author: Judge Rosemary Ledet

text:
    Raul-Alejandro RAMOS v. Andrew LE and La Rouge Properties
    NO. 2018-CA-0677
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 12, 2018
    Raul-Alejandro Ramos, 8400 Oleander Street, New Orleans, LA 70118, PRO SE PLAINTIFF/APPELLANT
    Paul A. Tabary, III, Elizabeth R. Borne, Justin W. Stephens, TABARY & BORNE, L.L.C., 3 Courthouse Square, Chalmette, LA 70043, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Rosemary Ledet

This is a tort suit. The plaintiff, Raul-Alejandro Ramos, a former tenant of the defendants, Andrew Le and La Rouge Properties, alleges that the defendants unlawfully entered the premises he was leasing and removed his property without his consent. From the trial court's judgment granting the defendants' exception of prescription, Mr. Ramos appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

With one exception (discussed elsewhere in this opinion), the essential facts are not disputed. In 2013, Mr. Ramos leased commercial premises from the defendants to operate a restaurant. During his tenancy, Mr. Ramos undertook construction of the premises. Because of the construction, Mr. Ramos moved various items to the rear of the premises. At some point, Mr. Le advised Mr. Ramos that he could not store items in the rear of the premises; Mr. Ramos, however, continued to store items there. Consequently, on three occasions between 2013 and 2015, Mr. Le or his agent entered the leased premises and removed items that were being stored in the rear.

On May 25, 2017, Mr. Ramos, acting pro se , filed this suit asserting those claims. The defendants filed exceptions of non-conformity, vagueness, and ambiguity arguing, inter alia , that Mr. Ramos had failed to allege the dates on which the acts forming the basis of his claims occurred. The trial court granted the exceptions and ordered Mr. Ramos to amend his petition to set forth such dates with specificity. Pursuant to the trial court's order, Mr. Ramos filed an amending petition.

The defendants filed an exception of prescription, arguing that, on the face of the petition, Mr. Ramos' claims were prescribed. Mr. Ramos filed an opposition to the exception, arguing that, because the defendants had acted under "color of landlord authority," he had been unaware of his legal rights and, thus, prescription was interrupted. At the hearing on the exception, the parties stipulated that Mr. Ramos' colloquy with the trial court would be received as testimony. Mr. Ramos also offered as an exhibit a demand letter he sent to the defendants on September 30, 2016. Following the hearing, the trial court sustained the exception of prescription and dismissed all of Mr. Ramos' claims against the defendants. This appeal followed.

DISCUSSION

A party asserting that a claim is prescribed must do so through the filing of a peremptory exception of prescription. In Ames v. Ohle , 11-1540, pp. 5-6 (La. App. 4 Cir. 5/23/12), 97 So.3d 386, 390-91, this court set forth the standard of review for such exceptions as follows:

Ordinarily, a party asserting a peremptory exception of prescription bears the burden of proof. Trust for Melba Margaret Schwegmann v. Schwegmann , 09-968, p. 8 (La. App. 5 Cir. 9/14/10), 51 So.3d 737, 742. However, if prescription is evident from the face of the pleadings, the plaintiff will bear the burden of showing an action has not prescribed. Id. If evidence is introduced at the hearing on the peremptory exception of prescription, the district court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. Rando v. Anco Insulations, Inc. , 08-1163, p. 20 (La. 5/22/09), 16 So.3d 1065, 1082. If there is as an absence of evidence, the exception of the prescription must be decided upon the properly pleaded material allegations of fact asserted in the petition, and those alleged facts are accepted as true. Trust for Melba Margaret Schwegmann , 51 So.3d at 742. Further, in reviewing a peremptory exception of prescription, appellate courts strictly construe the statutes against prescription and in favor of the claim. Id. Of the possible constructions of a prescriptive or preemptive statute, the one that maintains enforcement of the claim or action, rather than the one that bars enforcement should be adopted. Rando , 16 So.3d at 1083.

In sustaining the defendants' exception of prescription, the trial court found that Mr. Ramos' claims were prescribed on the face of the petition and that there had been no interruption of prescription. Although Mr. Ramos assigns numerous errors, this appeal presents essentially two issues for our review: (1) whether the trial court erred in determining that Mr. Ramos' claims are prescribed on the face of the petition; and (2) if so, whether the trial court committed manifest error in determining that prescription was not interrupted. We address each issue in turn.

Prescription

In determining whether an exception of prescription has merit, the nature of the cause of action must first be identified. Albe v. City of New Orleans , 14-0186, p. 8 (La. App. 4 Cir. 9/17/14), 150 So.3d 361, 367 (citing Ames , 11-1540, at p. 6, 97 So.3d at 391 ). "The character of an action disclosed in the pleadings determines the prescriptive period applicable to that action." Id.

In this case, Mr. Ramos' petition failed to identify his claims with clarity. Nonetheless, liberally construing the petition, each of Mr. Ramos' claims is a delictual action. Such actions are subject to a liberative prescriptive period of one year, which "commences to run from the day injury or damage is sustained." La. C.C. art. 3492

In his original petition, Mr. Ramos alleged that the defendants entered the leased premises and removed his property on three separate occasions; he failed, however, to allege the dates of those incidents. In his amended petition, Mr. Ramos alleged that the first incident occurred "in 2013 between July and October"; despite the trial court's order, however, he failed to allege on what dates the two subsequent incidents occurred.

Nonetheless, at the hearing on the exception, Mr. Ramos testified that he learned of the three incidents between 2013 and 2015. Thus, even assuming that Mr. Ramos could have amended his petition to conform to his testimony, all of Mr. Ramos' claims prescribed, at the latest, in 2016. Because Mr. Ramos did not commence this suit until 2017, the trial court correctly determined that Mr. Ramos claims were prescribed on the face of the petition.

Contra Non Valentem

The trial court's determination that Mr. Ramos' claims were prescribed on the face of the petition shifted the burden to Mr. Ramos to demonstrate that his claims had not prescribed. Mr. Ramos' contends, as he did in the trial court, that his claims have not prescribed under the doctrine of contra non valentem .

The doctrine of contra non valentem is a jurisprudentially-created, "limited exception [to prescription] where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues." Corsey v. State, Through Dep't of Corr. , 375 So.2d 1319, 1321 (La. 1979). "The doctrine is based on the premise that, in some circumstances, equity and justice require that prescription 'be suspended because the plaintiff was effectually prevented from enforcing his rights for reasons external to his own will.' " Dominion Expl. & Prod., Inc. v. Waters , 07-0386, p. 10 (La. App. 4 Cir. 11/14/07), 972 So.2d 350, 358 (quoting Wimberly v. Gatch , 93-0236 (La. 4/11/94), 635 So.2d 206, 211 (La. 1994) ).

Because "[c ]ontra non valentem is an exceptional remedy recognized by our jurisprudence which is in direct contradistinction to articles in our Civil Code[,] ... it must be strictly construed." Harsh v. Calogero , 615 So.2d 420, 422 (La.App. 4 Cir. 1993). Thus, the Louisiana Supreme Court has cautioned that the doctrine applies only in "exceptional circumstances." Renfroe v. State ex rel. Dep't of Transp. & Dev. , 01-1646, p. 9 (La. 2/26/02), 809 So.2d 947, 953. Louisiana jurisprudence has recognized four such circumstances:

(1) Where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action;
(2) Where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) Where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or
(4) Where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiff's ignorance is not induced by the defendant.

Marin v. Exxon Mobil Corp. , 09-2368, p. 12 (La. 10/19/10), 48 So.3d 234, 245.

Mr. Ramos contends that the doctrine of contra non valentem applies in this case because his "situation does not arise out of willfulness, negligence, or unreasonableness" but rather his "situation arises from the defendants acting under [c]olor of [l]andlord [a]uthority." Essentially, Mr. Ramos contends that a statement by Mr. Le at the time of the first incident-that, as landlord, he had the legal right to enter the leased premises and remove and dispose of Mr. Ramos' property-had "lulled [Mr. Ramos] into inaction and prevent[ed] him from availing himself of his cause[s] of action." Ames, 11-1540 at p. 15, 97 So.3d at 395. Mr. Ramos further contends that it was not until September 2016, while researching his legal remedies in an unrelated eviction action brought against him by the defendants, that he learned he might have claims against the defendants in connection with the removal of his property. This argument invokes the third contra non valentem category.

A plaintiff arguing the application of the third contra non valentem category must allege and prove each the following:

(1) That the defendant engaged in conduct which rises to the level of concealment, misrepresentation, fraud or ill practice;
(2) That the defendant's actions effectually prevented the plaintiff from pursuing a cause of action; and
(3) That the plaintiff was reasonable in his or her inaction.

Albe , 14-0186 at p. 10, 150 So.3d at 368 (citing Marin , 09-2368, p. 24, 48 So.3d at 252 ).

In his opposition to the exception and during his testimony at the hearing, Mr. Ramos conceded that Mr. Le's belief was sincere and that it was only later that they both discovered Mr. Le to have been mistaken. Thus, Mr. Ramos does not contend that Mr. Le's statement was an intentional misrepresentation. Nonetheless, Mr. Ramos contends that Mr. Le's statement constitutes fraud because it was legally incorrect. It is well settled, however, that a defendant's statement, later found to have been incorrect, does not warrant application of the doctrine of contra non valentem in the absence of intentional misrepresentation. Prevo v. State ex rel. Dep't of Pub. Safety & Corr. Div. of Prob. & Parole , 15-0823, p. 6 (La. 11/20/15), 187 So.3d 395, 399 (citing Rajnowski v. St. Patrick's Hosp. , 564 So.2d 671, 674 (La. 1990), for the proposition that that mere "misstatements do not constitute fraud, concealment, misrepresentation or a breach of a duty to disclose").

Accordingly, we find that the trial court correctly concluded that Mr. Ramos' claims were prescribed on the face of the petition. We further find that the trial court's conclusion that Mr. Ramos failed to allege and prove facts that would warrant the application of the doctrine of contra non valentem was not manifestly erroneous.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      See La. C.C. art. 3452 (providing that "[p]rescription must be pleaded" and that "[c]ourts may not supply a plea of prescription"); La. C.C.P. art. 927(B) (providing that a "court may not supply the objection of prescription, which shall be specially pleaded" by filing an exception of prescription).

      In its reasons for judgment, the trial court identified these claims as trespass, theft, and fraud. A review of Mr. Ramos' petition, however, reveals that, in addition to these claims, Mr. Ramos also asserted claims sounding in negligence. Specifically, Mr. Ramos claimed that certain property allegedly taken by the defendants belonged to non-parties who had bailed that property to Mr. Ramos; that the alleged theft of such property by the defendants exposed him to threats and violence by non-parties; and that such threats and violence, in turn, caused him emotional distress and related injuries.

      See Manichia v. Mahoney , 10-0087, p. 8 (La. App. 4 Cir. 8/4/10), 45 So.3d 618, 622 (observing that "a pro se litigant may be afforded some leeway or patience in the form of liberally construed pleading"); see also Haines v. Kerner , 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (observing that "the allegations of [a] pro se complaint ... [are] h[e]ld to less stringent standards than formal pleadings drafted by lawyers").

      See La. C.C. art. 3492, cmt. (b) (observing that "[t]he notion of delictual liability includes: intentional misconduct, negligence, abuse of right, and liability without negligence").

      This failure would have warranted dismissal of the petition, albeit without prejudice. See La. C.C.P. art. 933 ; see also generally , Washington v. Flenniken Const. Co. , 188 So.2d 486, 491 (La. App. 3rd Cir. 1966) (observing that "[t]he basis of this dismissal is the power of the court to enforce compliance with a lawful procedural order in connection with a dilatory exception").

      As discussed elsewhere in this opinion, in addition to his claims for trespass, theft, and fraud, Mr. Ramos asserted claims sounding in negligence. Among those is a shooting on October 11, 2016, of which Mr. Ramos claims to have been the intended target and which Mr. Ramos claims was motivated by the loss of musical recordings formerly in his possession and allegedly taken by the defendants. Although the shooting occurred within a year before the filing of Mr. Ramos' petition, neither the shooting nor the subsequent injuries it allegedy caused serve to extend the prescriptive period of La. C.C. art. 3492. See Harvey v. Dixie Graphics, Inc. , 593 So.2d 351, 354 (La. 1992) (clarifying that, "in cases in which a plaintiff has suffered some but not all of his damages, prescription runs from the date on which he first suffered actual and appreciable damage, even though he may thereafter come to a more precise realization of the damages he has already incurred or incur further damage as a result of the completed tortious act").

      The full name of the doctrine is contra non valentem agere nulla currit praescripto ; the meaning of which is that Prescription does not run against a party unable to act. Rajnowski v. St. Patrick's Hosp. , 564 So.2d 671, 674 (La. 1990) (citing Crier v. Whitecloud , 496 So.2d 305, 307 n. 4 (La.1986) ).

      In its reasons for judgment, the trial court found, as a factual matter, that "the only complained of conduct was the landlord telling plaintiff he should have moved the items when told to do so" and that, at the hearing, "the plaintiff truthfully maintained only that statement by the landlord." Review of the transcript reveals, however, that Mr. Ramos stated, referring to Mr. Le, that "[h]e's telling me he's got the right to do it."

      Mr. Ramos does not contend that he was unaware of the essential facts giving rise to his claims; instead, he argues only that he was unaware of the law providing a remedy under such facts. Thus, the fourth contra non valentem category does not apply in this case. See Albe v. City of New Orleans , 14-0186, pp. 13-14 (La. App. 4 Cir. 9/17/14), 150 So.3d 361, 370 (observing that [a]lthough ignorance of specific facts giving rise to a legal claim can prevent the running of prescription in certain circumstances, ignorance of the law does not").

      In his opposition, Mr. Ramos stated, "Defendant and Plaintiff were both under the impression that Defendant was right to do as Defendant did, because [P]laintiff did not comply with Defendant's [sic ] demands." At the hearing, Mr. Ramos testified, "I found out that I was wrong at that moment. He finds out that he was wrong at this moment. We both find out at the same time."


source: Caselaw Access Project

license: Public Domain

text:
    Eugene J. SONNIER, II v. The CATHOLIC FOUNDATION OF the DIOCESE OF LAFAYETTE, et al.
    18-289
    Court of Appeal of Louisiana, Third Circuit.
    December 19, 2018
   Troy A. Broussard, Allen & Gooch, P.O. Box 81129, Lafayette, LA 70598-1129, (337) 291-1000, COUNSEL FOR DEFENDANT/APPELLEE: Society of the Roman Catholic Church of the Diocese of Lafayette, The Catholic Foundation of the Diocese of Lafayette, The Congregation of Saint Genevieve Roman Catholic Church

Jeff Landry, Attorney General, Ryan M. Seidemann, Christopher J. Lento, Assistant Attorneys General, Civil Division, 1885 North Third Street, Baton Rouge, LA 70804-9005, (225) 326-6000, COUNSEL FOR DEFENDANT/APPELLEE: Louisiana Cemetery Board

Harold D. Register, III, Attorney at Law, 102 Versailles Boulevard, Suite 620, Lafayette, LA 70501, (337) 735-4443, COUNSEL FOR PLAINTIFF/APPELLANT: Eugene J. Sonnier, II

Norlet Pierre, In Proper Person, 1059 Bear Creek Circle, Breaux Bridge, LA 70517, (337) 247-4794, COUNSEL FOR DEFENDANT/APPELLEE: Norlet Pierre

Court composed of John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett, Judges.

SAUNDERS, Judge.

The plaintiff appeals the trial court's denial of his request for a declaratory judgment ordering the defendants to allow him to move the remains of his son from where he is currently interred to another location.

FACTS & PROCEDURAL BACKGROUND

Following the remand of this matter to the trial court by the supreme court, it is before this court for the second time. See Sonnier v. Catholic Found. of the Diocese of Lafayette , 15-1051 (La.App. 3 Cir. 3/2/16), 215 So.3d 804, writ denied in part; writ granted in part , 16-839 (La. 10/28/16), 202 So.3d 992. Eugene Sonnier, III (Trey), died in October 2013 while serving in the United States Air Force. Prior to his death, Trey executed a United States Department of Defense Record of Emergency Data Form 93 that designated his father Eugene Sonnier, II, as the Person Authorized to Direct the Disposition (PADD) of his body upon his death

Sonnier originally filed suit to move Trey's remains from Calvary Cemetery in Lafayette after the alleged actions of others prevented him from completing his plan for Trey's interment. He alleged in that petition that he planned for he and Trey to be interred side by side in Calvary Cemetery with a double tomb constructed over their graves. According to his pleadings, his plan required that he purchase three cemetery plots to accommodate the tomb. Sonnier contends that his plan was thwarted when Norlet Pierre, Trey's mother and his ex-wife, and her husband purchased the three cemetery plots before he returned to the cemetery to pay for them. The record indicates that because of the conflict between he and the Pierres regarding the ownership of the three plots, Sonnier asked Saint Genevieve Catholic Church, the cemetery's owner, to retitle the plots purchased by the Pierres in his name. The Church's representative refused, and Sonnier filed suit.

In his initial suit, Sonnier sought to have the plots retitled in his name, or alternatively, to relocate Trey's remains because he was unable to obtain the consent of the church, as required by the cemetery's rules and La.R.S. 8:659, which governs the relocation of the remains of a deceased person. The defendants filed exceptions of no cause of action, asserting that Trey's PADD authorized Sonnier to direct the disposition of Trey's remains but did not dictate the ownership of the burial plot in which he was buried. The exceptions were granted by the trial court, and this court affirmed that judgment. Sonnier , 215 So.3d 804.

Sonnier filed an application for writ of certiorari with our supreme court. On review, the supreme court affirmed the grant of the defendants' exceptions of no right of action for recognition of ownership, injunctive relief, or damages. Sonnier , 202 So.3d 992. The supreme court concluded, however, that the trial court's ruling was unclear as to whether it made a determination as to Sonnier's alternative claim for re-interring Trey as provided in La.R.S. 8:659. Id. at 993-94 . The supreme court found that "Sonnier failed to allege he requested consent from the cemetery authority for the re-interment or that such consent was requested but wrongfully withheld by defendants, pursuant to La. R.S. 8:659." Id. at 993. To allow Sonnier to correct this defect, the court remanded the matter to the trial court to give him "an opportunity to amend his petition to state a cause of action for re-interment pursuant to La.R.S. 8:659." Id. at 993-94.

After the matter was remanded, the Louisiana Cemetery Board intervened as a third party of interest, alleging that it has standing in this matter because it is charged with enforcing and administering the provisions of Title 8. La.R.S. 8:66. Shortly thereafter, Sonnier voluntarily dismissed his claims against Ms. Pierre and the cemetery. Subsequently, in August 2017, Sonnier filed a Petition for Declaratory Judgment in which he named Saint Genevieve Roman Catholic Church, Ms. Pierre, and the Louisiana Cemetery Board as defendants. According to Sonnier's petition, Saint Genevieve initially consented to allow him to disinter Trey's remains, but then withdrew its consent to the agreement. Sonnier further alleged that pursuant to state and federal law, Trey's PADD authorized him to disinter Trey and re-inter him in a location of his choice.

After a hearing, the trial court denied Sonnier's request for declaratory judgment ordering defendants to allow him to move the remains of his son from where he is currently interred to another location. Sonnier now appeals the trial court's judgment.

DISCUSSION OF THE MERITS:

In his sole assignment of error, Sonnier argues that the trial court erred in denying his request for declaratory judgment. He bases his argument upon the contention that the trial court erroneously interpreted La.R.S. 8:659 - Louisiana's disinterment and reinterment statute - which he asserts authorizes him to direct the disinterment or re-interment of his son's remains, by virtue of his designation as his son's PADD.

In Sonnier , 215 So.3d at 812-13, this court stated:

Disinterment

[B]y the second amending petition, Mr. Sonnier alternatively sought permission to have his son's body moved to another location within Calvary Cemetery "based on all information presented herein which illustrate that Eugene Sonnier, II's rights have been vastly undermined." To the extent the trial court's ruling encompassed this alternative demand, we again leave that claim undisturbed. Instead, 10 U.S.C. § 1482 (c) permits the PADD to "direct disposition of the remains of a decedent[.]" The statute is silent on the right to later disinter those remains.
A. The remains of a deceased person may be moved from a cemetery space to another cemetery space in the same cemetery or to another cemetery with the consent of the cemetery authority and the written consent of one of the following, in the order named, unless other directions in writing have been given by the decedent:
(1) The surviving spouse, if no petition for divorce has been filed by either spouse prior to the death of the decedent spouse.
(2) The surviving adult children of the decedent, not including grandchildren or other more remote descendants.
(3) The surviving parents of the decedent.
(4) The surviving adult brothers and sisters of the decedent.
B. If the required consent cannot be obtained, a final judgment of the district court of the parish where the cemetery is situated shall be required.
This provision makes no reference to Form 93. Additionally, in Spiess v. Greenwood Development Co., Inc. , 542 So.2d 810, 813 (La. App. 3 Cir. 1989), a panel of this court made the distinction between a party having the legal authority "to control the disposition of the remains of a deceased person" pursuant to La.R.S. 8:655 and the person(s) having authority to direct the relocation of a deceased's remains per La.R.S. 8:659. Referencing those statutes the panel explained that the plaintiff in that case "clearly had the sole statutory authority to initially determine the decedent's final resting place. However, after the decedent's initial burial, the voluntary consent of the defendant cemetery authority was also statutorily required before the decedent's remains could be disinterred and transferred." Id. Notably, while La.R.S. 8:655 includes a reference to the PADD on Form 93, La.R.S. 8:659 includes no such reference.

Based upon this reasoning, this court concluded that Sonnier was not authorized by the PADD to disinter his son's remains. The ruling made clear that La.R.S. 8:659 controls disinterment. We agree with this holding and reach the same conclusion, that is, that La.R.S. 8:659 controls reinterment, and based on the record before us, we conclude that Sonnier is not entitled to disinterment of his son's remains.

CONCLUSION:

Eugene Sonnier, II raised one assignment of error, asserting that the trial court erred in denying his request for a declaratory judgment ordering Defendants to allow him to move the remains of his son from where he is currently interred to another location. We hold that La.R.S. 8:659 controls the reinterment of human remains, and the record establishes that Eugene Sonnier, II has not met the requirement of La. R.S. 8:659. Accordingly, we affirm the trial court's denial of Eugene Sonnier, II's Petition for Declaratory Judgment.

We assess all costs of this appeal to Eugene Sonnier, II.

AFFIRMED

Amy, J., concurs and assigns separate reasons.

Pickett, J., dissents and assigns reasons.

      Amended by Acts 2018, No. 248, § 1, eff. May 15, 2018.


text:
    Patrick RICHARD, et al. v. CITGO PETROLEUM CORPORATION, et al.
    CA 18-371
    Court of Appeal of Louisiana, Third Circuit.
    January 9, 2019
   Robert E. Landry, Kevin P. Fontenot, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, 901 Lakeshore Drive, # 900, Lake Charles, LA 70601, (337) 433-9436, COUNSEL FOR DEFENDANT-APPELLANT: CITGO Petroleum Corporation

Craig Isenberg, Kyle W. Siegel, Joshua O. Cox, Barrasso Usdin Kupperman Freeman & Sarver, LLC, 909 Poydras, Ste. 2400, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT-APPELLANT: CITGO Petroleum Corporation

Marshall Joseph Simien, Jr., Simien Law Firm, One Lakeshore Drive, Suite 1110, Lake Charles, LA 70629, (337) 497-0022, COUNSEL FOR DEFENDANT-APPELLANT: CITGO Petroleum Corporation

Wells Talbot Watson, Jake D. Buford, Bagget, McCall, Burgess, Watson & Gaughan, 3006 Country Club Road, Lake Charles, LA 70605, (337) 478-8888, COUNSEL FOR PLAINTIFF-APPELLEE: Rickey Haley, Gardenia Amos, Sara Stevens, Bill Peltier, Linda Harris

Richard Elliott Wilson, Somer G. Brown, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF-APPELLEE: Sara Stevens, Gardenia Amos, Linda Harris, Rickey Haley

Kirk Albert Patrick, III, Heath Savant, Donahue, Patrick & Scott, 450 Laurel St., Suite 1600, Baton Rouge, LA 70801, (225) 214-1908, COUNSEL FOR DEFENDANT: R & R Construction, Inc.

Court composed of John D. Saunders, Billy Howard Ezell, and Candyce G. Perret, Judges.

PERRET, Judge.

For the reasons set forth in the companion and consolidated case hereto, Arceneaux v. Citgo Petroleum Corp. , 18-370 (La.App. 3 Cir. 1/9/19), --- So.3d ----, the judgment of the trial court in favor of Plaintiffs-Appellees and against Appellant, CITGO Petroleum Corporation, is affirmed. All costs of this appeal are assessed against Appellant, CITGO Petroleum Corporation.

AFFIRMED.


text:
    Benton Cason DELAHOUSSAYE, III and Amy Delahoussaye, Individually and on Behalf of Their Minor Child, Benton Cason Delahoussaye, IV v. TULANE UNIVERSITY HOSPITAL AND CLINIC and/or Tulane Clinic, L.L.C., and/or Tulane Medical Center and the Administrators of the Tulane Educational Fund
    Benton Cason Delahoussaye, III and Amy Delahoussaye, Individually and on Behalf of Their Minor Child, Benton Cason Delahoussaye, IV v. Tulane University Hospital and Clinic and/or Tulane Clinic, L.L.C., and/or Tulane Medical Center and the Administrators of the Tulane Educational Fund
    Benton Cason Delahoussaye, III and Amy Delahoussaye, Individually and on Behalf of Their Minor Child, Benton Cason Delahoussaye, IV v. Tulane University Hospital and Clinic and/or Tulane Clinic, L.L.C., and/or Tulane Medical Center and the Administrators of the Tulane Educational Fund
    NO. 2018-CA-0435 NO. 2018-CA-0436 NO. 2018-CA-0437
    Court of Appeal of Louisiana, Fourth Circuit.
    DECEMBER 12, 2018
   Kenneth W. DeJean, Adam R. Credeur, LAW OFFICE OF KENNETH W. DEJEAN, 417 West University Avenue, P.O. Box 4325, Lafayette, LA 70502, COUNSEL FOR PLAINTIFFS/APPELLANTS

James P. Waldron, Peter E. Sperling, FRILOT L.L.C., 1100 Poydras Street, Suite 3700, New Orleans, LA 70163-3600, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Paula A. Brown )

Judge Roland L. Belsome In this medical malpractice and general negligence suit, the Plaintiffs, Benton Cason Delahoussaye, III (Mr. Delahoussay) and Amy Delahoussaye, individually and on behalf of their minor child, Benton Cason Delahoussaye, IV, appeal the trial court's granting of partial summary judgment in favor of the Defendant, Tulane University Hospital and Clinic (Tulane Hospital), on the medical malpractice claims. For the following reasons, the trial court's ruling is reversed and remanded.

FACTS AND PROCEDURAL HISTORY

This tort suit arises from claims of abandonment of care during Hurricane Katrina. The undisputed facts reveal that before Hurricane Katrina, Mr. Delahoussaye, who was thirty-six years old at the time, was diagnosed with osteosarcoma of the left distal tibia. As a result, he began chemotherapy. On August 15, 2005, an orthopedic oncologist performed a resection/reconstruction of the left distal tibia at Tulane Hospital. After the surgery, Mr. Delahoussaye remained in the hospital, where he was treated with antibiotics, irrigation, debridement and wound vac therapy for infection of the left distal tibia flap. He was later scheduled to have the hardware removed from his leg on August 27, 2005. However, the scheduled surgery was not performed.

Due to the hurricane, the hospital and Mr. Delahoussaye's wound vac lost power. He was eventually airlifted by helicopter and admitted to Southwest Medical Center on August 31, 2005. The medical records from Southwest Medical Center reflect that Mr. Delahoussaye had a history of infection underneath the rotational flap. There, he was treated by Dr. Bryan Frentz for the infection of the tibia flap with antibiotics, irrigation and debridement. At that time, Mr. Delahoussaye's wound was partially closed and he was again treated, unsuccessfully, with wound vac therapy. Later, on June 26, 2007, after further medical treatment, he underwent a below-knee amputation of his left leg.

As a result of his treatment at Tulane Hospital during the Hurricane, the Plaintiffs filed a Petition for Damages asserting eighteen negligence claims:

(a) Failure to properly supervise and treat post surgical conditions;
(b) Failure to make provisions for safe and functional auxiliary power during an emergency;
(c) Failure to properly staff the hospital and personnel during an emergency;
(d) Failure to develop proper protocol for emergencies including treatment of existing patients, provisions for medications, staffing and proper emergency power;
(e) Failure to develop and implement a functional communication system among staff and patients for emergencies;
(f) Failure to design and implement emergency protocol for staff, patients and personnel to assure continued care and treatment;
(g) Failure to properly monitor the post-surgical care and treatment of Benton Cason Delahoussaye, III;
(h) Failure to develop and implement a protocol for evacuation of patients during an emergency;
(i) Failure to develop and implement a protocol for continued assessment and treatment of patients during an emergency;
(j) Failure to have auxiliary power for wound care during an emergency;
(k) Failure to have provisions for availability of medicines, antibiotics, wound care, bandages, etc. during an emergency;
(l) Failure to take meaningful preparation for an emergency such as was presented as a result of Hurricane Katrina;
(m) Failure to develop a protocol for patient follow-up during and after an emergency;
(n) Failure to properly evaluate the success of surgery and post surgery treatment, care and prognosis;
(o) Failure to establish a hospital communication system to patients in the hospital during an emergency;
(p) Failure to get informed consent for care and treatment or lack thereof;
(q) Failure to inform patients of emergency conditions; and
(r) Failure to provide transportation for patients in an emergency.

In response, the Defendant filed an exception of prematurity averring that the Plaintiffs' claims are malpractice claims, which must be first tried before a medical review panel.

After a hearing, the trial court partially granted the exception as to all of the claims, except for subpart (b), which concerned the claim for failure to make provisions for safe and functional auxiliary power during an emergency. This Court partially granted the Plaintiffs' application for supervisory writs, finding that claims (e), (o) and (q) were negligence claims. The Louisiana Supreme Court denied the Plaintiffs' writ application for supervisory review.

After a medical review panel found that the evidence did not establish a breach in the standard of care, the Plaintiffs filed a second Petition for Damages. Once the second petition was consolidated with the first petition, the Defendant filed a partial motion for summary judgment on the fourteen medical malpractice claims. The trial court initially denied the motion for partial summary judgment. However, it granted the Defendant's re-urged motion for partial summary judgment and dismissed the medical malpractice claims with prejudice.

The judgment was designated as a final judgment by the trial court and this appeal followed.

DISCUSSION

On appeal, the Plaintiffs aver that the trial court erred in granting partial summary judgment on the medical malpractice claims. The only issue before this Court is whether there are genuine issues of material fact that preclude judgment as a matter of law.

"Motions for summary judgment are reviewed de novo 'under the same criteria governing the trial court's consideration of whether summary judgment is appropriate.' " Weddborn v. Doe , 15-1088, p. 4 (La. App. 4 Cir. 5/4/16), 194 So.3d 80, 84 (internal quotation omitted). La. C.C.P. art. 966 A(3) provides that 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." The determination of whether a fact is material turns on the applicable substantive law. Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751.

On motions for summary judgment, the burden of proof remains with the movant; however, if the moving party will not bear the burden of proof on the issue at trial he must only point out that there is an absence of factual support for one or more elements essential to the adverse party's claim. La. C.C.P. art. 966 D(1). The burden then shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id .

The motion for partial summary judgment at issue here arose from medical malpractice claims. "To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794." Samaha v. Rau , 07-1726, pp. 5-6 (La. 2/26/08), 977 So.2d 880, 883-84. Expert testimony is generally required to establish the applicable standard of care and breach of that standard. Id ., 07-1726, pp. 5-6, 977 So.2d at 884.

In this case, the Defendant will not bear the burden of proof at trial; therefore, it need only point out that there is an absence of factual support for one or more elements essential to the Plaintiff's claim to support that there is no genuine issue of material fact. See Id ., 07-1726, 977 So.2d at 884. The Defendant met its initial burden of proof on the re-urged partial motion for summary judgment based on the panel's opinion that there was no breach in the applicable standard of care, which is essential to the Plaintiffs' claim. In addition, the Defendant admitted excerpts from the deposition of Dr. Frentz, who testified that he did not believe there was a breach in the standard of care in the treatment of Mr. Delahoussaye. Thus, the burden shifted to the Plaintiffs.

In their opposition to the Defendant's re-urged motion for partial summary judgment, the Plaintiffs admitted the certified medical records from Southwest Medical Center, the affidavit and deposition excerpts of James Phillippe, an expert in hospital administration, and the affidavit and deposition excerpts from the deposition of Mr. Delahoussaye's treating physician at Southwest Medical Center, Dr. Frentz.

The Plaintiffs argue that they have produced sufficient expert testimony to support their medical malpractice claims against the Defendant. We agree. This suit is against the hospital, not a treating physician. It concerns whether there were breaches in the standard of care relative to the effective creation and implementation of administrative policies and emergency procedures, which in turn affected the individual treatment of Mr. Delahoussaye. As such, the clinical and administrative claims overlap.

While Mr. Phillippe testified as to the administrative standards of care and breaches, Dr. Frentz testified as to the clinical standard of care. In particular, Mr. Phillippe opined that Tulane Hospital had obligations to establish and implement proper emergency preparedness protocols for the hospital. He further opined that Tulane Hospital breached the standard of care regarding emergency preparedness. In particular, he found that Tulane Hospital did not develop and implement "sufficient plans for dealing with emergencies." Among other breaches, he specifically noted breaches in duties to provide: adequate staffing, adequate provisions for the safe and functional use of auxiliary power, and an adequate evacuation plan during the hurricane.

As to the clinical standards of care, Dr. Frentz testified that the two remedies to treat Mr. Delahoussaye's infection were to use a wound vac or to manually conduct wound care. He further opined that without the wound vac for five days or manual wound care, in the alternative, Mr. Delahoussaye did not receive "optimal" treatment, causing the infection to worsen and reducing the likelihood that the reconstruction would be successful.

While Dr. Frentz overtly testified that he did not find that Tulane Hospital breached the standard of care in their treatment of Mr. Delahoussaye, Mr. Phillippe's affidavit and deposition testimony established the necessary administrative breaches in the standard of care. These administrative breaches, according to Dr. Frentz, impeded Mr. Delahoussaye's clinical treatment, causing his infection to worsen and detrimentally affected the success of his reconstruction surgery, which ultimately resulted in the loss of his leg.

Since there are no individual malpractice claims in this case, the clinical claims arise from the administrative breaches. Under these peculiar circumstances and when considering the totality of the evidence presented by both Mr. Phillippe and Dr. Frentz combined, the Plaintiffs have sufficiently established the necessary elements of their malpractice claims. For this reason, we find that he trial court erred in granting the Defendant's motion for partial summary judgment.

CONCLUSION

Accordingly, we reverse the trial court's ruling granting the defendant's motion for partial summary judgment and remand this matter for further proceedings.

      "Wound vac" is a reference to the vacuum-assisted closure of a wound, which is a type of therapy to help wounds heal. VACUUM ASSISTED CLOSURE, JOHNS HOPKINS HEALTH LIBRARY, https://www.hopkinsmedicine.org/healthlibrary/test_procedures/other/vacuum-assisted_closure_of_a_wound_135,381(last visited November 9, 2018).

      There is a dispute as to the manner and frequency of the wound treatment. While the records from Southwest Medical Center indicate that the wound vac was not changed for five days, the records from Tulane Hospital, while difficult to decipher, suggest that the wound vac lost power and later became operational only to lose power again. It is also unclear as to whether the wound was manually dressed during that time. The conflict in the evidence creates a genuine issue of material fact.

      Mr. Delahoussaye's wife and child filed claims for loss of consortium.

      The claims that were dismissed are subparts (a), (c), (d), (f) - (n), (p) and (r).

      Judge Tiffany Chase initially heard and denied the Defendant's motion for partial summary judgment. After Judge Chase was elected to the Fourth Circuit Court of Appeal, Judge Henry Julien was appointed Pro Tempore. Judge Julien heard the re-urged motion for partial summary judgment.

      "The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." La. C.C.P. art. 966.

      Notably, the trial court found that the failure to provide auxiliary power was a negligence claim.


author: COX, J.

text:
    STATE of Louisiana, Appellee v. Derrick Lynn COOPER, Appellant
    No. 52,408-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 8, 2018
    LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan, Monroe, Counsel for Appellant
    JOHN M. LANCASTER, District Attorney, KENNETH D. WHEELER, AMANDA M. WILKINS, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, COX, and BLEICH (Pro Tempore ), JJ.
   COX, J.

This criminal appeal arises from the Fifth Judicial District Court, Richland Parish, Louisiana. The defendant, Derrick Lynn Cooper, pled guilty to attempted indecent behavior with a juvenile, in violation of La. R.S. 14:81 and 14:27. Cooper was sentenced to 3½ years' imprisonment at hard labor. For the following reasons, Cooper's guilty plea is vacated, his conviction and sentence set aside, and the matter remanded for further proceedings.

FACTS

Cooper was charged by bill of information with indecent behavior with a juvenile, in violation of La. R.S. 14:81. The parties reached a plea agreement, which was reduced to writing and stated that Cooper would plead guilty to attempted indecent behavior with a juvenile. In return, Cooper would receive a sentence of three years' imprisonment at hard labor. Pursuant to the plea agreement, Cooper would be permitted to return for sentencing on June 21, 2017. If he failed to appear on June 21, the sentencing agreement would be invalid, a presentence investigation would be ordered, and he would be subject to habitual offender proceedings. On April 19, 2017, Cooper entered a guilty plea to attempted indecent behavior with a juvenile. The trial court found his plea to be free and voluntary.

When Cooper failed to appear on June 21 for sentencing, a bench warrant was issued for his arrest, and pursuant to the terms of the plea agreement, the trial court ordered a presentence investigation. Cooper was arrested on October 3, 2017. On November 16, 2017, Cooper filed a pro se motion to quash and dismiss the pending charge and a pro se motion to withdraw the guilty plea. Cooper alleged that he was forced to sign the plea agreement and that investigators had admitted there was no evidence that the offense had been committed. Cooper further alleged that he accepted the plea based upon the misleading advice of counsel that there was no defense and that if he did not accept the plea, he would receive a sentence of 20 to 40 years' imprisonment. He argued that if he had understood that additional evidence would be necessary to establish his guilt at trial, he would have insisted on proceeding to trial.

On December 31, 2017, Cooper appeared for sentencing. Cooper's pro se motion to quash and dismiss the pending charge and pro se motion to withdraw the guilty plea were both denied. After discussing the contents of the presentence investigation report, including Cooper's criminal history and the facts of the instant offense, the trial court sentenced Cooper to 3½ years' imprisonment at hard labor. Cooper was provided with a notice of sex offender registration requirements. This appeal followed.

DISCUSSION

Cooper argues that the trial court abused its discretion in denying his motion to withdraw the guilty plea because the factual basis was insufficient in light of his consistent declarations of innocence. He asserts that, in the absence of an admission of guilt, the record should contain a significant or substantial factual basis to support the charge. Cooper further argues that his guilty plea was not knowingly and voluntarily entered because he was not adequately informed of the obligation to register as a sex offender, was misinformed as to his eligibility for "good time," and may have been under a misapprehension as to the potential sentence he could receive as a habitual offender.

In response, the State argues that, except in the case of an Alford plea, the trial court is not required to ascertain a factual basis for the offense prior to accepting a guilty plea. The State asserts that Cooper was advised of his rights under Boykin , the trial court set forth the elements of the offense, Cooper was advised of the maximum sentence available under the statute, and the trial court determined that Cooper understood and accepted the plea agreement. The State further argues that the record clearly reflects that Cooper understood the charge against him and the charge he was pleading guilty to at the time of the hearing.

Upon motion of the defendant and after a contradictory hearing, the court may permit a plea of guilty to be withdrawn at any time before sentencing. La. C. Cr. P. art. 559(A). The discretion to allow the withdrawal of a guilty plea under Art. 559(A) lies with the trial court and such discretion cannot be disturbed unless an abuse or arbitrary exercise of that discretion is shown. State v. Martin , 48,045 (La. App. 2 Cir. 5/15/13), 115 So.3d 750. A defendant has no absolute right to withdraw a guilty plea. Id.

A valid guilty plea must be a voluntary choice by the defendant and not the result of force or threats. La. C. Cr. P. art. 556.1. Art. 556.1 provides that prior to accepting a guilty plea, the court must personally inform the defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty, and the maximum possible penalty. When the record establishes that an accused was informed of and waived his right to a trial by jury, to confront his accusers, and against self-incrimination, the burden shifts to the accused to prove that despite this record, his guilty plea was involuntary. State v. Martin , supra .

A guilty plea normally waives all nonjurisdictional defects in the proceedings prior to the plea, including insufficiency of the evidence. State v. Crosby , 338 So.2d 584 (La. 1976) ; State v. Johnson , 51,430 (La. App. 2 Cir. 7/5/17), 224 So.3d 505. It is well settled that a guilty plea by its nature admits factual guilt and relieves the State of the necessity to prove it by a contested trial. State v. Bourgeois , 406 So.2d 550 (La. 1981). A validly entered guilty plea, or plea of nolo contendere , waives any right a defendant might have had to question the merits of the State's case and the factual basis underlying the conviction. State v. Bradham , 51,889 (La. App. 2 Cir. 4/11/18), 246 So.3d 775.

The due process clause imposes no constitutional duty on state trial judges to ascertain a factual basis prior to accepting a guilty plea. Louisiana law, unlike federal law, has no statutory provision requiring accompaniment of a guilty plea by the recitation of a factual basis. State v. Estes , 42,093 (La. App. 2 Cir. 5/9/07), 956 So.2d 779, 787, writ denied , 07-1442 (La. 4/4/08), 978 So.2d 324. However, where a defendant protests his innocence, or the trial court is put on notice that a defendant may be innocent, a guilty plea may only be accepted by the trial court upon a judicial finding that there is a significant factual basis for the defendant's plea. North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) ; State v. Bass , 45,298 (La. App. 2 Cir. 8/11/10), 47 So.3d 541, writ denied , 10-2405 (La. 2/25/11), 58 So.3d 457.

In State v. Thomas , 29,477 (La. App. 2 Cir. 4/2/97), 691 So.2d 368, this Court vacated a defendant's guilty plea and set aside his conviction and sentence for manslaughter due to the defendant's assertion during his guilty plea colloquy that he shot the victim in self-defense. This Court noted that the defendant's last response was a refusal to acknowledge the recited circumstances and instead, asserted a justification for his actions. The trial court was found to have erred in ending the inquiry without further clarification of the defendant's voluntary and intelligent consent to the plea.

In State v. Ford , 29,170 (La. App. 2 Cir. 1/22/97), 687 So.2d 658, this Court noted that the defendant's statement at his Boykin hearing that he acted in self-defense by stabbing the victim "was sufficient to place the district court on notice that a judicial finding of a significant factual basis for the plea was required."

In State v. Stevenson , 45,371 (La. App. 2 Cir. 6/23/10), 41 So.3d 1273, the defendant sought to withdraw his guilty plea to criminal damage to property with the intent to defraud, arguing that the trial court accepted his guilty plea despite his assertions that he did not damage any property and without ascertaining whether a sufficient factual basis existed for the acceptance of the guilty plea. This Court noted that nowhere in the transcript of the guilty plea did the defendant, or his attorney, use the words " Alford plea." This Court found that the record reflected that the defendant clearly admitted to the misdemeanor crime of theft of utilities, but he denied the felony offense of criminal damage to property with the intent to defraud, even though he pled guilty to the charge.

In Stevenson , the recitation of the facts by the prosecution made no mention of damage to property, but only mentioned the theft of electricity. No facts were given to support any of the necessary elements for the charge of criminal damage to property with the intent to defraud. The trial court did not go over the elements of the offense to which he was pleading, and instead, merely asked the defendant if he understood he was pleading guilty to that crime. Reviewing the transcript in light of Alford , this Court held that there was not enough evidence that the defendant's guilty plea, coupled with the protestation of innocence, was based on a significant factual basis and was knowing and voluntary. The conviction was reversed and the matter remanded to give the defendant the opportunity to withdraw his guilty plea to the felony offense.

The test for the validity of a guilty plea does not depend upon whether or not the district court specifically informed the accused of every element of the offense. Rather, the defendant must establish that he lacked awareness of the essential nature of the offense to which he was pleading. State v. Johnson, supra. Violations of Art. 556.1 that do not rise to the level of Boykin violations are subject to the harmless error analysis. Id. The proper inquiry is whether the defendant's knowledge and comprehension of the full and correct information would have likely affected his or her willingness to plead guilty. Id.

Prior to accepting Cooper's guilty plea, the trial court determined that he was competent to enter the plea and waive his rights. Cooper indicated that he had sufficient time to talk with his attorney and did not have any questions. The trial court then read the elements of the offense, under La. R.S. 14:81 and 14:27, informed Cooper of the possible maximum penalty, and inquired as to whether there had been any threats, pressure, or promises to influence Cooper in entering his plea. Cooper was advised of his rights to a trial by jury, to the assistance of counsel during trial, to have the State prove its case beyond a reasonable doubt, to confront and cross-examine witnesses, to testify or not testify, and to appeal. Cooper indicated that he understood those rights and that, by pleading guilty, he waived those rights.

The State then entered its factual basis on the record, as follows:

Judge, the facts in this case if we went to trial would be that on the date set forth in the bill of information, this defendant entered the house of where the victim was ultimately was located, he came in contact with he[r], during the course of that contact - contact, he made physical contact with a - in a way with her which would fall within the definition of lewd and lascivious acts under the Statute.

At the conclusion of the State's factual basis, the following exchange took place:

MR. COOPER: It wasn't true though. (Emphasis added)
COURT: All right.
MR. WHEELER: All right, we will say he attempted.
COURT: Right attempted.
MR. WHEELER: To commit an act...
COURT: Attempt. Okay.
MR. WHEELER: ... which would be defined as lewd or lascivious under this statute.
COURT: Okay.
MR. COOPER: That's a lie[.] (Emphasis added)
COURT: Upon the record before me I find that the plea is entered freely, voluntarily both with an understanding of the nature of these charges and the consequence of the plea, including Mr. Cooper's understanding of the plea agreement. I also find that it has a factual basis containing all elements of the crime charged[.]

While Cooper was advised of and waived his Boykin rights, and stated his desire to plead guilty, his remarks following the State's recitation of facts are a clear protestation of innocence and put the trial court on notice that it needed to ascertain a significant factual basis in order to accept his guilty plea. Rather than gain additional clarification of Cooper's voluntary and intelligent consent to the plea, the trial court erred in ending the inquiry. We find Cooper's consistent assertions of innocence undermine the conclusion that his plea represented a voluntary and intelligent choice among his alternatives. For this reason, we respectfully vacate Cooper's guilty plea. We pretermit the other arguments raised by Cooper as we are remanding the case for further proceedings.

CONCLUSION

We respectfully vacate the guilty plea, set aside the conviction and sentence, and remand for further proceedings.

VACATED AND REMANDED.

      Cooper filed an application for supervisory review, which was remanded for perfection as an appeal on April 19, 2018 (No. 52,223-KH). A motion and order for out-of-time appeal was filed and the Louisiana Appellate Project was appointed to represent Cooper.

      North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

      Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


text:
    Joseph and Christy SEPULVADO, Plaintiff-Appellant v. TRAVELERS INSURANCE - The CHARTER OAK FIRE INSURANCE COMPANY and Yokem Motors, Inc., Defendants-Appellees
    No. 52,415-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 8, 2018
    GILMER & GIGLIO, L.L.C., By: Sarah R. Giglio, Counsel for Appellant
    PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, L.L.P., By: Donald J. Armand, Jr., Joshua P. Monteleone, Shreveport, Counsel for Appellees
    Before MOORE, STONE, and COX, JJ.
   COX, J.

Joseph Sepulvado and Christy Sepulvado ("Mr. and Mrs. Sepulvado," respectively) brought a personal injury suit against The Charter Oak Fire Insurance Company and Yokem Motors, Incorporated (collectively referred to as "Yokem") in the First Judicial District Court, Caddo Parish, Louisiana. The district court granted Yokem's motion for summary judgment. The Sepulvados now appeal. For the following reasons, we affirm the district court's judgment.

FACTS

Mr. Sepulvado was injured while exiting his vehicle at Yokem, a car dealership in Shreveport, Louisiana. On February 24, 2015, Mr. Sepulvado drove his 2007 GMC truck from DeSoto Parish to Shreveport. Mr. Sepulvado was going to meet with a Geico employee to get a repair estimate for the tailgate of his truck. At the time, Geico was renting a building on the Yokem premises. Mr. Sepulvado was accompanied by Mrs. Sepulvado and their son, Aaron. Aaron's school was closed that day due to icy weather conditions.

While driving on the lot, Mr. Sepulvado was directed where to park by a Yokem employee. Mr. Sepulvado claims a Yokem employee by the name of Paul motioned for him to get out of his truck to meet him. Mr. Sepulvado claims that upon exiting his truck, he took three steps, his feet slid out from underneath him, and he fell on a thin layer of ice, injuring his back and head. Mrs. Sepulvado took Mr. Sepulvado to the emergency room at Christus Schumpert Highland Hospital. While waiting in the emergency room, Mr. Sepulvado claims he talked to two Yokem employees who slipped on the same patch of ice earlier in the morning.

In his deposition, Mr. Sepulvado stated the weather was bad and icy on the day of the accident. He recalled seeing spots of ice on the side of the road while he was on his way to Geico that morning. When asked if there was any ice on the road, Mr. Sepulvado answered, "Probably. I can't really remember. Probably." He said he was the only car in the parking lot where he fell. He stated he did not see ice on the pavement until after he fell, when the people running to help him were sliding around. Mr. Sepulvado said that he did not see any ice on the ground where he fell. He assumed that ice caused him to fall because of the way his feet slid from underneath him. He further stated that his wife did not fall while checking on him and his truck did not slide while he was driving it on the lot.

Mrs. Sepulvado confirmed Mr. Sepulvado's recollection of the truck not sliding around on the lot. She also stated that she did not see any ice while assisting her husband after the fall. At the time she was running around the truck to check on Mr. Sepulvado, she did not know he fell because of ice.

Paul Bentzler was a Yokem employee who was working the morning of the accident. Mr. Bentzler stated he arrived to work at 6:30 a.m. and the back lot, where the employees park, was pretty much solid ice and "pretty slick." He said he saw Mr. Sepulvado pull up and park his truck, but he did not see Mr. Sepulvado fall. He only saw Mr. Sepulvado lying beside his truck. Mr. Bentzler stated that he helped Mr. Sepulvado get back on this feet because "it was slick." He also stated that Mr. Sepulvado drove straight to the Geico building after the fall and was there for about 30 minutes before leaving. Mr. Bentzler heard later that day that another employee had fallen in the back lot, but he did not see the fall.

On February 23, 2016, Mr. Sepulvado petitioned for both general and special damages, including past and future medical expenses; past, present, and future pain and suffering; and, past, present, and future mental anguish and distress. Ms. Sepulvado petitioned for damages for loss of consortium, services, and society.

Yokem and its insurer, The Charter Oak Fire Insurance Company, filed a motion for summary judgment because the Sepulvados could not meet their burden of proof as to the existence of an "unreasonable risk of harm." The district court granted Yokem's motion for summary judgment and stated the following:

[Mr. Sepulvado] knew that the weather was bad that day. On his way from his home to the location, he saw ice on the side of the road. [H]e testified to knowing that there were icy conditions and bad weather conditions.
* * *
So the plaintiff was certainly on notice, it was open and obvious that the conditions were bad, and that's the reason why school was closed[.] Everyone was on notice that the conditions were very dangerous, not only to drive, but also to walk in.
* * *
Even if he didn't see the specific patch of ice that he might have slipped and fell on, it's unclear from his testimony whether he actually slipped and fell. But be that as it is, he was certainly on notice that it was a dangerous situation, and he chose to travel on that day nonetheless.

The Sepulvados have appealed the district court's judgment.

DISCUSSION

The Sepulvados' sole assignment of error is that the district court erred in granting the motion for summary judgment in favor of Yokem. The Sepulvados argue that a plaintiff's awareness alone does not justify a finding that the hazard was "open and obvious." They contend that although Mr. Sepulvado was aware of the icy conditions, Yokem had not taken any steps to abate the icy conditions in their parking lot. The Sepulvados request that this Court vacate the judgment of the district court and deny the motion for summary judgment.

A de novo standard of review is required when an appellate court considers rulings on motions for summary judgment, and the appellate court uses the same criteria that governed the district court's determination of whether summary judgment was appropriate. J & L Oil Co. v. KM Oil Co., LLC , 51,898 (La. App. 2 Cir. 2/28/18), 247 So.3d 147, 154. A court must grant a motion for summary judgment if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

In addition to other elements, a plaintiff filing a claim against a merchant must prove the condition presented an unreasonable risk of harm and that the risk of harm was reasonably foreseeable. La. R.S. 9:2800.6. While merchants must exercise reasonable care to protect their patrons and keep their premises safe from unreasonable risks of harm, they are not insurers of their patrons' safety and are not liable every time an accident happens. Ton v. Albertson's, LLC , 50,212 (La. App. 2 Cir. 11/18/15), 182 So.3d 246, writ denied , 2015-2320 (La. 2/5/16), 186 So.3d 1169. A merchant generally does not have a duty to protect against an open and obvious hazard. Cox v. Baker Distrib. Co., L.L.C. , 51,587 (La. App. 2 Cir. 9/27/17), 244 So.3d 681, writ denied , 2017-1834 (La. 1/9/18), 231 So.3d 649. In order for a hazard to be considered open and obvious, our jurisprudence has consistently stated the hazard should be one that is open and obvious to all, i.e., everyone who may potentially encounter it. Id.

Mr. Sepulvado claims he encountered an unreasonably dangerous condition, a thin sheet of ice, on the Yokem premises, which caused him to trip and fall. Yokem does not deny the existence of freezing conditions the night before the fall, but argues the presence of any ice in the parking lot was not an unreasonably dangerous condition because it was open and obvious. The question in this case is whether the presence of ice in Yokem's parking lot was an open and obvious hazard. The district court determined that the presence of ice was an open and obvious hazard and granted Yokem's motion for summary judgment.

According to Sarah Wilkerson, the Comptroller and Human Resources Director of Yokem, a severe weather system brought icy conditions to the area on February 23, 2015. She stated that on February 23, the Yokem maintenance crew purchased 48 boxes of salt and spread it throughout the Yokem premises, particularly high-traffic areas, in order to counter the potentially icy conditions. She described the Yokem premises as being about the size of a city block. Ms. Wilkerson also stated that Yokem closed early on February 23, and told employees if the weather conditions persisted, to use their judgment when determining whether or not to drive to work on February 24.

In his deposition, Mr. Sepulvado described the weather on February 24 in following way: "It was bad. I mean, it was kind of like ice. I don't know if there was snow or not, I don't think there was, ice." He stated there was ice at his home when he left. Mr. Sepulvado was asked to describe the roads on his commute. He stated, "[T]here were spots of ice and stuff like that, but they wasn't- I mean, traffic was heavy, you know." He recalled seeing ice on the side of the road. He could not remember the presence of ice on the road, but said it was probably there. He stated later in his deposition, "[T]here wasn't that much ice in the road." Mr. Sepulvado did not recall seeing any ice in the spot he fell before, during, or after his fall.

As stated above, Mrs. Sepulvado did not see any ice while she was running around the truck to assist her husband. Mr. Bentzler, the Yokem employee who helped Mr. Sepulvado after his accident, recalled ice being on the employee parking lot. He stated that he helped Mr. Sepulvado back on his feet because the ground was "slick."

The record reflects that ice was readily apparent in Shreveport on February 24, 2015, due to the weather. Aaron Sepulvado's school was closed due to the icy weather. Mr. Sepulvado stated there was ice on the sides of the roads while he was driving to Geico that morning. From Mr. Sepulvado's deposition, there is also the possibility that ice was present on the roads. The existence of ice may not always be an open and obvious hazard in Louisiana. However, on this day, when it is undisputed that the weather produced icy conditions, the risks associated with the presence of ice is obvious. We agree with the district court that the presence of ice was open and obvious. Therefore, we affirm the district court's granting of Yokem's motion for summary judgment.

CONCLUSION

Based on our determination that the presence of ice was open and obvious, we affirm the granting of Yokem's motion for summary judgment. Costs of this appeal are assessed to the appellants, Joseph and Christy Sepulvado.

AFFIRMED.

      The Sepulvados listed Travelers Insurance Company - The Charter Oak Fire Insurance Company as a defendant, claiming it sold an insurance policy to Yokem. However, in the answer to the petition, Yokem states the Sepulvados incorrectly identified The Charter Oak Fire Insurance Company as Travelers Insurance Company - The Charter Oak Fire Insurance Company.
      At the time Yokem filed its motion for summary judgment, Yokem Motors, Inc. had changed to Yokem Motors, L.L.C.

      Mr. Sepulvado stated his visit on the premises was not related to Yokem and he only had a meeting with Geico.


author: McCALLUM, J.

text:
    Derek Van MARTIN, Plaintiff-Appellant v. Anna Parker MARTIN, Defendant-Appellee
    No. 52,401-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered November 14, 2018
    TRACY W. HOUCK, RUSTON, Counsel for Appellant
    MIXON, CARROLL & FRAZIER, PLLC, By: Rossanna Rahim McIlwain, Counsel for Appellee
    Before MOORE, PITMAN, and McCALLUM, JJ.
   McCALLUM, J.

Derek Martin appeals from a judgment of partition which incorporated the findings of a declaratory judgment. The declaratory judgment determined that increases in value of his separate property during the marriage, namely his retirement account and a closely-held corporation in which he owned an interest, were community property.

We reverse the declaratory judgment in part, vacate the judgment of partition, and remand.

FACTS

Derek Martin and Anna Martin were married on February 14, 2004. Before and during the marriage, Derek worked for P & M Services, Inc., a closely-held family corporation in which he owned a 30% interest. During this time, Anna worked as a public school teacher. P & M performed plumbing and industrial maintenance work. Prior to the marriage, Anna and Derek each had their own retirement account. Anna's account was through her employment as a public school teacher. According to Derek's brief, each party made contributions to their respective accounts before and during the marriage.

The day before they married, Derek and Anna executed a marriage contract ("contract"), which states, in part:

In the event the parties remain married they shall be subject to the provisions of the Louisiana Revised Civil Code which establish a community of acquets and gains between husband and wife. However, should the parties divorce, Derek Van Martin shall be entitled to all of his interest in P & M Services, Inc., and all of his interest in his retirement account. Anna Parker Frederick will be entitled to receive all funds in her public school employee's retirement account. Only the remaining property owned by the parties will be considered community property in the event of a divorce.

A petition for divorce was filed on February 21, 2008, with the judgment of divorce rendered on May 15, 2009. On June 8, 2009, Derek filed a petition to partition the community property. Three years later, the court appointed a special master to assist the court regarding disputes that Anna and Derek had concerning the value of reimbursement claims, the allotment of property, and the appraisal of community property.

On February 5, 2013, Anna filed a petition for declaratory judgment. Her petition for declaratory judgment was given the same docket number as the petition for partition. Anna argued that the phrase "all of his interest" in the contract did not mean the community's interest, and that the contract did not reserve to Derek any increase in the value of P & M or of his retirement account during the marriage. She further contended that Derek had no interest in her retirement account under the terms of the contract.

A hearing on the petition for a declaratory judgment was held on May 29, 2013, during which the trial judge told the parties that after examining the record, he did not see the need for any testimony. On July 30, 2013, the trial court rendered judgment declaring that any increases in value of P & M and of Derek's retirement account during the existence of the marriage belonged to the community, while any increase in value of Anna's public school retirement account during the marriage was her separate property.

Derek filed a motion for new trial on August 22, 2013. The motion was denied on November 1, 2013. Derek filed a petition for a devolutive appeal from the declaratory judgment on January 10, 2014. On April 23, 2014, this court entered an order of dismissal on the grounds that the declaratory judgment was a partial judgment that was not designated as a final judgment under La. C.C.P. art. 1915(B) and thus not appealable. Anna's motion to dismiss the appeal was denied as moot.

A hearing before the special master was held on October 19, 2014. On January 28, 2015, the special master provided her written recommendations and findings of fact. She began by summarizing the contract before quoting from the declaratory judgment. She then made her recommendations and findings of fact, including calculating the amount of the increase in value of Derek's retirement account during the marriage, and then determining what Anna was entitled to under the declaratory judgment. She recognized that under the terms of the declaratory judgment, Anna was entitled to one-half of the increase in the value of Derek's interest in P & M

during the marriage. However, the special master was unable to determine the increase in value of P & M without the assistance of a certified public accountant ("CPA").

Both parties objected to the recommendations and findings of fact. In particular, Derek objected to the two determinations that were made in accordance with the declaratory judgment. He added that he felt the court had erred in its ruling in the declaratory judgment, and he objected to any ruling in accordance therewith.

On June 11, 2015, the court agreed to the appointment of a CPA to determine the value of any increase in the stock of P & M. The CPA's report was prepared on September 26, 2017.

On January 10, 2018, the court rendered a written judgment of partition. The court adopted the recommendations of the special master and the CPA's valuation of the increase in value of P & M and made them a part of the judgment of partition.

Derek has appealed from the judgment of partition.

DISCUSSION

Derek argues on appeal that the trial court erred in: (i) ruling that any increase in value in Derek's retirement account during the marriage was community property; (ii) ruling that any increase in value of Derek's share of P & M during the marriage was community property; and (iii) casting Derek with all court costs.

Anna has filed a motion to dismiss the appeal. First, she contends that the appeal should be dismissed pursuant to La. C.C.P. art. 2162 because Derek has no right to appeal the declaratory judgment. She argues that he should have requested in 2013 that the trial court designate the declaratory judgment as a final, appealable judgment. She further asserts that Derek could have taken an appeal from the declaratory judgment after the judgment of partition was rendered. Second, she argues that Derek's brief failed to comply with URCA 2-12.4, which requires that the statement of jurisdiction, assignments of error, issues for review, and argument are to be directed toward the judgment appealed, not the declaratory judgment. Accordingly, she maintains that the brief should be treated as if it had never been filed.

Derek's earlier appeal of the declaratory judgment was dismissed by this court because the judgment was not designated as a final judgment under La. C.C.P. art. 1915(B) and, thus, was not appealable.

La. C.C.P. art. 1915(B)(1) states that when a court renders a partial judgment as to one or more but less than all of the claims, demands, issues, or theories against a party, the judgment shall not constitute a final judgment unless designated as a final judgment by the court after an express determination that there is no just reason for delay.

We are mindful that La. C.C.P. art. 1871, which governs the scope of declaratory judgments, states that a "declaration shall have the force and effect of a final judgment or decree." Nonetheless, while the petition sought a declaratory judgment and the judgment was captioned as a "declaratory judgment," the declaratory judgment was essentially an interlocutory judgment as it did not resolve all of the issues before the court related to the partition of the community property. In addition, the declaratory judgment ultimately served as a basis for the findings by the special master which were adopted by the court in the judgment of partition. The judgment of partition was the final judgment as it adjudicated all of the claims, rights, and liabilities of Anna and Derek. As such, absent the determination and designation by the court pursuant to La. C.C.P. art. 1915(B), the declaratory judgment was not immediately appealable and the earlier appeal was dismissed by this court.

A judgment may be interlocutory or final. La. C.C.P. art. 1841. The Louisiana Supreme Court has held that an interlocutory ruling is reviewable on appeal of a final, appealable judgment in the case. See Louisiana High School Athletics Ass'n, Inc. v. State , 2012-1471 (La. 1/29/13), 107 So.3d 583 ; People of the Living God v. Chantilly Corp. , 251 La. 943, 207 So.2d 752 (1968).

In general, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. Judson v. Davis , 2004-1699 (La. App. 1 Cir. 6/29/05), 916 So.2d 1106, writ denied , 2005-1998 (La. 2/10/06), 924 So.2d 167.

The appeal of the judgment of partition necessarily included any earlier interlocutory rulings, including the declaratory judgment. Therefore, a review of the declaratory judgment is now properly before this court. Finally, we do not discern any noncompliance with URCA 2-12.4. While the judgment of partition provides the basis for this court's jurisdiction, that judgment encompassed the declaratory judgment which is the true focus of the appeal. Accordingly, the motion to dismiss the appeal lacks merit and is denied.

Standard of review

Although a trial court's determination about whether to issue a declaratory judgment is subject to the abuse of discretion standard, the judgment itself is still subject to the appropriate standard of review. Campbell v. Evangeline Parish Police Jury , 2014-1301 (La. App. 3 Cir. 5/6/15), 164 So.3d 408, writ denied , 2015-1067 (La. 9/11/15), 176 So.3d 1043.

A trial court's factual findings are entitled to great weight and will not be disturbed on appeal absent manifest error. Rosell v. ESCO , 549 So.2d 840 (La. 1989). However, the interpretation of a contract generally presents a question of law that is subject to a de novo review on appeal. Ford v. Lester , 48,932 (La. App. 2 Cir. 5/14/14), 139 So.3d 22, writ denied , 2014-1567 (La. 11/7/14), 152 So.3d 175.

When a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law. Prejean v. Guillory , 2010-0740 (La. 7/2/10), 38 So.3d 274.

The trial court heard no testimony and made its findings largely based upon the language of the contract. The only fact outside the contract that it considered was that the contract was prepared by Derek's attorney. Accordingly, the court's finding is subject to de novo review by this court.

Rules of interpretation

Civil fruits are defined in La. C.C. art. 551 as "revenues derived from a thing by operation of law or by reason of a juridical act, such as rentals, interest, and certain corporate distributions."

La. C.C. art. 2339 provides that the natural and civil fruits of the separate property of a spouse are community property. However, a spouse may reserve them as his or her separate property by "a declaration made in an authentic act or in an act under private signature duly acknowledged."

A matrimonial regime may be legal, contractual, or partly legal and partly contractual.

La. C.C. art. 2326. Matrimonial agreements are governed, in part, by La. C.C. arts. 2328 and 2329. Article 2328 provides:

A matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime. Spouses are free to establish by matrimonial agreement a regime of separation of property or modify the legal regime as provided by law. The provisions of the legal regime that have not been excluded or modified by agreement retain their force and effect.

Article 2329 provides:

Spouses may enter into a matrimonial agreement before or during marriage as to all matters that are not prohibited by public policy.
Spouses may enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage only upon joint petition and a finding by the court that this serves their best interests and that they understand the governing principles and rules. They may, however, subject themselves to the legal regime by a matrimonial agreement at any time without court approval.
During the first year after moving into and acquiring a domicile in this state, spouses may enter into a matrimonial agreement without court approval.

Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. The reasonable intention of the parties to a contract is to be sought by examining the words of the contract itself, and not assumed. Prejean , supra .

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046. Common intent is determined, therefore, in accordance with the general, ordinary, plain and popular meaning of the words used in the contract. Prejean , supra . When a clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit, as it is not the duty of the courts to bend the meaning of the words of a contract into harmony with a supposed reasonable intention of the parties. Id. However, even when the language of the contract is clear, courts should refrain from construing the contract in such a manner as to lead to absurd consequences. Amend v. McCabe , 1995-0316 (La. 12/1/95), 664 So.2d 1183. Most importantly, a contract must be interpreted in a common sense fashion, giving to the words of the contract their common and usual significance. Prejean , supra .

The words of a contract must be given their generally prevailing meaning; words of art and technical terms must be given their technical meaning when the contract involves a technical matter. La. C.C. art. 2047. Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. La. C.C. art. 2048. A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective. La. C.C. art. 2049.

Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. La. C.C. art. 2053. In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. La. C.C. art. 2056.

Under Louisiana law, when there is any doubt about the meaning of an agreement, the court must ascertain the common intention of the parties, rather than adhering to the literal sense of the terms. The trial court's initial inquiry should be whether the words of the contract clearly and explicitly set forth the intent of the parties. This methodology limits the interpretation of a contract to the internal language of the contract itself. If this intent cannot be adequately discerned from the contract itself, the court may then consider evidence as to the facts and circumstances surrounding the parties at the time the contract was made. Miller v. Miller , 44,163 (La. App. 2 Cir. 1/14/09), 1 So.3d 815.

Reasons for judgment

The court ruled that any increase in the value of P & M or of Derek's retirement account during the existence of the community was community property. The court further ruled that any increase in the value of Anna's retirement account during the existence of the community remained her separate property.

The court began its analysis by concluding that the contract did not contain a declaration of reservation of fruits of separate property pursuant to La C.C. art. 2339. The court then looked to the articles on interpretation of contracts found in La. C.C. arts. 2045, et seq.

After examining La. C.C. art. 2046, the court concluded that by the contract's explicit language, the increase in value of P & M and of Derek's retirement account were community property.

The court then noted that according to art. 2047, words of a contract must be given their generally prevailing meaning. The court reasoned that "all of his interest" meant what it said, and it did not include any increase in Derek's interest during the existence of the community. The court further reasoned that "all funds" in Anna's school retirement account meant what it said.

The court continued, stating that: (1) it did not find that the words were susceptible of different meanings as contemplated by art. 2048 ; (2) it did not find that the provision was susceptible of different meanings as contemplated by art. 2049 ; (3) the meaning did not change when the provisions were interpreted in light of each other under art. 2050 ; (4) La. C.C. art. 2051 did not apply because the contract was not worded in general terms; and (5) La. C.C. art. 2052 did not apply because the parties intended a contract to cover a specific situation, not a contract of a general scope.

The court noted that La. C.C. art. 2053 provides that a doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. The court stated that even though the contract did not contain a doubtful provision, the nature of the contract, equity and usages would not change its specific language. Moreover, the conduct of the parties before and after forming the contract could not be considered because there was no such evidence before the court. While the court recognized that Derek argued the court should consider the intent of the parties, the matter was submitted without any testimony regarding the intent of either party.

Finally, the court noted that La. C.C. art. 2056 provides that in case of doubt that cannot be otherwise resolved, a provision of the contract must be interpreted against the party who furnished its text. The parties stipulated that the contract was drawn up by the attorney for Derek and his family; therefore, any doubt must be interpreted against Derek.

Interpreting the contract

Derek contends that the court's interpretation rendered the contract's provisions redundant and pointless. There would have been no need for the parties to distinguish his interests in P & M and in his retirement account if they were to be treated the same as any other community property. He maintains that it was clearly the parties' intent to reserve the fruits and revenues of their separate property.

Derek further argues that he used the words "his interest" because he owned stock in P & M along with other members of his family. He also could only deal with his interest in the retirement account. He contends that had the parties desired to treat the increases in value of his separate property as community property, then they would have simply left out the provision mentioning his interest in the retirement account and in P & M.

The contract never used specific language regarding a reservation of fruits or revenues. Nevertheless, this was clearly the parties' intent when executing the contract as the parties excluded certain property from the community of acquets and gains in the event of a divorce. The last sentence of the paragraph setting forth the matrimonial regime stated: "Only the remaining property owned by the parties will be considered community property in the event of a divorce." This sentence clearly qualified what property would be subject to the legal regime. Certainly the parties' intent was not to mention these specific separate properties, and then exclude only the increase in value of Anna's retirement account.

The trial court appeared to focus on the contract's use of the words "all of his interest" when describing Derek's separate property, while the contract used the words "all funds" when describing Anna's property. This is a distinction without a difference as the clear intent of the parties was to limit the scope and application of the legal regime to their property.

Derek owned a 30% interest in P & M. "All of his interest" distinguishes between his interest and the interests owned by his family members in their closely-held corporation. Such a phrase captures the total value of his interest, whether it increased or decreased during the marriage. Thus, "all of his interest" reflected any changes in value of P & M during the marriage.

Derek also used "all of his interest" to reserve any increase in value of his retirement account during the marriage. To construe the words as something other than a reservation of the civil fruits or revenues of that account as his separate property leads to absurd consequences. Under the terms of the contract, their property would be subject to the legal regime except for the specifically mentioned property. There would have been no need for Derek to specifically distinguish his retirement account if his intent was not to reserve its civil fruits and revenues.

Based on the foregoing, we conclude that the trial court erred in finding that any increases in the value of P & M and of Derek's retirement account during the marriage belonged to the community. Accordingly, we reverse that part of the declaratory judgment decreeing that any increases in the value of P & M and of Derek's retirement account during the marriage were community property.

CONCLUSION

At Anna's costs, the declaratory judgment is reversed in part and the judgment of partition is vacated. This matter is remanded to the trial court for further proceedings.

DECLARATORY JUDGMENT REVERSED IN PART; JUDGMENT OF PARTITION VACATED; AND REMANDED.

      Although a contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include. La. C.C. art. 2051.

      When the parties intend a contract of general scope but, to eliminate doubt, include a provision that describes a specific situation, interpretation must not restrict the scope of the contract to that situation alone. La. C.C. art. 2052.