text:
    Brian LOWE, Plaintiff-Appellee v. Yadaira LOWE, Defendant-Appellant
    No. 51,588-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 27, 2017.
    ERICA D. WILLIAMS, Hammond, Louisiana, Counsel for Appellant
    ROBERT T. KNIGHT, Counsel for Appellee
    Before MOORE, COX, and BLEICH (Pro Tempore ), JJ.
   COX, J.

In 2016, Appellant, Yadaira Lowe ("Yadaira"), appealed a judgment from the trial court granting her and Appellee, Brian Lowe ("Brian"), joint custody of their two minor children, with Brian being designated as the domiciliary parent. In the parties' first appeal of Lowe v. Lowe , 50,856 (La. App. 2 Cir. 5/18/16), 196 So.3d 672 (" Lowe I "), this Court was concerned with Brian's capacity to provide the minor children with their basic material needs, independent of his father, and remanded the matter to the trial court for an evidentiary hearing to determine which party should be awarded domiciliary status of the children. On remand, the trial court again awarded Brian domiciliary status. For the following reasons, we respectfully reverse the ruling of the trial court.

FACTS

In Lowe I , the pertinent facts were as follows:

The plaintiff, Brian Lowe ("Brian"), and the defendant, Yadaira Lowe ("Yadaira"), were married on September 3, 2005 in Orlando, Florida. They had two children, L.E.L., who was born on July 18, 2009, and L.G.L, who was born on November 23, 2011.
In 2013, Brian was terminated from an administrative position in Memphis, Tennessee. Having no financial resources, in February 2014, the parties and their young children moved to Farmerville, Louisiana, to live with Brian's father. At the time of the move, Brian was hoping to gain employment as the athletic director at Grambling State University ("GSU").
On July 15, 2014, a domestic dispute ensued between Brian and Yadaira, which resulted in Yadaira calling the Farmerville Police Department.... Yadaira left Farmerville after the incident involving the police. Because she did not have anywhere to live in Farmerville, she went to live with Brian's mother in Monroe. Yadaira testified that she remained in Monroe for approximately two weeks. Thereafter, Brian's mother informed her that she could no longer live with her. Having no place to live in Louisiana, Yadaira returned to Kissimmee, Florida, where the home she owned before she married Brian is located.
On November 24, 2014, Brian filed a petition for divorce. He requested to be designated as the primary domiciliary parent of the minor children... A hearing was conducted on March 9, 2015. The testimony at the hearing revealed Brian was unemployed and financially dependent on his father, a 67-year-old retiree.
At the conclusion of the hearing, the trial court granted domiciliary custody to Brian... The court also expressed its concerns with regard to Brian's unemployed status and financial dependence on his father. The court stated:
I'm somewhat skeptical about his job prospects if he's going to continue to pursue a job as [Athletic Director] at Grambling State University, and if you can't show to the Court that you can support your own family, then I'm going to reconsider this because apparently, Ms. Lowe is able to provide for her children without the assistance of-without the type of assistance, total dependency that you have right now. For that reason, we have agreed that we will have a hearing on this to look at the situation on June the 19th.
The second hearing was held as scheduled. Brian testified that he had been hired as the physical education instructor at the New Vision Learning Academy, an elementary charter school in Monroe. On cross-examination, Brian testified that he had been working at New Vision for approximately two weeks... He admitted that he had known the director "for several years." He testified that he told the director that he needed a job, and she hired him immediately without interviewing him for the position. Brian further admitted that he did not tell the director the reason he was terminated from his job in Memphis and he admitted that he did not believe he would be able to maintain his position at New Vision if the administration discovered the reason he was terminated in Memphis. Further, Brian admitted that he had not been hired for the position at GSU. He stated that, although he had been pursuing the position for more than a year, he had not told the university officials about the embezzlement allegation.
Brian further testified on cross-examination as follows: ... he had not earned any income since the prior hearing; he had not received a paycheck from New Vision; and, his father continued to provide for the children.
On redirect examination, Brian testified that since the March hearing, he had conducted a week-long football camp and earned $1,500. He also stated that he conducted a three-day consulting project at a charter high school in Monroe, after which he earned $300.
Yadaira testified first on cross-examination. She testified as follows: she was employed as a clerk in a school nutrition department for the Osceola School District in Kissimmee; she sent Brian $300 in child support in April; her mother is willing to move to Kissimmee to assist her with the children; she has an aunt and a cousin in Kissimmee.
When questioned about the status of her ability to co-parent with Brian, Yadaira admitted that she does not believe Brian will foster a relationship between the children and her if he is awarded domiciliary custody. She testified that Brian hangs up during her phone calls to the children.
At the conclusion of the hearing, the trial court awarded joint custody and designated Brian as the primary domiciliary parent, stating:
It basically all comes down to the fact [that] the children are here in Louisiana[.] [T]hey have a fairly stable home. [Mr. Lowe has] the possibility of a good job at Grambling, and [he has] a pretty good support system here from everything I've heard. The children are here. And, Ms. Lowe, I can appreciate your feeling that you are trapped if you stay here in Louisiana and you probably had no choice but to move to Florida; but the fact is they are here in Louisiana and if I allow you to take them to Florida, then by your moving to Florida, you're taking the children away from their dad. And for that reason, I will name Mr. Lowe as the primary domiciliary parent.

On the first appeal, this Court found that the trial court erred in designating Brian as domiciliary parent. The Court stated that Brian did not meet his burden of proving he is capable of providing the children with their basic material needs, independent of his father's generosity. The matter was reversed and remanded to the trial court for a determination of custody based upon a current presentation of the facts, particularly regarding Brian's capacity to provide the minor children with their basic material needs, "independent of his aging father."

On remand, the parties agreed that the only evidence to be considered by the trial court was the current employment and economic situation with regard to Brian.

Adriel Hilton, Ph.D., Chief of Staff and Executive Assistant to the President of Grambling State University ("GSU"), was the first to testify. He testified that GSU planned to eventually hire Brian as an Associate Vice President for Advancement to fundraise for athletics. Hilton testified that there was reservation on GSU's behalf to hire Brian because of his familial relationship to the football coach. However, the role of Associate Vice President for Advancement allows Brian to report to the Vice President for Advancement instead of managing his family member.

When questioned about the Eddie Robinson Classic, Hilton stated that Brian "developed it." When asked if Grambling and Brian were compensated for the Classic, Hilton responded that GSU is only compensated in terms of enrollment of students. Hilton also stated that Brian was assisting with marketing for the Bayou Classic. However, he stated Brian is not compensated for his work.

Hilton was also questioned about the Adidas apparel deal. He stated that Brian and his company, TeamUp Sports, will be compensated. Hilton described the deal as an opportunity for the football team to move from Russell to Adidas brand apparel and equipment. On cross-examination about the Adidas contract, Hilton also conceded that none of the SWAC schools have been allowed to enter into any of these types of contracts to date.

On cross-examination, Hilton conceded that his position as Chief of Staff to the President of GSU is in limbo, as the president may resign or be terminated pending current board meeting discussions. If this happens, Hilton stated that the new president would likely hire his own team.

Finally, Hilton testified that GSU does not have the funds available to extend Brian the Associate Vice President for Advancement position at the salary promised to him, which was a minimum of $100,000.

With regard to his company, TeamUp Sports, Brian testified that it made money in 2015 and 2016. He stated he was also compensated in 2015 for his work with the Eddie Robinson Classic, stating he earned a little over "fifteen, sixteen thousand dollars" after expenses. Brian stated he was not compensated for the Bayou Classic.

Regarding the Adidas deal, Brian stated he would be compensated if GSU was able to enter into an agreement with Adidas. Additionally, he testified he was putting on a gala for which he would be compensated. Brian also testified he recently secured a sponsorship with Whataburger for $2,000.

Brian's 2015 tax return form W-2 showed he received $3,039.71 from New Vision Learning Academy. His total income for 2015 was $16,358. In November and December 2015, Brian made deposits amounting to $20,500. The following month, he made deposits totaling $17,200. From March to April 2016, Brian deposited $5,500. From April to May, he deposited $9,956.98. At the end of May 2016, Brian's account balance was $7,478.03.

Brian testified that he recently entered into a contract with Firmus Laboratory "as [a] marketing person that's responsible for business development in this region." He stated that the company does "all the specimen through different insurance platforms with healthcare companies all across." He testified that he receives $25 for every specimen that is made. At the time of trial, however, Brian had not received any money from the company.

On cross-examination, Brian reiterated that he received $15,414 from cash ticket sales for the Eddie Robinson Classic. He stated that his expenses for the 2015 event were roughly $10,000. A handwritten note on the exhibit was noted, which stated "not including expenses," signifying that only $5,414 was collected from cash ticket sales.

With respect to his deposits at the end of 2015, Brian conceded they were not due to any contract that TeamUp Sports had with any organization, but rather from his previous employment.

Yadaira's counsel noted that Brian made a $30,000 deposit, which was withdrawn from his pension, shortly after discovering that the trial court's decision was being appealed. He currently does not have any money left in his pension because of this withdrawal. Brian also does not have a savings account. Yadaira's counsel additionally noted that, at one point, Brian deposited $20,500 into his account with a beginning balance of $0. The very next month, his beginning balance was $453.45.

Brian admitted that he only worked at New Vision Learning Academy for two months, despite previously telling the trial court he would hold the position throughout the school year. He also admitted that he did not look into the athletic director position in Union Parish, after telling the trial court it was his intention. Also contrary to what he had previously told the trial court, Brian stated he did not do any substitute teaching in Union Parish.

With regard to the position at GSU, Brian stated he had not received any offer in writing and had not started the job. He also stated that GSU had not paid him any money so far in 2016.

Brian acknowledged that the sleeping arrangements had not changed at his father's home. He stated that he still sleeps with the children in their bedroom or on a futon in the living room because his father's home has only two bedrooms. Brian conceded that his father continues to pay for the car note and insurance, but claimed he pays for the gas. He stated his father also pays the electricity bill for the home, as well as his cellphone bill.

On redirect examination, Brian testified that he had roughly $7,000 or $8,000 in his account to date.

Upon questioning by the trial court, Brian admitted he had a business loss of $17,000 in 2015. Additionally, the trial court noted that the Nissan contract with GSU was nothing more than "a hope and a prayer," to which Brian agreed. Brian conceded that his father still helps buy food and clothing for the children.

Yadaira was the final witness to testify. She stated that she lives in a four-bedroom, two-bath home with her mother. She and her mother own the home together and split the mortgage payments. Yadaira testified she is currently working as a financial coordinator at the Amateur Athletic Union headquarters making $30,000 a year. Prior to this position, Yadaira stated she worked for the Osceola County School District, where her annual income was $24,490.12. Additionally, she testified that she had been paying Brian $460 per month in child support.

Yadaira testified that her vehicle does not have a car note, she pays the car insurance, and she also pays the cellphone bill for herself and her mother. She reiterated the troubles she has had with Brian with regard to seeing and communicating with the children. In particular, she noted a time when she had to get the Monroe Police Department involved because Brian would not drop off the children unless she told him where she was staying. Yadaira stated she told Brian they would be staying in Louisiana because they had a hearing the next day, but she was still unable to get the children until a police officer arrived.

With respect to the children, Yadaira stated she had already found good schools for them to attend. She stated they would be able to participate in the same extracurricular activities in Florida they do in Louisiana. With Yadaira's new job, the children could also be placed on her healthcare plan if they live in Florida.

The trial court issued lengthy reasons for judgment. It found that both parties have strong love, affection, and other emotional ties with the children. However, the trial court felt Yadaira's move to Florida was "motivated more by her antipathy toward Brian and Farmerville and less by the best interests of the children."

The trial court also found that the capacity and disposition to give the children love, affection, and spiritual guidance and to continue the education and rearing of the children was strong for both parties. However, the trial court stated it had concerns about Yadaira's attitude regarding the religious beliefs of Brian and his father.

With regard to the capacity and disposition of each party to provide the children with food, clothing, medical care, and other material needs, the trial court concluded that the evidence "is undisputed that Brian remains dependent on his father for the roof over his head, his transportation, and most of his living expenses. This plus the child support he receives from Yadaira are the only dependable sources of income and support that he has." The trial court also noted that it was undisputed the children are well cared for and all of their physical needs are met. However, the trial court struggled with finding Brian at fault for being dependent on his father and recognized that Yadaira was also somewhat dependent on her mother. Ultimately, the trial court found that neither parent had the capacity to provide for their children independent of the assistance from others. It stated that "the paramount concern is the best interest of the children and the capacity of a parent does not require autonomy or independence from external or third party support if that support is reliable and measurable."

The trial court noted that Yadaira's home is significantly larger and more accommodating for the children than Brian's home, but stated there was no indication that the living accommodations in Brian's home have had any adverse effect on the children.

The trial court found that the degree of continuity and stableness of the children overwhelmingly favored Brian. It noted that the children have lived in Farmerville since February 2014 and are involved in many activities. Brian's parents and other family members also live in the immediate area. Although the trial court admitted that Yadaira's arrangements indicate she could also provide a stable and adequate environment, it believed the continuity favored Brian, "[e]specially considering the young ages of the children."

The trial court stated there was no indication that the permanence, as a family unit, of Brian's home or Yadaira's home in Florida would be significantly different. It also found there was no significant difference between the moral fitness of each party as it pertained to the welfare of the children. It noted that the mental and physical health of each party was not significantly different; the home, school, and community history of the children had already been stated; and, the preferences of the children would not be deemed relevant due to their ages.

With regard to the willingness and ability of each party to facilitate and encourage a close and continuous relationship between the children and the other party, the trial court found that both parties had exaggerated their own willingness to cooperate and the other's lack of cooperation. The trial court found it significant that, in November 2015, both parties admitted visitation exchanges had been done without any problems. It stated that the texting and telephone communication problems were minimal.

The trial court noted that, due to the great distance involved, one parent could have a significantly limited role in the life of the children. It also noted that Yadaira was primarily responsible for the care and rearing of both children prior to moving to Farmerville, but now that responsibility is shared between Brian and his father.

With regard to the domestic violence allegations, the trial court found that if there had been a physically abusive relationship, "it is inconceivable that there wouldn't have been some inference or mention of abusive behavior or apprehension of such." The trial court found Brian to be even-tempered and mild-mannered, while Yadaira "showed a greater propensity to anger."

The trial court again awarded joint custody of the children to the parties, with Brian being designated as the primary domiciliary parent.

On appeal, Yadaira contends that the trial court manifestly erred and abused its discretion by granting domiciliary status to Brian without adhering to the instructions outlined by this Court in Lowe I . Specifically, she argues that the trial court failed to: (1) give proper weight to a current presentation of the facts; (2) determine whether Brian met his burden of proving he is capable of providing the children with their basic material needs, independent of his father's generosity; (3) sufficiently weigh the best interest of the child factors; and, (4) properly address and analyze the domestic abuse allegations.

LAW

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131. The court is to consider all relevant factors in determining the best interest of the child. La. C.C. art. 134.

The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case by its own facts in light of those factors. Tuft v. Tuft , 51,293 (La. App. 2 Cir. 1/18/17), 214 So.3d 916 ;

Semmes v. Semmes , 45,006 (La. App. 2 Cir. 12/16/09), 27 So.3d 1024. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Id .

The trial court has vast discretion in deciding matters of child custody and visitation. Semmes, supra ; Wilson v. O'Neal , 50,711 (La. App. 2 Cir. 4/13/16), 193 So.3d 207. Therefore, the trial court's determination will not be disturbed on appeal absent a clear showing of an abuse of discretion. Bergeron v. Bergeron , 492 So.2d 1193 (La. 1986) ; Semmes, supra . As long as the trial court's factual findings are reasonable in light of the record when reviewed in its entirety, the appellate court may not reverse, even though convinced it would have weighed the evidence differently if acting as the trier of fact. Id .

The law-of-the-case doctrine generally provides that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Pepper v. U.S. , 562 U.S. 476, 506, 131 S.Ct. 1229, 179 L.Ed. 2d 196 (2011) (quoting Arizona v. California , 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed. 2d 318 (1983) ). Thus, the doctrine may describe an appellate court's decision not to depart from a ruling that it made in a prior appeal in the same case. Musacchio v. U.S. , --- U.S. ----, 136 S.Ct. 709, 716, 193 L.Ed. 2d 639 (2016). The doctrine does not apply, however, if the court is convinced that its prior decision is clearly erroneous and would work a manifest injustice. Pepper v. U.S., supra .

The law-of-the-case principle is a discretionary guide which relates to (a) the binding force of a trial judge's ruling during the later stages of trial, (b) the conclusive effects of appellate rulings at trial on remand, and (c) the rule that an appellate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same case. Welch v. Willis-KnightonPierremont , 45,554 (La. App. 2 Cir. 11/17/10), 56 So.3d 242, 248, writ denied sub nom. Welch v. Pierremont , 2011-0109 (La. 2/25/11), 58 So.3d 459. The reasons for the law-of-the-case doctrine are to avoid relitigation of the same issue; to promote consistency of result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Id .

DISCUSSION

In Lowe I , this Court concluded:

[A]fter reviewing this record, we find that the trial court erred in designating Brian as domiciliary parent . Our review of the record convinces us that Brian did not meet his burden of proving that he is capable of providing his children with their basic material needs, independent of his father's generosity. Consequently, we find that the interests of justice and the best interest of the minor children require that we remand this matter to the trial court for a determination of custody based upon a current presentation of the facts, particularly regarding Brian's capacity to provide the minor children with their basic material needs, independent of his aging father .

Here, this Court previously determined that the trial court erred in naming Brian the domiciliary parent, where after a review of the La. C.C. art. 134 factors, it concluded that Brian did not meet his burden of proving he could independently provide for his children's basic material needs. However, in Lowe I , this Court gave Brian the opportunity to prove before the trial court his ability to provide for his children, independent of his father's support.

The trial court revisited the issue, and much of the trial testimony centered around the parties, primarily Brian's, ability to provide for the children. Notably, between Lowe I and the current appeal, little changed in Brian's circumstances.

After reviewing the record, we find that Brian failed to meet his burden of proving his capacity to provide the children with their basic material needs, independent of his father. Absent such a finding, and pursuant to the law-of-the-case doctrine, naming Brian the domiciliary parent is in error. We respectfully reverse the ruling of the trial court.

Both Brian's employment and income stability are still of concern to this Court. After years of trying to secure the Associate Vice President for Advancement position at GSU, Brian has yet to receive a written offer or any payment from GSU. Currently, GSU does not have the funds to offer the position to Brian at the minimum salary promised to him. Furthermore, according to testimony by Hilton, the position itself may be in danger as the current president may resign or be terminated pending ongoing board meeting discussions. If a new president is hired, he will likely hire his own team and Brian will no longer have a potential position at GSU, especially since his cousin is the football coach.

With regard to the contracts and events coordinated by Brian through GSU, few have provided compensation. Brian is not compensated for his work with the Eddie Robinson Classic, although he testified that he was compensated. Brian stated he received $15,414 from cash ticket sales for the Classic. The handwritten note on the paper exhibit stated that this amount did not include expenses. Brian estimated his expenses for the event were roughly $10,000, which would leave only $5,414 from cash ticket sales. According to Hilton's testimony, Brian was not compensated for this event. Additionally, he is not compensated for the Bayou Classic.

Further, Brian will only be compensated for the Adidas deal if GSU can secure the contract, and it was stated that none of the SWAC schools have been allowed to enter into these types of contracts to date. Additionally, it was agreed that the Nissan deal was nothing more than a "hope and a prayer."

Brian testified that TeamUp Sports made money in 2015 and 2016. However, on cross-examination, he stated that his deposits at the end of 2015 were not due to any contract that TeamUp Sports had secured.

Brian's tax returns and deposits are troubling. His total income for 2015 was $16,358. Although Brian made large deposits to his account toward the end of 2015 and the beginning of 2016, the money seemed to disappear quickly. At one point, Brian made a $20,500 deposit with a beginning balance of $0. The following month, his beginning balance in the account was $453.45.

Also troubling is the fact that Brian did not follow through on any of the employment opportunities he previously told the trial court he would pursue. He originally told the trial court that he would hold the position at New Vision Learning Academy throughout the school year. However, he held the position for only two months, earning a total of $3,039.71. Brian also told the trial court he was looking into the athletic director position in Union Parish. He did not pursue this job according to his own testimony. Finally, Brian previously told the trial court he was applying to substitute teach in Union Parish. He did not do this either.

According to testimony, Brian appears to secure jobs and make deposits around the time of pertinent court dates. It seems this is what was done with regard to the job at New Vision Learning Academy prior to the last trial. Now, Brian has recently entered into a contract with Firmus Laboratory, receiving $25 for every specimen made. However, at the time of trial, Brian testified that he had not received any money from the company. Furthermore, Brian made a $30,000 deposit from his pension shortly after discovering the trial court's decision was being appealed. By doing so, he has completely depleted his pension. He does not have a savings account to rely on since this money is depleted.

It is clear from the testimony that Brian is still highly dependent on his father for the majority of his and his children's needs. His father provides a home for Brian and the two children. His father pays the car note and car insurance for Brian's vehicle, although Brian testified that he pays for the gas. Brian's father pays the electricity bill and Brian's cellphone bill. His father also helps purchase food and clothing for the children. It is obvious that Brian largely shares the responsibility of providing for his children with his father.

Based on the testimony and evidence introduced at trial, it is clear to this Court that Brian did not meet his burden of proving his capacity to provide the minor children with their basic material needs, independent of his father. Brian does not appear to have any sort of steady employment or income, he has completely depleted his pension, and he does not have a savings account to fall back on. Without his father, it is highly questionable whether Brian would be able to provide a home for his children, pay bills, and provide food and clothing on his own. Brian's father is already retired and roughly 70 years old. It is only a matter of time before he is no longer able to help Brian.

Yadaira has shown that she holds a steady job with a steady income. Although she splits the mortgage payment with her mother, it appears she is largely independent and able to provide for her children should something happen to her mother. For these reasons, we respectfully reverse the ruling of the trial court.

CONCLUSION

We find that Brian did not meet his burden of proving his capacity to provide the minor children with their basic material needs, independent of his father. On the first appeal, this Court analyzed and discussed the La. C.C. art. 134 factors and found that the trial court erred in naming Brian as the domiciliary parent. This Court remanded the case to the trial court for a further hearing on Brian's economic situation. Because we have seen no significant change in Brian's employment or economic situation from the previous trial, we find he did not meet his burden of proof. Therefore, under the law-of-the-case doctrine, the initial ruling of this Court that the trial court erred in naming Brian as the domiciliary parent will stand. Accordingly, Yadaira shall be designated the domiciliary parent. All costs of this proceeding are assessed to Appellee, Brian Lowe.

REVERSED.

BLEICH, J. (Pro Tempore ), concurs in the result.

      La. C.C. art. 134 provides, in pertinent part:
      Such factors may include:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10)The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11)The distance between the respective residences of the parties.
      (12)The responsibility for the care and rearing of the child previously exercised by each party.


source: Caselaw Access Project

author: BLEICH, J. (Pro Tempore )

license: Public Domain

text:
    David COX, Plaintiff-Appellant v. BAKER DISTRIBUTING COMPANY, L.L.C., Defendant-Appellee
    No. 51,587-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 27, 2017
    SONIA PETERS CASSIDY, CHARLES L. MCCOLLUM, Counsel for Appellant, David Cox
    KEOGH, COX & WILSON, LTD., By: Tori S. Bowling, Sydnee D. Menou, Counsel for Intervenors-Appellants, Southwestern Motor Transport Co. Inc. and Ace American Ins. Co.
    PLAUCHE, SMITH & NIESET, L.L.C., By: Michael J. Williamson, Counsel for Appellee, Baker Distributing Co., L.L.C.
    Before BROWN, WILLIAMS, and BLEICH (Pro Tempore ), JJ.
   BLEICH, J. (Pro Tempore )

David Cox appeals a judgment of the First Judicial District Court, Parish of Caddo, State of Louisiana, granting a motion for summary judgment in favor of Baker Distributing Company, LLC. Cox's employer, Southwestern Motor Transport, Inc., has also appealed the judgment. For the following reasons, we reverse the trial court's judgment, and remand for further proceedings.

FACTS

On June 20, 2012, David Cox was making a delivery for his employer, Southwestern Motor Transport, Inc. ("Southwestern"), at the Shreveport warehouse facility owned by Baker Distributing Company, LLC ("Baker"), which is a wholesale distribution company selling heating and air conditioning equipment to contractors. On that day, Cox was delivering 51 shrink-wrapped pieces of material, which items were situated on four pallets. According to Cox, the Baker warehouse loading dock where he was unloading his delivery did not have an operable dock plate-a piece of equipment commonly used to bridge the gap between the bumper of a truck or trailer and the loading dock. Cox also maintains that the loading dock was congested with so many other objects that the forklift could not be used to unload his deliveries. Cox claims a Baker employee, Kenneth Chandler, asked if Cox could handle his own load, which he did. After unloading two pallets with a pallet jack, Cox commenced to unload the last two pallets with a dolly. When he pulled the last pallet from his truck using the dolly, his foot became wedged in the gap between his truck and loading dock. He stumbled, fell from the loading dock, and landed on his back.

Cox alleges he received permanent and disabling injuries as a result, and he received workers' compensation benefits from Southwestern and its workers' compensation insurer, Ace American Insurance Company ("Ace"). He filed suit against Baker, claiming that the defect in Baker's loading dock (i.e. , the failure to have a permanent operable dock plate) was unreasonably dangerous, and the defect was not open and obvious to all making deliveries to Baker. Additionally, he claimed Baker had a duty to provide safe ingress for deliveries, and it failed to provide an uncluttered loading dock and dock plate. Southwestern and Ace intervened in the lawsuit related to payments made to Cox. Ultimately, Baker filed a motion for summary judgment, arguing that Cox knew of the defect, making it open and obvious, and as a result, Baker was relieved of any duty to Cox. The trial court granted Baker's motion for summary judgment, and this appeal by Cox ensued. Southwestern's appeal of the same judgment followed.

SUMMARY JUDGMENT STANDARD

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau , 2007-1726 (La. 02/26/08), 977 So.2d 880. A summary judgment is reviewed on appeal de novo , with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate, i.e. , whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, supra ; Black v. Johnson , 48,779 (La. App. 2 Cir. 04/09/14), 137 So.3d 170, writ denied , 2014-0993 (La. 09/12/14), 148 So.3d 574.

Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. The mover has the burden of establishing the absence of a genuine issue of material fact. If the mover will not bear the burden of proof at trial on the matter, the mover is required to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim or action. La. C.C.P. art. 966 ; Winzer v. Richards , 50,330 (La. App. 2 Cir. 01/13/16), 185 So.3d 876, 879-80.

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor. Willis v. Medders , 2000-2507 (La. 12/08/00), 775 So.2d 1049, 1050.

DISCUSSION

Cox's two assignments of error are closely related. First, he argues that the trial court erred in granting Baker's motion for summary judgment, because there are several material facts in dispute relating to the key question of whether the defect presented an unreasonable risk of harm. Second, Cox argues that the trial court was in error, because whether or not material facts were at issue, the trial court omitted any analysis applicable to this case by merely determining that the only question is whether the defect was open and obvious. As argued by Cox, an owner of a building is responsible for those injuries caused by a ruinous condition or defective component part that presents an unreasonable risk to others. Whether a defect presents an unreasonable risk of harm is a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of fact. Because the trial court, in granting Baker's motion for summary judgment, simply declared the defect to be open and obvious, Cox maintains that the trial court was in error-the risk-utility balancing test is an essential inquiry into whether a defect creates an unreasonable risk of harm. According to Cox, by simply addressing the open and obvious nature of the defect, the trial court completely ignored other factors in the risk-utility balancing test.

Primarily, Cox alleges that the lack of a docking plate on Baker's loading dock was the cause of his injury; thus his claims against Baker stem from La. C.C. arts. 2317 and 2322. Article 2317 provides: "We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody." Article 2322 provides:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Pursuant to art. 2322, a plaintiff must prove the following elements to hold the owner of a building liable for the damages caused by the building's ruin or a defective component: (1) ownership of the building; (2) the owner knew or, in the exercise of reasonable care, should have known of the ruin or defect; (3) the damage could have been prevented by the exercise of reasonable care; (4) the defendant failed to exercise such reasonable care; and, (5) causation. Broussard v. State ex rel. Office of State Bldgs ., 2012-1238 (La. 04/05/13), 113 So.3d 175, 183. Additionally, our jurisprudence requires that the ruinous building or its defective component part create an unreasonable risk of harm. Entrevia v. Hood , 427 So.2d 1146, 1148-49 (La. 1983). The sole issue in this case is whether the defect in the loading dock was an open and obvious condition relieving Baker of any duty to those who encountered it, such as Cox.

As the Broussard court noted:

The owner of a building is not responsible for all injuries resulting from any risk posed by the building. Rather, the owner is only responsible for those injuries caused by a ruinous condition or defective component part that presents an unreasonable risk of harm to others. We have described the question of whether a defect presents an unreasonable risk of harm as "a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of the facts." As a mixed question of law and fact, it is the fact-finder's role-either the jury or the court in a bench trial-to determine whether a defect is unreasonably dangerous. Thus, whether a defect presents an unreasonable risk of harm is "a matter wed to the facts" and must be determined in light of facts and circumstances of each particular case.
To aid the trier-of-fact in making this unscientific, factual determination, this Court has adopted a risk-utility balancing test, wherein the fact-finder must balance the gravity and risk of harm against individual societal rights and obligations, the social utility of the thing, and the cost and feasibility of repair. Specifically, we have synthesized this risk-utility balancing test to a consideration of four pertinent factors: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and, (4) the nature of the plaintiff's activities in terms of its social utility or whether it is dangerous by nature.

Id. at 183-84.

In this case, the trial court granted summary judgment in favor of Baker, concluding that the lack of a dock plate was an open and obvious defect, the second prong of the risk-utility inquiry used in Broussard . Under Louisiana law, a defendant generally does not have a duty to protect against an open and obvious hazard. Id., citing Hutchinson v. Knights of Columbus, Council No. 5747 , 2003-1533 (La. 02/20/04), 866 So.2d 228, 235. In order for a hazard to be considered open and obvious, the jurisprudence has consistently stated the hazard should be one that is open and obvious to all, i.e. , everyone who may potentially encounter it. Id. (citations omitted).

Notably, the Broussard court determined that the question of whether a defect presents an unreasonable risk of harm is a "matter wed to the facts," Id. at 184, suggesting that such a determination might not be appropriate on a motion for summary judgment. However, the Supreme Court, in three cases subsequent to Broussard , held that absent any material factual issue, the summary judgment procedure can be used to determine whether a defect is open and obvious and, therefore, does not present an unreasonable risk of harm. See Bufkin v. Felipe's Louisiana, LLC , 2014-0288 (La. 10/15/14), 171 So.3d 851 (summary judgment for defendant was proper where its dumpster on the street was obvious and apparent, thus reasonably safe to injured pedestrian whose vision was obstructed); Rodriguez v. Dolgencorp, LLC , 2014-1725 (La. 11/14/14), 152 So.3d 871 (summary judgment for defendant was proper where plaintiff tripped on shopping cart in the grocery store-"a situation so open and obvious" the plaintiff could have easily avoided any harm through ordinary care); Allen v. Lockwood , 2014-1724 (La. 02/13/15), 156 So.3d 650, 651 (summary judgment for defendant was proper where an unpaved, grassy parking area was deemed obvious and apparent to anyone who encountered it, and the plaintiff failed to produce any evidence of how the alleged defect caused the accident).

In this case, the trial court determined that the lack of a dock plate was an open and obvious hazard and, based on that sole conclusion, granted Baker's motion for summary judgment. Thus, the burden shifts to Cox to produce evidence showing he could meet his burden at trial to establish a duty by Baker. See Rodriguez, supra. Given the triumvirate of Supreme Court cases following Broussard, it is evident that summary judgment may be proper when the open and obvious doctrine is the issue; however, given the facts of this particular case, summary judgment was improper.

The simple lack of a dock plate, creating a gap between Cox's truck and the dock, might have been open and obvious. However, the facts that particularly stand out in this case are the conditions of the loading dock at the time Cox made his delivery and had to "hop the dock" (industry slang for stepping or jumping over that gap between a truck and the dock when there is no dock plate) in order to unload his four pallets. According to Cox, he backed up his truck to the loading dock, got out, and told the Baker employee, Chandler, he had a delivery. Then, as Cox described,

I went and opened up the back end of the truck, looked at it. [Chandler] says, "Well, I can't get to it." And I said, "Okay." As I turned around, they had a bunch of stuff in the aisle. So much so that [Chandler] could not get his forklift to maneuver around the inventory on the floor.

Cox had to "manhandle" the pallets off the truck and onto the platform, and eventually tripped on the gap while handling the third pallet.

Cox's description of the loading dock was corroborated in Chandler's deposition, where he described the loading dock, "[j]ust as you can see there's some boxes here that's been unloaded off of a truck (indicating) ... That's kind of a staging area. That's where we would work from putting it up." He noted there would be "stuff" on the loading dock, which could interfere with his ability to get to a forklift.

Clearly, a reasonable person encountering this situation would consider the rift between a truck and a loading dock an open and obvious hazard in and of itself, which the trial court might have properly noted. However, in this case it is the relationship between that nonexistent dock plate and the other conditions present at the time Cox made his delivery that gives rise to fact-specific issues, those being: the actual width of the gap between the truck and the loading dock; the crowdedness of the loading dock; the inability to use proper equipment because of that crowdedness; and, the lack of assistance in unloading the truck, given the tight situation on the loading dock. See Jones v. Stewart , 2016-0329 (La. App 4 Cir. 10/05/16), 203 So.3d 384, writs denied , 2016-1967 (La. 12/16/16), 211 So.3d 1169, 2016-1962 (La. 12/16/16), 212 So.3d 1174, 2016-1968 (La. 12/16/16), 212 So.3d 1175 (summary judgment for defendant was in error, because the homeowner's attic was not necessarily an open and obvious risk considering other conditions existing contemporaneously-i.e. , the attic was unfinished, unlit, and wet).

Therefore, considering not only the lack of a dock plate on the Baker loading dock, but the overall condition of the loading dock, Cox did not encounter necessarily an open and obvious condition, and material facts exist as to whether this situation created an unreasonable risk of harm to him. Given the fact-specific issues of this case, summary judgment in favor of Baker was improper, and the trial court's disposition was in error.

CONCLUSION

For the discussed reasons, the summary judgment in favor of Baker Distributing Company, LLC is reversed, and this matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed to Baker Distributing Company, LLC.

REVERSED AND REMANDED.

      Southwestern raises substantially the same assignments of error in its appeal.


author: MOORE, J. BROWN, C.J., concurring.

text:
    SUCCESSION OF Joseph Robert COOK
    No. 51,586-CA
    Court of Appeal of Louisiana, Second Circuit.
    September 27, 2017. Rehearing Denied November 9, 2017
    COOK, YANCEY, KING & GALLOWAY, By: Bernard S. Johnson, Shreveport, Counsel for Appellant
    GOLD, WEEMS, BRUSER, SUES & RUNDELL, By: B. Gene Taylor, III, Bradley L. Drell, Alexandria, ROBINSON & WILLIAMS, LLC, By: John M. RobinsonCounsel for Appellee
    Before BROWN, MOORE, and STONE, JJ.
   MOORE, J.

Elizabeth Dianne Cook, the former executrix of the succession of her father, Joseph Robert Cook, appeals a partial summary judgment that ordered her to return $161,005 to the estate and to pay a statutory 20% penalty for her failure to return the money when first ordered. Finding genuine issues of material fact, we reverse and remand.

FACTS

Joseph Cook died on January 18, 2013. Five days later, January 23, his daughter, Dianne, filed a petition to probate a will he executed in July 2012. This will left all his property to Dianne. Dianne filed a petition for possession on February 27, and the 26th Judicial District Court granted her a judgment of possession on March 1, 2013. Before and after obtaining the judgment of possession, Dianne began disposing of succession assets, largely to pay off her personal debts.

On August 30, 2013, Joseph Cook's other two children, Robert and David Cook ("the petitioners"), filed a petition to annul the 2012 will on grounds of undue influence. They proffered an earlier will, executed in 1998, in which Joseph Cook had left his estate to all three children in equal portions. The matter proceeded to trial, after which the district court found that Dianne had indeed exerted undue influence over her elderly, feeble father. The court rendered judgment on September 2, 2014, annulling the 2012 will, and a second judgment, on December 9, 2014, vacating the judgment of possession. Dianne appealed devolutively.

Meanwhile, the petitioners filed a rule to show cause for return of succession property or for an accounting; as part of discovery, they took Dianne's deposition in March 2015. At this time she admitted having disposed of or mortgaged virtually all succession assets. The court ordered her to return all succession property by April 30, 2015, and to provide an accounting for all succession assets; she provided neither. The petitioners then filed the instant petition for contempt, return of succession property, and a money judgment, which they estimated at $240,000.

On March 30, 2016, this court rendered its opinion in Succession of Cook , 50,111 (La. App. 2 Cir. 3/30/116), 189 So.3d 409 (on rehearing), affirming the finding of undue influence and the nullity of the 2012 will. The Supreme Court unanimously denied writs, 2016-0795 (La. 6/17/16), 192 So.3d 768.

On September 12, 2016, the petitioners filed this motion for partial summary judgment regarding Dianne's conversion of succession funds. They itemized five assets (a 2004 mobile home, a Citizens National Bank account, a fraternal death benefit, Joseph Cook's 50% interest in Kelzan LLC, and various movable fixtures) and, using the values submitted in Dianne's detailed descriptive list, demanded the total of $171,875. They also demanded, for the first time, the statutory penalty of 20% per annum for failing to place succession funds in an estate account, as required by La. C. C. P. art. 3222. They calculated the penalty-three years at 20% per annum-at $109,864.58.

Dianne opposed the motion, urging there were material facts as to the values of the assets. She acknowledged her duty to account for succession funds, but urged that she spent much of them on succession expenses, on the decedent's funeral, and on (unsuccessfully) defending the 2012 will against the petitioners' challenge. She claimed that after the setoff of legitimate expenses, she needed to account for only $95,639.72. She also argued the penalty could not apply because she took all her actions under color of the judgment of possession; hence, she had acted "in accordance with law," as permitted by Art. 3222. In support, she filed her own affidavit setting out the various expenses and asserting the mobile home was worth only $30,000, not the $40,000 she initially declared in the detailed descriptive list.

The petitioners responded that there is no right of compensation (or "setoff") if one of the obligations is to return a thing of which the owner was unjustly dispossessed, La. C.C. art. 1894, and that amounts owed to a succession must be paid in full before any equalizing payment is made, Succession of Comberrel , 2012-1589 (La. App. 4 Cir. 6/12/13), 119 So.3d 897.

At a hearing on November 7, 2016, the petitioners argued that using the reduced value of the mobile home and making a minor adjustment to the funeral expenses, the unaccounted funds came to $161,005.00. Dianne admitted that she never deposited any estate funds in a succession account, but argued that this failure did not cause the loss; she did everything legally, under the judgment of possession, and she was entitled to setoff for various expenses. The district court found that setoff did not apply to succession funds, citing Comberrel , supra , and Succession of Songne , 94-1198 (La. App. 3 Cir. 11/2/95), 664 So.2d 556, writ denied , 95-2877 (La. 2/2/96), 666 So.2d 1101. It granted partial summary judgment for $161,005, reserved Dianne's reimbursement claims, and assessed the 20% per annum penalty of Art. 3222.

The court held a final hearing, on January 9, 2017, on designating the judgment an appealable partial final judgment, La. C. C. P. art. 1915. The court reiterated that the partial summary judgment covered only the uncontested amount, and certified it as immediately appealable.

Dianne has appealed, raising two assignments of error.

APPLICABLE LAW

The motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Schultz v. Guoth , 2010-0343 (La. 1/19/11), 57 So.3d 1002 ; Samaha v. Rau , 2007-1726 (La. 2/26/08), 977 So.2d 880. After an opportunity for adequate discovery, 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 A(3). The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C. C. P. art. 966 A(2). A grant of summary judgment is reviewed de novo, with the appellate court applying the same criteria that govern the district court's decision to grant or deny, namely, whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Rodgers v. State Farm Mutual Auto. Ins. , 2015-0868 (La. 6/30/15), 168 So.3d 375.

Even with its favored status, summary judgment is rarely appropriate in cases requiring a judicial determination of subjective facts such as intent, motive, malice, good faith, or knowledge. Phipps v. Schupp , 2009-2037 (La. 7/6/10), 45 So.3d 593 ; Monroe Surgical Hosp. LLC v. St. Francis Med. Ctr. Inc. , 49,600 (La. App. 2 Cir. 8/21/14), 147 So.3d 1234, writ denied , 2014-1991 (La. 11/21/14), 160 So.3d 975. It is particularly inappropriate when the imposition of a statutory penalty depends on a finding that the litigant acted in bad faith or her conduct was arbitrary, capricious or without probable cause. Merwin v. Spears , 2012-0946 (La. 6/22/12), 90 So.3d 1041.

A succession representative is a fiduciary with respect to the succession, and has the duty of collecting, preserving and managing the property of the succession in accordance with law. La. C. C. P. art. 3191 A. A succession representative is deemed to have possession of all property of the succession and shall enforce all obligations in its favor. La. C. C. P. art. 3211. Among the specific functions of the succession representative is the deposit of succession funds, stated in La. C. C. P. art. 3222 :

A succession representative shall deposit all moneys collected by him as soon as received, in a bank account in his official capacity, in a state or national bank in this state, and shall not withdraw the deposits or any part thereof, except in accordance with law.
On failure to comply with the provisions of this article, the court may render a judgment against the succession representative and his surety in solido to the extent of twenty percent interest per annum on the amount not deposited or withdrawn without authority, such sum to be paid to the succession. He may also be adjudged liable for all special damage suffered, and may be dismissed from office.

The imposition of the 20% per annum penalty under this article is discretionary, not mandatory. Succession of Hess , 205 So.2d 74 (La. App. 4 Cir. 1967), writ ref'd , 251 La. 862, 206 So.2d 712 (1968).

DISCUSSION

By her first assignment of error, Dianne urges the court abused its discretion in imposing the 20% per annum penalty under Art. 3222. She submits that the article prohibits her from using the succession assets "except in accordance with law," and urges that by virtue of the judgment of possession, which placed her in possession of the estate, all her actions were "in accordance with law" when she took them. She also contends that the summary judgment evidence does not clearly establish that she took any assets during the 32 days (January 28 through March 1, 2013) that she was succession representative. Finally, she suggests that her actions did not harm the estate in any way, thus distinguishing her situation from the clear case of penalty in Succession of Raziano , 538 So.2d 1136 (La. App. 5 Cir.), writ denied , 541 So.2d 874 (1989).

The petitioners respond that it is no defense under Art. 3222 that the succession representative "honestly believed" that she had a claim to the funds not deposited; she must first deposit succession funds in a succession account, and only then may she properly assert her claim to them. Succession of Songne , supra ; Succession of Dykes , 258 So.2d 606 (La. App. 1 Cir.), writs denied , 261 La. 533, 535, 260 So.2d 319, 320 (1972) ; Succession of Linder , 11-633 (La. App. 5 Cir. 5/22/12), 92 So.3d 1158, writ denied , 2012-1893 (La. 12/14/12), 104 So.3d 440 ; Succession of McIntire , 2000-1275 (La. App. 4 Cir. 4/25/01), 785 So.2d 1032. They submit that the court simply did not abuse its discretion in assessing the penalty.

On de novo review, we find genuine issues of material fact that preclude the grant of summary judgment. The imposition of the penalty under Art. 3222 is discretionary, not automatic. Succession of Hess , supra . To impose the penalty, the trial court must determine that Dianne acted in bad faith. Merwin v. Spears , supra . This determination will require a finding of subjective facts, specifically of Dianne's intent, motive, malice or bad faith. Such subjective facts are rarely appropriate for summary judgment disposition. Phipps v. Schupp , supra ; Monroe Surgical Hosp. LLC v. St. Francis Med. Ctr. Inc. , supra . Dianne had filed a suit to probate a will that named her the sole legatee, and she received a judgment of possession placing her in possession. On the other hand, as counsel conceded at oral argument, it "could not have come as a surprise" to her that her brothers would challenge that will. On de novo review, we find that this conflicting evidence does not resolve the genuine factual issues as to Dianne's intent, motive, malice or bad faith. The first assignment of error has merit.

By her second assignment of error, Dianne urges the court erred in rendering partial summary judgment as to the petitioners' substantive claims. She urges the court misapplied Comberrel , supra , to deny her credit for administration expenses that she validly paid, such as maintenance, insurance, property tax, and legal expenses. She shows that unlike in Comberrel , supra , she had a facially valid judgment of possession and "full right of dominion over those funds, without restriction," and argues that the district court simply failed to address these claims.

The petitioners respond that partial summary judgment was authorized, under La. C. C. P. art. 966 E, for the "undisputed liability." They submit that Dianne's claims are still unliquidated and thus cannot be used as setoff against her liability to the succession. Winkle v. Advance Prods. & Sys. , 98-694 (La. App. 3 Cir. 10/28/98), 721 So.2d 983.

On de novo review, we find that the same genuine issues of material fact affecting the penalty claim must also make summary judgment inappropriate for the substantive claim. Dianne concedes that she never deposited any succession assets into the account required by Art. 3222, but the summary judgment evidence does not show that she withdrew the deposits or any part thereof without legal authority. While these facts suggest a violation of fiduciary duty, on the current record we cannot make such a finding as a matter of law. Further, Art. 3222 provides that the succession representative "may also be adjudged liable for all special damage suffered," but in light of the judgment of possession awarding her possession of the estate, and the lack of evidence as to when she liquidated various assets, we cannot say that the award of $161,005 is completely free of genuine issues of material fact. We agree with the reasoning of Winkle v. Advance Prods. & Sys. , supra , but observe that the findings as to which obligations were liquidated and which were unliquidated came after a trial on the merits, not on motion for summary judgment.

The second assignment of error has merit. The partial summary judgment will be reversed and the case remanded for further proceedings.

CONCLUSION

For the reasons expressed, the partial summary judgment is reversed and the case is remanded for further proceedings. Costs of this appeal are to be paid by the petitioners, David R. Cook and Robert W. Cook.

REVERSED AND REMANDED.

BROWN, C.J., concurs with written reasons.

BROWN, C.J., concurring.

I agree that the grant of the partial summary judgment was clearly inappropriate; however, I would add these comments. This court's decision to affirm the trial court's annulment of the testament was a three to two split decision.

The father, Joseph Cook, put his wealth into a corporation, Rodidaco. He divided the shares equally between his three children but maintained his role as president. His two sons, who are lawyers in Bossier Parish, ousted their father as president.

The law firm of Cook, Yancey, King & Galloway, and in particular, attorney Bernard Johnson, represented and guided the father and his daughter throughout all these proceedings. In July 2012, the father filed a lawsuit for $408,000 against Rodidaco and his two sons for repayment of a debt and executed a will leaving all of his property to his daughter.

The lawsuit was pending when the father died on January 18, 2013. Five days after the father's death, on January 23, attorney Johnson probated the will. Two days later, the two sons petitioned to be appointed administrator and opposed the ex parte probate of the will. Attorney Johnson received a copy of the petition and in February, he went to the courthouse and obtained a judgment of possession. At argument in this Court, attorney Johnson said that he vaguely remembered the petition and thought that it was dismissed. It was not dismissed. In August 2013, a new petition was filed by the two sons and the first petition was forgotten. This trial was pursuant to the new petition.

No mention has been made of the $408,000 lawsuit filed by the father against the petitioners herein and the corporation. The daughter owns a third of the corporation. The two sons, who are attorneys, have offices, a granite yard and a restaurant rent-free. The trial court considered none of these matters or the pending lawsuit for $408,000 in imposing a draconian penalty of 20% each year on the daughter, who was guided throughout by her attorney.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, MOORE, PITMAN AND STONE, JJ.

Rehearing denied.


author: MOORE, J.

text:
    J. Houston BOSLEY, M.D. and Deborah K. Bosley, Plaintiff-Appellants v. OLIPHINT ENTERPRISES, LLC, Defendant-Appellee
    No. 51,585-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 27, 2017
    McMICHAEL, MEDLIN, D'ANNA, WEDGEWORTH & LAFARGUE, LLC, By: James C. McMichael, Jr., Anna Brown Priestley, Counsel for Appellants
    LUNN, IRION, SALLEY, CARLISLE & GARDNER, By: James A. Mijalis, Counsel for Appellee
    Before DREW, MOORE, and GARRETT, JJ.
   MOORE, J.

Drs. J. Houston and Deborah K. Bosley appeal a judgment that awarded them only $29,632.28 for property damages to their home arising from the negligence of their roofing contractor, Oliphint Enterprises LLC, in allowing rainwater to get in the house, and denied their claim for a penalty and attorney fee against Oliphint's insurer, United Fire & Indemnity, for allegedly failing to adjust the claims properly. We amend in part, to increase the award for exterior painting, but otherwise affirm.

FACTUAL BACKGROUND

The Bosleys (he is an ENT, she an endocrinologist) own a home in Shreveport's Pierremont area. In 2011 they were remodeling to add an ADA-compliant wing and replace the entire roof. They bought a custom-made metal roof and hired Corey Oliphint, of Oliphint Enterprises, to install it. Because of the size of the roof and the need to work around the other construction, the roof project was intricate, taking about three months.

In late August, Oliphint had removed a large portion of the roof over the older portion ("east wing") of the house. On the afternoon of August 24, a sudden and unexpected thunderstorm blew in, the first rainfall in about three months, while this part of the roof was off. Workers struggled to cover the gap with tarps, but they did not have enough. A torrent of violent rain pounded the unprotected attic, drenching the ceilings of two bedrooms (the "green room" and the "blue room") and dampening the interior walls of those rooms, the library and the hall. Oliphint's crew set out buckets and fans to alleviate the situation, but Ms. Bosley, who was chiefly overseeing the remodel, testified that she was immediately concerned about the risk of mold growing in the wallboard and insulation.

The next day, August 25, Oliphint notified his general liability carrier, United Fire, of the incident; United Fire sent an adjuster, James Thomas, who came to the house on August 29 and saw evidence of water intrusion. Thomas testified that he prepared a repair estimate after receiving a report from Charles Martin, of Sunbelt Contractors, whom Ms. Bosley had contacted. Martin's estimate, $15,794.26, was just to gut and redo the blue and green rooms. Making an adjustment for repairing exterior soffits and fascia board, and for minor repairs to the library, Thomas figured the loss at $17,358.76; after depreciation, he wrote a net estimate of $16,648.13. The estimate was dated October 21, but he did not give it to Ms. Bosley until October 28.

Ms. Bosley and Thomas gave somewhat differing accounts of their October 28 meeting, but both agreed that he did not give her any written offer, only an oral estimate. Ms. Bosley testified that Thomas offered her the $16,648.13, but only if she would sign a complete release of liability, which she was unwilling to do. In the two months since the incident, she engaged other contractors to look at the damage, which she feared was more extensive than originally thought. Specifically, a mold and moisture analyst had advised her to replace all insulation and clean all HVAC ductwork, just in case; Clean Air Systems, a contractor, quoted this work at $20,680.58. According to Ms. Bosley, Thomas replied that if she found additional damage, she could ask United Fire for reconsideration, but she "understood" that Thomas wanted her to gut the walls at her own expense, and if no mold was found, United Fire would not pay for the walls.

Thomas testified that because the Bosleys were not the insureds under Oliphint's policy, United Fire was obligated to offer them only actual cash value of the loss and could require them to sign a full release before payment. He recalled that she declined the oral offer not only because she disliked the release, but because with the west wing still under construction and all their furniture moved into the east wing, they had too much activity going on to gut and redo the green and blue rooms at that time. He also told her that gutting the walls of those rooms was part of his estimate; even if no mold was found, that work was included. At any rate, they reached no agreement. No work was ever done except to remove wet insulation from the attic.

By early 2012, Ms. Bosley thought she saw a small area of black mold behind a picture frame. ALTEC, an environmental consultant, found the air samples normal for mold and fungus, but warned of a potential for mold growth because of extensive water staining on the blue room ceiling. Thomas testified that he upgraded his estimate to $20,436.74, but this still did not include any mold remediation. Ms. Bosley testified that she would not accept this because it came nowhere near covering her damage.

The Bosleys filed this suit on August 23, 2012, naming Oliphint as defendant. They alleged their damages were around $35,000, and that United Fire refused to negotiate. Later, they amended their petition to add United Fire as defendant and to request penalties and attorney fees for failure to adjust the claim as required by La. R.S. 22:1892 A(4).

On the evening of Christmas Eve, 2013, the Bosleys came home during a heavy storm and discovered that it was "raining inside" the green room, with water streaming from the top of the wall, around the Pella window, and onto the floor. With an HVAC contractor, Mr. Bosley climbed into the attic to inspect, and discovered a gap, some 3/8 inch wide and 12 feet long, between the bottom flange of the metal roof and the outer wall fascia. They called Oliphint back to the house; he admitted the gap was there, but insisted it was not the roofing contractor's duty to seal this, but rather the painting contractor's. Oliphint also found a huge pile of leaves and twigs in the storm gutter, which caused the water to back up and allowed a downspout to separate from the gutter. He felt that if the roof and gutter had been properly maintained, there would have been no second intrusion.

Thomas also came to inspect, but he felt the damage was not Oliphint's fault and thus he made no offer to adjust the window and other damage to the green room.

In June 2014, the Bosleys amended their petition to add allegations concerning the second intrusion. They contended that all damages were related to the negligent work performed by Oliphint in August 2011.

The matter came to trial over four nonconsecutive days in February and March 2016. The Bosleys, Oliphint and Thomas all testified as noted above. Several expert witnesses testified about mold testing and remediation, issues not contested on appeal.

The Bosleys called several contractors. Their lead witness was Brian Smith, of Brian Builders, in Bossier City. Smith considered the house a "historic older home"

and carefully described everything that Ms. Bosley "wanted fixed," but did not independently assess how much of her wish list was necessitated by the water intrusions. He gave a first estimate of $29,227.83, including mold remediation, and a second estimate of $18,912.47, without. He candidly admitted that his estimates were about three times higher than other contractors', but cited the high wages he paid his workers. Specific to the appeal, he testified that the windows in the blue and green rooms would not open, and the only way to remedy this was to remove, disassemble, attempt to repair, and then reinstall them, at a cost of $7,500 for the green room and $4,500 for the blue room.

Thomas Block, a general contractor, testified that he had painted the Bosleys' house prior to August 2011, using ArmorCoat, the most expensive paint money can buy. The only thing that would make this paint fail, he testified, was water intrusion from a defective roof; otherwise, it should have lasted 25 years. He originally proposed to repaint the entire outer wall for $8,800, but then said he could redo just the affected area, for $5,600.

United Fire called Benjamin "Chase" Pittman, an estimator with Federal Construction Co., who analyzed the repairs necessitated by water intrusion and quoted $17,877.35. He allocated no cost to replace the windows because there was "no visible damage," or to use high-quality paint on the exterior. He commented that his estimate was quite close to Sunbelt's ($17,358) and that Brian Builders' was extremely high.

ACTION OF THE DISTRICT COURT

The district court rendered a 10-page ruling. After identifying the parties and briefly stating how the damage occurred, the court declared Brian Smith to be "totally un-credible" and rejected his charges based on a wish list instead of necessary repairs. The court then summarized each witness's testimony, in the process rejecting Block's estimate of $8,800 to paint 10 square feet of exterior wall. By contrast, the court found Martin, Pittman and Thomas to be remarkably consistent, and stated that it would accept Pittman's quote, with adjustments. The court then found that both water intrusions were the result of Oliphint's negligence.

Having determined causation, the court then applied its adjustments, starting with Pittman's quote of $17,877.35, adding sums for removal of insulation, replacement of exterior fascia and soffits, and some mold remediation, for a total of $29,632.28.

Finally, the court ruled, without elaboration, that "it did not appear" that United Fire acted in bad faith, or was arbitrary or capricious in handling the claim. The court therefore denied the claim for penalty and attorney fee.

The court rendered judgment in accordance with the ruling, in favor of the Bosleys and against Oliphint and United Fire, for $29,632.28.

The Bosleys moved for new trial solely on the issue of the penalty and attorney fee, arguing that the district court incorrectly required them to show bad faith, a standard not required by La. R.S. 22:1892 A(4), and that even if the court had applied the correct standard, it erred in not finding that United Fire's actions were arbitrary, capricious and without probable cause. After hearing arguments on the issue, the court ruled orally that the adjuster was on the site three days after the first incident, there was "communication about hold up, we're not ready to do anything yet," as well as some "misunderstanding or misinterpretation by some of the parties," with the result that the insurer's conduct was not arbitrary, capricious or without probable cause. As to the second incident, the court agreed that it had rejected Oliphint's view of which party was responsible for sealing the roof to the house, but a mere "difference insofar as opinion" did not violate the statute. The court denied the new trial, and the Bosleys appealed devolutively, raising three assignments of error.

DISCUSSION

Statutory Penalty and Attorney Fee

By their first assignment, the Bosleys urge that the court erred in denying their claim for penalties and attorney fees under La. R.S. 22:1892, as United Fire's actions were arbitrary, capricious and without probable cause as a matter of law. They concede that § 1892 is punitive and must be strictly construed, but they raise two arguments. With respect to the first water intrusion, they quote Paragraph A(4): "All insurers shall make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim." They show that United Fire has never asserted lack of satisfactory proof of loss. Thomas, the adjuster, got notice on August 29, and saw the obvious water damage; he received an estimate from Sunbelt on September 8, but then did not write his own estimate until October 21, and did not give it to the Bosleys until October 28. They argue that this is patently past the 30-day limit of § 1892 A(4), and that Thomas offered no excuse for the delay. They further argue that just because an adjuster is "not comfortable" with a claim or asserts a generic dispute is no justification for noncompliance with the statute, Louisiana Bag Co. v. Audubon Indem. Co. , 2008-0453 (La. 12/2/08), 999 So.2d 1104 ; Landry v. State Farm , 529 So.2d 417 (La. App. 1 Cir. 1988). They concede that the insurer may dispute the extent of damage, but assert that it still must unconditionally tender the undisputed portion, Burton v. Foret , 484 So.2d 753 (La. App. 1 Cir.), aff'd on other ground , 498 So.2d 706 (1986). They also contend that an offer contingent on a complete release of liability is not a tender under § 1892, Landry v. State Farm, supra .

With respect to the second water intrusion, they quote Paragraph A(3): "Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim * * * within fourteen days after notification of loss by the claimant." They contend that Thomas came to the house shortly after the event but never made any attempt to adjust the claim. Finally, they show that Paragraph A(3) applies to third-party claimants, not just to insureds, Deimel v. Dewhirst , 99-465 (La. App. 5 Cir. 11/10/99), 750 So.2d 1055, writ denied , 99-3478 (La. 2/11/00), 754 So.2d 941. They pray for an award of the penalty and attorney fee allowed by § 1892 B(1), but they do not specify any amount.

United Fire quotes § 1892 A(4), but also relies on Paragraph B(1), under which a breach is penalized only if the failure to make a written offer is "arbitrary, capricious, or without probable cause." It concedes that Thomas made no written offer to the Bosleys within 30 days of satisfactory proof of loss, but argues that he made an oral offer , thus negating any claim that its conduct was arbitrary, capricious or without probable cause. It also argues that an insurer is not required to make an unconditional tender to a third-party claimant, Mallett v. McNeal , 2005-2289 (La. 10/17/06), 939 So.2d 1254 ; Riser v. Shelter Mutual Ins. Co. , 43,617 (La. App. 2 Cir. 10/29/08), 997 So.2d 675. It further asserts that Ms. Bosley constantly told Thomas that she would not settle, and the insurer is not required to perform a vain and useless act, Coleman-Lyons 2800 v. Bryan , 566 So.2d 665 (La. App. 2 Cir. 1990). It also contends that Thomas's act of presenting the release to Ms. Bosley can be construed as a written offer to settle, thus satisfying Paragraph A(4).

As to the second water intrusion, United Fire urges that Oliphint and Thomas both promptly came to the house, inspected, and determined that the event had nothing to do with Oliphint's workmanship, so no further action was required of United Fire.

The payment and adjustment of claims under policies other than life and health and accident is regulated by La. R.S. 22:1892, which provides, in pertinent part:

A. * * * (3) Except in the case of catastrophic loss, the insurer shall initiate loss adjustment of a property damage claim * * * within fourteen days after notification of loss by the claimant. * * *
(4) All insurers shall make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim.
B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, * * * as provided in Paragraphs A(1) and (4) of this Section, * * * when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater[.]

In short, § 1892 sets forth affirmative duties for insurers and prescribes penalties for their breach. Katie Realty Ltd. v. Louisiana Citizens Prop. Ins. Corp. , 2012-0588 (La. 10/16/12), 100 So.3d 324. The statute explicitly applies to third-party claims, but requires only a written offer to settle; an insurer "has no duty to make an unconditional payment to a third party" under the statute. Mallett v. McNeal, supra ; Riser v. Shelter Mutual Ins. Co., supra ; Cochran v. Safeway Ins. Co. , 13-688 (La. App. 3 Cir. 12/11/13), 128 So.3d 1286. Certain cases cited by the Bosleys as requiring an unconditional tender actually involved claims by an insured against his own insurer, and are thus inapposite.

The duty to initiate loss adjustment means the insurer must take some substantive and affirmative step to accumulate the facts necessary to evaluate the claim. Block v. St. Paul Fire & Marine Ins. Co. , 32,306 (La. App. 2 Cir. 9/22/99), 742 So.2d 746. Simply opening a file, or making and receiving phone calls, have been held insufficient to qualify as initiating loss adjustment. Joubert v. Broussard , 02-911 (La. App. 3 Cir. 12/11/02), 832 So.2d 1182, writ denied , 2003-0060 (La. 3/21/03), 840 So.2d 552 ; Rogers v. Commercial Union Ins. Co. , 01-443 (La. App. 3 Cir. 10/3/01), 796 So.2d 862. A thorough investigation within 14 days is not required. Toerner v. Henry , 2000-2934 (La. App. 1 Cir. 2/15/02), 812 So.2d 755, writ denied , 2002-1259 (La. 8/30/02), 823 So.2d 951.

Moreover, R.S. 22:1892 is penal in nature and must be strictly construed. Sher v. Lafayette Ins. Co. , 2007-2441 (La. 4/8/08), 988 So.2d 186 ; Cooper v. Farmers Ins. Exch. , 50,978 (La. App. 2 Cir. 11/23/16), 210 So.3d 829. The phrase "arbitrary, capricious, or without probable cause" is synonymous with "vexatious," and describes an insurer whose willful refusal of a claim is not based on a good-faith defense. Louisiana Bag Co. v. Audubon Indem. Co., supra ; Riser v. Shelter Mut. Ins. Co., supra . However, the claimant is not required to show that the insurer acted in bad faith. Oubre v. Louisiana Citizens Fair Plan , 2011-0097 (La. 12/16/11), 79 So.3d 987.

The district court did not favor us with factual findings on the critical question of why United Fire's failure to give the Bosleys a written offer within 30 days was not arbitrary, capricious or without probable cause. However, the record fairly illuminates the ultimate decision to deny the penalty. As to the first incident, Thomas testified that Ms. Bosley repeatedly told him she did not want to repair the water damage at that time because she had so much other construction work going on in the house; Ms. Bosley even admitted she preferred to put off repairs until she was able to move her furniture into the new wing. In short, her attitude may have influenced Thomas's somewhat relaxed approach to the claim. When Thomas finally gave her the estimate, she declined to settle, not because the offer was untimely, but because she was afraid of finding more damage and did not want to sign a full release. These concerns were reasonable, but her reluctance to settle at any time militates against a finding that United Fire's conduct was arbitrary, capricious or without probable cause. From the cold record, United Fire's conduct appears noncompliant, but far from vexatious. We perceive no manifest error.

As to the second incident, Oliphint came to the house shortly after Christmas and found that the intrusion resulted from the Bosleys' failure to clear excess leaves and twigs from their gutter and roof and from the painting contractor's failure to seal the fascia to the roof flange. Although the record does not clearly establish the time frame, Thomas also went to the house to inspect; relying on Oliphint's own findings, he also found that Oliphint's work was not responsible for the damage. These facts support the finding that United Fire took substantive and affirmative steps to accumulate the facts necessary to evaluate the claim, even though the district court ultimately rejected both men's opinions. United Fire's initial decision to deny the claim may have been wrong, but on this record, it was not arbitrary, capricious or without probable cause. On this record, we perceive no manifest error. The first assignment of error lacks merit.

Exterior Paint

By their second assignment of error, the Bosleys urge the court erred in limiting their award for exterior repair to only three gallons of paint and not allowing them to use their original painter, Thomas Block, and specialty paint, ArmorCoat. They concede that manifest error applies, but argue they are entitled to full indemnification under La. C.C. art. 2315, Roman Catholic Church v. Louisiana Gas Serv. Co. , 618 So.2d 874 (La. 1993). They argue that restoration is the measure of damages, and our law "approximates" the standard expressed in the Restatement (Second) of Torts, Roman Catholic Church v. La. Gas Serv., supra . They also suggest that restoration costs may exceed market value, Mayer v. McNair Transp. Inc. , 384 So.2d 525 (La. App. 2 Cir. 1980), and should be rejected only if exorbitant, Roman Catholic Church v. La. Gas Serv., supra . They pray for an award of Block's estimate, $5,600.

United Fire responds that the district court simply did not abuse its discretion in finding Block's estimate of $5,600 to repaint two small areas of exterior siding extremely inflated.

Every act of man that causes damage to another obliges him by whose fault it happened to repair it. La. C.C. art. 2315. One injured through the fault of another is entitled to full indemnification for the damages caused thereby. State v. Louisiana Land & Expl. Co. , 2012-0884 (La. 1/30/13), 110 So.3d 1038, and citations therein . When property is damaged through the legal fault of another, the primary objective is to restore the property as nearly as possible to the state it was in immediately preceding the damage. Id. Generally, courts have considered the cost of restoration as the proper measure of damage where the thing damaged can be adequately repaired. Id. ; Loutre Land & Timber Co. v. Roberts , 45,355 (La. App. 2 Cir. 7/27/11), 72 So.3d 403, writ denied , 2011-1846 (La. 12/2/11), 76 So.3d 1177.

Block testified that he had painted the entire house with ArmorCoat paint sometime before the second incident. He said ArmorCoat was a "specially formulated paint that I actually own," had superior benefits (10 times thicker than normal paint, extremely waterproof, "breathable," and lasts 25 years), and required special effort to prepare the surface and apply the paint. There was absolutely no record evidence to show that a "spot repair" with ordinary hardware-store paint would restore the beauty and level of protection afforded by ArmorCoat. It was a clear abuse of discretion for the court not to award the cost to restore the outer wall to its prior condition.

Although Block's estimate struck the district court as high, the case is analogous to the apartment building that was destroyed by fire in Roman Catholic Church v. La. Gas Serv., supra . Even though the diocese had bought the building for $1.7 million, it had spent roughly $3 million in renovations. After the devastating fire, the district court awarded the diocese only the fair market value of the building, and the court of appeal affirmed. Citing the undisputed evidence of the cost and quality of the renovations, and the legal standard of restoration (less depreciation), the court amended the judgment to award restoration cost. We will do the same here.

Block testified that repainting the area around the bay/bow window, overhang, windows and siding, including removing and reinstalling the gutter, with ArmorCoat would cost $5,600. Applying a reasonable depreciation of 6%, and deducting the $250 already awarded by the trial court to spot repair with common-grade paint, we amend the judgment to award an additional $5,100 for exterior painting.

Window Repair

By their third assignment of error, the Bosleys urge the district court erred in failing to award damages to remove and rework the windows in the blue and green rooms that were damaged in the water intrusions. They again assert their right to complete indemnification, and stress the testimony of their contractor, Brian Smith, that to restore the windows to "original condition" he would have to remove, disassemble, repair or replace, and reinstall them, at a cost of $7,500 and $4,500, respectively. They also cite Ms. Bosley's testimony that she had refurbished all windows shortly after they bought the house, in 1992, and that they were still working fine right before August 2011; by contrast, they argue that Pittman and Martin, on whom the court relied, may have found no "visible damage" but they did not try to open the windows. The Bosleys submit this evidence undermines the district court's finding and supports an award of $12,000.

United Fire responds that the court simply did not abuse its discretion in rejecting the claim for the windows, as there was significant evidence that they were sticky and unmanageable before the water intrusions. It also shows that several witnesses testified that the new foam insulation, installed by the Bosleys in the fall of 2011, trapped moisture in the house, caused condensation on the windows, and more probably than not caused the wood to swell. The only witness to testify otherwise, United Fire contends, was Smith, whom the district court found utterly unbelievable.

The standard of appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes setting aside a trial court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Hayes Fund for First United Methodist Church v. Kerr-McGee Rocky Mountain LLC , 2014-2592 (La. 12/8/15), 193 So.3d 1110, and citations therein . The reviewing court cannot rely on some evidence that supports or controverts the trial court's finding; it must review the entire record to determine whether the finding is clearly wrong or manifestly erroneous. Id. The issue to be resolved on appeal is not whether the trial judge was right or wrong, but whether the judge's factfinding conclusion was reasonable. Id. ; Jackson v. Royal T Energy LLC , 50,645 (La. App. 2 Cir. 6/22/16), 197 So.3d 706, writ denied , 2016-1383 (La. 11/7/16), 209 So.3d 99.

Although it seems intuitive that water intrusion would make the windows swell and stick, we are constrained to note that several witnesses ascribed the problem, at least in part, to the foam insulation, installed in 2011. The Bosleys' HVAC contractor, John Fertitta, testified that foam insulation traps moisture in the house, allows condensation on the windows, and should be controlled by a variable-speed HVAC unit. The Bosleys' construction consultant, John Worthey, confirmed this explanation and testified that he saw sweat and mildew on the windows when he inspected them in June 2014; he attributed this to the insulation and poor thermal exchange. The Bosleys' environmental consultant, David Hopper, found 79% relative humidity in the east wing when he inspected in April 2012; the outdoor humidity was only 71% at the time. United Fire's engineer, Jeffrey Peters, confirmed that foam insulation in the attic often makes windows sweat. On this evidence, we cannot say the district court's finding of causation is plainly wrong. We also note Ms. Bosley's admission, on direct examination, that in the fall of 2013, the windows "could be raised and lowered. Whether or not I'd say easily, they are ancient windows and I had to track them." While not determinative, this testimony supports the district court's implicit finding that the windows were perhaps already less than perfect before the water intrusions. In short, we perceive no manifest error.

This assignment of error lacks merit.

CONCLUSION

For the reasons expressed, the judgment is affirmed insofar as it denied the plaintiffs' claims for a statutory penalty and attorney fee, and for the cost of removing and reworking the windows in the blue and green rooms. The judgment is amended, however, to award the full cost of paint and repair to restore the exterior to its condition prior the water intrusion, less depreciation and partial damages already awarded, or $5,100. It is ordered, adjudged and decreed that there be judgment herein in favor of the plaintiffs, J. Houston Bosley, M.D., and Deborah K. Bosley, and against the defendants, Oliphint Enterprises LLC and United Fire & Indemnity Co., in the full sum of thirty-four thousand, seven hundred thirty-two and 28/100 ($34,732.28) dollars, together with legal interest thereon, from date of judicial demand until paid in full. All costs are to be paid by the defendants, Oliphint Enterprises LLC and United Fire & Indemnity Co.

AMENDED AND AFFIRMED .

      The record is silent as to whether the Bosleys made any claim against their own homeowners' carrier.

      Elsewhere in brief, United Fire argues that Thomas's meeting with Ms. Bosley, in late October 2011, "occurred less than thirty (30) days from satisfactory proof of loss," but this assertion is completely refuted by both Ms. Bosley's and by Thomas's testimony.

      Until January 1, 2009, R.S. 22:1892 was designated as R.S. 22:658.

      Burton v. Foret, supra ; Landry v. State Farm, supra ; Fuselier v. Louisiana Farm Bureau Mut. Ins. Co. , 458 So.2d 657 (La. App. 3 Cir. 1984).

      The court's initial finding of no bad faith was plainly gratuitous, as bad faith is not part of the standard for a penalty under § 1892 B(1).