author: LOMBARD, Judge. MURRAY, J.,

text:
    Adrian P. CHALONA, Sr., Husband of/ and Angelique M. Chalona, Albert Demma, Melanie J. Gervais, Emile L. Breaux, Jr., Elvis K. Hyde, Victoria Leonard, Leslie Marin, Wife Of/And Freishmann Marin, David P. Quinn, Husband of/and Sheila D. Quinn v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 2008-CA-0257.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 11, 2008.

      Gregory P. DiLeo, Jennifer B. Eagan, New Orleans, LA, Jeffrey Berniard, Bern-iard Law Firm, New Orleans, LA, Madro Bandaries, Madro Bandaries, P.L.C., New Orleans, LA, for Plaintiffs/Appellees.
    John W. Waters, Jr., Gregory J. McDonald, Bienvenu, Foster, Ryan & O’Ban-non, LLC, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   LOMBARD, Judge.

|! Defendant, Louisiana LCPIC Property Insurance Corporation (“LCPIC”), also referred to as Louisiana LCPIC Fair Plan, appeals from a judgment of the district court granting Plaintiffs’ Motion for Class Certification. For the following reasons, we affirm the decision of the trial court.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, whose property was insured by LCPIC on August 29, 2005, when Hurricane Katrina hit the Gulf Coast and/or on September 24, 2005, when Hurricane Rita struck south Louisiana, filed suit against LCPIC alleging that they notified LCPIC of them losses but LCPIC failed to make a written offer to settle them property damage claims within thirty days, in violation of its statutory duty under LSA-R.S. 22:658(A)(4) Plaintiffs are seeking statutory penalties against LCPIC pursuant to LSA-R.S. 22:658(B)(1).

| .¿Plaintiffs filed a motion to certify this action as a class action, pursuant to Louisiana Code of Civil Procedure Article 592. A hearing on the class certification issue was begun on June 17, 2007 and continued to August 16, 2007. The matter was submitted for decision after receipt of all post-trial memoranda on November 12, 2007. On January 25, 2008, the trial court rendered a judgment granting Plaintiffs’ motion for class certification. In its written reasons for judgment the trial court opined that the class definition sought by Plaintiffs contained elements that were overly broad and subjective, and thus, narrowed the class definition sought by Plaintiffs by defining the class as follows:

All present or past insureds of Louisiana LCPIC Property Insurance Corporation a/k/a LOUISIANA LCPIC FAIR PLAN, hereinafter referred to as “LCPIC”, who, on or after August 29, 2005, provided notification of loss resulting from Hurricane Katrina and/or Rita to LCPIC, notwithstanding whether loss adjustment was initiated within thirty (30) days after notification of loss, whose claims were not followed by a written offer to settle within thirty (30) days after receipt of satisfactory proof of loss.

In its judgment, the trial court further ordered and decreed that Adrian P. Chalo-na, Sr., Angelique Chalona, Albert Dem-ma, Melanie Gervais, Emile Breaux, Jr., Elvis K. Hyde, Victoria Leonard, David P. Quinn and Sheila D. Quinn shall serve as the class representatives of the class as defined. LCPIC appeals the trial court’s judgment certifying this matter as a class action.

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, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4), respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2), 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, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings.

LAW AND DISCUSSION

| ¡¡The main issue to be decided in this appeal is whether the district court abused its discretion in certifying this case as a class action. The purpose and intent of the class action is to “adjudicate and obtain res judicata effect on all common issues applicable not only to the class representatives who bring the action, but to all others who are similarly situated.” Chiarella v. Sprint Spectrum LP, 04-1433, p. 16 (La.App. 4 Cir. 11/17/05), 921 So.2d 106, 118, citing Ford v. Murphy Oil U.S.A., Inc., 96-2913, p. 4 (La.9/9/97), 703 So.2d 542, 544. In Louisiana, the class action certification procedure is governed by Louisiana Code of Civil Procedure articles 591-597. The prerequisites for maintaining a class action are found in article 591. Those requirements have generally been summarized as: numerosity, commonality, typicality, the adequacy of the representative parties to protect the interest of the class, an objectively definable class, the predominance of common issues, and the superiority of the class action procedure.

[4In order to obtain class certification, the plaintiffs must meet all of the requirements of article 591(A) and also satisfy at least one of the subsections of article 591(B). Oubre v. Louisiana LCPIC Fair Plan (La.App. 5 Cir. 5/29/07), 961 So.2d 504, 508, writ denied, 07-1329 (La.9/28/07), 964 So.2d 363, citing, Daniels v. Witco Corp., 03-1478 (La.App. 5 Cir. 6/1/04), 877 So.2d 1011, 1014, wnt denied, 04-2287 (La.11/19/04), 888 So.2d 205. The burden of establishing that the statutory criteria are met falls on the party seeking to maintain the action as a class action. Oubre, 961 So.2d 504, 508.

The standard of review for class action certifications is bifurcated. The factual findings are reviewed under the manifest error/clearly wrong standard, but the trial court’s judgment on whether or not to certify the class is reviewed by the | flabuse of discretion standard. Etter v. Hibernia Corporation, 06-646 (La.App. 4 Cir. 2/14/07), 952 So.2d 782. A trial court has wide discretion in deciding whether or not to certify a class. Chiarella v. Sprint Spectrum LP, 04-1433, p. 16 (La.App. 4 Cir. 11/17/05), 921 So.2d 106, 118. Any error to be made in deciding class action issues should be in favor of and not against maintenance of the class action, because a class certification order is subject to modification if later developments during the course of trial so require. McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612, 620 (La.1984).

When reviewing the trial court’s ruling regarding class certification, we do not consider whether plaintiffs’ claims state a cause of action or have substantive merit, or whether plaintiffs will ultimately prevail on the merits. Munsey v. Cox Communication of New Orleans, Inc., 01-0548, p. 5 (La.App. 4 Cir. 3/20/02), 814 So.2d 633, 636. Rather, our task is to examine Plaintiffs’ legal claims and to determine only whether a class action is the appropriate procedural device in light of established Louisiana criteria. Id.

In the instant case, the trial judge found that Plaintiffs’ claims meet all of the criteria set forth in Louisiana Code of Civil Procedure article 591(A), namely numerosity, commonality, typicality, adequacy of representation, and an objectively definable class. The trial judge also found that the elements of predominance and superiority set forth in Louisiana Code of Civil Procedure article 591(B)(3) have been satisfied.

On appeal, LCPIC contends that the trial judge abused his discretion and was manifestly erroneous in certifying this case as a class action, and it asserts six specifications of error in support of its position. LCPIC specifically argues that the trial court erred in:

1. finding that the class certification requirement of commonality (common | r,questions of law and fact predominate over individual issues for purposes of class certification) has been met under La. C.C.P. art. 591(B)(3).
2. failing to identify specific issues that could be tried class-wide and in failing to consider the many individual issues not subject to common evidence.
3. adopting a class definition that is vague, indeterminate, and overly broad with regard to who will be in the class.
4. relying on La. C.C.P. 591(B)(1) as a ground for class certification;
5. finding that the class certification requirement of numerosity had been met, where the number of class members is highly speculative; and
6. finding that the class certification requirement of superiority has been met, and where judicial economy is not served by class certification.

Despite LCPIC’s numerous specifications of error, in reviewing the verified petition, the briefs and the testimony at the certification hearing, we find that there was sufficient evidence for the trial court to certify this class.

Numerosity

The first requirement for certifying a class is numerosity. To satisfy this requirement, Plaintiffs must establish that the members of the class are so numerous that joinder of those members would be impracticable. No set number of putative plaintiffs has been established in order to fulfill the numerosity requirement for a class action. Davis v. Jazz Casino Co., LLC, 03-0005, p. 7 (La.App. 4 Cir. 1/14/04), 864 So.2d 880, 887. The determination of numerosity is based in part upon the number of putative class members, but is also based upon considerations of judicial economy in avoiding a multiplicity of lawsuits, financial resources of class members, and the size of the individual claims. Id., at 888.

|7At the certification hearing in the instant case, deposition testimony taken on December 1, 2005 of Terry Lisotta, Chief Executive Officer of LCPIC, was introduced. This testimony indicated that at the time of the deposition, there were 59,-000 property damage claims filed with LCPIC and, of those, 20% had been concluded. The trial court held that this left a large number of potential claimants and that “the projected number of claimants along with the unfortunate financial position caused by these catastrophic events for most individuals combined with the time and money which could be saved satisfies the numerosity requirement.” We find no manifest error in this finding. Therefore, this specification of error has no merit.

Commonality

A showing of commonality of questions of law and fact among the class is the second prerequisite in certifying the class. The test for commonality requires only that there be at least one issue the resolution of which will affect all or a significant number of putative class members. Watters v. Dept. of Social Serv., 05-0324, p. 15 (La.App. 4 Cir. 4/19/06), 929 So.2d 267, 278, citing, Duhe v. Texaco, Inc., 99-2002 (La.App. 3 Cir. 2/7/01), 779 So.2d 1070, 1078, writ denied, 01-637 (La.4/27/01), 791 So.2d 637. Here, the common question of law and/or fact is the alleged failure of LCPIC to provide the Plaintiffs with written offers of settlement within the thirty day time period required by Louisiana Revised Statute 22:658. The court found that all the policies issued by LCPIC in this case were risk policies, and all losses resulted from the same event, Hurricane Katrina and/or Rita. The district court further found that resolution of these issues would be most | Seasily accomplished using the class action procedural device because the common issues predominate over issue affecting individual class members and to separate these actions would be unduly burdensome to the court. Considering the testimony and evidence regarding these common issues, we cannot say that the trial court erred in finding that the commonality requirement had been met and that common questions of law predominate over individual issues for purposes of class certification. Therefore, this specification of error also has no merit.

Typicality

The third prerequisite in certifying the class is typicality, meaning that representative plaintiffs’ claims are typical of the claims of the class. Here, the trial court found that all members of the class are seeking damages for injuries that occurred as a result of one same event pursuant to the same legal theory in the form of statutory penalties set forth in LSA-R.S. 22:658, and that the claims and defenses among the potential members would be duplicated, and discovery redundant, if these actions were handled on an individual basis. We find no error in the trial court’s finding on this issue.

Adequacy of Representation

The existence of representative parties who will adequately and fairly protect the interests of all those in the class is the fourth prerequisite for certifying a class. This element requires that the proposed class representatives prove that their claims are a cross-section of, or typical of, the claims of all class members. Johnson v. Orleans Parish School Bd., 00-0825 (La.App. 4 Cir. 6/27/01), 790 So.2d 734.

Here, in support of them argument for class certification, Plaintiffs introduced the affidavit of Ms. Sheila D. Quinn, who alleges that she was ^aggrieved by LCPIC’s actions in handling her claim after Hurricane Katrina. The trial court found her to be a well-informed, motivated individual who is eager to assist the attorneys in adequately representing the interests of all potential class members. We find no manifest error in this finding.

Class Definition

The final prerequisite under article 591(A) is that the class be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case. The parties seeking certification must be able to establish a definable group of aggrieved persons based on objective criteria derived from the operative facts of the case. Chiarella, supra, 04-1433 at p. 18. The purpose of the class definition requirement is to ensure that the class is not amorphous, indeterminate, or vague, so that any potential class members can readily determine if he/she is a member of the class. Clement v. Occidental Chemical Corp., 97-246 (La. App. 5 Cir. 9/17/97), 699 So.2d 1110, 1113. So.2d at 1113.

As previously stated, the trial court found that the Plaintiffs’ proposed class definition was too broad and subjective and that identification of class members would be very difficult to determine using the proposed definition, which included, in addition to those whose claims were not followed by a written settlement within thirty days of receipt of satisfactory proofs of loss, those whose loss adjustment was not initiated within 30 days, and those whose claims were insufficiently paid. The trial court therefore limited the class to those whose claims were not followed by a written offer to settle within thirty (30) days after receipt of satisfactory proof of loss.

| mLCPIC asserts that the trial court erred in adopting this class definition, which LCPIC argues is vague, indeterminate, and overly broad with regard to who will be in the class. It argues that the class definition in this case is not “precise, objective and presently ascertainable,” so the putative class members will not be able to determine if they are class members.

At the appeal hearing, LCPIC argued that the definition’s inclusion of the term “satisfactory proofs of loss” was problematic since it is not a defined term, which would make it difficult for potential class members to understand whether they meet the criteria for the proposed class and even more difficult for LCPIC, who would be required to go through tens of thousands of files to determine if the proofs of loss provided by each particular plaintiff were “satisfactory.” We find no merit in this argument. The term “satisfactory proofs of loss” merely tracks the language of LSA-R.S. 22:658, the statute under which Plaintiffs have brought their claims. Individuals who allege that they provided LCPIC notice of a property damage claim resulting from Hurricanes Katrina and Rita who did not receive written offer of a settlement within thirty days are potential members of the defined class. At trial, each class member will still have to prove, individually, that they are entitled to recovery under the statute and that LCPIC is liable to them for damages. Moreover, LCPIC can easily verify their existence in the class by a review of their own business records to ascertain when the claims were made, whether “satisfactory proofs of loss” were provided, and whether written offers to settle were made within that given time frame.

Whether each individual class member has a valid claim against LCPIC will be hashed out at trial. A certification hearing does not determine liability. Davis, 844 So.2d at 253. It is not the correct venue to decide the merits of the case or | udefenses the defendants may allege. Those matters are to be resolved at the trial on the merits. We find that the proposed class is sufficiently defined in order to give potential class members enough information to decide whether they are included within the class and to enable potential class members to decide whether to opt out of the class.

On a side note, we do believe that the phrase “notwithstanding whether loss adjustment was initiated within thirty (30) days after notification of loss” is superfluous and should, perhaps, be eliminated from the class definition because the question of when loss adjustment was initiated is not relevant to this case, or to the statute under which the claims have been brought. However, further narrowing of the definition by the trial court would overcome this issue. Because of a trial court’s authority to redefine the class before a decision on the merits, appellate courts often allow certification despite a finding that the class definition is inadequate for one reason or another. Duke, 779 So.2d 1070, 1080. If an error is to be made, it should be in favor of, and not against the maintenance of, the class action because the class is always subject to modification should later developments during the course of the trial so require, Davis v. Jazz Casino Co., LLC, 03-0005, pp. 14-15 (La.App. 4 Cir. 1/14/04), 864 So.2d 880, 891, citing, Davis v. American Home Products Corp., 02-0942 (La.App. 4 Cir. 3/26/03), 844 So.2d 242.

Based on the foregoing, we find the Plaintiffs have fulfilled the statutory requirements of Louisiana Code of Civil Procedure article 591(A). We must now turn to the question of whether at least one of requirements of article 591(B) has been met. Here, the district court found that Plaintiffs satisfied 591(B)(3), which requires the court to find that questions of law or fact common to members of the 11¿class predominate over any questions affecting only individual members, and that class action is superior to other available methods of adjudicating this controversy. On appeal, LCPIC argues that the trial judge erred in finding that the class certification requirement of superiority has been met Plaintiffs failed to provide any evidence that a class action is a superior procedural device for handling Plaintiffs’ 22:658(A)(4) claims. LCPIC further argues that certifying the class will do nothing to improve judicial efficiency, because each plaintiff will still have to prove his individual claims. We find this argument unpersuasive.

We find that in this case, the requirement of superiority has been met, pursuant to Louisiana Code of Civil Procedure article 591(B)(3). The district court stated that the class action procedure is superior because the prosecution of separate actions would risk inconsistent adjudications and could be dispositive of the interests of members of the class who are not parties to this suit, thereby substantially impairing the ability for them to pursue just adjudication. We agree.

When a common character of rights exists, a class action is superior to other available adjudicatory methods in effectuating substantive law, and promoting judicial efficiency and individual fairness. Davis v. Jazz Casino Co., LLC, supra, 03-0005, p. 11. If the superiority of a class action is disputed, the trial court must inquire into the aspects of the case and decide whether some other procedural device would better serve these goals. Id.

Here, each plaintiffs claim involves whether or not LCPIC failed to timely make a written offer of settlement pursuant to 22:658(A)(4). Trying all the potential plaintiffs’ claims separately risks could result in non-uniformity in the application of this law and in consideration of LCPIC’s anticipated defenses. |1sUniformity in this case can best be obtained by employing the class action procedure. Further, the class action procedure is a superior method under these circumstances to ensure individual fairness and to promote judicial efficiency. The trial court found that the superiority element set forth in Louisiana Code of Civil Procedure article 591(B)(3) has been met in this case. Considering the record before us, we cannot say that the trial judge erred in finding that a class action is the superior procedural device in this controversy. Moreover, in light of the testimony and evidence, and our belief that the common issues in this matter predominate over individual issues, we find no merit in LCPIC’s argument that judicial economy is not served by class certification.

The Doctrine of Lis Pendens

In its final argument on appeal, LCPIC asserts that the district court erred in overruling its exception of lis pendens. LCPIC argues that this case should be dismissed, under the doctrine of lis pendens, since it overlaps with the case entitled “Geraldine Oubre, et al. v. Louisiana Citizens Fair Plan,” which was filed on November 18, 2005, in the 24th JDC in Jefferson Parish. We disagree.

Louisiana Code of Civil Procedure Article 531 provides:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any | uof the suits, but the first final judgment rendered shall be conclusive of all.

The doctrine of lis pendens prevents a plaintiff from litigating a second suit when the suits involve the same transaction or occurrence between the same parties in the same capacities. Do mingue v. ABC Corp., 96-1224, 96-1233, 96-1234, 96-1236, 96-1245 (La.App. 4 Cir. 6/26/96); 682 So.2d 246, unit denied, 96-1947 (La.11/1/96); 681 So.2d 1268. “The test for deciding whether an exception of Us pendens should be granted is to inquire whether a final judgment in the first suit would be res judicata in the subsequently-filed suit.” Id., p. 3, at 248 (citation omitted).

Here, although both suits involve LCPIC’s actions in adjusting its insured’s claims in the aftermath of Hurricanes Katrina and Rita, the identity of the parties is not necessarily the same. In the instant case, the class includes only those who are seeking recovery for LCPIC’s failure to submit a timely written offer of settlement, while the Oubre class includes those who are seeking damages and penalties for LCPIC’s failure to timely initiate loss adjustment. While it is possible that some individuals could be included as members of both the Oubre class and the instant class, the relief sought in the two cases is not the same. Thus, a judgment in the Oubre lawsuit would not have the effect of res judicata in the instant suit. Although the defined classes in the instant case and the Oubre case may overlap, we do not find that the court was manifestly erroneous in denying LCPIC’s lis pendens exception.

In conclusion, we find no manifest error in the trial court’s factual findings and no abuse of discretion in the trial judge’s determination that this case meets all of the requirements of Louisiana Code of Civil Procedure Article 591 for | ^certification of this matter as a class action. Of course, the trial court always has the authority to re-visit or modify its decision regarding class certification if later developments during the course of trial so require. See Johnson v. E.I. Dupont deNemours and Co., 721 So.2d at 44.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment, granting Plaintiffs’ motion for class certification, defining the class, and naming Adrian P. Chalona, Sr., Angelique Chalona, Albert Demma, Melanie Gervais, Emile Breaux, Jr., Elvis K. Hyde, Victoria Leonard, David P. Quinn and Sheila D. Quinn, as class representatives. Costs of this appeal are to be assessed to LCPIC.

AFFIRMED.

MURRAY, J., dissents with reasons.

KIRBY, J., dissents for the reasons assigned by Judge MURRAY.

MURRAY, J.,

dissents with reasons.

liThe definition of the class as written does not allow anyone to determine if he or she is a class member. For this reason, I respectfully dissent.

      . LSA-R.S. 22:658(A)(4) provides in pertinent part:
      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.

      . LSA-R.S. 22:658(B)(1) provides:

      . Article 591 in its entirety provides:
      A. One or more of the members of a class may sue or be sued as representative parties on behalf of all, only if:
      (1) The class is so numerous that joinder of all members is impracticable;
      (2) There are questions of law or fact common to the class;
      (3) The claims or defenses of the representative parties are typical of the claims or defenses of the class;
      (4) The representative parties will fairly and adequately protect the interests of the class; and
      (5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.
      B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
      (1) The prosecution of separate actions by or against individual members of the class would create a risk of:
      (a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
      (b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
      (2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
      (3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
      (a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
      (b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
      (c) The desirability or undesirability of concentrating the litigation in the particular forum;
      (d) The difficulties likely to be encountered in the management of a class action;
      (e) The practical ability of individual class members to pursue their claims without class certification;
      (0 The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
      (4) The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.
      (C) Certification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class. However, following certification, the court shall retain jurisdiction over claims or defenses dependent for their resolution on proof individual to a member of the class. La.Code Civ. Proc. art. 591.

      . LCPIC argues that the trial court erred in relying on La.Code Civ. Proc. art. 591(B)(1) in certifying the class. As discussed above, we have already found that Plaintiffs have satisfied the superiority requirement of subsection 591(b)(3). Since the law requires that Plaintiffs satisfy at least one of the requirements of article 591(B), whether the district court erred in relying on Article 591(B)(1) is moot. Because we find that under La.Code Civ. Proc. art. 591(B)(3), the case at bar may validly be maintained as a class action.

      . LCPIC further argues that the instant case should be dismissed since it mimics the claims brought in two previously filed actions, Orill, et al. v. AIG, Inc., et al., No. 635-122, Division E, in the 24th Judicial District Court for the Parish of Jefferson, and Buxton, et al. v. Louisiana Citizens Property Insurance Corporation., No. 2006-8341 Division B, Section 15, in the Civil District Court for the Parish of Orleans. However, the proposed class in Orill has not yet been certified by the trial court, and thus, there is no class definition for the Court’s comparison. Further, in Buxton, the trial court found that the proposed class definition was too broad, and denied class certification. The Buxton plaintiffs subsequently settled their claims against LCPIC.


source: Caselaw Access Project

author: WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    Jonathan BRAVO, Luis Alcala and Jose Gallardo v. Benny James BORDEN, Louisiana Service Corporation, Severn Trent Environmental Services, Inc. and St. Paul Travelers Insurance Company.
    No. 08-CA-323.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 25, 2008.

      Ivan A. Orihuela, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Brian C. Bossier, Christopher T. Grace, III, Erin H. Boyd, Attorneys at Law, Me-tairie, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and MADELINE JASMINE, Pro Tempore.
   WALTER J. ROTHSCHILD, Judge.

| ¡.Plaintiffs, Jonathan Bravo, Luis Alcala, and Jose Gallardo, appeal a summary judgment granted in favor of defendants, Benny Borden, Severn Trent Services, Inc. (“Severn”), and Travelers Property Casualty of America (“Travelers”), dismissing all of plaintiffs’ claims in this litigation. They also appeal the denial of their Motion for New Trial. For the following reasons, we reverse the summary judgment granted to Benny Borden. In all other respects, we affirm.

FACTS AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident that occurred on October 28, 2003. Jonathan Bravo was driving a Chevrolet 6000 on Lake Hermitage Road heading east, with Jose Gallardo and Luis Alcala as guest passengers, and Benny Borden was driving a Ford F-650 going west when the two vehicles collided. On |sOctober 28, 2004, plaintiffs filed suit against defendants claiming that they suffered injuries as a result of the accident and alleging that defendants are liable for their damages because: 1) Benny Borden was solely at fault for the accident, 2) Mr. Borden was in the course and scope of his employment with Severn at the time of the accident and Severn was negligent in hiring and supervising Mr. Borden, and 3) Travelers was Severn’s liability insurer at the time of the accident. Defendants answered the suit and denied plaintiffs’ allegations.

On May 22, 2007, Severn and Travelers filed a Motion for Summary Judgment, arguing that all of plaintiffs’ claims against them should be dismissed because the facts are undisputed that the accident was not caused by any fault of Benny Borden and thus, Severn and Travelers cannot be liable for any damages incurred by plaintiffs. The Motion for Summary Judgment was set for hearing on July 2, 2007. Although personal service was effectuated on plaintiffs through their counsel of record on June 1, 2007, no one appeared on plaintiffs’ behalf at the hearing. During the hearing, counsel for Benny Borden stated that Mr. Borden was joining in the Motion for Summary Judgment filed by the other-defendants. Thereafter, the trial judge granted the Motion for Summary Judgment. On July 17, 2007, the trial judge signed a judgment granting the Motion for Summary Judgment and dismissing all of plaintiffs’ claims.

On July 13, 2007, plaintiffs filed a Motion for New Trial, arguing that they were never properly served with the Motion for Summary Judgment and that defendants failed to prove that there are no genuine issues of material fact in this case. The trial judge denied the Motion for New Trial without a hearing, noting |4that the record showed that personal service was made on June 1, 2007. Plaintiffs now appeal.

LAW AND DISCUSSION

In their first assignment of error, plaintiffs assert that the trial court erred in granting the Motion for Summary Judgment filed by Severn and Travelers, because plaintiffs were improperly served at an incorrect address with the motion and notice of the hearing date. They contend that all of the pleadings that had been filed by the plaintiffs listed the address for plaintiffs’ counsel as 4902 Canal St., Suite 201, or 650 Poydras St., Suite 2517, so service of the Motion for Summary Judgment at 1900 West Esplanade Ave., Suite 203, was improper.

Severn and Travelers respond that counsel for plaintiffs was personally served with the Motion for Summary Judgment and notice of the hearing, and that the actual address at which service was made is irrelevant. They further contend that the 1900 West Esplanade Ave., Suit 203, address was in fact an office of plaintiffs’ counsel.

Pleadings may be served by the sheriff on an adverse party through personal service on the party’s counsel of record. LSA-C.C.P. arts. 1314 and 1235. Personal Service is made when a proper officer tenders the citation or other process to the person to be served. LSA-C.C.P. art. 1232. Personal service may be made anywhere the officer making the service may lawfully go to reach the person to be served. LSA-C.C.P. art. 1233.

Under the provisions of LSA-C.C.P. art. 1292, a sheriffs return of service of process shall be considered prima facie correct. While the recitation on the return of service is presumed to be correct, the presumption is rebuttable. Fleming v. Town of Jean Lafitte, 06-877 (La.App. 5 Cir. 3/27/07), 953 So.2d 1053, 1055, mit denied, 07-0977 (La.6/22/07), 959 So.2d 509. The party attacking service must|sprove that, more probably than not, proper service was not made. Hall v. Folger Coffee Co., 03-1734, p. 7 (La.4/14/04), 874 So.2d 90, 97.

In the present case, plaintiffs do not claim either on appeal or in them Motion for New Trial that service was not made. Rather, they claim that the address where it was made was not the address used in their previous pleadings and thus, was not proper. In their brief on appeal, plaintiffs state:

Yet, defendants, Severn Trent Services, Inc. and Travelers Property Casualty of America, served plaintiffs with their motion for summary judgment and notice of the hearing date of its motion for summary judgment at the following incorrect address:
1900 West Esplanade Avenue, Suite 203
Kenner, LA 70065
(Emphasis added.)

The sheriffs return in the record shows that on June 1, 2007, plaintiffs’ counsel was personally served with the Motion for Summary Judgment and notice of the hearing date. Plaintiffs have presented nothing on appeal that would establish that service was improperly made. Thus, plaintiffs have not overcome the presumption that service was proper. Considering the evidence before us, along with the applicable law, we find no merit in plaintiffs’ argument that the Motion for Summary Judgment should not have been granted due to improper service.

Although plaintiffs do not address the merits of the Motion for Summary Judgment on appeal, we consider the merits because we review Motions for Summary Judgment de novo. Even in the absence of an opposition to the motion, the moving party must show that it is entitled to a summary judgment. Baker v. Ingram, 447 So.2d 101 (La.App. 4 Cir.1984).

A Motion for Summary Judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact and that mover is | ^entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). Once the Motion for Summary Judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Penicone v. East Jefferson General Hosp., 98-343 (La.App. 5 Cir. 10/14/98), 721 So.2d 48, 51; Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41. If the mover will not bear the burden of proof at trial, he only need point out to the court that there is an absence of factual support for one or more of the elements essential to the adverse party’s claim. Manning v. Sketchler, 99-1128 (La.App. 5 Cir. 3/22/00), 759 So.2d 869, 872.

Once the mover establishes that there is no factual support for an essential element of the adverse party’s claim, the burden shifts to the adverse party to produce factual support sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial. If he fails to do so, the mover is entitled to summary judgment. Id.

In support of their Motion for Summary Judgment, Severn and Travelers submitted deposition testimony from Jonathan Bravo and Jose Gallardo indicating that neither of these plaintiffs recalls how the accident happened. Mr. Bravo testified that, “I really don’t know what happened.” He stated that after he left the house, he remembers driving but he never saw the other truck and doesn’t know what hit him. He stated that he just remembers waking up after the accident and that the roof was cut off his truck. Jose Gallardo testified that prior to the accident, he was looking out of the window to his right. The first thing he heard was the collision and he looked to the front and saw the truck driven by Mr. Borden. When he first saw the truck, it was striking the front left part of Mr. Bravo’s truck. He then passed out.

17Pefendants also submitted the depositions of Sergeant Timothy Arceneaux and defendant, Benny Borden, in support of their Motion for Summary Judgment. Sergeant Arceneaux testified that, based on his investigation, he believes the accident was primarily caused by Mr. Bravo speeding and secondarily caused by visual obscurements due to the natural curve of the road and the trees. He did not believe that Mr. Borden was at fault. Based on the slide marks on the road, which is a gravel road with shells, he thinks that Mr. Bravo crossed the center of the roadway as he came out of the curve in the road, causing him to strike Mr. Borden’s truck. According to the police report, after the accident, Mr. Bravo and his passengers told the police that they did not know what happened. In Benny Borden’s deposition, he testified that as he was going around a curve in the road, Mr. Bravo’s truck came out of the curve sideways and struck his truck.

In their Motion for Summary Judgment and supporting exhibits, Severn and Travelers pointed out an absence of factual support for plaintiffs’ claims. Therefore, the burden shifted to plaintiffs and it was incumbent upon them to produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial. However, plaintiffs did not respond to the Motion for Summary Judgment or provide any factual support indicating that they could satisfy their burden of proof at trial. Accordingly, summary judgment in favor of Severn and Travelers was properly granted.

In their second assignment of error, plaintiffs argue that the trial court erred when it dismissed Benny Borden from this lawsuit, even though Mr. Borden did not file a Motion for Summary Judgment or any other pleadings seeking dismissal. We agree.

Severn and Travelers filed a Motion for Summary Judgment that was set for hearing on July 2, 2007. Mr. Borden did not file a Motion for Summary Judgment, |sbut at the hearing, counsel for Mr. Borden appeared and stated, “we would just join in that Motion for Summary Judgment.” Thereafter, the trial judge granted the Motion for Summary Judgment and, on July 17, 2007, the trial judge signed a judgment granting the motion and dismissing all of plaintiffs’ claims.

In Stell v. Louisiana Department of Public Safety, 499 So.2d 1211, 1212 (La. App. 5 Cir.1986), this Court held that the trial court does not have the discretion to grant a motion for summary judgment for a nonmoving party. This Court found that LSA-C.C.P. art. 966 obviously contemplates that only the moving party is to receive a summary judgment in its favor if it makes the required showing.

In Guillory v. Robideaux, 98-1314 (La. App. 3 Cir. 3/24/99), 733 So.2d 100,101, the Third Circuit, citing Smith v. Brooks, 96-1085, p, 5 (La.App. 3 Cir. 2/5/97), 689 So.2d 544, 547, noted that the Louisiana Code of Civil Procedure does not authorize a trial court to render a judgment on the merits in favor of a nonmoving party upon denial of the moving party’s motion for summary judgment. See also Abshire v. Hartford Accident and Indem. Ins. Co., 289 So.2d 545, 549 (La.App. 3 Cir.1974), writ denied, 293 So.2d 170 (La.1974), in which the Third Circuit found that a party who did not move for summary judgment could not be granted summary judgment.

In the present case, Mr. Borden did not file a Motion for Summary Judgment prior to the hearing. Although Mr. Borden moved for summary judgment at the hearing, plaintiffs were entitled to notice prior to the hearing that Mr. Borden was seeking summary judgment in his favor. Accordingly, we find that the trial court erred in allowing Mr. Borden to “join” in the other defendants’ Motion for Summary Judgment at the hearing, and we reverse the summary judgment insofar as it dismissed plaintiffs’ claims against Mr. Borden.

|flIn their third and final assignment of error, plaintiffs contend that the trial court erred when it denied plaintiffs’ Motion for New Trial without providing plaintiffs with a hearing on the motion. They claim that the trial court failed to afford plaintiffs with an opportunity to present appropriate evidence to controvert or overcome the presumption created by the completed sheriffs return of service.

A Motion for New Trial may be summarily denied in the absence of a clear showing in the motion of facts or law reasonably calculated to change the outcome or reasonably believed to have denied the applicant a fair trial. Lopez v. WaV-Mwrt Stores, Inc., 94-2059, (La.App. 4 Cir. 8/13/97), 700 So.2d 215, 220, writ denied, 97-2522 (La.12/19/97), 706 So.2d 457.

In their Motion for New Trial, plaintiffs asserted that they were not properly served with the Motion for Summary Judgment, but they did not explain why or how service was improper. In denying the request for a hearing on the Motion for New Trial, the trial judge noted that the record reflected personal service on June 1, 2007. In addition, although plaintiffs argued in their motion that defendants failed to establish that there were no genuine issues of material fact, they did not set forth any evidence to show that genuine issues of material fact existed or that they could meet their burden of proof at trial.

In their Motion for New Trial, plaintiffs failed to set forth any facts or law that would be reasonably calculated to change the outcome or reasonably believed to have denied plaintiffs a fair trial on the Motion for Summary Judgment. Accordingly, we find no error in the trial court’s denial of plaintiffs’ Motion for New Trial without conducting a hearing.

DECREE

For the foregoing reasons, we affirm the summary judgment granted in favor of Severn and Travelers, and we affirm the summary denial of plaintiffs’ Motion | infor New Trial. We reverse the summary judgment granted in favor of Benny Borden and remand the case for further proceedings.

AFFIRMED IN PART; REVERSED IN PART.

      . The makes and models of the vehicles were derived from the police report.

      . In addition to the defendants previously listed in this opinion, plaintiffs filed suit against Louisiana Service Corporation ("LSC”) alleging that LSC is liable for their damages because it was the owner of the truck driven by Mr. Borden at the time of the accident and LSC allowed the truck to be driven by an inexperienced driver. LSC is not a party to this appeal.

      .Mr. Borden also filed a separate lawsuit against Travelers, which was consolidated with plaintiffs’ lawsuit.


author: MOORE, J.

text:
    Ricky Dale MARTIN, Plaintiff-Appellee, v. Cynthia Anderson MARTIN, Defendant-Appellant.
    No. 44,020-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 3, 2008.
    Cynthia Anderson Martin Harrison, In Proper Person.
    Kelly Lorraine Long, for Appellee.

      Before BROWN, PEATROSS and MOORE, JJ.
   MOORE, J.

| [Cynthia M. Harrison appeals a judgment that allowed her former husband, Ricky D. Martin, to move from Shreveport to Fincastle, Virginia, taking the parties’ 11-year-old daughter KM. with him. For the reasons expressed, we affirm.

Procedural Background

The instant appeal is Cynthia’s seventh appearance before this court. Prior rulings awarded Ricky and Cynthia joint custody of KM., naming Ricky the domiciliary parent and granting Cynthia supervised, limited visitation. Because of allegations that Cynthia’s current husband, Jeffery Harrison, had abused K.M., in October 2003 the district court subjected Cynthia’s visitation to the condition that she and Jeffery undergo mental health examinations by Dr. Richard Williams. For over 2⅜ years, Cynthia failed to contact Dr. Williams, but she finally made an appointment in November 2006. Dr. Williams requested various documents which she never furnished. She set another appointment for July 24, 2008.

Coincidentally, the instant rule arose on July 24, 2008, when Cynthia filed a pro se pleading entitled “Expedited motion for non-relocation of minor child, expedited motion for visitation and custody.” She alleged that Ricky was planning to move from Shreveport to Virginia, 1,200 miles away, creating a hardship financially and emotionally, and Ricky could show neither the economic benefit of moving nor why he could not be financially | ¿independent in Shreveport. She also alleged that Ricky had failed to comply with various aspects of the joint custody plan, thus entitling her to custody and visitation. Finally, she asked for a status hearing on KM.’s health. The district court signed an order fixing Cynthia’s rule for August 4, 2008; apparently, she failed to appear for this, and the matter was refixed for August 12.

Meanwhile, Ricky filed a rule seeking the court’s approval to move with K.M. to Fincastle, Virginia, where he could earn a higher wage and be closer to his immediate family. He alleged that in accordance with the joint custody plan, he had notified Cynthia of his intended move by certified mail and she signed the receipt. Finally, he alleged that Cynthia was $461 behind in child support and had never met with Dr. Williams, for which he asked to hold her in contempt. The district court fixed this rule for August 25, but relocation was before the court at the August 11 hearing.

At the hearing, the court stated that the issue was Cynthia’s motion to deny the relocation; Cynthia did not object or request hearing on any other matters. As in most of the prior proceedings, Cynthia appeared pro se. She narrated that Ricky had denied her contact with K.M.: he changed his phone number and, apparently, his address, as birthday and other cards she mailed to his University Drive house were returned “forwarding order expired.” However, she admitted that she mailed two of these cards from France and Egypt, where she and Jeffery were vacationing, that she received Ricky’s certified letter, and that she and Jeffery now live in Tomball, Texas (near Houston). She stated that her parents’ health and Jeffery’s work schedule [¡¡prevented her from seeing Dr. Williams any sooner than five years after the court order. At first, she denied that the mental health examination was a prerequisite for resumed visitation, but eventually admitted that this was in fact the case. Finally, she tendered $200 toward the back child support.

The district court stated from the bench that it would not consider her request to modify custody or visitation until both Cynthia and Jeffery submitted to examinations by Dr. Williams.

Ricky testified that his brother owns a construction company in Fincastle, Virginia, 986 miles from Shreveport, and has promised him a job paying $35,000 a year. Although Ricky once made $42,000 a year in Shreveport selling swimming pools, that job ended and he had gone months unable to find work. If allowed to move, he would initially stay in his parents’ 4,000-sq. ft. house, and the public school that KM. would attend was “very clean.” He admitted not often forwarding information about K.M. to Cynthia, but maintained that the joint custody plan, as amended, required him to notify her only if K.M. was hospitalized, which never occurred. He felt that complying with Cynthia’s requests early in the proceedings had only incited her to file more rules, so he quit. He admitted that he had moved from University Drive to a house owned by his parents on Woodbriar Street, but he maintained he was allowed to change residence in Caddo Parish without court approval.

|4Pr. Williams testified that shortly after the court order, Ricky paid him $3,000 for the evaluations of himself, his current wife and K.M.; Cynthia waited over 2½ years to pay, failed to give him necessary documents, and did not see him again until July 24, 2008, the day she filed this rule. He testified that he really needed to see Jeffery, who had been charged with indecent exposure to K.M., but that Cynthia insisted that all charges had been dropped. Finally, he testified that K.M. was doing very well with Ricky; the child had voiced virtually no interest in staying with Cynthia. Dr. Williams considered it in KM.’s best interest to move to Virginia with Ricky.

The court ruled orally, granting Ricky permission to relocate to Virginia with K.M., conditioned on another examination by Dr. Williams. It deferred ruling on all other issues until Dr. Williams completed his assessments of Cynthia and Jeffery. It rendered judgment to this effect and Cynthia took the instant appeal.

Discussion

By pro se brief, Cynthia has listed 12 “Issues for review and errors of the court,” numbered 1M and 6-13 (omitting No. 5). Most of these may be dismissed summarily. The first five are as follows (verbatim):

(1) The transcripts are not accurate. The recorded proceedings need to be listened to and the transcripts need to be corrected.
(2) The court did not allow Cynthia Harrison to introduce all evidence in this case.
(3) Judge Waddell’s conduct in not allowing Cynthia Harrison to address the court.
(4) Judge Waddell’s conduct in not allowing Cynthia Harrison to Improperly question the witnesses.
(6) The court erred in allowing Dr. Richard Williams to testify on the evaluations.

These assignments lack merit for several reasons. They are purely conelu-sory, lacking even a scintilla of substantiation: Cynthia does not show what part or parts of the record she considers inaccurate, what documents or testimony were improperly excluded or admitted, or when she was denied the right to address the court. As framed, these errors present absolutely nothing for the court’s review. Moreover, the record does not show that Cynthia objected to any of the court’s rulings. Failure to object deprives the district court of the opportunity to correct a contested ruling and constitutes waiver of the issue on appeal. La. C.C.P. ait. 1635; Holmes v. Peoples State Bank, 35,072 (La. App. 2 Cir. 9/26/01), 796 So.2d 176, writ denied, 2001-3139 (La.2/1/02), 808 So.2d 342, cert. denied, 537 U.S. 897, 123 S.Ct. 197, 154 L.Ed.2d 167 (2002). Finally, our review of the record as a whole uncovers no rulings that could possibly be construed as a denial of Cynthia’s due process rights.

The final six alleged errors are simply not before the court:

(8) The court did not find Ricky Dale Martin in contempt for moving from the University Drive address without the court or Cynthia Harrison’s knowledge or permission.
(9) The previous appeals were filed because of numerous violations of the Civil Code of Procedure [sic ], District Court Rules and Supreme Court Rules.
(10) The court not finding Ricky Dale Martin in contempt for not | (¡providing information about Cynthia Harrison’s daughter.
(11) The court not finding Ricky Dale Martin in contempt keeping K.M. secretive [sic ] from her mother Cynthia Harrison.
(12) The court did not allowed [sic] Cynthia Harrison’s motion on visitation or custody.
(13) The court had allowed the suspension of Cynthia Harrison’s parental rights without a hearing or trial.

At the hearing on August 11, 2008, the court stated that the only issue was Cynthia’s motion to deny the relocation. Near the close of Cynthia’s narrative testimony, the court reiterated that it would not entertain her requests to modify custody or visitation until she and her husband submitted to examinations by Dr. Williams. This court has already admonished Cynthia:

Contrary to Cynthia’s assertion that her right of access to the court has been unlawfully denied by the trial court, we find, as set forth several times above, that appellant’s access to the courts is limited by her own willful and blatant disobedience of the trial court’s clear order that she submit to a mental health examination before any further activity, * * ⅜ hearings or proceedings of any kind, or the resumption of visitation with her daughter, will occur in this case. Considering the fact that the state has a compelling interest in protecting chil-
dren from sexual abuse, the trial court was certainly well within its discretion in ordering the mental health examinations before this matter is allowed to proceed any further.

Martin v. Martin, 39,631, at p. 14, 903 So.2d at 626-627.

Any issues other than Ricky’s proposed relocation to Virginia with K.M. were simply not before the court. If and when Cynthia and Jeffery comply with the court-ordered mental health examinations, the remaining issues may proceed to trial. At present, there is nothing to appeal.

By her seventh alleged error, Cynthia urges the court erred in fallowing relocation without completing all the hearings in the case. She contends that the court did not adequately consider the statutory factors for a contested relocation, La. R.S. 9:355.12. She also argues that Ricky’s explanation for the move to Virginia was inaccurate: his real purpose was to prevent her case from coming to trial and to evade an evaluation by her expert psychiatrist, Dr. Brown. In the alternative, she asks the court to retain continuing, exclusive jurisdiction of the case under La. R.S. 9:355.17.

Although R.S. 9:355.12 mandates that all the listed factors be considered, it does not require the court to give preferential consideration to any certain factor or factors. Curóle v. Curóle, 2002-1891 (La.10/15/02), 828 So.2d 1094. The district court is vested with great discretion in matters |Rof child custody and visitation; its determination is entitled to great weight and will not be disturbed absent a clear showing of abuse of that discretion. Id.; Payne v. Payne, 41,049 (La.App. 2 Cir. 5/19/06), 930 So.2d 1181, writ denied, 2006-1871 (La.8/9/06), 935 So.2d 130.

On review, we find no abuse of the district court’s discretion. The record shows that K.M. has spent several years with Ricky and his family while having virtually no contact with Cynthia. If Cynthia had devoted a small part of her energy to complying with the court’s orders instead of pursuing a tortured course of pointless litigation, the situation may have been different. Ricky’s reasons for relocating appear likely to enhance the quality of KM.’s life and to advance Ricky’s career. There is no record evidence to support Cynthia’s claim that Ricky is seeking to evade trial or mental evaluation; to the contrary, the record shows Ricky’s history of compliance with the joint custody plan. We perceive no abuse of the district court’s discretion. This assignment lacks merit.

Conclusion

For the reasons expressed, the judgment allowing the relocation is affirmed. All costs are to be paid by Cynthia Martin Harrison.

AFFIRMED.

      . Martin in Int. of K.M. v. Harrison, 37,891 (La.App. 2 Cir. 9/26/03), 855 So.2d 950; Martin v. Harrison, 37,958 (La.App. 2 Cir. 12/10/03), 862 So.2d 1081, writ not cons., 2004-0481 (La.3/12/04), 869 So.2d 807; Martin v. Martin, 38,341 (La.App. 2 Cir. 4/7/04), 870 So.2d 648 (table); Martin v. Martin, 38,-899 (La.App. 2 Cir. 6/17/04) (summary dismissal); Martin v. Martin, 39,319 (La.App. 2 Cir. 2/17/05), 895 So.2d 80 (table); Martin v. Martin, 39,631 (La.App. 2 Cir. 5/18/05), 903 So.2d 619, writ denied, 2005-1606 (La.6/22/05), 904 So.2d 714.

      . The joint custody plan actually provided, "All medical and other information regarding the children's health and welfare will be furnished to the other parent as either parent receives same.”

      . The joint custody plan provided, "Either parent may remove residence from the Parish of Caddo. The residence of the children shall not be removed at any time from Caddo Parish without an appropriate order of this court. Both such moves shall be governed by the provisions of LSA-R.S. 9:355.1 et seq.”'

      . The brief does not comply with URCA 2-12.4, ¶ 4, in that it includes no “suitable reference by volume and page to the place in the record which contains the basis for the alleged error.” In light of Cynthia's pro se status, however, this court accepted the brief and reviewed the entire record for evidence to support her arguments.

      . This statute provides in pertinent part:
      A. In reaching its decision regarding a proposed relocation, the court shall consider the following factors:
      (1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life.
      (2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
      (3) The feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
      (4) The child’s preference, taking into consideration the age and maturity of the child.
      (5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
      (6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
      (7) The reasons of each parent for seeking or opposing the relocation.
      (8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
      (9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
      (10) The feasibility of a relocation by the objecting parent.
      (11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
      (12) Any other factors affecting the best interest of the child.


author: PAINTER, Judge.

text:
    Donna Danete TYSON v. THOMPSON HOME HEALTH.
    No. 08-193.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2008.
    Rehearing Denied March 18, 2009.

      George A. Flounoy, Alexandria, LA, for Plaintiff-Appellant, Donna Danete Tyson.
    Ward F. Lafleur, Lisa M. Milazzo, K. Eric Lafleur, Lafayette, LA, for Defen-danb-Appellee, Thompson Home Health.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and CHRIS J. ROY, pro tern, Judges.
   PAINTER, Judge.

| plaintiff, Donna Danete Tyson, appeals the judgment of the trial court dismissing her action for payment of medical expenses under the workers’ compensation statute pursuant to a motion for summary judgment filed by Defendant, Thompson Home Health (Thompson). Finding that a question of material fact remains, we reverse and remand for further proceedings.

FACTS

Tyson was injured in an automobile accident on January 23, 2003, while in the course and scope of her employment as a licensed physical therapist for Thompson. She made a claim against Thompson for workers’ compensation benefits and payment of medical expenses. She received benefits for a time, but, on March 17, 2004, she filed a disputed claim for compensation asking for medical benefits, penalties, and attorney’s fees. She agreed to a settlement with Thompson, and, on September 2, 2005, the settlement was approved by the Workers’ Compensation Judge (WCJ). The settlement agreement included the following language:

APPEARER declares that for and in consideration of the aforesaid payment, she does hereby release and forever discharge THOMPSON HOME HEALTH and LOUISIANA HEALTH CARE SELF INSURANCE FUND ... from any and all past, present and future claims, demands, compensation, medical expenses (in addition to any and all outstanding medical bills and/or charges for medical treatment which employer has already authorized and agreed to pay as a result of Employee’s work related accident and injury), costs, expenses, penalties, attorney’s fees....

However, on January 16, 2007, Tyson again filed a disputed claim for compensation alleging failure to pay medical bills under the settlement agreement and asking for payment of the bills as well as penalties and attorney’s fees. Thompson filed a motion for summary judgment asserting that no issue of fact remained but that |2all Tyson’s claims arising out of the January 23, 2003 accident were terminated by the settlement agreement. The trial court dismissed the claim finding no remaining issue of material fact. Tyson appeals.

DISCUSSION

Summary Judgment

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Henderson v. Kingpin Development Co., 01-2115, p. 4 (La.App. 1 Cir. 8/6/03), 859 So.2d 122, 126. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of fact. Jarrell v. Carter, 632 So.2d 321, 323 (La.App. 1 Cir.1993). Summary judgment is only appropriate if the admissible pleadings, depositions, answers to interrogatories, and admissions on file, together with any 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.Code Civ. P. art. 966(B).

LaCrouts v. Succession of Longo, 04-1938, pp. 3-4 (La.App. 1 Cir. 9/23/05), 923 So.2d 717, 719.

Interpreting La.Code Civ.P. art. 966(C)(2), a panel of this court stated:

Under the amended statute, the initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, under Art. 966(C), once the mover had made a pri-ma facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.

Hayes v. Autin, 96-287, p. 6 (La.App. 3 Cir. 12/26/96); 685 So.2d 691, 694, writ denied, 97-0281 (La.3/14/97); 690 So.2d 41. Thus, we must determine: (1) whether the defendant has met its initial burden by showing that no genuine issue of material fact exists and that the defendant is entitled to a judgment as a matter of law; and, if so, (2) whether the claimant failed to produce evidence of a material factual dispute. \. Johnson v. Sunbelt Builders, Inc., 02-0959, p. 3 (La.App. 3 Cir. 2/5/03), 838 So.2d 907, 910.

Settlement

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing. La. C.C. art. 3071; Dumas v. Angus Chemical Co., 31,969, p. 5 (La.App. 2 Cir. 8/20/99), 742 So.2d 655, 660. A release executed in exchange for consideration is a compromise. Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741. A compromise regulates only the differences that appear clearly to be comprehended therein by the intention of the parties, “whether it be explained in a general or particular- manner,” and does not extend to differences that the parties never intended to include. La. C.C. art. 3073; Oriego v. State, Dept. of Transp. and Development, 96-1322 (La.2/25/97), 689 So.2d 1358. Further, a general release will not necessarily bar recovery for those aspects of the claim not intended to be covered by the release. Dimitri v. Dimitri, 2000-2641, p. 5 (La.App. 4 Cir. 1/30/02), 809 So.2d 481, 485, citing Moak v. American Automobile Insurance Company, 242 La. 160, 134 So.2d 911 (1961).
The parties’ intent in executing a compromise is normally discerned from the four corners of the document; extrinsic evidence is normally inadmissible to explain, expand or contradict the terms of the instrument. Brown, supra. Nevertheless, when the parties to a compromise dispute its scope, they are permitted to raise factual issues regarding whether the unequivocal language of the instrument was intended to be truly unequivocal. Id. However, such latitude is granted only in the presence of some “substantiating evidence” of mistaken intent. Dimitri, supra. In Brown, the Supreme Court held that “substantiating evidence” must establish either: 1) that the releasor was mistaken as to what he or she was signing, even though fraud was not present; or 2) that the releasor did not fully understand the nature of the rights being released or that the releasor did not intend to release certain aspects of his or her claim.
In the absence of such evidence, the compromise is subject to the normal rules of contract analysis and enforced precisely as written. Brown, supra.

_|_ 4 Carrie v. La. Farm Bureau Cas. Ins. Co., 04-1001, pp 3-4 (La.App. 4 Cir. 2/16/05), 900 So.2d 841, 844, writ denied, 05-711 (La.5/6/05), 901 So.2d 1099.

Plaintiff asserts that she did not intend to release certain rights, specifically the payment of certain medical bills incurred in the treatment of her work related injury. Plaintiff points to correspondence with Defendant which supports her argument that Defendant was to “remain responsible for any and all work related medical expenses incurred, but still unpaid, if any through the date of [the] settlement.” Since the parties dispute the scope of the settlement document, this evidence may be accepted as substantiating evidence. Given this evidence, we find that Plaintiff has shown that a question of material fact remains unresolved. Accordingly, summary judgment was not appropriate given the record in this case. CONCLUSION

For these reasons, the judgment rendered by the trial court is reversed. This matter is remanded for further proceedings. Costs of this appeal are assessed to Defendant.

REVERSED AND REMANDED.

      . Defendant cites Nelams v. Allen’s TV Cable, 95-444 (La.App. 3 Cir. 11/2/95); 664 So.2d 563 as support for its argument that the settlement document should not be set aside or modified except in the case of fraud or misrepresentation. We note that the language of the settlement document in Nelams was significantly different from the one currently before the court and distinguish the case on that basis.


author: MADELINE JASMINE, Judge Pro Tempore.

text:
    Harold HENSARLING v. DYKE INDUSTRIES, INC.
    No. 08-CA-527.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 16, 2008.

      William E. Mura, Jr., Warren A. For-stall, Jr., Christopher H. Sherwood, Robert J. Landry, New Orleans, LA, for Plaintiff/Appellant.
    Paul Michael Elvir, Jr., Law Offices of Robert E. Birtel, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and MADELINE JASMINE.
   MADELINE JASMINE, Judge Pro Tempore.

|2In this slip and fall case, plaintiff/appellant, Harold Hensarling, appeals a trial court judgment, following a bench trial, finding no liability on the part of defendant, Dyke Industries, Inc. (Dyke).

On appeal, Hensarling argues that the trial court was manifestly erroneous in its finding that the exterior stairs at Dyke did not present an unreasonable risk of harm and did not contain a defect that was a proximate cause of appellant’s injuries and damages. He asks this Court to reverse the trial court’s judgment, find liability on behalf of Dyke, and award plaintiff damages.

The record testimony and evidence show that plaintiff fell on exterior stairs as he was leaving Dyke Industries, where he had gone with his grandson to purchase building materials for a carpentry job. Plaintiff was 73 at the time of the accident on August 21, 2006, which occurred at approximately 9:00 a.m. Plaintiff |3had a history of osteogenesis imperfecta, which was described as a bone disease that made his bones susceptible to fractures.

The stairway in question consisted of a left and right stairway with a landing at the top that paralleled the building’s entrance, rather than protruded from it. The photographs in evidence, as well as the various testimonies, showed that the stairs, which were approximately 67" wide, contained no handrail on either side. The stairs, on either side, ended in a concrete landing that measured the same width as the stairs and approximately 41" long with an approximately six inch drop or step to the parking lot.

At trial, plaintiff, Hensarling, testified that on the day of his slip and fall, he was accompanying Kyle Wilson to Dyke to purchase some building materials. Their truck was parked in the parking lot in close proximity to the stairs. He testified that he had been to Dyke several times before, and had gone up and down the stairs with no problem and without falling. That morning, he had gone inside to get the receipt for the materials, ascending the stairs with no problem. He came down the stairs, with his left hand on top of the concrete wall that separated the stairs from the parking lot. He testified that he fell as he stepped off the landing, or what was also described by plaintiffs expert as an “elongated step,” into the parking lot. He said that he fell because he thought he was in the parking lot, not on the landing. Plaintiff testified that the landing was not uneven, nor was there any liquid on it, and that lighting was not a problem. Plaintiff denied breaking his leg first and falling as a result; he stated that he broke his leg as a result of taking the mis-step from the landing to the parking lot.

1¿Plaintiff testified that he had suffered a previous fracture in this leg, his right, approximately twenty years previously. He admitted to several other bone fractures, but denied having “twenty or more.” Plaintiffs medical records showed that he had been prescribed the pain medicine Vi-codin on several occasions in the past for pain associated with arthritis and osteoporosis. Plaintiff was also confused when shown that his medical records indicated several past compression fractures of his vertebrae.

Mr. Hensarling testified that pi'ior to this slip and fall, he lived alone, and was able to take care of his daily needs without help, though he no longer drove. However, following the accident, plaintiff underwent surgery on his leg to implant a rod and remove the plate and screws that were used to repair his bone in the previous fracture twenty years before. In addition, plaintiff testified that he needed a second surgery to replace the original rod, which was ill-fitting, and he spent several weeks in a residential rehabilitation facility before he could return home. Since that time, Mr. Hensarling has employed his grandson to live with him and help him with personal tasks such as bathing, cooking, and housework, which he could no longer perform.

At trial, Wilfred Gallardo testified for the plaintiff as an expert safety consultant. He testified that he inspected the stairs and found that they failed to comply with various building codes because they did not have handrails. He opined that the concrete wall was not a proper substitute for a handrail. He also found that the riser height and tread length of the stairs did not comply with the codes.

|sMr. Gallardo called the bottom landing an “elongated step” and opined that it was actually a part of the staircase, and thus subject to the code requirements for stairs. He also found that it did not comply with the code requirements for landings regarding dimensions.

In Mr. Gallardo’s opinion, the plaintiff fell because he thought the landing was at the same level as the parking lot. In his opinion, the elongated step being the same color as the parking lot created a “camouflage” effect that failed to put the plaintiff on notice that there would be an elevation change. He did note that there was no code requirement to paint the stairs or the landing any different color from any adjacent stair or landing.

Kyle Wilson testified that he accompanied his grandfather to Dyke that day, but had his back to the stairs when plaintiff fell. Wilson did not witness the fall. He testified that he now lives with his grandfather and helps him with the tasks of daily living that he can no longer perform himself, such as bathing and housekeeping. Wilson testified that his grandfather paid him $400.00 per week to help him.

In the defense’s case, Mr. Allison Lau-ney testified as an expert licensed civil engineer. He went to the site, took measurements, researched the applicable building codes, took photos, and reviewed the deposition testimony. He agreed that the absence of a handrail on the stairs was a deficiency in the stairs that violated the codes, and agreed that a concrete wall was no substitute for a handrail, but he found that the lack of a handrail did not contribute to the fall, as the fall occurred when plaintiff stepped from the landing to the parking lot, which, ^according to his interpretation of the codes, is beyond the point where any code required a handrail on a staircase.

Mr. Launey felt that Mr. Gallardo, plaintiffs expert, misinterpreted the various codes regarding the requirements for a landing. Mr. Launey testified that the code is very specific in its requirements for landings where a door is located, but that the same code provisions do not apply to “bottom” landings where no door is located.

Mr. Launey found that this landing was a valid use of a bottom landing, as it separated the pedestrians from the parking lot. He specifically found that the stair layout, landing, and parking lot were clearly visible and well-demarcated, both looking down the stairs and looking up the stairs. He disagreed with Mr. Gallardo that the bottom landing was camouflaged, and stated (as did Mr. Gallardo) that there are no requirements in the codes to paint steps differently from a bottom exterior landing or parking lot.

On cross examination, Mr. Launey testified that he felt that plaintiff stumbled because of confusion about whether the parking lot was at the same elevation as the landing. Mr. Launey testified that the landing complied with the code requirements regarding its dimensions, but again reiterated that the code requirements regarding landings where doors open do not apply and are not used for bottom landings on exterior stairs where no door opens. He again noted that there are no code requirements to paint stairs and landings different colors.

The court asked additional questions of Mr. Launey regarding the existence of specific code requirements and how Mr. Launey interpreted those code requirements. The record was held open for the reception of additional medical evidence, and the trial concluded.

|7In her Judgment and Reasons, the trial court clearly gave more weight to the testimony of defendant’s expert, Mr. Launey, as noted below:

After reviewing the testimony and exhibits presented at trial, we hold that Mr. Hensarling has failed to meet his burden of proving that the condition of the landing created an unreasonable dangerous condition which caused the injuries he alleges to have sustained. Much of the expert testimony presented related to the absence of handrails on the steps. We agree that the lack of a handrail constituted an unreasonably dangerous condition. However, there is nothing to indicate that this contributed to the accident. Although there was some confusion about the exact location of Mr. Hensarling’s fall, (especially on the part of the plaintiffs safety expert, Wilfred Gallardo) it was clear from Mr. Hensarling’s testimony that he fell from the landing to the parking lot, not from the steps to the landing. The Court was convinced by the testimony of Allison Sonny Launey, the defendant’s civil engineering expert, that no handrail was required in the area of the defendant’s fall because the landing is not considered a “step.” Even if the stairs had been equipped with a handrail, that rail would likely not have extended to the landing from which the plaintiff fell, and therefore its absence was not a cause his injuries.
The plaintiffs expert also opined that the landing was deficient because it failed to meet the requirements for staircases. However, Mr. Gallardo’s testimony was based on his assertion that the landing was part of the staircase. He referred to it as an “elongated step” and cited to several safety regulations having to do with the rise and run/tread required for staircases. Mr. Gallardo’s testimony was substantially unpersuasive, including his conclusion that the landing should have met all safety requirements applicable to steps. We are again convinced by the testimony of Mr. Launey that the landing did not constitute a step. Mr. Launey testified that the regulations on tread size had no bearing on this accident because the landing on which Mr. Hensarling fell was separate from the stairs for regulatory purposes. He testified that generally, the purpose of this type of landing is to separate pedestrians entering the building from the loading zones of the parking lot. Additionally, even if the plaintiff had demonstrated that the safety regulations cited by Mr. Gallardo were applicable to the landing, there was no testimony to demonstrate that this contributed to the accident. Mr. Hensarling clearly testified that he fell because he did not distinguish the landing from the parking lot.
Finally, Mr. Hensarling contends that the landing constituted an unreasonable risk of harm because it was not painted or marked so as to indicate a change in elevation. However, we find that the plaintiff has failed to make this showing. Mr. Launey testified that there was no parish or state law that required the landing be painted. The photographs of the accident site show that the demarcation between the landing and the parking lot was easily discernable. (Ex. PI 6, in globo). Additionally, there was also testimony that Mr. Hensarling had been to Dyke Industries before. He testified that he fell leaving |Rthe defendant’s business and that he was able to ascend the stairs without incident.
For the forgoing reasons, Harold Hensarling’s claim for damages against Dyke Industries, Inc., is hereby DENIED.

As this Court stated in Quinn v. GGS, L.L.C., 03-682 (La.App. 5 Cir. 12/9/03), 862 So.2d 324, 329, the following standard of review applies:

There are two theories of liability available to a plaintiff who claims she was injured as a result of the condition of a thing: negligence, under La. C.C. arts. 2315 and 2316, and strict liability, under La. C.C. art. 2317. Under both theories of liability a plaintiff must prove that the condition of the thing presented an unreasonable risk of harm, or was defective, and that this condition of the thing was a cause-in-fact of her injuries, (cites omitted) Both theories are analyzed under the duty/risk analysis, (cites omitted) The duty-risk analysis is employed on a case by case basis, (cites omitted) Plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of the harm was within the scope of the protection afforded by the duty breached, (cites omitted)
The initial inquiry to determine if a party may be liable under the duty-risk analysis is cause-in-fact. The plaintiff must prove that the alleged defect in the thing was a cause-in-fact of the plaintiffs harm. A party’s conduct is a cause-in-fact of the harm if it was a substantial factor in bringing about the harm. For example, the act is a cause-in-fact in bringing about the injury when the harm would not have occurred without it. While a party’s conduct does not have to be the sole cause of the harm, it is a necessary antecedent essential to an assessment of liability. Whether an action is the cause-in-fact of the harm is essentially a factual determination that is usually left for the factfinder, (cites omitted)

A trial court’s findings of fact will not be disturbed unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous, (cites omitted) Where two reasonable views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong, (cites omitted) The issue to be resolved by the reviewing court is not whether the trier of fact is right or wrong, but whether the factfinder’s conclusion was a reasonable one. (cites omitted)

[T]he reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and | conferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts, (cites omitted)

Plaintiff/appellant argues, in two related Assignments of Error, that the trial court erred in finding that the lack of handrail was an unreasonably dangerous defect in the staircase, but that the lack of handrail was not a proximate cause of defendant’s fall. Appellant argues that the landing’s “camouflaged” appearance failed to allow him to recognize a change in elevation in order to properly and safely maneuver and descend the stairs.

Both plaintiffs and defendant’s experts testified that the lack of handrail on the stairway was a defect that violated the applicable building codes. Mr. Hensarling testified that he fell as he stepped off the landing on to the parking lot. Thus, the trial court concluded, as did defendant’s expert, whose testimony the trial court clearly credited more than the plaintiffs expert, that the lack of handrail was not a factor in this accident. Plaintiffs expert characterized the landing as an “elongated step” and thus, opined that the code regulations pertinent to stairs applied to this landing, which he interpreted would require a handrail at this point. Defendant’s expert, however, interpreted the code regulations not to require a handrail from the landing to the parking lot, because he opined that the landing was not part of the stairs under applicable code regulations. The trial court credited the testimony of defendant’s expert and found that a handrail was not required by the codes where the plaintiff fell, and further found that plaintiff did not bear his burden of proof, even if the code did require a handrail at this location, because he testified that he fell because he did not distinguish the landing from the parking lot.

| inAfter review of the record, we do not find the trial court’s conclusions manifestly erroneous. The trial court was free to credit the testimony and conclusions of one expert over the other. Further, plaintiffs testimony was clear that he fell as he stepped from the landing to the parking lot, which both experts considered.

Both plaintiffs and defendant’s experts testified that no code regulation requires that the landing and stairs be painted a different color from each other, nor the parking lot. Defendant’s expert viewed the stairs and found them to be clearly visible and demarcated from the landing and the landing from the parking lot. Plaintiffs expert, however, disagreed and found that the uniform color, despite not violating a code regulation, created a “camouflage” effect. The trial court listened to both testimonies and viewed numerous photographs of the stairs from different vantage points. Additionally, the trial court noted that the plaintiff had visited Dyke several times before and used these stairs with no difficulties. While we are not unsympathetic to the plaintiff in light of the injuries he suffered, we find no manifest error in the trial court’s conclusion that Dyke Industries is not legally liable to plaintiff for this slip and fall. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . Plaintiff denied ever receiving a formal diagnosis, but this diagnosis appears in his medical records submitted as evidence. The same medical records reveal a history of fractures, though just how many plaintiff had suffered in his lifetime was disputed.

      . Mr. Wilson testified that he is plaintiff’s grandson.

      . Plaintiff denied taking Vicodin, stating that his doctor prescribed a different pain medicine. From plaintiff’s medical records in evidence, it appears that the plaintiff may have been prescribed the generic form of this drug or a different brand name, hence plaintiff's confusion on this issue.

      . The Jefferson Parish Building Code of 1970 and the Life Safety Code.

      .Mr. Gallardo exhibited much confusion, however, in his testimony regarding where the plaintiff fell. Initially, he affirmatively testified that plaintiff fell when he stepped off the last stair onto the landing. Later, after specific questioning by the court, he clarified that he was told the plaintiff fell as he stepped from the landing to the parking lot.