author: MAX N. TOBIAS, JR., Judge. LOVE, J.,

text:
    Rene LOUAPRE and Lindsay Louapre v. William BOOHER and Isabella Booher.
    No. 2016-CA-0236.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 2016.

      Raymond B. Landry, Lisa M. Orlando, Moliere Flanagan & Landry, L.L.C., Me-tairie, LA, for Plaintiff/Appellant.
    James M. Garner, Martha Y. Curtis, Elizabeth B. McIntosh, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Or-leans, LA, for DefendanVAppellee.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr., Judge MADELEINE M. LANDRIEU).
   MAX N. TOBIAS, JR., Judge.

hThe plaintiffs, Rene and Lindsay Louapre, appeal the trial court’s granting of summary judgment in favor of the defendants, William and Isabella Booher, dismissing the plaintiffs’ claims for damages, attorneys’ fees, and reimbursement of amounts incurred to remedy defects in the home they purchased from the Boohers. Finding no genuine issue of material fact exists and that summary judgment is warranted, we affirm.

Factual Background and Procedural History

The Louapres purchased the property located at 5529 South Johnson Street, New Orleans, Louisiana, from the Boohers on 2 October 2014 for $490,000.00. In connection with the sale and purchase of the property, the Boohers executed a property disclosure statement on 11 August 2014, which specified existing defects to the interior walls, windows, and exterior walls, but indicated that no defects existed with respect to the roof, pool, plumbing system, water piping, electrical, and heating and air conditioning systems. The property disclosure statement ^further stated that the Boohers “attested that the ... statements and explanations ... are true and correct to the best of my/our knowledge.”

Thereafter, on 20 August 2014, the Louapres submitted a signed Agreement to Buy the Boohers’ property, which agreement the Boohers accepted; the Agreement contained the following language, in pertinent part:

INSPECTION AND DUE DILIGENCE PERIOD: BUYER ACKNOWLEDGES THAT THE SALE PRICE OF THE PROPERTY WAS NEGOTIATED AND BASED UPON THE PROPERTY’S APPARENT CURRENT CONDITION; ACCORDINGLY, SELLER IS NOT OBLIGATED TO MAKE REPAIRS TO THE PROPERTY, INCLUDING REPAIRS REQUIRED BY THE LENDER UNLESS OTHERWISE STATED HEREIN. THE SELLER IS RESPONSIBLE FOR MAINTAINING THE PROPERTY IN SUBSTANTIALLY THE SAME OR BETTER CONDITION AS IT WAS WHEN THE AGREEMENT WAS FULLY EXECUTED. PURCHASER shall have an inspection and due diligence period of (15) calendar days, commencing the first day after acceptance of this Agreement wherein, BUYER may, at BUYER’S expense, have any inspections made by experts or others of his choosing. Such physical inspections may include, but are not limited to, inspections for termites and other wood destroying insects, and/or damage from same, molds, and fungi hazards, and analysis of synthetic stucco, drywall, appliances, structures, foundations, roof, heating, cooling, electrical, plumbing systems, utility and sewer availability and condition, outbuildings, and square footage. Other due diligence by BUYER may include, but is not limited to investigation into ... any items addressed in the SELLER’S Property Disclosure Document. All testing shall be nondestructive testing. SELLER agrees to provide the utilities for inspections and immediate access. If BUYER is not satisfied with the condition of the Property or the results of BUYER’S due diligence investigation, the BUYER may choose one of the following options within the inspection and due diligence period:
Option 1: BUYER may elect, in writing, to terminate the Agreement and declare the Agreement null and void; or
Option 2: BUYER may indicate in writing the deficiencies and desired remedies and SELLER will |awithin seventy two (72) hours respond in writing as to SELLER’S willingness to remedy those deficiencies (“SELLER’S Response”).
Should SELLER in the SELLER’S Response refuse to remedy any or all of the deficiencies listed by the BUYER, then BUYER shall have seventy-two (72) hours from the date of SELLER’S Response or seventy-two (72) hours from the date that SELLER’S Response was due, whichever is earlier, to: (a) accept SELLER’S Response to BUYER’S written requests or (b) accept the Property in its current condition, or (c) to elect to terminate this Agreement. BUYER’S response shall be in writing. Upon BUYER’S failure to respond to the SELLER’S Response by the time specified or BUYER’S electing, in writing, to terminate this Agreement, the Agreement shall be automatically, with no further action required by either party, ipso facto null and void except for return of Deposit to the BUYER.
FAILURE TO GIVE WRITTEN NOTICE OF EITHER TERMINATION OR DEFICIENCIES AND DESIRED REMEDIES TO SELLER (OR SELLER’S DESIGNATED AGENT) AS SET FORTH ... WITHIN THE INSPECTION AND DUE DILIGENCE PERIOD SHALL BE DEEMED AS ACCEPTANCE BY BUYER OF THE PROPERTY’S CURRENT CONDITION.
FINAL WALK THROUGH:
BUYER shall have the right to re-inspect the Property within five (5) days prior to the Act of Sale, or occupancy, whichever will occur first in order to determine if the Property is in the same or better condition as it was at the initial inspection(s) and to insure all agreed upon repairs have been completed. SELLER agrees to provide utilities for the final walk through and immediate access to the Property. [Emphasis in original.]

The Louapres seized the afforded opportunity for an inspection and engaged a licensed Louisiana home inspector, Gurtler Brothers Consultants, Inc. (“Gurtler”), to inspect the property on 26 August 2014. Two days later, Gurtler issued a 52-page report that included 82 photographs (“Report”), identifying several deficiencies in the Boohers’ property. Specifically, the Report delineated | ¿major deficiencies that might require additional investigation and identified several safety concerns, including issues involving the structure, heating and air conditioning system, exterior and interior conditions, basement, roof and gutters, and the plumbing. The following items are only some of the deficiencies noted in the Report prepared for the Louapres:

1.Structural
Compression and wood rot was noted at the top of the left and right posts of the rear patio, which is indicative of chronic leakage and hidden damages.
Minor moisture stains and damages, apparently from previous roof leaks, were noted at some of the attic framing and roofing sheathing boards.
Minor to moderate damages, which also are not structurally detrimental, were noted at some of the foundation sills, floor joists, and sub-flooring in various areas of the crawlspaee.
Evidence of moisture build-up and some fungus growth, due to inadequate ventilation, was noted in the crawlspaee.
[T]he basement had a strong dead animal odor .... The basement is below grade and is prone to moisture intrusion in our area.
2.Roofing and Gutters
Our inspection has certain limitations with respect to ascertaining the quality of the installation and the condition of the roofing materials, and we recommend that a licensed roofing contractor walk the roof and remove a few tiles to provide additional evaluation. We noted missing tiles and ridge caps at left side of the gable [roof].
We noted a few areas of previous leaks, apparently from the prior roof. The condition of the underlying felt paper could not be ascertained during this inspection. However, numerous areas of previous leakage indicate \ ¡that this roof has little remaining useful life.... Edges of the roof have separated from the flashing. Roofing tar has been applied in numerous areas.... We strongly recommend that this tar sealant be replaced with proper metal flashing .... These roofing materials ... are at the end of their useful service life. We recommend a licensed roofer be consulted for repair options.... The functionality of the subsurface drainage system could not be confirmed during this visual inspection.
3.Exterior Conditions
Considerable wood rot was noted at the trim, soffits, fascia, windows and doors.... Several areas of the siding are rotted through, which again alloivs moisture into the wall cavity. Many of the door trims also have considerable rot at the base.
The in-ground swimming pool and the associated equipment are not included in this inspection report and can be addressed by a pool service company if desired.
4.Interior Conditions
Water is located, in a cavity below a trap door in the utility room. A source was not apparent.
The basement had a notable dead animal odor.
We noted numerous areas of past leaks on the ceilings below the flat roofs.
Numerous rear and left doors have evidence of past moisture intrusion.
The vapor barrier at a dining room window is broken.
Given the age of the house and its windows, the window vapor barrier seals are aged and can fail at any time allowing condensation build up between the mndow panes.
5. Plumbing
We noted a drum trap at the drain piping at a few of the bathrooms. This type of trap is subject to clogging and leakage, and we recommend that this drum trap be replaced.
The rear sink in the hall bathroom drained slowly.
InMuch of the plumbing is underground or behind walls and it’s not visible for inspection. The condition of the underground drain lines also could not be evaluated during this visual inspection. We recommend that a video camera survey of the underground drain lines be performed to ascertain the condition of the pipes below the slab.
6. Electrical
A signiñcant past short was noted at a main wire for the utility room sub-panel, We strongly recommend that a licensed electrician evaluate the electrical system.
The number of circuits and properly grounded outlets is inadequate by today’s standards.
The left rear comer outlet in the second floors left front bedroom testes as inoperable.
Many of the second floor outlets are grounded type outlets that tested as ungrounded,
7.Heating and Air Conditioning
The overflow drain pan under the second floor evaporator coil is holding standing water, which indicates that the main condensate drain line is blocked. We recommend that the drain line be cleared of obstructions and the pan drained to prevent damages to the interior surfaces below.
The operation of this float switch [to the second floor central system] could not be confirmed during this inspection.
We noted that there is no float switch installed at the first floor central system, which makes this system susceptible to overflowing when the main and overflow condensate drain lines become obstructed. We recommend that a float switch be installed at this system to reduce the potential for damages to the interior surfaces below. Condensation was noted at some of the second floor registers, which is indicative of elevated humidity in the house.
Apparent mold growth was noted at the exterior of the evaporator coils and at some of the ceiling registers. We recommend having the system cleaned 17professionally to reduce the concentrations of mold inside the system.
11. Summary
We recommend that firm quotations from licensed contractors be obtained for repairs to the above items. [Emphasis in original.]

Several of the deficiencies detailed in the Report of Gurtler directly contradicted information previously provided by the Boo-hers in the property disclosure statement they completed concerning the condition of the property, specifically regarding the roof, plumbing, electrical, and heating and air conditioning as noted above.

Following receipt and review of the Report, and despite the numerous deficiencies identified therein, which conflicted with the Boohers’ property disclosure statement, and having notice of the option to terminate the Agreement to Buy, the Louapres submitted a written Property Inspection Response to the Boohers on 2 September 2014 requesting that, “[f]or all of the deficiencies listed,” including issues concerning the roof, the Boohers pay $7,500 towards the closing costs to remedy the noted deficiencies. In response, the Boohers offered to pay a total of $5,000, with the stipulation that the payment be a “full and complete payment for the cost to BUYER(S) of having said deficiencies corrected after the date of the Act of Sale (even if the actual cost is more or less than the stated sum).” The Louapres accepted the Boohers’ $5,000 offer in response to the request. Accordingly, the parties executed a written addendum to the 20 August 2014 Agreement to Buy to this effect. Subsequently, on 25 September 2014, the IsLouapres negotiated with the Boohers for an additional $1,500 credit to address another leak issue resulting in a second addendum to the original Agreement to Buy. As a result of the numerous deficiencies identified in the property—which deficiencies were identified to the Louapres after receiving the initial property disclosure statement submitted to them by the Boo-hers, but before the act of sale—the parties negotiated a total credit of $6,500 to the Louapres for “pre-paids and closing costs” to remedy the- deficiencies.

On 2 October 2014, the parties executed a cash sale for the property in accordance with the Agreement to Buy as amended. Additionally, in an addendum attached to the cash sale that was expressly made a part thereof, the Louapres executed a separate “Waiver of Warranty and Redhibition Rights,” which contained the following language:

It is expressly agreed that the immovable property herein conveyed and all improvements and component parts, plumbing, electrical systems, mechanical equipment, heating and air conditioning systems, built-in appliances, and all other items located hereon are conveyed by Seller and accepted by Purchaser “AS IS, WHERE IS,” without any warranties of any kind whatsoever, even as to the metes and bounds, zoning, operation, or suitability of the property for the use intended by the Purchaser, without regard to the presence of apparent or hidden defects and with the Purchaser’s full and complete waiver of any and all rights for the return of all or any part of the purchase price by reason of any such defects.
Purchaser acknowledges and declares that neither the Seller nor any party, whomsoever, acting or purporting to act in any capacity whatsoever on behalf of the Seller has made any direct, indirect, explicit or implicit statement, representation or declaration, whether by written or oral statement or otherwise, and upon which the Purchaser has relied, concerning the existence or non-existence of any quality, characteristic or condition of the property herein conveyed. Purchaser has had full, complete ad unlimited access to the property herein conveyed for all tests and ^inspections which Purchaser, in Purchaser’s sole discretion, deems sufficiently diligent for the protection of Purchaser’s interests.
Purchaser expressly waives the warranty of fitness and the warranty against redhibitory vices and defects, whether apparent or latent, imposed by Louisiana Civil Code Articles 2520 through 2548, inclusive, and any other applicable state or federal law and the jurisprudence thereunder.
Purchaser also waives any rights Purchaser may have in redhibition to a return of the purchase price or to a reduction of the purchase price paid pursuant to Louisiana Civil Code Articles 2520 to 2548, inclusive, in connection with the property hereby conveyed to Purchaser by Seller. By Purchaser’s signature, Purchaser expressly acknowledges all such waivers and Purchaser’s exercise of Purchaser’s right to waive warranty pursuant to Louisiana Civil Code Article 2520 and 2548, inclusive. [Emphasis supplied.]

Shortly after moving into their newly purchased home, the Louapres allege that, contrary to the representations made to them by the Boohers in the property disclosure form of August 2014, they began discovering several defects—defects to which they allude to having had no prior knowledge—in the “roof, ceiling, plumbing system, water piping, pool, and heating and cooling systems.” Unable to amicably resolve the issues with the Boohers, the Louapres filed the instant suit in redhibition seeking damages, attorneys’ fees, and reimbursement of amounts incurred to remedy defects in the home after the sale. No mention of the Report is made in the petition.

In response to the Louapres’ petition, the Boohers filed an exception of no cause of action or, alternatively, motion for summary judgment on the grounds that (1) the Louapres had actual knowledge of many of the deficiencies in the home that were outlined in the Report prior to signing the act of sale and, (2) despite having actual knowledge of the defects, the Louapres executed a waiver of |tnwarranty and redhi-bition rights at the time of the cash sale, thus, precluding any right to recover the damages claimed in their lawsuit.

The Boohers’ motion for summary judgment came for hearing on 20 November 2015. Finding that no genuine issue of material fact existed and that, as a matter of law, the Louapres could not maintain a claim for redhibition against the Boohers, the trial court granted summary judgment in favor of the Boohers dismissing the Louapres’ claims. A judgment to this effect was signed on 1 December 2015. The judgment was silent as to the issue of costs.

The Louapres devolutively appealed. The Boohers answered the appeal asserting damages for frivolous appeal, including attorneys’ fees and costs pursuant to La. C.C.P. art. 2164.

Discussion

Appellate courts review the granting of summary judgment de novo using the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Wells v. St. Augus tine High School, Inc., 14-0234, p. 5 (La. App. 4 Cir. 9/3/14), 150 So.3d 1, 4.

On appeal, the Louapres contend the Boohers are not entitled to summary judgment because (1) in Valobra v. Nelson, 14-0164 (La.4/11/14), 136 So.3d 793, the Supreme Court pronounced that if a seller represents on a property disclosure form -that no defects in the property exist, the buyer has a right to rely on those representations and is not then required to show that the seller had actual knowledge of the defects to recover in redhibition, and (2) the Boohers’ motion for [^summary judgment was premature as discovery had not commenced at the time the motion was filed.

Conversely, the Boohers argue that the defects about which the Louapres complain are not redhibitory because the Louapres had actual knowledge of the defects prior to purchasing the home as outlined in the Report prepared at their request and on their behalf, which identified numerous major deficiencies in the property. Further, the Boohers note that the Louapres actually negotiated a credit to the closing costs ns a result of the property defects identified, establishing they had actual knowledge of the defects prior to the sale and, as such, cannot recover. Alternatively, the Boohers maintain that even if the defects are redhibitory, the Louapres still cannot recover because they signed a valid, express waiver of their rights to redhibition and to rely on any prior representations made by the Boohers concerning the current condition of the property. Moreover, according to the Boohers, the Louapres presented no countervailing evidence to refute that they had actual knowledge of numerous defects in the property, which knowledge contradicted the representations previously made by the Boohers in the property disclosure form. Lastly, the Boohers argue that any allegation that the motion for summary judgment was premature because discovery was not complete lacks merit because, based on the indisputable facts, including (1) the Report, (2) the credit to the closing costs, and (3) the express waiver of redhi-bitory rights and reliance on the Boohers’ prior representations, no additional discovery in this matter would alter the outcome of this case.

Finding the Louapres’ reliance on Vaio-bra as dispositive of the instant case is misplaced and finding merit to the arguments asserted by the Boohers, we affirm 112the trial court’s grant of summary judgment in favor of the Boohers and the dismissal of the Louapres’ claims.

Louisiana Civil Code article 2520 provides that a seller warrants the buyer against redhibitory defects in the thing sold. In a redhibitory action, the plaintiff must prove that the thing sold contained a hidden defect before the sale that was not apparent upon ordinary inspection. Tucker v. Petroleum Helicopters, Inc., 08-1019, p. 15 (La.App. 4 Cir. 3/23/09), 9 So.3d 966, 975. Pursuant to La. C.C. art. 2521, the seller owes no warranty for defects that were known to the buyer at the time of the sale or for defects that should have been discovered by a reasonably prudent buyer. Thus, apparent defects, which the buyer can discover through a simple inspection, are excluded from the seller’s legal warranty. La. C.C. art. 2521; Royal v. Cook, 07-1465, p. 8 (La.App. 4 Cir. 4/23/08), 984 So.2d 156, 163. If a defect is apparent and could have been discovered by simple inspection, a buyer has a duty to make a further investigation; the failure to do so constitutes a waiver of any complaint of a redhibitory defect. Spraggins v. Lambeth, 42,693, p. 5 (La.App. 2 Cir. 12/5/07), 973 So.2d 165, 168.

The Louapres posit that the Supreme Court’s decision in Valobra mandates the reversal of the trial court’s grant of summary judgment. We disagree. In Valo-bra, the plaintiffs brought a redhibition action against the sellers after discovering redhibitory defects, alleging fraudulent inducement and intentional | ^misrepresentation. The matter came before the trial court on the sellers’ exception of no cause of action, which the trial court granted finding that the plaintiffs’ petition failed to assert that the sellers had actual knowledge of the alleged defects and, thus, failed to state a cause of action to challenge the validity of the redhibition waiver the plaintiffs signed at the time of the sale. The court of appeal, relying on La. C.C. art. 2548, sustained the sellers’ exception stating that the plaintiffs were required to plead the sellers’ actual knowledge of defects. Valobra, 14-0164, p. 2, 136 So.3d at 794. In a per curiam opinion, relying solely on the four corners of the petition and accepting all well-pleaded facts set forth by the plaintiffs therein as true, as is required on an exception of no cause of action, the Supreme Court reversed the lower court judgments stating that because the plaintiffs specifically alleged that the sellers had obtained the waiver of redhibition by fraud, it could not be presumed “otherwise effective.” Id., 14-0164, p. 3, 136 So.3d at 795. Accordingly, the court determined the plaintiffs had effectively stated a cause of action to challenge the validity of the waiver and were entitled to litigate that threshold issue, which would then “determine the proof required of them on their redhibition claim.” Id.

luIMike Valobra, the instant case involves a motion for summary judgment and the issue presented is not whether, based solely upon the four corners of their petition and accepting all of the allegations contained therein as true, the Louapres have stated a cause of action in redhibition, but rather, whether the Louapres can prevail on their stated claim for redhibition based upon the undispúted facts established by the evidence submitted on the motion for summary judgment. Additionally, in Valobra, the court was not able to consider: (1) evidence of a written inspection report provided to the plaintiffs prior to the sale that detailed alleged defects in the property and/or recommended additional investigation of possible defects in the property; (2) photographs provided to the plaintiffs depicting defects in the property; or (3) evidence of negotiations between the parties for a reduction in the purchase price to remedy the noted defects in the property—all of which were made available for the court’s consideration and review in the instant case. In short, the per curiam opinion in Valobra stands solely for the proposition that a cause of action had been stated; it does not address whether summary judgment was applicable. Accordingly, we find the Louapres’ reliance on Valobra in the case sub judice is misplaced and unavailing.

In the case of Royal v. Cook, supra, the plaintiff, in part, alleged redhibitory defects in a house’s water heater, air conditioner, dishwasher, carpet, kitchen, plumbing, backyard swing, and living room wall. Based upon the evidence presented, the trial court concluded that these items did not constitute redhibitory defects in the home because the plaintiff either had, or should have had, notice of 11sthese defects from the pre-sale inspection of the home. This court did not disturb that finding on appeal. Given the pre-sale inspection prepared on behalf of the Louapres in the instant case, we reach the same conclusion herein.

Moreover, in a case factually analogous to the case sub judice⅛ our brethren on the First Circuit in Vanek v. Seeber, 09-0066 (La.App. 1 Cir. 10/27/09), 29 So.3d 582, determined that defects in the roof of the home did not constitute redhibitory defects because the buyer could have discovered them had he acted as a reasonably prudent buyer. Specifically, while the seller had completed a property disclosure form “which disclosed no defects in the roof,” a subsequent home inspection reported that the roof was aging and noted that it appeared to be in the last part of its life. After going over the inspection report and being advised that he could either terminate the purchase agreement or request concessions from the seller as a result of the deficiencies noted in the report, the buyer opted to seek a $4,000 reduction in the purchase price of the house. After negotiating with the seller, the buyer accepted the seller’s offer to lower the price by $2,000. Thereafter, in connection with the act of sale, the buyer executed a waiver of redhibition and the right to rely on any statements made by anyone, includinfe the seller, during the purchase of the home. Following the sale, the buyer discovered a leak in the roof during heavy rainfall. Consequently, the buyer filed suit against l1Rthe seller in redhibition seeking rescission of the sale or a significant reduction of the purchase price due to the seller’s failure to disclose problems with- the roof. In determining that the buyer was not entitled to recover in redhi-bition, the court noted that even though the statements made in the property disclosure form completed by the seller indicated no defects in the roof existed, the buyer had acquired or should have acquired knowledge of the problems with the roof from the information contained in the property inspection report prior to executing the waiver of redhibition.

Like the buyer in Vanek, based upon the information contained in the Report prepared and presented to the Louapres after receipt of the property disclosure form given to them by the Boohers and prior to the act of sale, which Report identified numerous defects and recommended additional investigation and/or inspection of various areas of the Boohers’ home, we find that the Louapres either knew or should have known of the defects about which they now complain and seek redress. Additionally, we find the Louapres failed to act as a reasonably prudent purchaser by not conducting any further inspection or investigation of the property as recommended prior to the act of sale. Further, the undisputed summary judgment evidence establishes that after receiving the Report identifying numerous defects, rather than seek to terminate the Agreement to Buy, the Louapres opted to negotiate a $6,500 credit towards the closing cost and acknowledged in writing that this sum was a “full and complete payment” for the cost to repair and/or remedy the defects after the act of sale, even if the actual cost they incurred was more or less than the negotiated amount. We find the totality of the summary judgment evidence presented in this case mandates a finding that the Louapres either actually knew, or should have known of the alleged defects in the property prior to the act 117of sale. Pursuant to La. C.C. art. 2521, the defects about which the Louapres complain are excluded from the seller’s legal warranty and, consequently, the trial court properly granted summary judgment in favor of the Boohers dismissing the Louapres’ claim for redhibi-tory damages.

As further evidence that summary judgment was proper in this case, we note that the Louapres executed an addendum made a part of the act of sale expressly waiving their right to redhibition and to rely on any representation made by the Boohers. See La. C.C. art. 2548, which allows the parties to agree to an exclusion or limitation of warranty against redhibitory defects. The Louapres do not dispute that a pre-sale property inspection was completed resulting in the Report provided to them and which identified numerous defects in the property or that they negotiated a credit towards the closing cost to remedy those deficiencies. The Louapres also do not contest that, despite their knowledge of the defects, they executed the waiver addendum at the act of sale. This waiver, in addition to waiving their right to redhibition, waived the Louapres’ right to rely on any representations concerning the condition of the property made by the Boohers in connection with the sale, which we find included the statements made by the Boohers in the property disclosure form. Given the extensive findings contained in the Report, especially those findings that conflicted with the Boohers’ statements contained in property disclosure form, and the recommendations for further investigation and/or inspection, we do not find it either logical or reasonable that the Louapres would have relied on the statements made by the Boohers in the property disclosure form. Summary judgment was proper.

Lastly, we find the Louapres’ contention that summary judgment was improper on the basis that discovery was not yet complete to be without merit. AsJ^stated by the trial judge at the hearing on the motion, we are “not sure what additional discovery [the Louapres] need” that would change the outcome of this case. This assignment of error is meritless.

Though we do not find the appeal of this matter to be frivolous, we tax all costs of the trial and appellate court proceedings to the Louapres. La. C.C.P. art. 2164.

CONCLUSION

For the foregoing reasons, the summary judgment in favor of the defendants, William and Isabella Booher, dismissing the claims of the plaintiffs, Rene and Lindsay Louapre, is affirmed at the plaintiffs’ cost.

AFFIRMED; COSTS TAXED.

LOVE, J.,

Concurs and Assigns Reasons.

I respectfully concur with the results reached by the majority. However, I write separately to note that costs are taxed pursuant to La. C.C.P. art.1920 and La. R.S. 13:4533.

      . In Section 6 of the property disclosure statement, the Boohers indicated that property damages related to "the land or the improvements thereon, including, but not limited to, fire, windstorm, flood, hail, lightning or other property damage” that had occurred, and stated that "all related property damages, defects, and/or conditions” caused as a result thereof had not been repaired.

      . According to the Report, "[m]ajor deficiencies are underlined. Items that may he a major deficiency or that require additional investigation are italicized. Safety concerns are identified iri bold print.” [Emphasis in original.].

      . The addendum provided the "[s]eller to pay five thousand dollars ($5000) towards buyers’ closing costs and pre-paids. All other conditions in purchase agreement to remain the same,”

      . La. C.C.P. art. 2164 provides that an appellate court may ‘‘tax costs of the lower or appellate court or any part thereof, against any party to the suit, as in its judgment may be considered equitable.”

      . Section (b) of the Revision Comments following La. C.C. art. 2521 states that ‘‘a defect, or vice, is redhibitory when it is hidden, that is, not apparent, nor known to the buyer. Thus, a defect is not hidden, and therefore is not redhibitory, when the buyer knows of it either because it was disclosed by the seller or because the buyer discovered it by himself." A seller is not required to respond for defects which the buyer was aware, irrespective of the gravity of the defects. See Revision Comment (f) following La. C.C. art. 2521.

      .In their petition, the plaintiffs alleged that the "Defendants failed to advise the plaintiffs that they were not in a position to know one way or the other whether the premises contained defects and thus intentionally misled the plaintiffs into believing the defendants executed the disclosure form with knowledge of that which they stated. [That no defects in the premises existed.]” The plaintiffs further alleged the sellers were in bad faith and that they fraudulently induced them to execute a waiver of redhibition by misrepresenting in the property disclosure form the degree and quality of their knowledge of the premises. Valobra, 14-0164, pp. 1-2, 136 So.3d at 794.

      . La. C.C. art. 2548 provides, in pertinent part, that "[a] buyer is not bound by an otherwise effective exclusion or limitation of the warranty when the seller has declared that the thing has a quality that he knew it did not have.”

      . In dicta, the court stated its belief that "a seller cannot represent a thing to have no defects in order to procure a waiver of redhi-bition and then claim that they were not in a position to know whether there were defects or not, as alleged by the plaintiffs, while using the waiver of redhibition to require the buyer to prove actual knowledge of the defect by the seller rather than merely that the thing sold contained a defect which rendered it useless.” Valobra, 14-0164, p. 2, 136 So.3d at 795.

      . Both the purchase agreement and the Act of Sale at issue in Vanek v. Seeber, 09-0066 (La.App, 1 Cir. 10/27/09), 29 So.3d 582, contained almost identical language as the same documents at issue in the instant case. Additionally, the sellers in both cases prepared property disclosure statements containing information concerning the condition of the property they were selling that was later contradicted by the pre-sale inspection reports. Further, the buyer in Vanek, like the Louapres herein, with knowledge that the property disclosure form- and the pre-sale inspection report contained conflicting information regarding the condition of the property, expressly waived the right to assert redhibition and the right to rely on any representations made by the seller,


source: Caselaw Access Project

author: WICKER, J.

license: Public Domain

text:
    Landis J. CAMP v. Chris J. DIGRADO, M.D. & LAMMICO Insurance Company
    NO. 16-CA-190
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016
    PLAINTIFF/APPELLANT, LANDIS J. CAMP, In Proper Person

      COUNSEL FOR DEFENDANT/AP-PELLEE, CHRIS J. DIGRADO, M.D. & LAMMICO INSURANCE COMPANY, Harvey J. Godofsky
    Panel composed of Fredericka Homberg Wicker, Marc E. Johnson, and Hans J. Liljeberg
   WICKER, J.

| ;In this appeal, plaintiff, Landis J. Camp, seeks review of a trial court judgment rendered following a hearing on exceptions of prescription and prematurity filed by defendant, Chris J. DiGrado, M.D. Because we find Mr. Camp’s petition prescribed on its face and because Mr. Camp has failed to submit any evidence to show the action is not prescribed, we find the district court appropriately sustained Dr. DiGrado’s exception of prescription. Accordingly, we affirm the district court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2002, Landis Camp sustained an injury to his right rotator cuff in a work-related accident in Baltimore, Maryland. Mr. Camp subsequently initiated workers’ compensation proceedings with the Maryland Workers’ Compensation Commission. Following this accident, Mr. Camp returned home to New Orleans. He began treating with Dr. Chris J. DiGrado in 2005.

On January 28, 2010, Dr. DiGrado performed surgery to repair Mr. Camp’s right rotator cuff. During Mr. Camp’s deposition, counsel for Dr. DiGrado questioned him about whether he knew Dr, DiGrado did not perform this surgery correctly in 2010. Mr. Camp responded, “Yes, sir. Then, I took another chance—excuse me— I took another chance in 2011, giving the justice [sic] to see could he fix my problem, and he refused to fix my problem and cut my money off, which was wrong.” Dr. DiGrado performed a second rotator cuff surgery on Mr, Camp on March 31, 2011. Following this surgery, Dr. DiGrado ordered an MRI of Mr. Camp’s shoulder on September 27, 2011. Mr. Camp testified during his deposition that he received the MRI report a few days later and, at this point, knew Dr. DiGrado negligently performed his surgeries. On October 28, 2011, Dr. DiGrado signed a functional capacity evaluation, affirming that Mr. Camp had reached |2maximum medical improvement. According to Mr. Camp, on the basis of this functional capacity evaluation, he lost his workers’ compensation benefits from his 2002 work-related accident in Baltimore. Mr. Camp testified that, as of January 2012, he knew Dr. DiGrado was at fault for the loss of these benefits.

Dr. DiGrado treated Mr. Camp for the last time on December 21, 2011. According to Mr. Camp, on the advice of a physical therapist who worked with Dr. DiGrado, Mr. Camp went to see Dr. Michael O’Brien. Dr. O’Brien performed another surgery on Mr. Camp on August 8, 2012. Mr. Camp testified that Dr. O’Brien indicated to him that Dr. DiGrado committed malpractice:

The surgery, it had too many sutures and how it was bad and how he fix [sic] and the way he did the surgery. He did the surgery wrong, the same surgery wrong.

According to Mr. Camp, Dr. O’Brien commented that he receives many of Dr. DiGrado’s former patients. Mr. Camp explained that after Dr. O’Brien repaired his shoulder, he started to seek compensation for Dr. DiGrado’s alleged malpractice. Mr. Camp admitted contacting the Baltimore law firm of Goodman and Goodman, asking the firm to take his case against Dr. DiGrado. On October 16, 2012, Mr. Goodman responded with a letter informing Mr. Camp that the firm did not wish to represent him in the matter. On May 6, 2013, Mr. Camp penned a letter to attorney Leonard Fisher, seeking to engage Mr. Fisher to represent him in his medical malpractice case against Mr. DiGrado. Likewise, Mr. Camp sent a letter on June 26, 2013, to Donald LaRoche, requesting representation for his claims against Dr. DiGrado. Mr. Camp also mailed letters to the United States Supreme Court on December 13, 2013 and on April 7, 2014, concerning his claims against Dr. DiGrado. Mr. Camp also received a letter from attorney Jacqueline Campbell, on September 4, 2013, declining to represent him in this matter.

On February 27, 2015, Mr. Camp, proceeding in proper person, filed suit in the Twenty-Fourth Judicial District Court against Chris J. DiGrado, M.D., and his | .¡insurer, LAMMICO Insurance Company, alleging that he sustained injuries as a result of Dr. DiGrado’s medical malpractice. First, Mr. Camp alleged that Dr. DiGrado negligently performed the January 28, 2010 and March 31, 2011 rotator cuff surgeries. Second, Mr. Camp claimed Dr. DiGrado negligently determined that he had reached maximum medical improvement and signed a functional capacity evaluation to that effect. According to Mr, Camp, this negligence resulted in the loss of his Maryland workers’ compensation benefits and served as the basis for a settlement of his workers’ compensation case which Mr. Camp deemed to be unfavorable to him. Thereafter, on March 30, 2015, Mr. Camp filed a complaint with the Louisiana Patient’s Compensation Fund, seeking review by a medical review panel.

On October 30, 2015, Dr. DiGrado filed an exception of prescription and an alternative exception of prematurity. Dr. DiGrado alleged that he had performed surgeries on Mr. Camp’s right shoulder on January 28, 2010, and March 31, 2011, and had last treated Mr. Camp on December 21, 2011. Because Mr. Camp filed his suit more than three years after Dr. DiGrado had last treated Mr, Camp, Dr. DiGrado argued that Mr. Camp’s claims against him had prescribed pursuant to La. R.S. 9:5628. Alternatively, Dr. DiGrado argued that Mr. Camp’s suit was filed prematurely because his claims had not been reviewed by a medical review panel, pursuant to La. R.S. 40:1299.47.

On December 17, 2015, at the conclusion of a hearing on Dr. DiGrado’s exceptions, the district court granted Dr. DiGrado’s exception of prescription and found the exception of prematurity moot. The trial court signed a judgment to this effect.

On December 30,2015, Mr. Camp filed a motion for appeal of the trial court’s December 17, 2015 judgment. Upon review, we found the judgment the district court issued to be technically defective because it failed to dismiss Mr. UCamp’s claims with prejudice. Accordingly, we exercised our supervisory jurisdiction and remanded this matter for the district court to supplement the record with an amended judgment. On October 25, 2016, the district court supplemented the record with an amended judgment, granting Dr. DiGra-do’s exception of prescription, finding his exception of prematurity to be moot, and dismissing with prejudice all of Mr. Camp’s claims against Dr. DiGrado. It is from this judgment that Mr. Camp now appeals.

DISCUSSION

Mr. Camp seeks damages for injury “arising out of patient care” from Dr. DiGrado, a Louisiana physician. Thus, the prescriptive period set forth in La. R.S. 9:5628(A) applies to his malpractice claims:

No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

In Campo v. Correa, 01-2707, p. 16 (La. 6/21/02), 828 So.2d 602, 509, the Louisiana Supreme Court succinctly explained,

[T]he statute sets forth two prescriptive limits within which to bring a medical malpractice action, namely one year from the date of the alleged act or one year from the date of discovery with a three year limitation from the date of the alleged act, omission or neglect to bring such claims.

Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Id. at 508. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. Id. Prescription commences when a plaintiff obtains actual or |,^constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Id. at 510. A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Id. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Id. at 510-11.

Dr. DiGrado last treated Mr. Camp on December 21, 2011. The Louisiana Medical Malpractice Act requires all medical malpractice actions against a qualified healthcare provider to be submitted to a medical review panel prior to filing the suit in a state district court. La. R.S. 40:1299.47; La. R.S. 40.1299.42; Martin v. Comm-Care Corp., 37,600, pp. 4-5 (La.App. 2 Cir. 10/16/03), 859 So.2d 217, 220. On February 27, 2015, Mr. Camp filed a petition for damages with the district court. Mr. Camp then filed with the Patient’s Compensation Fund a request for a medical review panel on March 30, 2015. On its face, the record is clear that Mr. Camp’s claims are prescribed because he filed his action more than three years after he ceased treating with Dr. DiGrado. Campo, 828 So.2d at 508 (“[I]n all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.”).

At the hearing on Dr. DiGrado’s exceptions, Dr. DiGrado submitted additional evidence, including Mr. Camp’s deposition and numerous exhibits, indicating Mr. Camp had actual knowledge of his claims as early as October 2011 and January 2012. Thus, based on Mr. Camp’s own admissions, his claims may have prescribed a year from those dates. Mr. Camp submitted no evidence that his claims were not prescribed. However, his brief seems to make some reference to the workers’ compensation proceeding in Baltimore. In his deposition, Mr. Camp explained that he has sought compensation from Dr. DiGra-do for his injuries since 2012. He asserted that he has not obtained relief because he “was going to | ^Baltimore, when I had to file [sic] Louisiana, down here.” Although the record suggests that Mr. Camp did attempt to raise his medical malpractice claims in the proceedings before the Maryland Workers’ Compensation Commission, these attempts could not and did not interrupt prescription. La. R.S. 40:1299.47(A).

Accordingly, because Mr. Camp’s claims are prescribed on their face and because he failed to submit any evidence to meet his burden that his claims have not prescribed, we affirm the district court’s judgment, granting Dr. DiGrado’s exception of prescription and dismissing with prejudice all of Mr. Camp’s claims against him.

AFFIRMED


author: MURPHY, J.

text:
    CELEBRATION CHURCH, INC. v. CHURCH MUTUAL INSURANCE COMPANY and United National Insurance Company
    NO. 16-CA-245
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, CELEBRATION CHURCH, INC., Lara J. Jensen
    COUNSEL FOR DEFENDANT/AP-PELLEE, ROY M. CARUBBA, Christopher K. LeMieux, Brett W. Tweedel, Alexis K. Caughey, Johanna E. Lambert
    COUNSEL FOR DEFENDANT/AP-PELLEE, JACO ROOFING & CONSTRUCTION CORPORATION, INC., Michael J. Vondenstein, Natasha Z. Wilson
    Panel composed of Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg
   MURPHY, J.

| ] Plaintiff, Celebration Church, Inc., has appealed the grant of an Exception of Peremption in favor of defendant, Jaco Roofing and Construction, Inc., and the grant of a Motion for Summary Judgment filed by defendant, Roy Carubba. For the reasons that follow, we affirm the grant of the Exception of Peremption and reverse the grant of the Motion for Summary Judgment.

FACTS AND PROCEDURAL HISTORY

This appeal stems from repairs to the roof and construction of an addition to a strip shopping center owned by plaintiff, Celebration Church, Inc., (“Celebration”). Celebration initially filed a Petition for Damages against its property insurers on August 26, 2013, after the building sustained damages from Hurricane Isaac. The lawsuit was then removed to federal court. While the suit was pending in federal court, on January 27, 2014, Celebration filed a Second Supplemental and Amending Petition for Damages naming several new defendants, including Jaco Roofing and Construction, Inc. (“Jaco”), and Roy M. Carubba, (“Carubba”). The claims against Jaco alleged breach of contract and negligence for work performed on the roof from April through August 2006. The claims against Carubba alleged breach of contract and negligence for work performed during the construction of a rooftop gymnasium addition to the property. The lawsuit was remanded to the 24th Judicial District Court for further proceedings on April 2, 2014.

Jaco filed an Exception of Peremption, arguing that Celebration’s claims were barred by the five-year peremptive period set forth in La. R.S. 9:2772A(l)(b). The trial court orally granted the exception at the hearing held October 28, 2015. The written judgment granting the exception was signed on December 7,2015.

12Carubba filed a Motion for Summary Judgment arguing that there was no evidence that he individually entered into a contract to perform work on the property or that he individually performed any work on the property. Following arguments on the motion on October 28, 2015, the trial court granted the motion. Written judgment granting the motion was filed on November 9, 2015.

Celebration filed for and was granted devolutive appeals from both of these judgments.

APPEAL OF JACO’S EXCEPTION OF PEREMPTION

In its Second Supplemental and Amending Petition for Damages, filed January 27, 2014, Celebration alleged that it contracted with All Star Restoration, Inc. (“Allstar”) to perform installation of a roof on the property after the roof was damaged by Hurricane Katrina. This petition alleged that Alistar and its subcontractor, Jaco, improperly overlaid a new roof onto the existing roof, rather than replacing the old roof, and that the failure to properly repair and replace the roof resulted in further damage to the property. This petition alleged that if the property insurers named in the original petition prevailed in their defenses that the damages claimed from Hurricane Isaac were pre-existing and resulted from improper installation and defective workmanship following Hurricane Katrina, then Celebration, as a purported third-party beneficiary to the contract between Alistar and Jaco, could recover from Jaco. In response to the allegations made in the Second Supplemental and Amending Petition for Damages, Jaco filed an Exception of Peremption arguing Celebration’s claims were barred due to the five-year peremp-tive period for actions arising out of construction of improvements to immovable property provided for in La. R.S. 9:2772.

La. R.S. 9:2772 provides in pertinent part:

A. Except as otherwise provided in this Subsection, no action, whether ex con-tractu, ex delicto, or otherwise, including but not limited to an action for failure to warn, to recover on a contract, or to | ¡¡recover damages, or otherwise arising out of an engagement of planning, construction, design, or building immovable or movable property which may include, without limitation, consultation, planning, designs, drawings, specification, investigation, evaluation, measuring, or administration related to any building, construction, demolition^ or work, shall be brought against any person performing or furnishing land surveying services, as such term is defined in R.S. 37:682, including but not limited to those services preparatory to construction, or against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of immovables, or improvement to immovable property, including but not limited to a residential building contractor as defined in R.S. 37:2150.1:
(1)
(a) More than five years after the date of registry in the mortgage office of acceptance of the work by owner.
(b) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than five years after the improvement has been thus occupied by the owner.

The Louisiana Legislature enacted La. R.S. 9:2772 in 1964 to protect building contractors from liability for past construction projects that could extend for an indefinite period of time. Thrasher Constr., Inc, v. Gibbs Residential, L.L.C., 15-0607 (La.App. 4 Cm. 6/29/16), 197 So.3d 283. This statute provides that if an acceptance of the construction or improvements is recorded within six months of occupancy, the peremptive period begins on the date the acceptance is recorded; if no acceptance is recorded within six months of occupancy, the peremptive period begins on the date of occupancy. Guidry v. Sunset Recreation Club, Inc., 571 So.2d 870, 872 (La. App. 3 Cir. 1990), writ denied, 577 So.2d 14 (La. 1991).

La. C.C. art. 3461 provides that peremption cannot be renounced, interrupted or suspended. The law is well settled that “nothing may interfere with the running of a peremptive period.” Naghi v. Brener, 08-2527 (La. 6/26/09), 17 So.3d 919, 925. After the end of the peremptive period, the cause of action no longer exists and any right to assert the claim is destroyed. Id.

[4The exhibits attached to Jaco’s exception and introduced into evidence at the hearing on the exception prove that Jaco’s work on the building was completed on August 10, 2006. Celebration did not record a notice of acceptance or any other document in the mortgage office regarding the work performed by Jaco. Thus, section (l)(b) is applicable and it must be determined when Celebration occupied or took possession of the “improvement” in whole or in part.

The exhibits attached to Jaco’s exception and introduced into evidence at the hearing on the exception indicate that Celebration took possession of the “improvement” and permitted tenants to occupy the building beginning in August 2006, shortly after Jaco’s completion of its work on the building. Specifically, Premier Fitness (“Premier”) occupied the building in August 2006. Another tenant, Tuesday Morning, performed modifications to its space in 2007 and moved into the building on January 1, 2008. Another tenant, Bedding Plus, moved into the space in June 2008. An additional tenant, Louisiana Department of Labor, moved into the building in December 2008. Thus, it is clear that the claims made against Jaco in the petition filed by Celebration on January 27, 2014 were per-empted by La. R.S. 9:2772A(l)(b), because the petition was filed more than five years after Celebration took possession of the improvements and permitted tenants to occupy the building.

Celebration argues that the tenants’ occupancy of the building or possession of the improvement did not occur until substantial completion of the construction of all spaces of the property. The language of La. R.S. 9:2772 is clear and specific. Guidry, supra. La. R.S. 9:2772A makes no reference to the filing of a certificate of substantial completion. Instead, the per-emptive period runs either (a) from the date of registry of the acceptance of the work by the owner; or (b) if no acceptance is recorded, within six months of the date the owner occupies or takes possession of the improvement in whole or in part. La. R.S. 9:2772(A)(1) (emphasis added). RThus, substantial completion is not relevant to when the peremptive period set forth in La. R.S. 9:2772A(1) begins to run. In this case, the peremptive period set forth in La. R.S. 9:2772A(1) with respect to the work performed by Jaco began to run when Celebration took possession of the improvement in part and allowed Premier to occupy the property in August of 2006. The fact that other work performed by entities other that Jaco continued on other portions of the property after some tenants moved into the property did not stop the running of the peremptive period set for in La. R.S. 9:2772A(1).

Celebration further argues that the time period for filing a claim against Jaco began to run on February 13, 2009 when Celebration filed a Notice of Termination of Work by Allstar. This argument is misplaced. Jaco performed work on the property owned by Celebration pursuant to a contract between Celebration and Allstar dated November 7, 2005. The February 13, 2009 Notice of Termination refers to work performed under another contract between Celebration and Allstar dated May 25, 2007.

Given the facts in this case and based on the clear language of La. R.S. 9:2772, the claims asserted by Celebration in the January 27, 2014 petition against Jaco are perempted because no notice of acceptance was filed, and Celebration did not file its claims within five years of Celebration’s possession and occupancy of the improvements following the completion of Jaco’s roofing work. Accordingly, the trial court judgment granting Jaco’s Exception of Peremption is affirmed.

APPEAL OF CARUBBA’S MOTION FOR SUMMARY JUDGMENT

In the Second Supplemental and Amending Petition for Damages filed on January 27, 2014, Celebration alleged that it is a third-party beneficiary to any contract between Roy Carubba and any other person in connection with any roofing work performed on the subject property following Hurricane Katrina. In this petition, Celebration asserted breach of contract and negligence claims against lfiRoy Ca-rubba individually, specifically alleging that Carubba is hable in failing to properly install the roof and/or any parts thereof, defectively performing roofing work on the property, failing to advise Celebration of potential code violations in the existing roof work, and improperly overlaying preexisting multiple layers with an additional roofing layer in violation of applicable building codes. In response, Carubba filed a Motion for Summary Judgment arguing that he, individually, did not perform or contract to perform the work complained of in the petition. Carubba argued that Carubba, Inc. doing business as CEI Construction, Inc. contracted to perform work for Premier Fitness, L.L.C. (“Premier”), who leased a portion of the building from Celebration. The contract provides that CEI Construction, Inc. was to act as contractor for the Premier Fitness Gymnasium Expansion (“gym”).

A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents 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. C.C.P. art. 966(B)(3). The party moving for summary judgment bears the burden of proof. La. C.C.P. art. 966(C)(2). Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, 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, action, or defense. Id. Thereafter, if the adverse party fails to produce factual support to establish that he will be able to satisfy his burden of proof at trial, there is no genuine issue of material fact. Id.

Appellate courts review the ruling on a motion for summary judgment de novo using the same criteria governing the trial court’s determination of . whether [ 7summary judgment is appropriate. Burns v. Sedgwick Claims Mgmt. Servs., 14-421 (La.App. 5 Cir. 11/25/14), 165 So.3d 147.

In support of the motion for summary judgment, Carubba submitted the contract between Premier and CEI Construction, Inc., as well as a document from the Louisiana Secretary of State showing that Ca-rubba, Inc. was a corporation in good standing. In addition, Carubba submitted several applications for payment by CEI to Premier and the checks issued by Premier to CEI as a result of the applications for payment. The checks indicate that the checks were deposited into the bank account of Carubba, Inc. d/b/a CEI. Further, Carubba submitted the excerpts of the deposition of Celebration’s corporate representatives, who testified that they had no knowledge or evidence that Carubba individually entered into a contract with Premier or received payment from Premier for the gym addition.

In opposition to the motion for summary judgment, Celebration argued that genuine issues of fact exist regarding whether Carubba constructed the gym in his personal capacity because at the time Premier entered into the contract with CEI Construction, Inc., no such entity existed. Celebration went on to argue that the application for the building permit for the project was submitted in the name of “Roy M. Carubba.” Celebration argued that the license number on the bid form was for Roy M. Carubba not CEI. Celebration went on to argue that Carubba violated Louisiana law by serving in a dual capacity as the project engineer and the contractor on the gym. Finally, Celebration argued that the construction contract named Carubba and Dan Oliver as the contractor’s representatives on the project and that Carubba delegated responsibility for the project to Oliver who was not qualified to manage the project.

Additionally, Celebration argued that genuine issues of fact exist as to whether Roy Carubba may be personally liable under a theory of alter ego, whether he committed fraud sufficient to pierce the corporate veil, and whether he may be Isliable for breach of a duty of care owed to Celebration, Finally, Celebration argued that summary judgment was premature because there was outstanding discovery as to whether Carubba disregarded corporate formalities of CEI and Carubba Engineering sufficient to pierce the corporate veil.

In support of these arguments, Celebration submitted a copy of the contract that names CEI as the contractor, a printout from the Louisiana Secretary of State showing Roy M. Carubba as an officer of Carubba, Inc., a building application dated February 18, 2008 naming Roy M. Carub-ba as the contractor, a letter from the State of Louisiana Licensing Board for Contractors stating that Carubba holds a commercial contractor’s license issued in 1998, and that Carubba, Inc. has a commercial contractor’s license which was issued in 2014, a bid form to construct the gym submitted by CEI which contains the Carubba’s contractor license number, a letter from the architect on the project to Dan Oliver, several applications for payment submitted to Premier from CEI and signed by Dan Oliver, as well as portions of the plans and specifications for the gym.

Our review of the evidence submitted in support of and in opposition to the motion for summary judgment indicates that although the contract indicates that Premier contracted with CEI Construction, Inc. to perform work on the property owned by Celebration, the records from the Louisiana Secretary of State seem to indicate that an entity entitled CEI Construction, Inc. did not exist. Carubba argues that the entity that entered into the contract and performed the work was Carubba, Inc. d/b/a CEI Construction, Inc. The documents submitted by Celebration in support of the Motion for Summary judgment seem to indicate that Carubba, Inc. did not have a contractor’s license at the time of this contract. The documents submitted by Celebration create an issue of fact as to who entered into the contract with Premier and who is liable for the alleged work defects.

l3Once Celebration came forth with evidence to show that there was an issue of fact as to who entered into the contract, it was incumbent upon Carubba to show that there was no genuine issue of fact as to who entered into the contract. Thus, Ca-rubba failed to carry his burden of proving that that were no genuine issues of material fact and that he was entitled to judgment as a matter of law. Accordingly, the trial judge erred in granting summary judgment in favor of Carubba.

CONCLUSION

For the foregoing reasons, the judgment granting the Exception of Peremption in favor of Jaco is affirmed. The judgment granting Motion for Summary Judgment in favor of Carubba is reversed. This matter is remanded for further proceedings.

AFFIRMED IN PART; REVERSED IN PART

      . The property insurers were Church Mutual Insurance Company and United National Insurance Company. On September 1, 2013, an amended petition was filed adding Certain Underwriters at Lloyd’s, London as a defendant.

      . This is the version of La. C.C.P. art. 966 in effect at the time of the trial court’s ruling.


author: CHAISSON, J.

text:
    SUCCESSION OF Kathleen Theresa Joy Martin SALVATORE
    NO. 16-CA-435
    Court of Appeal of Louisiana, Fifth Circuit.
    December 21, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, SUCCESSION OF KATHLEEN THERESA JOY MARTIN SALVATORE, Brainerd S. Montgomery, George F. Riess
    COUNSEL FOR DEFENDANT/AP-PELLEE, JOHN R. RAINES, KATHLEEN RAINES BECKMANN AND LISA DAWN RAINES, Michael Baham, Pat M. Franz
    Panel composed of Fredericka Homberg Wicker, Jude G. Gravois, and Robert A. Chaisson
   CHAISSON, J.

hln this succession proceeding, defendant appeals a summary judgment that set aside the Judgment of Possession previously rendered in this matter. Plaintiffs, who are the children of the decedent, answer defendant’s appeal seeking a declaration that they are forced heirs of their mother, Kathleen Joy Salvatore. For the reasons that follow, we affirm the summary judgment setting aside the Judgment of Possession previously rendered in this matter, and we dismiss plaintiffs’ answer to this appeal. We further remand this matter to the district court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Kathleen Theresa Joy Martin Salvatore (“Mrs. Salvatore”) died on September 4, 1997. Over fourteen years later, on December 15, 2011, her surviving husband, Joseph M. Salvatore, filed a Petition to Probate Mrs. Salvatore’s last will and testament. In his petition, Mr. Salvatore acknowledged that Mrs. Salvatore had three children from a prior marriage, and that in her last will and testament, Mrs. Salvatore bequeathed those children the forced portion of her estate. He further alleged, however, that because Mrs. Salvatore died during the transitional period after the abolition of forced heirship in Louisiana, “the applicable transitional statute, La. R.S. 9:2501 et seq., mandated removal of decedent’s children as forced heirs thus leaving decedent’s husband as the universal legatee of her estate.” Mr. Salvatore did not request that any notice of this proceeding be given to Mrs. Salvatore’s children, and they now contend that they were given no notice and were not aware that their mother’s estate had been opened. On January 17, 2012, Mr. Salvatore filed a Petition for Possession, making the same allegations regarding Mrs. Salvatore’s children that he had made in his Petition to Probate. On that same date, the district court rendered adjudgment of Possession recognizing Mr. Salvatore as the sole heir and legatee of Mrs. Salvatore and sending him into possession of the assets of her estate.

When Mrs. Salvatore’s children from her prior marriage, John R. Raines, Kathleen Raines Beckmann and Lisa Dawn Raines (“the Salvatore children”), subsequently learned of the Judgment of Possession, they filed a Petition to Annul Judgment of Possession and to Reopen Succession, in which they named Michael M. Salvatore, in his capacity as universal heir and independent executor of the estate of Joseph Salvatore, as defendant. In that petition, the Salvatore children prayed for judgment “vacating and annulling the judgment of possession signed herein on January 17, 2012” and reopening the succession and confirming John R. Raines as executor. As the grounds for annulling the Judgment of Possession, they alleged that it was procured by fraud and ill practices in that they were not given notice of the proceedings and an opportunity to be heard, and they were forced heirs of their mother and deprived of their inheritance based upon an erroneous interpretation of the forced heirship law and therefore improperly excluded from the Judgment of Possession. Although they alleged their status as forced heirs as a ground for annulling the Judgment of Possession, they did not specifically pray for a declaratory judgment recognizing them as such,

The Salvatore children thereafter filed a Motion for Summary Judgment praying for judgment annulling the previously rendered Judgment of Possession on the grounds that it was based upon an unjustified legal assumption that they were not entitled to their forced portion. Although the Salvatore children state in their memorandum in support of their motion that they were not provided notice of the succession proceeding, they do not argue lack of notice as the grounds that the Judgment of Possession should be annulled. Like their Petition to Annul, their | ¡¡Motion for Summary Judgment did not specifically pray for a declaratory judgment recognizing them as forced heirs of their mother’s estate.

On March 29, 2016, a hearing was held on the Salvatore children’s summary judgment motion. Neither party raised or argued the issue of lack of notice, however, the district judge questioned counsel for both parties regarding this issue and expressed his concern regarding the lack of notice. Thereafter, the district court granted summary judgment in favor of the Salvatore children “only insofar as setting aside the judgment of the Court dated January 17, 2012.” The district judge did not provide ■written reasons for judgment, but it is clear from the transcript of the hearing that, even though the Salvatore children did not argue lack of notice of the succession proceeding as the grounds upon which they sought annulment of the judgment, the district judge set aside the Judgment of Possession due to lack of notice. The district judge specifically stated that there needed to be a subsequent hearing regarding interpretation of Mrs. Salvatore’s last will and testament, to determine whether she intended to leave her children something over and above their forced portion. The district court therefore did not resolve the question of whether or not the Salvatore children are forced heirs of their mother’s estate.

It is from this judgment that Michael M. Salvatore now appeals, assigning as error the district court’s granting of the summary judgment. The Salvatore children answer Michael M. Salvatore’s appeal, objecting to the district court’s reasons for setting aside the Judgment of Possession, without resolving the question of whether they are forced heirs of their mother’s estate under the law and therefore entitled to the forced portion of her estate. They therefore request, in effect, that the district court’s March 29, 2016 judgment be amended by this Court |4to declare that they are forced heirs of their mother’s estate, and that in all other respects the judgment be affirmed.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Bell v. Parry, 10-369 (La. App. 5 Cir. 11/23/10), 61 So.3d 1, 2. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). A motion for summary judgment should 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 mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).

Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Breaux v. Fresh Start Properties, L.L.C., 11-262 (La.App. 5 Cir. 11/29/11), 78 So.3d 849, 852.

In this case, there are no material facts in dispute. Resolution of the Salvatore children’s Motion for Summary Judgment involves only an interpretation and application of the pertinent statutes relating to forced heirship, and an interpretation of Mrs. Salvatore’s last will and testament in accordance with those statutes. We therefore analyze the Salvatore children’s Motion for Summary Judgment accordingly, utilizing a de novo standard of review. In doing so, we find that we are able to ascertain Mrs. Salvatore’s intent with regard to bequests to her children by a plain reading of her last will and testament, without resort to any extrinsic evidence outside the four corners of the will.

| ^Effective January 1,1996, by act of the Louisiana Legislature and subsequent approval of a constitutional amendment by the electorate, forced heirship was abolished in Louisiana except under limited circumstances. La. Const. Art. XII, Sec. 5. The parties agree that neither of the limited circumstances retaining forced heirship is applicable in this case. Due to this change in forced heirship laws, the legislature enacted an implementation statute, La. R.S. 9:2501, providing for the determination of the intent of testators who died during a certain transitional period, but who executed a last will and testament prior to January 1, 1996. Mrs. Salvatore executed her last will and testament on October 16, 1987, and she died on September 4, 1997, subsequent to the abolition of forced heirship and during the transitional period. Therefore, all parties agree that the version of La. R.S. 9:2501 in effect on the date of Mrs. Salvatore’s death controls the interpretation of her last will and testament. What the parties dispute is the interpretation of Mrs. Salvatore’s last will and testament, and consequently, which provision of La. R.S. 9:2501 is controlling.

The version of La. R.S. 9:2501 in effect on the date of Mrs. Salvatore’s death provided:

If a person dies testate after July 15, 1997, and the testament is executed before January 1, 1996, then the testator’s intent shall be ascertained according to the following rules:
(1) That the testament shall be governed by the law in effect at the time of the testator’s death in any of the following instances:
(a) When the testament manifests an intent to disinherit a forced heir or to restrict a forced heir to the legitime under the law in effect at the time of the testator’s death.
(b) When the testament leaves to the forced heir an amount less than the legitime under the law in effect at the time the testament is executed.
(c) When the testament omits a forced heir and the language of the testament indicates an intent to restrict the forced heir to an amount less than the legitime under the law in effect at the time the testament is executed.
|fi(2) That in all other instances the testament shall be governed by the law in effect at the time the testament was executed.
(3) That the term forced heir, as used above, shall mean a presumptive forced heir under the law in effect at the time the testament was executed.

Defendant concedes that the only subsection of La. R.S. 9:2501 that is potentially applicable to the interpretation of Mrs. Salvatore’s last will and testament is subsection (l)(a). He contends that Mrs. Salvatore’s last will and testament manifests an intent to restrict her children to the legitime, ie., forced portion, under the law in effect at the time of her death. If defendant’s interpretation of Mrs. Salvatore’s last will and testament is correct, then the Salvatore children are not forced heirs, because forced heirship was abolished pri- or to the date of Mrs. Salvatore’s death on September 4,1997.

The Salvatore children, on the other hand, contend that their mother’s last will and testament does not manifest an intent to restrict them to the legitime under the law in effect at the time of Mrs. Salvatore’s death, and therefore subsection (2) of La. R.S. 9:2501 is applicable, which provides that the testament is governed by the law in effect at the time that it was executed. If the Salvatore children’s interpretation of Mrs. Salvatore’s last will and testament is correct, then they are forced heirs of their mother’s estate because forced heirship had not been abolished at the time that she executed her will on October 16, 1987. Therefore, resolution of the question of whether the Salvatore children are forced heirs of their mother’s estate turns on the question of whether or not her last will and testament manifests an intent to restrict her children to the legitime under the law in effect at the time of her death.

The provisions of Mrs. Salvatore’s last will and testament relevant to resolution of this question, provide as follows:

II.
I give to my children all my jewelry, share and share alike.
JjJII.
I give to my children their legitime, subject to a usufruct in favor of my husband for his lifetime. My husband is specifically authorized to sell or exchange any property subject to his usu-fruct without the consent or concurrence of my children, even if such sale or exchange results in the conversion of non-consumable property to consumable property to the maximum extent permitted by law so as not to constitute an impermissible condition upon my children’s forced portion determined under the law in effect at my death.

Defendant specifically references the language contained in Section III of the will that states: “... my children’s forced portion determined under the law in effect at my death,” as support for his contention that the will manifests an intent to restrict the Salvatore children to the legitime under the law in effect at the time of Mrs. Salvatore’s death. For the following reasons, we find that defendant is incorrect in his interpretation of Mrs. Salvatore’s last will and testament.

We first note that the dispositive portion of Section III regarding the legitime is found in the first sentence of that section, which states: “I give to my children their legitime, subject to a usufruct in favor of my husband for his lifetime.” The phrase regarding the law in effect at the time of Mrs. Salvatore’s death is found in the second sentence of Section III, which pertains to the usufructuary and the authority he is granted over the property subject to his usufruct. If Mrs. Salvatore’s intent was to restrict her children to the legitime under the law in effect at the time of her death, she could have used the same temporal modifier as used regarding the authority of the usufructuary in the dispositive provision of the legitime to her children. She did not. The dispositive provision regarding the legitime is written in the present tense. Absent a temporal modifier providing a time frame for the determination of the children’s legitime other than the present, ie., the time of execution of the will, it must be presumed that Mrs. Salvatore’s reference to her children’s legitime manifests an intent that they receive their legi-time under the law in effect at the time her will was executed.

^Furthermore, Mrs. Salvatore’s last will and testament also bequeaths her jewelry to her children. This particular legacy to her children is separate and distinct from the disposition of the legitime to her children, and is contained in a separate section of her last will and testament. Defendant argues that he knows of no jewelry owned by Mrs. Salvatore at the time of her death. Whether or not Mrs. Salvatore owned jewelry at the time of her death, or whether she ever owned any jewelry, is irrelevant. What is relevant is Mrs. Salvatore’s intent at the time that she wrote her last will and testament, which deals with her state of mind. The provision disposing of her jewelry to her children clearly indicates that at the time that she executed her last will and testament, Mrs. Salvatore believed that she owned jewelry, and her intent was to leave it to her children in addition to their legitime. This provision clearly refutes any contention that Mrs. Salvatore intended to restrict her children to their legitime, regardless of whether that legi-time is determined under the law in effect at the time of execution of her last will and testament, or is determined under the law in effect at the time of her death.

It is clear from the plain and unambiguous language of Mrs. Salvatore’s last will and testament that she did not intend to restrict her children to the legitime under the law in effect at the time of her death. It is therefore not permissible to look to any extrinsic sources to ascertain Mrs. Salvatore’s intent, and no additional hearing to ascertain her intent is necessary. Having found that Mrs. Salvatore’s last will and testament does not manifest an intent to restrict the legitime under the law in effect at the time of her death, we further find that subsection (2) of La. R.S. 9:2501 is applicable, and Mrs. Salvatore’s testament is governed by the law in effect' at the time that it was executed. The Salvatore children are therefore forced heirs of their mother’s estate and entitled to their legitime. Since the January 17, 2012 Judgment of Possession excluded the Salvatore children based upon defendant’s erroneous interpretation of Louisiana forced heirship laws and 19erroneous interpretation of Mrs. Salvatore’s last will and testament, that judgment must be annulled. We therefore affirm the district court judgment that annulled the January 17,' 2012 Judgment of Possession. Having found that the judgment must be annulled based'upon a determination that the Salvatore children are forced heirs, we pretermit any discussion of the issue regarding lack of notice of the succession proceeding to the Salvatore children.

Regarding the Salvatore children’s answer to this appeal, for the following reasons,. we dismiss that answer. First, in their answer, the Salvatore children seek a judgment specifically declaring them to be forced heirs of their mother’s estate; however, this specific relief was not prayed for either in their original Petition to Annul or in their Motion for Summary Judgment, although it was argued as the basis for annulment of the Judgment of Possession. On our review of the summary judgment, we are not able to grant greater relief, by way of amendment of the judgment, than was prayed for by the movers. The Salvatore children prayed for judgment annulling the Judgment of Possession, and that is the relief that the district court granted. In effect, by way of their answer, the Salvatore children are objecting to the reasons that the district court granted them the relief they requested, rather than appealing the judgment itself. Reasons for judgment by a trial judge are not controlling and do not constitute the judgment of the court. Appeals are taken from the judgment, not the written reasons for judgment. Millet v. Braud, 15-363 (La.App. 5 Cir. 11/19/15), 179 So.3d 849, 855.

Furthermore, our de novo review of the Salvatore children’s Motion for Summary Judgment has resulted in a resolution of that motion on the grounds proposed by the Salvatore children, thus obviating the need for any additional hearing by the district court regarding their status as forced heirs of their mother’s estate. Therefore, the relief sought by the Salvatore children in their answer to this appeal is moot. We therefore dismiss their answer to this appeal.

^CONCLUSION

Having found that the Salvatore children are forced heirs pursuant to the applicable law, and that they are therefore entitled to judgment as a matter of law setting aside the previously rendered Judgment of Possession, we affirm the district court’s grant of summary judgment in this matter. Having found that the Salvatore children cannot request greater relief than prayed for in their Motion for Summary Judgment and cannot appeal from reasons for judgment, and further finding that the relief requested in their answer is rendered moot by this opinion, we dismiss their answer to this appeal. We further remand this matter to the district court for further proceedings consistent with this opinion.

AFFIRMED; ANSWER TO APPEAL DISMISSED; MATTER REMANDED

      . Joseph M. Salvatore died on April 27, 2014. Joseph M. Salvatore’s brother, Michael M. Salvatore, was subsequently named as independent executor of Joseph’s estate, and was thereafter recognized as Joseph’s universal heir, in case No. 738-565 of the 24th Judicial District Court.

      . Mrs. Salvatore’s children named Michael M. Salvatore, in his capacity as universal heir of Joseph M. Salvatore’s estate, as the defendant in their Petition to Annul. Michael M. Salvatore filed peremptory exceptions and an answer and affirmative defenses to the petition. Plaintiffs obtained a Rule to Show Cause on their Motion for Summary Judgement directed to Michael M. Salvatore. An opposition thereto was filed but it does not indicate on whose behalf it was filed. Subsequent to the district court’s ruling on the Motion for Summary Judgment, an Order of Appeal was obtained on behalf of the Succession of Kathleen Joy Martin Salvatore. We presume that the attorneys for the Succession of Mrs. Salvatore are acting herein upon the direction of the named defendant, Michael M. Salvatore.