author: COOKS, Judge. GREMILLION, Judge,

text:
    ROTORCRAFT LEASING, LLC and Catlin Insurance Company, Inc. v. H.E.R.O.S., INC. et. al.
    16-690
    Court of Appeal of Louisiana, Third Circuit.
    04/19/2017
    Rehearing Denied May 24, 2017

      John R. Walker, Jones Fussell, L.L.P., P.O. Box 1810, Covington, LA 70434, Tel. (985) 892-4801, Fax: (985) 892-4925, ATTORNEY FOR PLAINTIFFS/APPELLANTS Rotorcraft Leasing, LLC and Cat-lin Insurance Company, Inc.
    Kenneth H. Laborde, Brendan P. Do-herty, Bradley J. Schwab, Gieger, Laborde & Laperouse, LLC, One Shell Square, 701 Poydras Street, Suite 4800, New Orleans, LA 70139, Tel: (504) 561-4)400 Fax: (504) 561-1011 ATTORNEY FOR DEFENDANT/APPELLEE Delavan, Inc.
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion and Phyllis Montgomery Keaty, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

hThe trial court granted summary judgment dismissing Rotorcraft Leasing, LLC (Rotorcraft) and Catlin Insurance Company, Inc.’s (Catlin) suit against H.E.R.O.S., Inc. (HEROS) and Delavan, Inc. (Delavan) for the loss of a 2008 Bell Helicopter, Model 206 L-4, owned by Rotorcraft. The helicopter was forced to make an emergency landing in the Gulf of Mexico on September 14, 2010, after it lost power. The pilot escaped uninjured, but the helicopter sank to the bottom of the gulf. Catlin paid its insured’s claim for the loss valued at $2,000,000, less Rotorcraft’s deductible of $300,000.

Rotorcraft first sued HEROS on September 9, 2011, alleging its claims present an admiralty and maritime matter under the “savings to suitors” clause of the Judiciary Act of 1789, and asserting it is entitled to relief under the Louisiana Products Liability Act and/or Louisiana’s redhibition law. Rotorcraft later amended its suit adding Delavan as a defendant, maintaining Delavan manufactured the fuel nozzle alleged to be defective and alleged to be the cause of the crash. Rotorcraft settled its claims with HEROS and it is no longer a party to the litigation.

Delavan filed a motion for partial summary judgment, motion for summary judgment, and a peremptory exception of prescription asserting: (1) Rotorcraft’s products liability claim is barred by the East River doctrine under federal maritime 12law; (2) Rotorcraft does not have a cause of action for redhibition because its purchase of the allegedly defective fuel nozzle was not a contract of sale but was, instead, a contract for repair services; and (3) any redhibition claim which Rotor-craft might have for the allegedly defective part is barred by La.Civ.Code art. 3499, ten-year liberative prescriptive period. The trial court granted partial summary judgment dismissing Rotoreraft’s products liability claim applying the East River doctrine, and granted the motion for summary judgment dismissing Rotor-craft’s contract-based redhibition claim. The trial court found it unnecessary to rule on the exception of prescription rendered moot by its summary judgment ruling.

Rotorcraft appeals asserting the trial court erred as a matter of law in granting the motions. It asserts that Louisiana law on redhibition offers an available remedy to Rotorcraft if the fuel nozzle was defective and the cause of the crash. It also asserts the East River doctrine does not bar recovery of Rotorcraft’s products liability claim because the allegedly defective nozzle did not result only in an economic loss of the defective nozzle itself but of the separate and distinct helicopter. Rotorcraft also asserts it timely filed suit and its claims are not barred by prescription.

ANALYSIS

We find the trial court erred as a matter of law in granting the motions for summary judgment. Louisiana Code of Civil Procedure Article 966(A)(3) (emphasis added) provides:

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.

|a“ ‘Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.’ Elliott v. Continental Cas. Co., 06-1505, p. 10 (La. 2/22/07), 949 So.2d 1247, 1253 (quoting Reynolds v. Select Props., Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183).” Field v. Lafayette Par. Sch. Bd., 16-495 p. 3 (La.App. 3 Cir. 11/9/16), 205 So.3d 986, 988, writ denied, 16-2141 (La. 1/13/17), 215 So.3d 256, 2017 WL 375728. We find the trial court erred as a matter of law in granting Delavan’s motion for summary judgment based on its finding that Rotorcraft’s potential products liability claim is barred under the East River doctrine. We also find it legally erred in finding Rotorcraft was barred from raising its claim under Louisiana’s redhibition law.

Products liability claim.

The United States Supreme Court decision in East River would only bar Ro-torcraft’s potential products liability claim if the facts demonstrate that the allegedly defective product caused harm to itself and no other. Such is not the case. Rotorcraft purchased the allegedly defective fuel nozzle separate and distinct from the helicopter which it purchased many years prior. While it is true that the fuel nozzle is a component part of the engine, and the engine is part of the helicopter, it does not necessarily follow, as Delavan asserts, that in this instance we must treat the helicopter as the product rather than the fuel nozzle. The receipt for Rotorcraft’s purchase of the fuel nozzle from HEROS dated March 25, 2010, indicates the item was “sold to” and delivered to Rotorcraft, for a purchase price of $1,750 plus a used part. It is elementary that Rotorcraft’s purchase of this product is a sale under Louisiana law. See La.Civ.Code art. 2439. Rotorcraft ^alleges this product failed, and its failure caused the helicopter to make a forced landing in the Gulf of Mexico and sink to the bottom of the gulf. The allegedly faulty product caused much damage to “other property,” not just damage to itself, and endangered the life of the pilot. The federal courts have clearly recognized that East River does not bar recovery in tort for such a loss.

East River, however, did not completely exclude tort claims for economic harm caused by a defective product. See Thomas J. Schoenbaum, Admiralty and Maritime Law § 3-11 at 120 (2d ed. 1994) (“[T]he East River court did not completely exclude tort product liability claims for purely economic losses.”); A plaintiff may maintain a tort cause of action in admiralty when a defective product causes damage to “other property.” East River, 476 U.S. at 867 [106 S.Ct. 2295] (“In this case, there was no damage to ‘other’ property.”); Saratoga Fishing, 117- S.Ct, at 1785 (“[A]n admiralty tort plaintiff cannot recover for the physical damage the defective product causes to the ‘product itself; [sic] but the plaintiff can recover for physical damage the product causes to ‘other property’ ”). In order to determine what constitutes “other property,” the Court must first define what is the allegedly defective “product.” See Sear-Land Service, Inc. v. General Electric Co., 134 F.3d 149, 152 (3d Cir.1998).

Transco Syndicate No. 1, Ltd. v. Bollinger Shipyards, Inc., 1 F.Supp.2d 608, 610-11 (E.D. La.1998) (emphasis added).

In Transco the United States- District Court for the Eastern District of Louisiana addressed the question of what constitutes “other property” and what defines the “product,” relying on the U.S. Supreme Court’s holdings in East River and Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 117 S.Ct. 1783, 138 L.Ed.2d 76 (1997):

Fortunately, the Supreme Court has somewhat clarified East River’s product—other property dichotomy in Saratoga Fishing Co. v. J.M. Martinac & Co., supra. In Saratoga Fishing, the initial purchaser of a vessel added a skiff, fishing net, and other equipment to the M/V Saratoga before selling the vessel with this additional equipment to a subsequent purchaser. When a defective hydraulic system in the vessel’s engine room failed, the vessel caught fire and the ship- sank. The secondary owner then filed suit against the manufacturer of the hydraulic system and the company that built the IfiVessel The issue presented to the Supreme Court was whether the skiff, fishing net, and other equipment added by the initial purchaser constituted “other property” under East River. The Court determined that they did:
When a Manufacturer places an item in the stream of commerce by selling it to an Initial User, that item is the ‘product itself under East River. Items added to the product by the Initial User are therefore ‘other property,’ and the Initial User’s sale of the product to a Subsequent User does not change these characterizations.
Saratoga Fishing, 117 S.Ct. at 1786.

Transco, 1 F.Supp.2d at 611.

In Transco, the owner of a tugboat, the MV Lacabi, contracted with Bollinger Shipyard (Bollinger) for repair and refurbishment of its vessel. That contract required that .Bollinger install two “Good Runner” diesel engines on the vessel which were purchased by the owner from Diesel Engine & Parts Company (DEPCO). DEPCO bought one of the two engines from Diesel Specialists, Inc. (Diesel). Plaintiffs alleged this engine caused a fire on board the MV Lacabi and sued defendants for breach of contract and breach of warranty. DEPCO filed a third-party complaint against Diesel- and a cross-claim against Bollinger alleging improper installation, and products liability under Louisiana products liability law. Diesel asserted the MV Lacabi was the “product” because the owner had contracted for refurbishment of the vessel which included installation of the allegedly defective engine. The owner maintained that it did not purchase the engine from Bollinger, but in fact purchased it from DEPCO who had purchased the engine from Diesel, and that its vessel constituted “other property” entitling it to recover for damages to the vessel. The federal district court found the claim was not barred by the. East River doctrine relying on the U.S. Supreme Court’s holding in Saratoga Fishing'.

| fiThe Court [in Saratoga Fishing] therefore distinguished between components added to a product by a manufacturer before its initial sale, see, e.g., East River, 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865; Shipco, Inc. v. Avondale Shipyards, Inc., 825 F.2d 925 (5th Cir.1987), and items added to the product by a subsequent user, see, e.g., Saratoga Fishing, 117 S.Ct. at 1788; Nicor Supply Ships Assocs. v. General Motors Corp., 876 F.2d 501 (5th Cir. 1989), See Sea-Land Service, 134 F.3d at 153 (noting the Court’s distinction).
This distinction is consistent with the “object of the contract test” adopted by the Fifth Circuit prior to Saratoga Fishing. In Shipco Inc. v. Avondale Shipyards, Inc., 825 F.2d 925, 928 (5th Cir. 1987), the Fifth Circuit 'stated that “[i]n attempting to identify the product, a court must ask ‘what is the object of the contract or bargain that governs the rights of the parties?’ ”. Id. The object of the parties’ contract constitutes the “product” under East River. See also Petroleum Helicopters, Inc. v. Avco Corp., 930 F.2d 389, 392 n. 9 (“[T]he phrase ‘other property’ is construed by looking to the nature of the contract between the parties, and such a determination hence rests upon a contractual interpretation,”).
Diesel asserts that the engine that DEPCO provided to Barnacle must be considered a component of the M/V LA-CABI—the product. Diesel argues that Barnacle contracted with Bollinger to refurbish the M/V LACABI and to install the two used engines Barnacle had purchased from DEPCO. Diesel therefore concludes that the “object” of Barnacle’s contract with Bollinger was a completely refurbished and operating M/V LACABI. Diesel therefore asserts that the M/V LACABI is the “product” under East River and that plaintiffs should not be allowed to assert claims in tort simply because the vessel’s engines were manufactured separately, sold independently, and subsequently installed into the vessel, Cf. Shipco, 825 F.2d at 929 (“We see no rational reason to give the buyer greater rights to recover economic losses for a defect in the product because the component is designed, constructed, or furnished by someone other than the final manufacturer.”). In support of this argument, Diesel relies on the Fifth Circuit’s decision in Shipco, 825 F.2d 925, and Petroleum Helicopters v. Avco Corp., 930 F.2d 389 (5th Cir. 1991).
In Shipco, the Fifth Circuit dismissed a vessel owner’s tort claims against a ship manufacturer and a steering system manufacturer for repair costs incurred due to an alleged design defect in the capscrews contained in the vessel’s steering mechanism. Shipco, 825 F.2d at 926. The plaintiff argued that the damage to a vessel’s steering system was “other property,” distinct from a defective capscrew. The Fifth Circuit looked to the transactions between the manufacturer and the purchaser and held that “[t]he complete vessels were obviously the objects of the [parties’] |7contract,” Id. at 928. Although the vessels’ steering mechanism had been manufactured independently, the vessel purchaser did not negotiate separately for his ships’ component parts. The vessels were each purchased as a whole. Accordingly, the court held that each vessel was the “product” and that the plaintiff could not recover under East River.
In Petroleum Helicopters, a helicopter owner sued the manufacturer of a floatation device that had been placed inside its helicopter. The plaintiff alleged that its helicopter capsized when the safety floatation device failed to function during an emergency water landing in the Gulf of Mexico. The owner sought damages for the harm to its helicopter. Relying on Shipco, the Fifth Circuit affirmed the district court’s dismissal of the plaintiffs claims. The court explained that the floatation device was part of the integrated helicopter purchased by the plaintiff. The court found that [the] helicopter was the East River product. The floatation device was simply a component part.
Finally, Diesel also relies on ERA Helicopters, Inc. v. Bell Helicopter Textron, Inc., 696 F.Supp. 1096 (E.D.La. 1987), in which the court dismissed a helicopter owner’s tort claims against the helicopter engine’s manufacturer, holding that the engine was a component part of the helicopter. Accordingly, the helicopter itself did not constitute “other property.”
These cases, however, are distinguishable from the present case. The plaintiffs in East River, Shipco, Petroleum Helicopters, and ERA Helicopters all purchased a single product ivith integrated parts from the product’s manufacturer. In each case, the integrated product, purchased as a whole by the initial user, was the object of the parties’ contract or bargain. In the present case, Barnacle purchased the allegedly defective engine and the M/V LACABI separately. Barnacle then hired Bollinger to install the engine into its vessel. Diesel nonetheless maintains that since Barnacle contracted with Bollinger to refurbish the entire M/V LACABI, which included installation of the DEP-CO engines, the entire vessel must be regarded as the product under East River.
Barnacle, however, did not purchase an entire vessel from DEPCO. It purchased two diesel engines. That the engines were installed on the ship does not make the vessel the object of Barnacle’s contract with DEPCO. In Mays Towing Co. v. Universal Machinery Co., 755 F.Supp. 830 (S.D.Ill.1990), the court rejected the argument asserted by the plaintiffs in this case. In Mays Towing, a tow boat owner brought a products liability suit against an engine manufacturer and seller when the engine that the plaintiff had installed in its ship malfunctioned, caught fire, and destroyed the entire vessel. The defendants filed a motion for summary judgment asserting that | «plaintiffs could not claim liability for harm to the tow boat under East River. The court rejected the defendants’ motion, since the plaintiff had not contracted with the defendants to build a ship; it had simply purchased an engine. The court further held that simply because the engine was installed on the plaintiffs boat did not make the vessel the object of the parties’ contract. Id. at 833. The court therefore found that the tow boat was “other property” and that the plaintiff could maintain its product liability suit against the engine manufacturer and seller. Id. Similarly, the M/V LACABI did not become the object of Barnacle’s contract with DEPCO simply because DEPCO’s engines were installed on the vessel. The object of [the] parties’ contract was two “Good Runner” engines. The M/V LACABI was a separate product that was purchased through the stream of commerce from a different supplier at a different point in time. Therefore, any damage that those two engines caused to the M/V LACABI is harm to “other property.”

Transco, 1 F.Supp.2d at 611-13(emphasis added).

Likewise, in this case, Defendant, relying on the East River doctrine, Shipco, Sear-Land Serv., Inc. v. Gen. Elec. Co., 134 F.3d 149 (3rd Cir, 1998), and Petroleum Helicopters, advances the same arguments rejected in Transco. Defendant asserts that Plaintiffs reliance on the holding in Transco, as well as the holdings in Supply Ships.; Windward Aviation, Inc. v. Rolls-Royce Corp., 2011 WL 2670180 (D. Hawaii 7/6/11); and Indemnity Ins. Co. of N. America v. American Eurocopter LLC, 2006 WL 1610653 (M.D.N.C. 7/8/05), is misplaced and that the holdings in those cases are “distinguishable” from this case. The basis for this assertion is that the allegedly defective fuel nozzle in this case was a “replacement” part and is not a “completely new addition” to the helicopter engine. Defendant asserts that because the allegedly defective fuel nozzle bears the same part number as the fuel nozzle first installed in the engine some ten years back in time, it is not a “completely new addition” to the engine. This circuitous reasoning is unavailing. Rotorcraft purchased a newly refurbished fuel nozzle from HE-ROS manufactured by Delavan. The object of the contract between Rotorcraft and HEROS is a,fuel]ñnozzle, not a helicopter. The allegedly defective fuel nozzle is the “product” at issue and the helicopter is “other property.”

In support of its arguments Delavan traces the life of the allegedly defective fuel nozzle as follows (emphasis added):

In October of 2000, Rolls-Royce [Corporation] contacted Delavan to purchase twenty-two fuel nozzles to be installed in Rolls-Royce Model 250 helicopter engines. Delavan completed that sale on October 19, 2000 by delivering the full order of fuel nozzles to Rolls-Royce’s facility in Indianapolis, Indiana. Included in that shipment was a fuel nozzle bearing serial number 1XR05418 (“the fuel nozzle”), which would ultimately become the subject of Rotorcraft’s claims in this case.
After purchasing the Fuel Nozzle from Delavan, Rolls-Royce installed it in a Rolls-Royce 250-C47B helicopter engine bearing serial number CAE847512 and sold that engine to Bell Textron Canada (“Bell”) on November 28, 2000. In connection with the sale of that engine, Bell was provided with a Rolls-Royce Warranty Card setting forth all express warranties and waivers of implied warranties pertaining to the engine and its component parts, including the Fuel Nozzle. The Rolls-Royce engine was then installed in a helicopter manufactured by Bell, which was in turn sold to Bell’s terminal customer, who was also provided a copy of the Rolls-Royce Warranty Card.
Over the next nine-plus years, the Fuel Nozzle was placed into service for over 2,000 hours of operation, overhauled on at least two different occasions, installed in an unknown number of engines, transferred between an unknown number of companies, and subjected to unknown abuses and environmental conditions. Eventually, HEROS, Inc. obtained the Fuel Nozzle in a heavily used condition, overhauled it, and transferred it to Rotorcraft ...
After receiving the Fuel Nozzle from HEROS, Rotorcraft installed it in the engine of a helicopter bearing FAA Regulation Number N405RL on April 21, 2010. The Fuel Nozzle remained installed in that aircraft for 128 h[ou]rs of operation until its engine was removed for an undisclosed reason on August 10, 2010.
On August 13, 2010, Rotorcraft installed the Fuel Nozzle in the engine of a Bell 206L^1 helicopter bearing FAA Registration Number N385RL (the “Accident Helicopter”). The aircraft logbook for the Accident Helicopter indicates that the Fuel Nozzle was installed in its engine as a replacement of an identical fuel nozzle bearing the exact same part number (P/N 23077067). After it was installed in the |inAccident Helicopter, the Fuel Nozzle logged an additional 58.5 hours of operation before its final flight on September 14, 2010.

These facts belie Delavan’s assertion that this later installed fuel nozzle must be considered part and parcel of the original aircraft. It clearly was not an original component part of the engine when the helicopter was purchased, but was instead a new and distinct part installed ten years later. Thus Plaintiffs claim under the Louisiana Products Liability Act (LPLA) is not barred by the East River doctrine. Under the settled federal decisions LPLA may apply in maritime actions when Louisiana law “does not conflict with federal law.” Palestina v. Fernandez, 701 F.2d 438, 439 (5th Cir. 1983) and Transco. As the court held in Transco:

Louisiana’s product liability law may be applied to maritime actions when its provisions are consistent with Section 402A of the Restatement (Second) of Torts. However, when state law conflicts with the Restatement, the Court should apply the Restatement’s rules. The Fifth Circuit and the majority of circuit courts have applied the Restatement to maritime products liability actions. See, e.g., Vickers [v. Chiles Drilling Co.], 822 F.2d [535] at 538 [(5th Cir. 1987)]; Ocean Barge Transport Co. v. Hess Oil Virgin Islands Corp., 126 F.2d 121, 123 (3d Cir.1984); Pan-Alaska Fisheries, Inc. v. Marine Constr. & Design Co., 565 F.2d 1129, 1134 (9th Cir.1977) (stating that Restatement § 402 is the “best and most widely-accepted expression of the theory of strict liability.”); Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631 (8th Cir.1972); McKee v. Brunswick Corp., 354 F.2d 577, 584 (7th Cir.1965). By applying the provisions of the Restatement, the Court furthers the federal interest in establishing uniform rules of maritime law. Louisiana Ex. Rel. Guste v. M/V TESTBANK, 752 F.2d 1019, 1032 (5th Cir.1985) (en banc).

Transco, 1 F.Supp.2d at 614.

In Transco, the court found the LPLA was in conflict with the Restatement (Second) of Torts Section 402A regarding sellers of defective products. Here, the seller has been released from the litigation and the manufacturer, Delavan, remains. The applicable provisions of the Restatement (Second) of Torts, Sections 395-398 applicable to manufacturers are not in conflict with the LPLA. Both hold Inthe manufacturer to the same standards of liability. Even if we were to find only the Restatement applies the trial court still erred as a matter of law in granting summary judgment dismissing Rotorcraft’s claims.

Plaintiffs claim in redhibition.

We find Rotorcraft is entitled to assert a claim against Delavan, the manufacturer of an allegedly defective fuel nozzle, under our state’s laws on redhibition found in Book III, Chapter 9 of the Louisiana Civil Code, Article 2520 et seq. The fourth circuit, in Tucker v. Petroleum Helicopters, Inc., 08-1019 (La.App. 4th Cir. 3/23/09), 9 So.3d 966, writ denied, 09-901 (La. 6/19/09), 10 So.3d 736, rejected the same argument advanced by Defendant in this case, i.e., that because this is a maritime case Plaintiffs claims fall under the ambit of maritime law exclusively, thus, the law on redhibition is not applicable. Our sister circuit rejected this argument relying on the Louisiana Supreme Court decision in Green v. Industrial Helicopters, Inc., 593 So.2d 634 (La. 1992) and the United States Supreme Court decision in Romero v. International Term. Operat. Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). In Tucker the fourth circuit explained that while this helicopter crash certainly falls within the court’s maritime/admiralty jurisdiction, the state courts have concurrent jurisdiction “by virtue of the ‘savings to suitors’ clause of the Judiciary Act of 1789.” [Green, 593 So.2d at 637]. Tucker, 9 So.3d at 971.

The Green court also explained that while a state may not deprive a person of substantial maritime rights, there are occasions when a state may supplement those rights. Id., at 643. Indeed, a state is allowed “wide scope” in this regard. Id. The Green decision next describés numerous examples of such state supplementation and concludes that they have been allowed “even, at times, when they conflicted with a rule of maritime law which did not require uniformity, citing Romero v. International Term. Operat. Co., 358 U.S. 354, 373, 79 S.Ct. 468, 480-481, 3 L.Ed.2d 368 (1959). Green, at 643.
Consequently, 'we are compelled to find that the [sic] PHI’s redhibition claim falls within the ambit of permissible state supplementation of maritime policies as explained in Green. Therefore, regardless of whether this is a maritime case, PHI is entitled to assert Louisiana state law claims for implied warranty and redhibition.
Moreover, we find that maritime law does not exclude PHI’s redhibition claim as it is by its very nature a warranty claim and is referred to as such throughout the Civil Code articles on redhibition. La. C.C. art. 2520, 2521, 2522, 2530, and 2548.

Tucker, 9 So.3d at 971-72.

In Tucker, the third-party defendant, Bell Helicopter Textron, Inc. (Bell), just as Delavan does in this case, 'relied on its interpretation of the decisions in- Petroleum Helicopters, Inc. v. Avco Corporation, 930 F.2d 389 (5th Cir. 1991) and East Riveras supportive of its “contention that PHI has no claim under maritime law for negligence or strict liability or products liability.” Tucker, 9 So.3d at 972. For the same reasons the fourth circuit rejected that argument in Tucker, we reject Defendant’s argument here:

The statements quoted above in Petroleum Helicopters, Inc. v. Avco Corporation from the Supreme Court’s East River decision form the crux of Bell’s legal argument: “[W]hether stated in negligence or strict liability, no products-liability claim lies in admiralty when the only injury claimed is economic loss,” and “a manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself.” To express it another way, Bell, in effect, argues that PHI has failed to state a claim upon which relief can be granted because it is (1) maritime in nature, (2) a claim for economic loss only and (3) under such circumstances there is no claim for negligence or strict liability or products liability. However, as stated previously, the trial court award to PHI was based on redhibition, a warranty based theory of recovery under La. C.C. art. 2520. The first paragraph of La. C.C. art. 2520 declares that: “the seller warrants the buyer against redhibitory defects, or vices, in the thing sold.”

I ^Therefore, this Court does not see where East River or any of its progeny preclude recovery in a Louisiana court for a redhibition claim which is a warranty based claim. In fact, the cases relied upon by Bell take the position that warranty is the proper theory of recovery in such transactions as may be seen by frequent use of the term “warranty” in the language quoted above from Petroleum Helicopters, Inc. v. Avco Corporation.

A claim in redhibition has been recognized as being distinctly different from a tort claim. Patin v. Thoroughbred Power Boats, Inc., 294 F.3d 640, 656 (5th Cir. La.2002). It is well established in Louisiana law that a redhibition claim is contractual in nature. Landry v. Forest River, Inc., 06-1424, p. 5 (La.App. 3 Cir. 3/14/07), 953 So.2d 1046, 1050. It arises from a breach of a warranty of a thing sold by a seller. Id.

In Petroleum Helicopters, Inc. v. Avco Corporation, the court explained how it had applied East River in Shipco 2295, Inc. v. Avondale Shipyards, Inc., 825 F.2d 925 (5th Cir.1987), cert. denied, 485 U.S. 1007, 108 S.Ct. 1472, 99 L.Ed.2d 701 (1988). In doing so, the court found that in Shipco it was determined that “the warranty provisions of the contract between the two parties should govern the dispute.” Petroleum Helicopters, Inc. v. Avco Corporation, supra, at p. 392. Likewise, in the instant case, the plaintiffs are entitled to pursue their redhibition (warranty) claim in the courts of this State. We find that the following language in Turbomeca v. Era Helicopters, 536 F.3d 351 (5th Cir.La. 2008), seems to support PHI’s redhibition claim which is basically a warranty claim:

Thus, where a defective product malfunctions and causes damage only to itself, the rule is that a plaintiff can maintain an economic loss claim only under a warranty or contract theory of recovery.
Later, in Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 117 S.Ct. 1783, 138 L.Ed.2d 76 (1997), the Supreme Court explained the rationale behind the East River rule:
The Court [in East River ] reasoned that the loss of the value of a product that suffers physical harm—say, a product that destroys itself by exploding—is very much like the loss of the value of a product that does not work properly or does not work at all. In all such cases, the Court held, “contract law, and the law of warranty in particular, is well suited” to setting the responsibilities of a | useller of a product that fails to perform the function for which it was intended.
Id. at 879-80, 106 S.Ct. 2295 [117 S.Ct. 1783] (citations omitted).
The Court instructed that “[g]iven the availability of warranties, the courts should not ask tort law to perform a job that contract law might perform better.” Id. at 880, 106 S.Ct. 2295 [117 S.Ct. 1783].
Id, at pp. 354-355.
The judgment by the trial court was based on warranty, that is, the warranty of Louisiana’s law of redhibition. And, there is no proof in the record that PHI waived that warranty.

Tucker, 9 So.3d at 972-74.

Likewise, in this case, Defendant makes the same three-pronged argument which we also find unavailing based on the same rationale articulated by the fourth circuit in Tucker. This case does not present a claim for “economic loss only,” as Defendant argues. As we have determined, the allegedly defective fuel nozzle is the “product” that is the object of the sale between Rotorcraft and HEROS. The sunken helicopter is “other property” destroyed as a result of the allegedly defective fuel nozzle. Although this event happened over the Gulf of Mexico and is subject to maritime law the holding in East River does not bar application of Louisiana’s redhibition law. And, here, as in Tucker, there is no evidence of a waiver of warranty in the sale of the fuel nozzle from HEROS to Rotor-craft.

No waiver of warranty.

The facts articulated by Delavan also demonstrate why Delavan’s warranty argument fails. The burden is on Delavan to prove a waiver of warranty affecting the fuel nozzle that was the subject of the sale between HEROS and Rotorcraft:

The burden is on Bell to establish the existence of an applicable and valid warranty waiver. Berney v. Rountree Olds-Cadillac Co., Inc., 33,388 (La.App. 2 Cir. 6/21/00), 763 So.2d 799; Moses v. Walker, 98-58, p. 3 (La.App. 3 Cir. 6/17/98); 715 So.2d 596, 598 ... In order to bear its burden that the alleged waiver of warranty was effective, Bell must prove that the waiver was: (1) written in clear and unambiguous language; (2) contained in the contract; and (3) either brought to the attention of the buyer or explained to him. Boos v. Benson Jeep-Eagle Co., Inc., 98-1424 (La.App. 4 Cir. 6/24/98), 717 So.2d 661.

Tucker, 9 So.3d at 970.

We find Delavan fails to meet its burden to prove there was any waiver of warranty by Rotorcraft when it purchased the allegedly defective fuel nozzle from HEROS. Delavan relies on a warranty card with a waiver of warranty presented by Rolls-Royce in 2000, when it sold its engine to Bell Helicopters. It is noteworthy that neither Rotorcraft, HEROS, nor Delavan was a party to that transaction. Perhaps recognizing that fact, Delavan attempts to treat the allegedly defective fuel nozzle purchased by Rotorcraft from HEROS in 2010, as the same fuel nozzle that Delavan sold to Rolls-Royce in 2000, which Rolls-Royce installed as a component part of the engine. But this is not the case. We are clearly dealing with two distinctly different fuel nozzles, i.e., one originally installed by Rolls-Royce in the engine it sold to Bell, and a different fuel nozzle sold by HEROS to Rotorcraft and then installed in the engine of the downed helicopter.

Defendant says the warranty card containing a waiver of warranty was issued by Rolls-Royce to Bell in 2000. It further states that Bell issued the warranty card to its customer when it purchased the helicopter with the original engine containing the original fuel nozzle replaced by the allegedly defective nozzle. The only party such a waiver of warranty could protect is Rolls-Royce. The waiver of warranty issued by Rolls-Royce does not, and cannot, shield Delavan as the manufacturer of an allegedly defective product from liability, [ ^particularly as concerns a fuel nozzle that was the object of a sale between Rotorcraft and HEROS.

In Tucker the fourth circuit addressed a similar argument that a warranty waiver in the original purchase of a helicopter by PHI from Bell in 1990 and the subsequent purchase of allegedly defective replacement parts in 2000, were both covered by the express waivers of warranty brought to PHI’s attention in the 1990 purchase. Bell argued unsuccessfully that the original waiver of warranty precluded any claims by the plaintiffs for redhibition. The warranty at issue in Tucker read as follows:

The original 1990 purchase agreement for the helicopter contained the following warranty provision:
THIS WARRANTY IS GIVEN AND ACCEPTED IN PLACE OF (i) ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE AND (ii) ANY OBLIGATION, LIABILITY, RIGHT CLAIM OR REMEDY IN CONTRACT OR IN DELICT/TORT, INCLUDING PRODUCT LIABILITIES BASED UPON STRICT LIABILITY OR NEGLIGENCE, ACTUAL OR IMPUTED.
This warranty is the only warranty made by Seller. The remedies of Purchaser and obligations and Seller are limited to the repair or replacement of helicopter parts as provided herein. Seller excludes liability, whether as a result of a breach of contract or warranty, negligence, or strict product liability, for incidental or consequential damages, including without limitation, damage to the helicopter or other property, costs and expenses resulting from required changes or modifications to helicopter components and assemblies, changes in retirement lives and overhaul periods, and costs or expenses for commercial losses or lost profits due to loss of use or grounding of helicopter or otherwise.

Tucker, 9 So.3d at 969.

The purported waiver of warranty card relied upon by Delavan in this case contains very similar language. We note first, in Tucker, at least the parties in the 117original sale and subsequent sale were the same, but even then, defendants’ argument was unavailing. Here, the parties to the original sale ten years earlier are not at all the same as the two parties in the sale of the allegedly defective nozzle. The warranty card intended to affect the original fuel nozzle incorporated into the original engine as a component part by Rolls-Royce, and intended to cover the sale of the engine to be placed in a helicopter and the sale of the helicopter to the end user, has no effect oh the sale and -purchase of a separate arid distinct fuel nozzle purchased by Rotorcraft from HEROS and manufactured by Delavan. As we have already determined, the newly purchased fuel nozzle is a separate and distinct part purchased by Rotorcraft from HEROS in 2010. Delavan, much like the defendants in Tucker, asserts that the waiver contained in the warranty card provided with the original sale of fuel nozzles by Delavan to Rolls-Royce is “broad enough to encompass the subsequent purchase of replacement component parts”- such as the separate and distinct fuel nozzle purchased by Rotorcraft from HEROS. The court in Tucker rejected' that argument despite the fact that in Tucker the parties were the same:

We disagree with this argument for both legal and public policy reasons, i.e., we find that a waiver of redhibition is ineffective as to indefinite purchases in the indefinite future. La.C.C. art. ,2548 requires in pertinent part that:
The terms of the exclusion or limitation must be clear and Unambiguous and must be brought to the attention of the buyer.
We find that this language requiring that the waiver be brought to the attention of the buyer necessarily implies that it must be brought to the attention of the buyer in connection ivith the purchase that is under attack for redhibition. It is not sufficient to bring it to the attention of the buyer in connection with some purchase in the past. In this case, the helicopter was originally purchased by PHI from Bell on March 30, 1990, more than 10 years prior to the purchase of certain replacement parts in 2000 that allegedly resulted in the loss of - the hshelicopter on August 19, 2004. Calling this provision to the attention of PHI in 1990 does nothing to .satisfy the requirement of calling it to the attention of PHI in 2000 when PHI purchased the replacement parts in 2000.

Tucker, 9 So.3d at 970.

HEROS did not present such a waiver of warranty to Rotorcraft accompanying the purchase of the allegedly defective fuel nozzle. Rolls-Royce and Delavan were nowhere in the picture when Rotorcraft purchased the allegedly defective fuel nozzle to be installed in its helicopter’s engine. Moreover, when Delavan sold the original fuel nozzles to Rolls-Royce its sale was accompanied by an invoice and purchase order, both of which contained express warranties, not any waiver of warranty. The invoice for the sale of fuel nozzles by Delavan to Rolls-Royce includes the following language:

This is to certify that all materials as identified hereon comply, to the best of our knowledge and belief, with the specified requirements. Certificate of functional test and inspection are on file to attest compliance with the- specifications for all material used in these parts, If material, parts or assemblies do not entirely. conform to specification requirements, the deviations and authority for furnishing such material are indicated above.

In the purchase order for the sale by Delavan to Rolls-Royce the following language appears:

Seller expressly warrants that all goods or services covered by this Order will conform to the specifications, drawings, samples- or descriptions furnished to or by Buyer and will be merchantable, all good material and workmanship and free from defect. In addition, Seller acknowledges that Seller knows of Buyer’s intended use and expressly warrants that the goods covered by this Order have been selected, manufactured or assembled by Seller, based upon Buyer’s stated use, will be for and sufficient for the particular purpose intended by Buyer.

Thus, Delavan expressly warranted its product in the original sale of fuel nozzles to Rolls-Royce. Any waiver of warranty card issued by Rolls-Royce to | 1flBell has no bearing on the manufacturer’s warranty of its product, and certainly does not affect Rotorcraft’s rights in Louisiana under the LPLA and/or Louisiana’s redhibition laws.

For these reasons we reject Defendant’s waiver of warranty argument and find there was no evidence presented as to any waiver of warranty that would preclude Rotorcraft from bringing its claims against Delavan.

Plaintiffs claims are not prescribed.

The issue of prescription was raised in the trial court but not ruled upon because the trial court found the issue moot. Because we reverse the trial court’s ruling the issue of prescription is no longer moot. Prescription may be raised at any stage of the proceeding in the trial court. La.Code Civ.P. art. 928(B). Defendant has raised the issue of prescription again in this court in its appellate brief’and Plaintiff has responded. Defendant maintains the absolute longest prescriptive period is ten years from the date of the original sale of the allegedly defective fuel nozzle by Delavan to Rolls-Royce for incorporation into a helicopter engine. Delavan argues that because the allegedly defective fuel nozzle purchased in 2010 is a replacement for the original fuel nozzle installed in the helicopter engine in 2000, it should be treated as the same component part of the original engine and thus subject to prescription commencing in 2000. We have rejected this argument entirely in deciding both the issue of the application of the East River Doctrine and Defendant’s waiver of warranty argument. As we have explained herein, the product at issue is a fuel nozzle purchased in 2010, by Rotor-craft from HEROS and manufactured by Delavan. The Louisiana products liability claim and the action in redhibition are subject to one-year liberative prescription. Suit was filed within one year of the date of the helicopter’s forced Islanding, the earliest possible date on which Rotorcraft could conceivably have learned' the part was defective or that it suffered damage as a result of the allegedly defective product. Plaintiffs claims, therefore, are not prescribed. Defendant has the burden to prove its affirmative defense of prescription. It has failed to do so.

Conclusion

For these reasons we reverse the trial court’s judgment and additionally find Plaintiffs claims are not prescribed. We remand the case for further proceedings. All costs of this appeal are assessed against Delavan.

REVERSED, RENDERED, AND REMANDED.

Gremillion, J. concurs and assigns written reasons. Keaty, J. concurs for the reasons assigned by Judge Gremillion.

GREMILLION, Judge,

concurring.

hi agree with the majority’s finding that the trial court erroneously granted summary judgment dismissing Rotorcraft and Catlin’s suit against H.E.R.O.S. and Dela-van. While I agree with the majority’s reasoning relating to Delavan’s arguments in assignments of error one and three, I find its reasoning fails as to assignment of error two.

Delavan’s most compelling argument is that this is not a claim for redhibition because, it was not a contract of sale, but rather a contract for repair services. The majority however asserts that Delavan’s argument is that “because this is a maritime case plaintiffs claims fall under the ambit of maritime law exclusively, and thus, the law on redhibition is not applicable.” This is simply an incorrect characterization of the defendant’s argument in its second assignment of error.

Furthermore, the issue of whether the transaction between Rotorcraft and Dela-van was a sale, i.e., purchase of a product, versus a contract of repair is a factual determination that is not appropriate for determination on summary judgment when conflicting evidence has been presented by the parties.' The majority has concluded that this was a sale as it states, “As we have determined, | ¡>the allegedly defective fuel nozzle is the ‘product’ that is the object of the sale between Rotorcraft and HEROS.” I must concur because I cannot arrive at the same conclusion. In my opinion, a genuine issue exists as to whether it is a sale.

This factual determination is properly left with the trier of fact. Delavan has failed to show there are no genuine issues of fact relating to the nature of the transaction between it and Rotorcraft. While a document showing an itemized amount of $1,750.00 ■ for a “refurbished fuel nozzle” was submitted into evidence, so too was the deposition testimony, of Rotorcraft’s own corporate representative who stated, “You’re paying for the overhaul. You’re not paying for the new purchase of that article.” Whether a sale occurred is a material fact that precludes summary judgment. Accordingly, I concur with the result reached by the majority in finding that summary judgment was not appropriate.

      . East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). “In East River the United States Supreme Court held' that a plaintiff may not maintain a tort cause of action under admiralty law 'when a defective product, purchased in a commercial transaction malfunctions, injuring only the product itself and causing purely economic loss.’ Id. at 859, 106 S.Ct. 2295."

        Transco Syndicate No. 1, Ltd. v. Bollinger Shipyards, Inc., 1 F.Supp.2d 608, 610 (E.D. La. 1998).


source: Caselaw Access Project

author: Judge Edwin A. Lombard

license: Public Domain

text:
    Jo Schernbeck HODDINOTT v. Reginald Kenning HODDINOTT, III
    NO. 2016-CA-1059
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 19, 2017
    Kim Sport, 21 Muirfield Place, New Orleans, LA 70131, COUNSEL FOR PLAINTIFF/APPELLANT
    Marc D. Winsberg, Robin Penzato Arnold, Jonathan D. Gamble, WINSBERG & ARNOLD, LLC, 650 Poydras Street, Suite 2050, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Marion F. Edwards , Pro Tempore)

       Retired Judge Marion F. Edwards served as judge pro tempore on this matter through March 31, 2017, and thereafter, as judge ad hoc by order of the Louisiana Supreme Court dated March 28, 2017.

   Judge Edwin A. Lombard

h This appeal is from the district court judgment of July 25, 2016, granting the peremptory exception of res judicata filed by defendant/appellee, Regnald Kenning Hoddinott, III, and dismissing with prejudice the petition for damages filed by plaintiff/appellant, Jo Schernbeck Hoddi-nott. After review of the record in light of the applicable law and arguments of the parties, we vacate the district court judgment and remand for further proceedings.

Relevant Facts and Procedural History

On September 3, 2014, the parties entered into a consent judgment pertaining to claims of physical violence and domestic abuse. In a separate judgment on that same date, the parties were granted a divorce dissolving their twelve-year marriage. On August 7, 2015, the plaintiff filed the instant lawsuit against the defendant, alleging various tort claims. In response, the defendant filed exceptions of no cause of action and res judicata. After a hearing, the district court denied the exception of no cause of action but granted the exception of res judicata.

The plaintiff filed this timely appeal.

| Standard of Review

On appeal, we review an exception of res judicata to determine if the district court decision is legally correct. Porter v. Louisiana Citizens Property Insurance Corporation, 11-0101, p. 2 (La.App. 4 Cir. 8/31/11), 72 So.3d 946, 947 (citation omitted).

Applicable Law

The burden of proof is on the party urging the exception of res judicata to prove the essential elements by a preponderance of the evidence. Porter, 11-0101, p. 4, 72 So.3d at 948 (citation omitted). Thus, to determine the merits of an exception of res judicata, “the court must examine not only the pleadings of the case at hand but also the entire record in the first suit, to determine whether the availability of the particular form of relief sought in the second suit was actually ruled upon.” Sewell v. Argonaut Southwest Ins. Co., 362 So.2d 758, 760 (La. 1978); see also Union Planters Bank v. Commercial Capitol Holding Corp., 04-0871, p. 3-4 (La. App. 1 Cir. 3/24/05), 907 So.2d 129, 130 (the court cannot consider exhibits filed into record as attachment to memorandum in determining issues on appeal; there is no provision in the law for this court to take judicial notice of a suit record from another court). Brielle’s Florist & Gifts, Inc. v. Trans Tech, Inc., 11-260, p. 3 (La. App. 3 Cir. 10/5/11), 74 So.3d 833, 835 (failure to introduce entire record of first suit into record can prohibit the party pleading exception of res judicata from meeting its burden of proof). Moreover, it is axiomatic that “[ajppellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence.” Denoux v. Vessel Mgmt. Servs., Inc. 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88. Accordingly, evidence that has not been “properly and officially offered and introduced” in the ladistrict court cannot be considered by this court “even if it is physically placed in the record.” Denoux, supra.

Discussion

Counsel for the defendant concedes that the consent judgment was not introduced into the record, arguing only that, because the record contains copies of the judgment, this court should take judicial notice of it. This is contrary to the Louisiana Supreme Court’s specific instruction that “[d]ocu-ments attached to memoranda do not constitute evidence and cannot be considered as such on appeal.” Denoux, supra; see also Louisiana Business College v. Crump, 474 So.2d 1366, 1369 (La. App. 2 Cir. 1985) (“There is no provision in the law for this court to take judicial notice of the suit records from another court.”).

Conclusion

Because the defendant/appellee failed to introduce the record of the lawsuit and judgment underlying his claim of res judicata into evidence at the hearing, the district court judgment is vacated and the matter is remanded for an evidentiary hearing to determine the defendant’s exception of res judicata based on a complete record.

VACATED AND REMANDED.


author: Judge Daniel L. Dysart

text:
    Christi R. GUSTE v. Bernard GUSTE, Jr.
    NO. 2016-CA-0872
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 19, 2017

      Richard G. Perque, 700 Camp Street, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    Pat M. Franz, Keith R. Credo, PAT M. FRANZ & ASSOCIATES, L.L.C., 4424 Chastant Street, Suite 101, Metairie, LA 70006, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Rosemary Ledet)
   Judge Daniel L. Dysart

hln this domestic matter, Christi R. Guste appeals the trial court’s rulings on child support and custody. Ms. Guste argues that the trial court committed several errors with regard to the award of child support, and with regard to an evidentiary issue at trial. For the reasons that follow, we affirm the the trial court’s decision.

BACKGROUND:

Appellant, Ms. Guste and Bernard Guste, Jr., appellee, were married on June 5, 2010. They resided in Orleans Parish, and at the time of trial, had two children, ages four and two.

Ms. Guste filed a Petition for Divorce as well as other matters, including child support and custody, on July 29, 2014. After a failed mediation attempt, the trial court ordered a custody evaluation. The parties thereafter entered into a Consent Judgment dated March 5, 2015, wherein Mr. Guste was ordered to pay $600 per month child support for the children, with an additional $500 per month for the children’s tuition.

I ¡/Trial on the divorce and other matters commenced on June 23, 2015, and was heard over four days concluding on August 26, 2015. A final judgment, along with reasons, was rendered on September 23, 2015. The trial court awarded joint, shared custody of the children, with equal physical custody. Mr. Guste was ordered to pay $533.70 per month as child support.

DISCUSSION:

Ms. Guste makes several assignments of error questioning the trial court’s child support award. Specifically, she argues that the trial court erred in permitting Mr. Guste to depreciate assets in calculating Mr. Guste’s gross income, in not making the child support award retroactive, and in failing to order reimbursement of school tuition. She also argues that the trial court erred in not admitting certain medical records maintained by Dr. Luscher, who conducted the custody evaluation.

We first address the assignments of error concerning the support award. The Louisiana legislature had established guidelines for the implementation of child support. La. R.S. 9:315, et seq. The guidelines are designed to fairly apportion between the parents the mutual obligation they owe to their children in an efficient, consistent and adequate manner. Bickham v. Bickham, 46,264, p. 8 (La.App. 2 Cir. 3/2/11), 58 So.3d 950, 956. Child support is to be granted in proportion to the needs of the children and the ability of the parents to provide support. La. Civ. Code Art. 141; Bickham, 46, 264, p. 8, 58 So.3d at 956-57. An appellate court is not to disturb a trial court’s factual findings absent an abuse of discretion or manifest error. Rosell v. ESCO, 549 So.2d 840 (La. 1989).

sIn her first assignment of error, Ms. Guste argues that the trial court erred in permitting Mr. Guste to depreciate certain assets, thereby reducing his gross income for purposes of determining child support. Mr. Guste owns several rental properties in Orleans Parish. On his 2014 IRS 1040 form, he claimed a depreciation expense of those properties of $18,734.00 and total expenses of $86,422.00.

Ms. Guste argues that by allowing the depreciation, the trial court is allowing Mr. Guste “artificially” reduce his gross income. She agrees that the Internal Revenue Service provides for a depreciation deduction; however, she argues that in this case, the depreciation should not have been permitted, as it allows him to maintain a higher income not accounted for in the child support obligation calculation.

Louisiana Revised Statute 9:315 C(3)(c) expressly provides that ‘“[o]rdi-nary and necessary expenses’ shall not include amounts allowed by the Internal Revenue Service for the accelerated component of depreciation expenses ... for determining gross income for purposes of calculating child support.” It is the burden of the parent claiming the depreciation to prove that earnings are calculated without the use of accelerated depreciation. See Riggs v. LaJaunie, 98-304, pp. 4-5 (La. App. 3 Cir. 10/7/98), 720 So.2d 114, 117.

In Dejoie v. Guidry, this Court determined that straight-line, non-accelerated depreciation may be considered as an ordinary and necessary expense. 10-1542, p. 12 (La.App. 4 Cir. 7/13/11), 71 So.3d 1111, 1119; also see Thomey v. Thomey, 33,000, p. 3 (La.App. 2 Cir. 4/7/00), 756 So.2d 698, 701. Mr. Guste testified that the depreciation was a straight-line depreciation as opposed to an accelerated depreciation. After reviewing his tax returns, the trial court accepted his testimony as truthful. Accordingly, in line with Dejoie, we do not find that the trial court abused its discretion in allowing Mr. Guste to claim the straight-line depreciation of the property.

Ms. Guste also argues that the trial court inaccurately calculated Mr. Guste’s income from his job with Gulf Coast Bank. Mr. Guste testified that his income is based on commission, not salary, and that the commission is contingent upon the residential loan market, which fluctuates by season and year. The trial court accepted his testimony and considered it in the calculation of his gross income. The trial court explained that it considered the two pay periods covered within the two check stubs for 2015 produced by Mr. Guste to arrive at his monthly gross income. Specifically, the court multiplied his gross pay for the two week period in August by two and added the amount of income derived from a side-business in which Mr. Guste was involved, to arrive at his monthly gross income. The trial court also was provided with Mr. Guste’s 2014 W-2 forms that indicated his total gross income for that year.

We cannot say that the trial court’s method of calculating Mr. Guste’s gross income was legal error. Although this Court might have calculated his income differently, as suggested by Ms. Guste, we cannot say that the trial court wasj^ manifestly erroneous in its calculations. See Dejoie, 10-1542, p. 12 (La.App. 4 Cir. 7/13/11), 71 So.3d 1111, 1119.

The next assignment of error raised by Ms. Guste is that the trial court erred in failing to make the child support award retroactive to the date of filing. She cites La. R.S. 9:310, which provides:

Retroactivity of spousal support order
A. An order for spousal support shall be retroactive to the filing date of the petition for spousal support granted in the order.
B. Any support of any kind provided by the judgment debtor from the date the petition for support is filed to the date the support order is issued, to or on behalf of the person for whom support is ordered, shall be credited to the judgment debtor against the amount of the judgment.
C. In the event the court finds good cause for not making the award retroac-five, the court may fix the date such award shall become due.

Although this statute’s title clearly addresses the retroactivity of spousal support, Subsection B refers to “[a]ny support of any kind provided by the judgment debtor.” Further, following the 1993 amendment to La. R.S. 9:310, the retroac-tivity of child support was re-designated as La. R.S. 9:315.21, which provides in part:

A. Except for good cause shown, a judgment awarding,' modifying, or revoking an interim child support allowance shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
B. (1) A judgment that initially awards or denies final child support is effective as of the • date the judgment is signed and terminates an interim child support allowance as of that date.

The statute also provides that only if there is no interim support award order in place should a final support order be made retroactive to the date of judicial] ñ demand. La. R.S. 9:315.21 B(2). In this case, the trial court provides in fits reasons for judgment that a consent judgment entered into by the parties on March 5, 2015, provided that Mr. Guste was to pay Ms. Guste interim support of $600 per month, plus an additional $500 per month for the children’s school tuition, subject to any credits or debits established upon determination of a final child support obligation amount. Additionally, a written stipulation was entered into by the parties on April 23, 2015, by which it was agreed that Ms. Guste was to receive the entire 2013 and 2014 state and federal tax refunds. Considering the record before us, wé cannot say that the trial court abused its discretion in not making the child support award of September 23, 2016, retroactive to the date of judicial demand.

The final assignment of error regarding support raised by Ms. Guste is that the trial court erred in determining the amount of private school tuition paid by her and in not ordering appropriate reimbursement by Mr. Guste.

The record indicates that the parties stipulated in open court that they agreed to pay and had already paid tuition for the 2015-16 school year for Holy Name of Jesus School and Stuart Hall faculty daycare. Further, the testimony of Ms. Guste reveals that when the parties initially separated Mr. Guste agreed that she could withdraw $11,800 from a joint account for her use. Ms. Guste testified that she had also paid from the joint account three months of tuition ($2,400) to Ursuline, where their daughter was enrolled at the time of their separation. As noted previously, Mr. Guste was also ordered in the interim support award order to pay $500 per month toward school tuition.

Louisiana Revised Statute 9:315.8 provides that extraordinary expenses should be included in the child support calculations; however, La.R.S. 9:315.6 provides:

|7By agreement of the parties or order of the court, the following expenses incurred on behalf of the child, may be added to the basic child support obligation:
(1) Expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child, (emphasis added.)

The trial court also noted in its reasons for deciding the custody arrangements that the parties demonstrated the ability to come together to make major educational decisions regarding the children, and had already agreed on schools for the children for the 2015-16 school year. The parties also testified that they were capable of discussing the future educational needs of the children.

A trial judge’s decision to add private school tuition expenses to the basic child support obligation will not be disturbed absent an abuse of discretion. A.S. v. D.S., 14-1098, p. 19 (La.App. 4 Cir. 4/8/15), 165 So.3d 247, 258, (citing Williams v. Williams, 04-1624, p. 2 (La. App. 4 Cir. 3/16/05), 899 So.2d 628, 630). Based on the record, testimony and the trial court’s reasons for judgment, we find no abuse of discretion by the trial court in not specifically including private school tuition as part of the basic child support obligation.

Ms. Guste also argues that the trial court erred in not admitting certain medical records maintained by the custody evaluator, Dr. Luscher. She argues that La. R.S. 13:3714 A provides that certified records maintained by a health care provider shall be received into evidence as prima facie proof of its content. Dr. Luscher testified at trial and was subject to cross-examination by Mr. Guste.

The trial court ruled that the records were inadmissible, and Ms. Guste objected. However, Ms. Guste did not proffer the records. Therefore, this Court cannot review the records in question to determine whether the trial court erred in not admitting them into evidence. Sher v. Lafayette Ins. Co., 07-2441, p. 19 ( La. 4/8/08), 988 So.2d 186, 202; Galloway v. Lolley, 44,501, pp. 2-3 (La.App. 2 Cir. 8/19/09, 17 So.3d 479, 481. We thus decline to address this assignment of error.

Accordingly, for the reasons set forth above, we affirm the judgment of the trial court.

AFFIRMED


author:
Judge Edwin A. Lombard
      BROUSSARD, J.

text:
    Salvador RANDAZZO v. ST. BERNARD PARISH GOVERNMENT and Global Risk Solutions
    NO. 2016-CA-1116
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 19, 2017
    Rehearing Denied May 16, 2017

      Salvador J. Randazzo/IN PROPER PERSON, SALVADOR J. RANDAZZO, PLC, ATTORNEY AT LAW, 4890 Highway 22, Suite A, Mandeville, LA 70471, P. Michael Breeden, THE BREEDEN LAW FIRM, L.L.C., 830 Union Street, Suite 300, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLANT
    William M. McGoey, ST. BERNARD PARISH DISTRICT ATTORNEY’S OFFICE, 2010 Pakenham Drive, Chalmette, LA 70043, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Terrell Broussard, Pro Tempore)
   Judge Edwin A. Lombard

11 This appeal is from the April 23, 2015, trial court judgment denying the second petition for injunctive relief filed against the St. Bernard Parish Government and Road Home Corporation d/b/a Louisiana Land Trust by the plaintiffiappellant, Salvador Randazzo. After review of the judgment in light of the record, the applicable law, and the arguments of the parties, we affirm the trial court judgment.

Relevant Facts and Procedural History

Mr. Randazzo is the executor of his parents’ successions which include ownership of the home at 2020 Livaccari Drive in St. Bernard Parish. The Randazzo home, like 90% of St. Bernard Parish, suffered severe damage from Hurricane Katrina. Mr. Ran-dazzo does not reside in St. Bernard Parish.

On November 18, 2014, the trial court granted an injunction preventing the sale of 2024 Livacarri Drive for a sixty-day period during which Mr. Randazzo was afforded the opportunity to correct code violations on the property and file an |2application for purchase of the property next door pursuant to the “Lot Next Door” program. The “Lot Next Door” program (LND) was designed by the Road Home Program d/b/a as Louisiana Land Trust to aid neighborhood recovery after Katrina wherein homeowners who had returned and rebuilt their property were given the right of first refusal to purchase neighboring uninhabited properties at substantially discounted prices. The LND required that the property used as a basis to purchase the adjoining property be without existing code violations. Mr. Randazzo did not appeal the judgment of November 18, 2014, and that judgment is not at issue in this appeal.

On March 3, 2015, Mr. Randazzo filed a petition against St. Bernard Parish and the Road Home Corporation d/b/a Louisiana Land Trust characterized as a rule to show cause why St. Barnard Parish should not be enjoined from (1) selling the property at 2024 Livacarri; (2) requiring him to obtain permits to perform work on codal violations; and (3) taking any action pertaining to the pool or pool cover at 2020 Livacarri. The focus of Mr. Randazzo’s complaint appears to be codal violations cited by St. Bernard pursuant to an inspection of the property at 2020 Livacarri that occurred shortly after the judgment of November 18, 2014.

On March 18, 2015, the trial court held a hearing on Mr. Randazzo’s petition. Mr. Randazzo testified that he understood the sixty day deadline placed on him by the judgment of November 18, 2014; that he received a letter on November 24, 2014, advising him of code violations on the property; and that, although he sent emails to various employees in the St. Bernard Parish government ^objecting to the cited problems, he took no actions to remediate the purported codal violations.

On April 23, 2015, the trial judge denied Mr. Randazzo’s petition for preliminary injunction against St. Bernard Parish, finding that Mr. Randazzo • failed to comply with the judgment of November 18, 2014, within the stipulated sixty-day period and, therefore, St. Bernard Parish was free to transfer the lot to the next qualifying applicant. In his reasons for judgment, the trial judge observed that after the November 18, 2014, judgment, Mr. Randazzo was cited for additional code violations and, although given the right to remedy those violations within the stipulated period, failed to correct the problems. With regard to Mr. Randazzo’s allegation that he had been singled out and treated more harshly than other applicants, the trial judge found that Mr. Randazzo presented no credible evidence to establish discrimination for purposes of injunctive relief. He also noted that Mr. Randazzo did not dispute the existence of the codal violations, only questioning the motives of St. Bernard Parish in citing him for the violations. Thus, because Mr. Randazzo failed to comply with the LND requirements (including the requirement that a property be without code violation to qualify as the basis for transfer of a lot) within the time period stipulated in the judgment of November 18, 2014, the trial judge found that Mr. Randazzo was not entitled to further injunctive relief. The trial judge observed that Mr. Randaz-zo maintained the right to pursue monetary damages for discriminatory actions by St. Barnard Parish if proved at trial, but meanwhile he was required to maintain the property (like every 'other landowner in I ¿St. Bernard Parish) according to the code on a continuing basis regardless of the periphery impact of the failure to do so upon land acquisition opportunities.

On May 7, 2015, Mr. Randazzo filed a notice of intention to apply for supervisory writ. Because Mr. Randazzo was seeking relief from an appealable judgment, this court remanded the matter to the trial court and ordered that the trial court treat the timely filed notice of intent as a timely filed notice of appeal. Randazzo v. St Ber nard Parish Government, 15-1067 (La. App. 4 Cir. 10/7/15) (citing La. Code Civ. Proc. art. 3612).

Applicable Law

Because a preliminary injunction is an interlocutory procedural device designed to preserve the existing status quo pending a trial of the issues on the merits of the case, the court only considers whether (1) the moving party has met its burden of proving that it will suffer irreparable injury, loss, or damage if an injunction is not issued; (2) the moving party is entitled to the relief sought as a matter of law; and (3) the moving party will likely prevail on the merits. Women’s Health Clinic v. State, 01-2645, p. 2 (11/9/01), 804 So.2d 625, 626 (citation omitted). Notably, “irreparable injury” means the petitioner cannot be adequately compensated in money damages for his injury. HCNO Services, Inc. v. Secure Computing Systems, Inc., 96-1753, 96-1693, p. 13 (La.App. 4 Cir. 4/23/97), 693 So.2d 835, 843. Moreover, in addition to irreparable injury, the petitioner must show that he is entitled to the relief sought and must make a prima facie showing that he will prevail on the merits of the case. General Motors Acceptance Corporation v. Daniels, 377 So.2d 346 (La. 1979).

| Standard, of Review

The standard of review for a preliminary injunction is whether the trial court abused its discretion in ruling. Historic Restoration, Inc. v. RSUI Indemnity Co., 06-1178, p. 11 (La.App. 4 Cir. 3/21/07), 955 So.2d 200, 208.

Discussion

Mr. Randazzo asserts five' assignments of error with related issues for review.

Assignment of Error 1

In his first assignment • of error, Mr. Randazzo argues that “[t]he trial court abused its discretion in allowing SBPG [St. Bernard Parish Government] to conduct numerous inspections of 2020 Livaccari Drive, when the custom and practice of SBPG was not to inspect the majority of other LND applicants’ properties, as testified to by SBPG employees, Cliff Zeairs and' Clay Dillon.” According to Mr. Ran-dazzo, this presents the issue of “[w]hether the rights of 2020 Livacarri, as qualifying property to purchase LND, 2024 Livacarri were violated by SBPG’s numerous post application inspections of 2020 Livaccari, when SBPG emplyees testified that SBPG did not typically inspect a Lot Next Door (LND) qualifying property.”

The custom and practice of the St. Bernard Parish government with regard to property code violations was not an issue before the trial court in determining whether Mr. Randazzo was entitled to a preliminary injunction. Concomitantly, the district court does not oversee the conduct of St. Bernard Parish employees in the course of their employment. Therefore, it was not within the district court authority to allow or disallow the inspection of Mr. Randazzo’s property. Inherent in the judgment of November 18, 2014, is that the property would be subject to the |fiLND requirements and, inherent in the requirement that a subject property be without code, violations, is the implication that the property will be inspected. Mr. Randazzo does not dispute that the LND required the property upon which an application is based to be without existing code violations, nor does he challenge the constitutionality of that LND requirement or St. Bernard’s property code.

To the extent that Mr. Randazzo asserts that the “rights of 2020 Livaccari” were violated,” property is not accorded human legal rights in the United States. Moreover, even accepting arguendo the existence .of such a property right, it is unclear how the “rights of 2020 Livaceari” could be affected by the purported failure of-parish employees to inspect other properties.

Mr. Randazzo does not dispute that he was provided a sixty-day period in which to successfully file an application for the LND or that the LND program required that any property serving as a basis for a land transfer be in compliance with all parish property code provisions which, in turn, required inspection by a designated employee of St. Bernard Parish. To the extent that Mr. Randazzo argues that parish officials did not adhere to LND requirements with regard to other LND applications and transfers, that issue was not before the trial court at the hearing for injunctive relief and is not before this court on appeal. This assignment of error is without merit.

Assignment of Error 2

In his second assignment of error, Mr. Randazzo asserts that the “[t] trial court abused its discretion in failing to enjoin SBPG and stop its continual and concerted effort to give the politically connected Poches preferential treatment where 2024 Livacarri Drive, an LLT property, was concerned, over the qualify property, 2020 by SBPG’s illegal, obvious and continuous course of conduct to 17cite 202Ó as having violations of SBPG eode provisions to bar and disqualify 2020 from acquiring 2024 Livacarri Drive, the lot next door to it, and in failing to enjoining SBPG from revoking Randazzo’s application and forwarding the expired mislabeled application of rear lot owners and politically connected Poches to the LLT for the sale of 2024 Livacarri to them.” According to Mr. Randazzo, this assignment of error presents the issue of “[wjhether there was a continuous, concerted and illegal effort to issue notice of code violations against 2020 Livaceari to disqualify it from the LND, as evidenced by the revocation of Randazzo’s LND application and SBPG’s transmission of the politically connected Poche’s expired rear lot application, mislabeled a ‘Lot New Door Application,’ to the LLT to sell 2024 Livacarri to the politically connected Poch-es.”

To the extent Mr. Randazzo claims that St. Barnard Parish discriminated against him in the application process, his right to a trial on the merits of this claim was reserved in the judgment of April 23, 2015. For purposes of a preliminary injunction, however, the district court did not abuse its discretion in “failing to enjoin” an “effort” by St. Bernard Parish to give another applicant “preferential” treatment. The judgment of November 18, 2014, gave Mr. Randazzo a sixty-day period to bring his property into compliance with the parish code and to file an LND application. Mr. Randazzo did not appeal that judgment or contest in any other manner the conditions placed upon him by the judgment, ie,, the sixty-day time period and compliance or successful LND application, nor did he challenge the LND requirement that the property at 2020 Livacarri be without code violations to qualify for the program.

. St. Bernard Parish was ordered to transfer the property to Mr. Randazzo if the property was in compliance with the terms of the program within the stipulated | stime period. To expedite the process, St. Bernard Parish inspected the property and advised Mr. Randazzo by letter dated November 24,. 2014, of the existing code violations that needed to be corrected prior to a successful application and transfer of the property. Mr. Randazzo does not dispute that these violations were not corrected within the sixty-day time period. Rather, he argues that to successfully apply for the LND under the terms of the judgment, he only needed to correct code violations cited prior to the judgment of November 18, 2014. Notably, Mr. Randazzo made no effort to correct the violations cited after November 18, 2014, nor did he seek a clarification of the judgment of November 18, 2014, or an extension of time in which to comply with parish code requirements. Rather, he waited until two months after the expiration of the sixty-day period to file a petition to enjoin St. Bernard Parish from further action.

Mr. Randazzo may be able to prove at trial that the St. Barnard Parish government conspired to discriminate against him by citing the property for code violation and, thereby, manipulated the LND requirements to favor “the politically connected Poches.” Based on our review of the record, however, Mr. Randazzo did not meet the burden of proving for purposes of a preliminary hearing that he is entitled to relief as a matter of law or that he is likely to prevail on the merits.

This assignment of error is without merit.

Assignment of Error 3

In his third assignment of error, Mr. Randazzo asserts that “[t]he trial court abused its discretion in denying [Mr.] Ran-dazzo injunctive relief concerning the alleged codal violations in SBPG’s letters dated November 24, 2014, which contradicted SBPG’s stipulation in open court at the first healing and SBPG’s failure to afford Appellant a BAA [Bureau of Administrative Adjustments] | ^Administrative hearing.” According to Mr. Randazzo, this presents for review the issue of “[w]hether the qualifying properties rights were violated by SBPG’s illegal issuance of the code violations dated November 24, 2014, and also violating the SBPG’s stipulation made in open court at the first hearing, as to the condition of the house at 2020 Liva-carri.”

To the extent that Mr. Randazzo seeks to argue that the letter dated November 24, 2014, “contradicted SBPG’s stipulation in open court” and, thus, is contrary to the judgment of November 18, 2014, that matter is not before us. Mr. Randazzo did not appeal or seek clarification of the judgment of November 18, 2014. It is undisputed that to qualify for the LND, it was necessary for the property at 2020 Livac-cari to be without property code violations. Inherent in the requirement that a property be without code violations is that the property is inspected for existing violations. Pursuant to the letter of November 24, 2014, Mr. Randazzo received timely notice of the code violations that needed to be corrected prior to the transfer of the property within the sixty-day period as mandated by judgment of November 18, 2014. There is nothing in the record to indicate that Mr. Randazzo sought administrative review of the code violation citations or that he sought to appeal the code violation citations. The issue of whether St. Bernard Parish is required to “afford” an administrative hearing with regard to a citation for a parish property code violation was not an issue before the trial court on the petition for a preliminary injunction and, thus, is not an issue properly before us on appeal from a denial of a preliminary injunction.

This assignment of error is without merit.

11(⅜Assignment of Error 4

In his fourth assignment of error, Mr. Randazzo asserts that “[t]he trial court erred in denying Appellant injunctive relief and abused its discretion in failing to find that injunctive relief was based upon a factual situation reprobated by law under Louisiana Jurisprudence which has long held that it is not necessary to allege or prove irreparable injury in a petition of writ of injunction when injunctive relief is sought on the grounds that the party to be enjoined in pursuing a course of action reprobated by law and in disregarding the uncontradicted testimony of Appellant, that allowing 2024 Livaccari to become the rear yard of a house in the Yalmar Subdivision would do irreparable harm and damage to the qualifying property, 2020 Liva-carri, for which a monetary award could not compensate.” According to Mr. Ran-dazzo, this presents the issue of “[w]hether Appellant was required to demonstrate ‘irreparable harm and damage’ caused by the illegal actions by SBPG’s, which were rep-robated by law, including the illegal notice of code violations and illegal attempt to transfer 2024 Livacarri to Valmar Subdivision property owners, the politically connected Poches, contrary to the original SBPG’s Lot Next Door Program.”

Contrary to Mr. Randazzo’s assertion, it is well settled that a party seeking injunc-tive relief must show that he is entitled to the relief sought, that he will prevail on the merits of the case, and that he will suffer irreparable harm if injunctive relief is not granted. See General Motors Acceptance Corporation, supra. Mr. Randazzo made no showing that he cannot be adequately compensated in money damages for his injury should he prevail at trial on the merits. See HCNO Services, Inc., supra. The actions and motives of the St. Bernard Parish Ingovernment are not at issue in this appeal. Moreover, Mr. Ran-dazzo’s repeated accusations and aspersions in his appellate brief are ill-conceived.

This assignment of error is without merit.

Assignment of Error S

In his fifth assignment of error, Mr. Randazzo asserts that “[t]he trial court abused its discretion in failing to hold that the November 24, 2014 notices of violation were intermingled with the trial court’s November 18, 2014 judgment, which SBPG relied upon to exceed the scope of the judgment, that there was no prior legal notice of violation of codal provisions as to the in-ground pool to Appellant, and in exceeding the rules and regulations of the lot next door program by imposing a sixty day deadline upon Appellant had there been proper legal notice, and in failing to enjoin SBPG’s misinterpretation of his November 18, 2014 judgment.” According to Mr. Randazzo, the issue presented in this assignment of error is “[wjhether the Petition for Injunctive Relief filed by Appellant and heard by Judge Robert Buckley in March 2015 properly sought relief from the trial court’s earlier impositions of a 60 day deadline for remediation not required under the Lot Next Door Program and whether the August 2014 judgment was authority for SBPG to re-inspect 2020 Li-vacarri.”

Mr. Randazzo did not timely appeal the November 18, 2014, judgment. This assignment of error is without merit.

Conclusion

At the hearing on his petition for a preliminary injunction, Mr. Randazzo failed to meet his burden of proving that he will suffer irreparable injury, loss, or damage if an injunction is not issued, that he is entitled to the relief sought as a matter of law, and that he will likely prevail on the merits. Therefore, the trial I i ¿judge did not abuse his discretion in denying injunctive relief. The judgment is affirmed.

AFFIRMED.

LEDET, J., CONCURS

BROUSSARD, J., CONCURS WITH REASONS

LEDET, J., CONCURS

hi concur in the result.

BROUSSARD, J.

CONCURS WITH REASONS

hi agree with the majority opinion-in so far as it affirms the trial court judgment denying the second petition for injunctive relief filed against the St. Bernard Parish Government and Road Home Corporation d/b/a/ Louisiana Land Trust. However, I write separately to address the issue of whether St. Bernard Parish Government and Road Home Corporation are entitled to discretionary immunity from liability under the facts of this case. In Louisiana, the legislature adopted La. R.S. 9:2798.1, which exempts public entities from liability for their employees’ discretionary or policy-making acts, and states as follows:

A. As used in this Section, “public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instru-mentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.
B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related lato the legitimate governmental objective for which the policymaking or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.
D.The legislature finds and states that the purpose of this Section is not to reestablish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the Constitution of Louisiana.

This statute does not protect against legal fault or negligent conduct at the operational level, but only confers immunity for policy decisions; i.e. decisions based on social, economic, or" political concerns. Fowler v. Roberts, 556 So.2d 1 (La.1989) (on rehearing); Socorro v. Orleans Levee Board, 561 So.2d 739 (La. App. 4th Cir.) writ granted, 568 So.2d 1068 (La.1990). In Fowler, the Louisiana Supreme Court adopted the two step test set forth in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), to determine whether the discretionary function exception to governmental liability applies. First, the exception does not apply when a statute, regulation, or policy specifically prescribes a course of action, i.e. where there is no element of choice, or discretion, involved. Second, the exception only confers immunity where the discretionary action involves the permissible exercise of a policy judgment grounded in social, economic, or public policy. Fowler, 556 So.2d at 15, citing Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958. Thus, discretionary immunity will not apply when a specific course of action is prescribed as the employee has no rightful option but to adhere to the directive. Id. On the other hand, when discretion is involved, the court must then determine whether that discretion is the kind shielded by the exception: one grounded in social, economic, or political activity. Fowler v. Roberts, 556 So.2d 1 (La. 1989); Kniepp v. City of Shreveport, 609 So.2d 1163 (La. App. 2 Cir. 1992), writ den. 613 So.2d 976 (La. 1993); Rick v. State Dep’t of Transp., 93-1776, 93-1784 (La.1/14/94); 630 So.2d 1271. If it is, then the doctrine applies and the employee or agency is insulated from liability; if it is not, the employee or agency is liable for any negligence. Simeon v. Doe, 618 So.2d 848 (La.1993).

Applying the law concerning discretionary function immunity to the facts of the case sub judice, I find that Mr. Randazzo failed to allege any acts or omissions by St. Bernard Parish Government and Road Home not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists. Mr. Randazzo did not dispute the existence of the codal violations; rather he only questioned the motives of St. Bernard Parish in citing him for the violations. This allegation concerns the actions or omissions by St. Bernard Parish arising within the course and scope of its lawful powers and duties. Mr. Randazzo has not alleged any actions by St. Bernard Parish that occurred outside its duties connected with its official function. Furthermore, Mr. Randazzo did not allege any acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless or flagrant misconduct.

As mentioned in the majority opinion, a preliminary injunction is an interlocutory procedural device designed to preserve the existing status pending a trial of the issues on the merits of the case, the court is only obligated to determine whether: (1) the Appellant has met its burden of proving that it will suffer irreparable injury, loss, or damage if an injunction is not issued; (2) the Appellant is entitled to the relief sought as a matter of law; and (3) the moving party will likely prevail on the merits.” Mr. Randazzo’s injunction sub judice, seeks to abate the legitimate governmental objectives for which the policy-making or discretionary ^powers are bestowed upon a Political Subdivision of the State of Louisiana. The absence of specific allegations regarding any conduct that would bar a defense of discretionary immunity is fatal to Mr. Randazzo’s cause of action. That is, Mr. Randazzo is not likely to prevail on the merits, is not likely to prove irreparable injury and can prove no damage suffered or that he is entitled to any remedy. Thus, because the exercise of legitimate government function is the basis of this suit, I would dismiss this matter in its entirety pursuant to La. R.S. 9:2798.1.

      . Prior to filing for injunctive relief, Mr. Ran-dazzo filed an action against St. Bernard Parish pertaining to a dispute over code violations which resulted in an agreement concerning a cover for the in-ground pool on the property. In his reasons for judgment for the November 18, 2014, judgment, the trial judge noted that the pool cover issue was initially resolved but by the time Mr. Randazzo filed the application to acquire the adjoining property, other violations related to the pool existed. Therefore, injunctive relief was granted for a sixty-day period to provide an opportunity to Mr. Randazzo to correct the existing code violations and comply with the "Lot Next Door” program requirements. The block grant program underlying the "Lot Next Door" program ended on February 1, 2013, but Mr. Randazzo’s right to purchase under the program was protected for an additional sixty days by the judgment of November 18, 2014, with the caveat that his right to purchase could not be continued indefinitely under the program.

      . Women's Health Clinic v. State, 01-2645, p. 2 (11/9/01), 804 So.2d 625, 626 (citation omitted) as cited in main opinion.