.App. 3 Cir. 4/4/07), 955 So.2d 263, 267). The exception, however, does not permit the defendant to demand exactitude and detail beyond what is necessary for the above purposes. Joseph, 2016-0528 (La.App. 4 Cir. 12/7/16), 206 So.3d 970, 973-74 (citing Smart, at p. 5, 955 So.2d at 267). Because the district court’s judgment on an exception of vagueness is based on a factual determination, an appellate court previews the district court’s judgment under the manifest error standard of review. Wood v. Wood, 14-405 p. 9 (La.App. 5 Cir. 11/25/14), 165 So.3d 181, 187. In the case sub judice, Jan Fran-kowski sufficiently pled a change in circumstances; thus the district court manifestly erred in determining that his motion was vague. As a result, we reverse the district court’s judgment granting the exception of vagueness.

WRIT GRANTED; JUDGMENT REVERSED.

BELSOME, J., DISSENTS

BELSOME, J.,

DISSENTS

hi would deny the writ.

      . See La. C.C. art. 114 (stating, "An award of periodic spousal support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary....”); La. C.C.P. art. 142 (stating, "An award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become unnecessary.”).