author: GASKINS, J. BROWN, Chief Judge, CARAWAY, J.,

text:
    James A. YOUNG, Plaintiff-Appellee, v. Sharon Miles TOLINTINO, Defendant-Appellant.
    No. 44,631-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 2, 2009.

      The Henderson Law Firm, LLC by Darius Q. Henderson, Shreveport, for Appellant.
    Tutt, Stroud & McKay, LLC by Charles G. Tutt, Shreveport, for Appellee.
    Before BROWN, GASKINS, CARAWAY, PEATROSS and MOORE, JJ.
   GASKINS, J.

liThe defendant, Sharon Miles Tolintino, appeals from a trial court ruling denying her motion for summary judgment and granting summary judgment in favor of the plaintiff, James A. Young, ordering specific performance of an agreement to buy and sell property. For the following reasons, we affirm the granting of the summary judgment and remand to correct the judgment.

FACTS

On December 6, 2005, the parties entered into an agreement to buy and sell property. The defendant had a partial ownership interest in two pieces of property in south Bossier Parish. One tract was located in Sections 33 and 34, Township 17 North, Range 11 West. The other was located in Sections 3 and 4, Township 16 North, Range 11 West. The plaintiff agreed to purchase all the defendant’s interest in these tracts for $400 per acre. There were mineral royalty payments of $1,500 per month on the tract in Sections 33 and 34. One-half of the mineral interest was to be transferred to Mr. Young for the price of $27,000. No mineral income was present on the other property; all mineral interests in that tract were to be conveyed to the plaintiff.

Mr. Young agreed to transfer to Ms. Tolintino not less than two acres fronting Chinanook Road in Section 3, Township 16 North, Range 11 West for $5,000 per acre and the minerals were reserved. He paid partial consideration of $1,000 to Ms. To-lintino to be applied to the purchase price. The closing was to be scheduled as soon as reasonably possible.

|2Ms. Tolintino claims that on January 20, 2006, she met with Mr. Young at his place of business and told him that she wanted to revoke the buy and sell agreement. She asserted that she tried to refund to Mr. Young the $1,000 he paid in consideration of the agreement, but he refused to accept the money or release her from the agreement.

On February 9, 2006, Mr. Young sent a letter to Ms. Tolintino, informing her that the survey of the property had been completed. He gave her the option to cancel the agreement by returning his money by 5:00 p.m. on February 17, 2006. Otherwise, the contract would remain in effect and they would proceed with the closing. Ms. Tolintino did not return the money-paid by Mr. Young in accordance with the deadline. The buy and sell agreement was filed into the Bossier Parish records on February 22, 2006.

According to Ms. Tolintino, in May and August 2006, she again attempted to refund the $1,000 to Mr. Young and he refused to accept it, maintaining that he was also entitled to repayment for the cost of surveying the property subject to the agreement. Ms. Tolintino claims that on June 5, 2007, a certified letter was mailed to Mr. Young stating her wish to revoke the contract and enclosing a check for $1,120.60, the original $1,000 plus interest. She asserts that Mr. Young did not claim that letter, but he did receive another letter and refund check on July 6, 2007, that she sent to him. Mr. Young’s attorney said that his client did not cash the check. Approximately three months later, on October 15, 2007, Mr. Young’s |8attorney said that his client did not want to rescind the agreement and that suit would be filed within 15 days.

On July 10, 2008, Mr. Young filed a petition for specific performance, alleging that the defendant failed to move forward with the agreement. On July 31, 2008, Ms. Tolintino answered, insisting that the agreement was dissolved and the obligation terminated when she gave the $1,000 back to Mr. Young, with interest. She also claimed that he did not set the closing within a reasonable time as required by the contract.

On October 9, 2008, Mr. Young filed a motion for summary judgment, claiming that Ms. Tolintino did not tender his money until after the deadline set in his letter. Because she waited too long to attempt to cancel the agreement, he argued that the agreement was still in effect. He claimed that there is no genuine issue of material fact and that he is entitled to specific performance of the agreement. In opposition to this motion, Ms. Tolintino responded that there was a genuine issue of material fact as to whether she revoked the buy and sell agreement before it was accepted.

On November 3, 2008, Ms. Tolintino filed a motion for summary judgment, contending that in January, May and August 2006, she tried to return Mr. Young’s money, but he declined to release her from the agreement until she paid for the survey of the property which she refused to do. She maintained that the agreement between the parties was a revocable offer to sell the property and that she revoked her offer by attempting to refund Mr. Young’s money.

|4A hearing on the motions was held in the trial court on January 12, 2009. Mr. Young argued that the contract to buy and sell in this case is a completed contract and not an offer to sell the property. He urged that cancellation of the agreement did not occur within the time limit he set in his letter. Ms. Tolintino claimed that she frequently traveled between Louisiana and California and there was no showing that she received Mr. Young’s demand letter in a timely fashion.

The trial court found that the parties had a valid buy and sell agreement, not an offer to sell. Accordingly, the trial court ruled in favor of the plaintiff and rejected the claims of the defendant. A judgment granting Mr. Young’s motion for summary judgment, ordering specific performance, and denying Ms. Tolintino’s motion, was signed and filed January 12, 2009. Ms. Tolintino appealed.

SUMMARY JUDGMENT

Ms. Tolintino argues that the trial court erred in granting summary judgment in favor of Mr. Young and denying her motion for summary judgment. She maintains that the agreement between the parties was a revocable offer to sell and not a completed agreement to buy and sell. According to Ms. Tolintino, the time limit for closing was specified only “as soon as reasonably possible.” She claims that the ambiguity of this phrase created a genuine issue of material fact, making the granting of summary judgment in favor of Mr. Young inappropriate.

Ms. Tolintino also asserts that the issue of whether she revoked her offer to sell the property is a genuine issue of material fact. She argues that ^acceptance of the offer required closing on the sale. Because there was no acceptance, she maintains that there was no enforceable agreement. Ms. Tolintino urges that she revoked her offer to sell and the revocation was effective when the buyer received it prior to acceptance. She claims that the agreement was abrogated and any obligation between the parties was extinguished.

Legal Principles

Summary judgments are reviewed de novo on appeal using the same criteria that govern a district court’s consideration of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Louisiana Safety Association of Timbermen-Self Insurers Fund v. Louisiana Insurance Guaranty Association, 2009-0023 (La.6/26/09), 17 So.3d 350.

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

In 1997, the legislature enacted La. C.C.P. art. 966(C)(2), which further clarified the burden of proof in summary judgment proceedings. This provision first places the burden of producing evidence for summary judgment on the mover (normally the defendant), who can ordinarily meet the burden by submitting affidavits or by pointing out the lack of factual support for an essential element of the opponent’s case. At that point, the | Bparty who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial. Henderson v. Homer Memorial Hospital, 40,585 (La.App.2d Cir.1/27/06), 920 So.2d 988, writ denied, 2006-0491 (La.5/5/06), 927 So.2d 316.

Once the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. Henderson v. Homer Memorial Hospital, supra.

When a contract can be construed from the four corners of the instrument, interpretation of the contract presents a question of law that can be decided on summary judgment. Sims v. Mulhearn Funeral Home, Inc., 2007-0054 (La.5/22/07), 956 So.2d 583.

A contract is formed by the consent of the parties through offer and acceptance. La. C.C. art. 1927. An offer not irrevocable under La. C.C. art. 1928 may be revoked before it is accepted. La. C.C. art. 1930. A revocation of a revocable offer is effective when received by the offeree pri- or to acceptance. La. C.C. art. 1937.

Discussion

Ms. Tolintino argues that she is entitled to summary judgment because the agreement between the parties was not a contract to buy and sell property under La. C.C. art. 2623, but a revocable offer to sell under La. C.C. art. 1937 that could be accepted only by closing on the sale. She claims that she revoked the offer before it was accepted by Mr. Young and J^therefore, there is no contract between them and he is not entitled to specific performance.

We find that the trial court correctly found that the agreement between the parties was not a revocable offer to sell under La. C.C. art. 1937. The document is entitled, “Agreement to Purchase and Sell.” It provides:

Pursuant to our discussion, this letter is to summarize our agreement for the sale of lands in which you have partial ownerships in south Bossier Parish, Louisiana. The Tolintino property which is to be transferred are [sic] located in the following sections:
Sections 33 and 34, Township 17 North, Range 11 West
Sections 3 and 4, Township 16 North, Range 11 West
It is our agreement that Young is to purchase all of the Tolintino interests in the above described lands on the basis of $400 per acre. Additionally, mineral royalty income is present in sections 33 and 34 averaging $1,500 per month to Seller. One-half of the mineral interest will be transferred to Young. The purchase price is $27,000 for one half of the minerals. No mineral income is present in sections 3 and 4; all interest in these sections will be conveyed.
In return, James Young will transfer to Tolintino, not less than 2 acres fronting Chinanook road in Section 3, Township 16 North, Range 11 West. The site is immediately adjacent [to] the east side of Bracks Chapel Church and will front not less than 100 feet on the asphalt roadway. This property will be transferred on the basis for $5,000 per acre and minerals reserved.
For consideration in this agreement, $1,000 is paid to Sharon Miles Tolintino as part consideration which will be applied to the purchase price at closing. Closing will be as soon as reasonably possible. It is acknowledged that James A. Young is a licensed Louisiana real estate broker and is acting for his own account.

IsThe agreement at issue here is not a revocable offer to sell under La. C.C. art. 1937, but is a bilateral promise or contract to sell under La. C.C. art. 2623. That article provides:

An agreement whereby one party promises to sell and the other promises to buy a thing at a later time, or upon the happening of a condition, or upon performance of some obligation by either party, is a bilateral promise of sale or contract to sell. Such an agreement gives either party the right to demand specific performance.
A contract to sell must set forth the thing and the price, and meet the formal requirements of the sale it contemplates.

There is no argument that the agreement failed to meet the requirements set forth in La. C.C. art. 2623 for a valid contract to sell. As provided in La. C.C. art. 2623, a contract to sell must set forth the thing and the price and meet the formal requirements of the sale it contemplates. Because the sale contemplated here was one of immovable property, it was required to be in writing. The agreement in this matter specifically described the immovable property that Ms. Tolintino would convey to Mr. Young. The amount of money to be paid by Mr. Young was set forth. The agreement further requires Mr. Young to transfer property to Ms. Tolintino. In the agreement, that property is described as follows:

In return, James Young will transfer to Tolintino, not less than 2 acres fronting Chinanook road in Section 3, Township 16 North, Range 11 West. The site is immediately adjacent [to] the east side of Bracks Chapel Church and will front not less than 100 feet on the asphalt roadway. This property will be transferred on the basis for $5,000 per acre and minerals reserved.

Regarding the exchange of property, the description contains a reference to the amount of land to be conveyed by Mr. Young to Ms. Tolintino. The ^section, township, and range are included along with a description of the front boundary along Chinanook Road and the specification that the front boundary will include not less than 100 feet on the asphalt roadway. The description also provides that the property is on the east side of Bracks Chapel Church. The tract was described with reference to landmarks such as roads, benchmarks, or other monuments which can be located or a survey commenced at some established point. See Martin v. Blister, 37,011 (La.App.2d Cir.7/23/03), 850 So.2d 1106, wit denied, 2003-2374 (La.11/21/03), 860 So.2d 550; Copellar v. Yount, 344 So.2d 1114 (La.App. 3d Cir. 1977). This description is sufficient to fully set forth the thing to be conveyed or exchanged in the agreement to buy and sell.

The instrument at issue here is a completed contract to sell with an offer to transfer ownership of property in exchange for a specified amount of money and the transfer of property owned by Mr. Young. Ms. Tolintino’s acceptance of the terms of the agreement was evidenced by her signature on the document. Therefore, Ms. Tolintino’s actions in attempting to return Mr. Young’s money to abrogate the agreement did not constitute the revocation of a revocable offer. The trial court correctly denied her motion for summary judgment.

Ms. Tolintino also claims that the trial court erred in granting summary judgment in favor of Mr. Young and in ordering specific performance of the contract to buy and sell because the agreement required that the “Closing will be as soon as reasonably possible.” She maintains that this phrase created ambiguity in the agreement between the parties. We hndo not find any genuine issue of material fact as to ambiguity in the agreement regarding the meaning of closing “as soon as reasonably possible” or as to whether Mr. Young sought to enforce his right to specific performance of the contract to buy and sell within a reasonable time.

As stated in Joffrion v. Gumbel, 123 La. 391, 48 So. 1007 (1909):

The general rule is that he who seeks performance of a contract for the conveyance of land must show himself ready, desirous, prompt, and eager to perform the contract on his part. Therefore unreasonable delay in doing these acts which are to be done by him will justify and require a denial of relief. No rule respecting the length of delay which will be fatal to relief can be laid down, for each case must depend on its peculiar circumstances.
It is equally well settled that one who seeks specific performance of such a contract must institute his suit within a reasonable time, and before any material change affecting the interest of the parties has taken place.

See also Bellestri v. Clark, 239 La. 713, 119 So.2d 836 (1960); Davis v. McCain, 171 La. 1011, 132 So. 758 (1931); Powell v. Codifer & Bonnabel, Inc., 167 La. 97, 118 So. 817 (1928); Schluter v. Gentilly Terrace Co., 164 La. 663, 114 So. 586 (1927); Pruyn v. Gay, 159 La. 981, 106 So. 536 (1925); Cognevich v. Blazio, 159 La. 1019, 106 So. 550 (1922); Goudeau v. Daigle, 37 F.Supp. 843 (E.D.La.1941), affirmed, 124 F.2d 656 (5th Cir.1942), cert. denied, 316 U.S. 695, 62 S.Ct. 1290, 86 L.Ed. 1765 (1942); Dewenter v. Mott, 27 So.2d 444 (La.App. 1st Cir.1946); Cresson v. Earhart, 164 So. 152 (La.App.Orleans 1935).

Further, under La. C.C. art. 2623, there is no requirement that a time limit be stipulated within which to close the sale. See Miller v. Miller, 335 So.2d 767 (La.App. 3d Cir.1976). See also Official Revision Comments (b) to Article 2623 (1993).

The undisputed facts in this matter show that in December 2005, the parties entered into an agreement to buy and sell property. In January 2006, slightly more than one month later, Ms. Tolintino informed Mr. Young that she wished to rescind the agreement. In February 2006, Mr. Young outlined his conditions for abrogating the agreement and gave Ms. Tolintino a deadline for compliance. She failed to meet the deadline. However, in May and August 2006, Ms. Tolintino informed Mr. Young that she still did not want to go through with the sale and made efforts to refund the $1,000 he had paid in consideration of the agreement. In June and July 2007, Ms. Tolintino sent letters to Mr. Young stating that she wished to dissolve the agreement and enclosed a check for Mr. Young’s money paid in consideration, with interest. While Mr. Young did not claim the letter in June 2007, he received Ms. Tolintino’s letter and check in July 2007. Mr. Young did not negotiate the check. On October, 15, 2007, approximately three months later, Mr. Young’s attorney said that his client did not want to rescind the agreement and that suit would be filed within 15 days.

The facts of this matter are not disputed and where there is any minor discrepancy, we have adopted Ms. Tolintino’s version of the facts. Within the first nine months after the agreement to sell was signed, Ms. Tolintino tried multiple times to terminate the contract. After Ms. Tolintino failed to meet the time and money conditions set by Mr. Young to terminate the contract, Mr. Young remained steadfast in his position that the agreement | lgto buy and sell should be honored. It was Ms. Tolintino’s reluctance to perform the agreement that resulted in the delay in its execution. Considering the communications between the parties and their attorneys, the period of two years and seven months between the signing of the agreement to buy and sell and the filing of suit for specific performance was a reasonable time period in which to execute on the contract.

Not only must the lawsuit be timely filed as explained in Joffrion, supra, but it also must be filed before any material change affecting the interest of the parties has taken place. Ms. Tolintino submitted no evidence to show any change in the interest of the parties or the valuation of the land. Any argument to the contrary is completely outside the record before us. We find that there is no genuine issue of material fact in this case. The record shows a valid contract to sell property. The trial court correctly granted summary judgment in favor of Mr. Young.

Reformation of Judgment

The Agreement to Purchase and Sell generally describes the properties to be sold or exchanged. The parties have not complained about these descriptions. As to the effect of the contract between the parties, there is no dispute as to the “thing” to be sold or exchanged.

La. C.C.P. articles 1919 and 2089 mandate that all judgments which affect title to immovable property shall describe with particularity the immovable property affected. The descriptions of the property in the agreement do not describe the property “with particularity,” so that third parties can determine the boundaries of the properties. We, therefore, | ^remand this case to the trial court in order that the judgment be reformed to comport with La. C.C.P. articles 1919 and 2089.

CONCLUSION

For the reasons stated above, we affirm the trial court ruling denying summary judgment in favor of the defendant, Sharon Miles Tolintino, and granting summary judgment in favor of the plaintiff, James A. Young. We remand this case to the trial court for the reformation of the description of the immovable properties. Costs in this court are assessed to the defendant, Sharon Miles Tolintino.

AFFIRMED AND REMANDED WITH DIRECTIONS.

BROWN, C.J., and CARAWAY, J., dissent with written reasons.

BROWN, Chief Judge,

dissenting.

I,The issue presented in this case concerns the trial court’s granting of plaintiffs motion for summary judgment, which ordered the specific performance of an exchange of property located in south Bossier Parish. The written buy/sell instrument is all that exists to support plaintiffs petition and summary judgment motion. The agreement required Ms. Tolintino to give all the property that she owned in sections 3, 4, 33, and 34 to Mr. Young; in exchange, Mr. Young, a sophisticated land buyer and the drafter of the contract, would give to Ms. Tolintino not less than two acres and not less than 100 frontage feet somewhere east of Bracks Chapel Church in section 3.

With this inadequacy of the underlying written buy/sell instrument, the petition filed by Mr. Young for specific performance failed to describe with particularity the immovable property as well as any equalizing money to be exchanged. La. C.C.P. articles 1919 and 2089 require judgments which affect title of immovable property to describe with particularity the immovable property affected. The petition does not legally describe any specific property either party will exchange, and in particular, what Mr. Young will give in exchange. The quantity and dimensions of the property to be conveyed by Mr. Young are open ended and not particularly described. As such, the petition does not adequately state a cause of action, and La. C.C.P. article 927 B allows an appellate court on its on motion to dismiss for no cause of action.

|2When a petition fails to state a cause of action La. C.C.P. article 934 provides an opportunity to amend to add allegations which might complete the contract. However, in City Bank & Trust of Shreveport v. Scott, 575 So.2d 872, 873 (La.App. 2d Cir.1991), this court stated:

This court has noted that there are cases in which parol or extrinsic evidence may be admitted to aid and identify immovable property described in a written contract to sell. Parol evidence has not been allowed, however, to wholly identify the immovable. Parol has been allowed only where the courts have found that there was “sufficient body” in the initial written description so as to leave the title to immovable property “resting substantially on writing and not essentially on parol.” Jackson v. Harris, 18 La.App. 484, 136 So. 166, 169 (La.App. 2d Cir.1931).

Then, expanding further, the court paraphrased the rule of an earlier supreme court case as follows:

To aid and establish identity of a defective or ambiguous description of an immovable property in a written contract, parol evidence is admissible only where the written, but defective, description distinguishes the property from other properties so as to allow the conclusion that the mutual or common intent of the parties to the writing was to deal with the particular property and not another property of the same kind or quantity. There should be sufficient substance in the written description in question so as to leave the title to the immovable resting substantially on the writing and not on parol.

Id. at 873-74. The court then concluded with the affirmation of what was apparently a dismissal of the case for no cause of action, as follows:

We hold the initial description in question here, vacant land, 21 acres, Gilliam, Louisiana, is too general and cannot serve as a base on which title to an immovable might be identified, “built up or eked out,” by extrinsic and parol evidence.

Id. at 875.

|sThe majority opinion states under “Reformation of Judgment” that “[a]s to the affect of the contract between the parties, there is no dispute as to the ‘thing’ to be sold or exchanged.” The opinion then states that “[t]he descriptions of the property ... do not describe the property ‘with particularity’ so that third parties can determine the boundaries of the properties.” The majority opinion then remands the case to the trial court “in order that the judgment be reformed to comport with La. C.C.P. articles 1919 and 2089.” This, however, is the problem. The trial court cannot reform the judgment to state the metes and bounds of the property and the amount of any equalizing money because the parties may never have reached an agreement as to exactly what acreage, frontage, or dimensions of the property were to be given by Mr. Young. The trial court cannot simply substitute what it believes would be fan.

Further, the agreement, which was written on the letterhead of Longleaf Investments, LLC, a company owned by Mr. Young, provided:

Closing will be as soon as possible. It is acknowledged that James A. Young is a licensed Louisiana real estate broker and is acting for his own account.

Within a month (January 2006) of signing the agreement, Ms. Tolintino informed Mr. Young that she wanted to back out of the deal. In response, Mr. Young, an experienced realtor, gave Ms. Tolintino a deadline to refund the $1,000 and pay the surveying costs (no survey was ever filed in this record). On February 22, 2006, after the deadline had passed, Mr. Young recorded the contract in the Bossier Parish records.

hiThat Ms. Tolintino wanted to back out of the deal should have caused Mr. Young to expeditiously file this action for specific performance. Instead Mr. Young waited until July 2008 to file this action, more than 2½ years after the agreement was executed and recorded. Furthermore, Mr. Young did not file until after the Haynes-ville Shale became big news and large bonuses were being paid in south Bossier Parish for mineral rights. Thus, the value of the properties may have changed significantly. Ms. Tolintino did object that the action for specific performance was not filed within a reasonable time frame.

In Joffrion v. Gumbel, 123 La. 391, 48 So. 1007, 1012 (1909), the Louisiana Supreme Court wrote:

The general rule is that he who seeks performance of a contract for the conveyance of land must show himself ready, desirous, prompt, and eager to perform the contract on his part. Therefore unreasonable delay in doing these acts which are to be done by him will justify and require a denial of relief. No rule respecting the length of .delay which will be fatal to relief can be laid down, for each case must depend on its peculiar circumstances.
It is equally well settled that one who seeks specific performance of such a contract must institute his suit within a reasonable time, and before any material change affecting the interest of the parties has taken place.
These doctrines are applicable to the case before us. It exhibits an excessive and unreasonable delay not only in giving notice of satisfaction with the title and intent to require a conveyance, but also in the application for relief. In the time which has been permitted to elapse a material increase in the value of the subject-matter of the contract has taken place. It would be an unwarrantable exercise of discretionary power to allow one holding a mere [right] to purchase to lie by for so long a time and speculate upon the fluctuating values of urban lots, and, after a substantial increase in their value, to enforce a conveyance in his favor at the original price now inadequate.
[¿Delay in such cases may doubtless be explained, and, in some circumstances, excused, but neither explanation nor excuse can be discovered in this case. (Citations omitted) (Emphasis added).
In Dewenter v. Mott, 27 So.2d 444, 446-

47 (La.App. 1st Cir.1947), the court wrote:

Counsel for defendant next contend that plaintiffs inaction from the day the sale was to be executed until he filed the present suit to enforce performance has given rise to a presumption that the contract had been rescinded. They cite authority to the effect that when both parties to a contract like this fail to take any affirmative action within a reasonable time to default the other there is an inference of rescission. The principle is one familiar to the common law but appears to have received the approval of the Supreme Court. See Joffrion v. Gumbel, 123 La. 391, 48 So. 1007, 1012. As we view it, the matter all relates to what is to be considered a ‘reasonable time’ within which a party must act under the circumstances, and in determining that question the court must necessarily be guided by what are the peculiar facts and circumstances in each case. (Emphasis added).

The majority opinion faults defendant for not showing the fluctuation in property values, but does not fault plaintiff for his delay in bringing this action. As the court in the Dewenter case held, “when both parties to a contract like this fail to take any affirmative action within a reasonable time to default the other there is an inference of rescission.” (Emphasis added). Plaintiff failed to explain his delay, and, as stated in Joffrion, “[djelay in such cases may doubtless be explained, and, in some circumstances, excused, but neither explanation nor excuse can be discovered in this case.” Accordingly, in addition to finding that the petition fails to state a cause of action, I find that there are clearly extant questions of material fact, | (¡particularly respecting the extraordinary length of delay and the possibility of a substantial increase in the value of the property.

CARAWAY, J.,

dissenting.

1,1 agree with Chief Judge Brown’s conclusion concerning the failure of the plaintiffs claim to state a cause of action. Regarding the focus of the majority and the trial court on the parties’ failure to timely execute their exchange, that issue is premature and may relate to the parties’ failure to have properly reached agreement in writing concerning the measure and identification of the 2-acre( +) tract.

In the present case, the immovable which each party is to exchange to the other is only generally described. Thus, even assuming that parol and extrinsic evidence is present and admissible for the determination of the parties’ meeting of the minds over these properties, their written contract alone cannot serve as a binding contract for the exchange of unidentified properties. Young’s petition makes no separate allegation of the extrinsic evidence of the parties’ dealings that might serve to give the metes and bounds descriptions of the immovables.

Finally, the procedural oddity of the majority’s ruling cannot go unnoticed. The trial court’s judgment made one simple decree which ordered “specific performance of the agreement to purchase and sell sued on herein.” It purports to be a final judgment. Under La. C.C.P. art. 2504, once such judgment becomes final and exi-gible and a party fails to specifically perform as so ordered, “the court may direct the act to be done by the sheriff.” The majority ruling now on the one hand purports to affirm this judgment; while on the other hand, in recognition of the impossibility of specific performance of the exchange of unidentified immovables, the 1 judgment remands the case for the pursuit of further evidence which might identify the properties and a meeting of the minds of the parties. This is not an affirmation of a judgment. It is res judicata of nothing. Instead, it is a reversal and a directive for continued evidentiary proceedings. The written contract, the trial court judgment, and the majority ruling all suffer from the same flaw. There have never been allegations, nor evidence in this case, of what immovable property the parties agreed to exchange. I would reverse and remand to require the plaintiff to amend and state a cause of action.

      . The sale has yet to be completed. The issue of lesion may eventually be raised. Mr. Young was transferring not less than two acres in section 3 for $5,000 an acre and reserving the minerals, while Ms. Tolintino was transferring what she owned including the minerals in section 3 for $400 an acre.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kyle S. BROWN.
    No. 2009-KA-0863.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 2, 2009.

      Leon A. Cannizzaro, Jr., District Attorney, Nisha Sandhu, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Tammy M. Nick, Nick Law Firm, L.C., Slidell, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   TERRI F. LOVE, Judge.

| ,The State filed a bill of information charging the defendant, Kyle Brown, with aggravated assault of a peace officer with a firearm. The defendant subsequently entered a plea of not guilty and filed motions for a new trial, for judgment of acquittal and for a suspended sentence. The defendant appeals, arguing that the evidence adduced at trial was insufficient to support his conviction for aggravated assault of a peace officer with a firearm. We find that the State satisfied its burden of proving the elements of the crime beyond a reasonable doubt and the evidence was sufficient to support the conviction. We affirm the defendant’s conviction.

FACTUAL AND PROCEDURAL HISTORY

In March 2008, the defendant, Kyle Brown, was charged by bill of information with aggravated assault of a peace officer with a firearm, a violation of La. R.S. 14:37.2. The defendant was arraigned and entered a plea of not guilty. The district court denied the defendant’s motion to quash the bill of information. Following a bench trial, the defendant was found guilty as charged. Defense counsel filed motions for a new trial, for judgment of acquittal, and for a suspended sentence. The district court denied the motions for a new trial and for |ajudgment of acquittal and granted the motion for a suspended sentence. The defendant was sentenced to serve three years at hard labor; the sentence was suspended and the defendant was placed on three years inactive probation with the condition that the defendant must speak three times per year to youth groups on the effects of alcohol and carrying weapons. The court ordered that the defendant receive credit for time served; that the sentence is to run concurrently with any other sentence; and that the defendant pay a fine of $5,000.00. This appeal followed.

TESTIMONY ADDUCED AT TRIAL

Alexandra Biggs, a friend of the defendant, testified that she accompanied the defendant and another female friend to the French Quarter on the night of January 26, 2008 and into the early morning hours of January 27, 2008. The trio went to several bars during the course of the evening and consumed alcoholic beverages. Ms. Biggs consumed two beers and a mixed drink called a hand grenade. The defendant consumed three hand grenades and more than four beers during the evening. Ms. Biggs testified that the defendant was intoxicated.

As they walked back to their car, they heard a motorcycle backfire. The defendant chased the motorcycle, and Ms. Biggs and the other female friend intervened and pushed the defendant away from the motorcycle and towards their vehicle. Ms. Biggs testified that several white males in a red truck began to provoke the defendant by driving around the parking lot several times, chasing the defendant. She further testified that the men in the red truck were laughing and verbally provoking the defendant as well. Ms. Biggs believed that the defendant retrieved the gun to go after the truck, and the men in the truck did not display a weapon.

|aMs. Derika Gibson, a deputy sheriff at the time of the incident, was sitting in a vehicle parked near the entrance of the Central Parking lot in the vicinity of the Jax Brewery shopping center at 4:00 a.m. on January 27, 2008, when she observed the defendant crossing the street. Ms. Gibson testified to the following:

As a vehicle approached the defendant, he turned around and began to exchange words with the driver telling him to watch “where the f — ” he was going. The defendant approached another vehicle and began to argue with the driver of that car, yelling racial expletives and telling the driver “I’ll f— you up.” Two unknown females, who were with the defendant, were trying to pull him along, telling the motorist not to worry about what he said because he was drunk. The defendant backed away from the females and walked back and forth, continuing to yell at the motorist. The females finally got the defendant to back away, and they walked down the street toward the parking lot. Ms. Gibson then noticed a truck circling inside the lot with the defendant running behind the truck. The defendant was pulling on the tailgate, jumping on the truck, kicking the truck and yelling at the occupants of the truck. It appeared to Ms. Gibson that the driver of the truck was attempting to exit the lot but continued to circle inside the lot in an attempt to get away from the defendant.

The testimony of Orleans Parish Criminal Sheriff Deputies Taraunce Martin and Walter Wilson reflects that on the date of the incident, Deputy Wilson was working a voluntary, paid private security detail at the Central Parking lot in the 100 block of Conti Street. The deputies were responsible for patrolling both the parking lot where the shooting occurred and the lot located across the street. The deputies’ duties were to provide security for the cashier, stop any disturbances that occurred and patrol the lot for possible auto thefts and burglaries.

|4Shortly before the shooting, at approximately 4:00 a.m., the cashier and several customers informed Deputy Martin that a man was running around the parking lot with a gun, screaming and shouting. The defendant was reportedly belligerent, hostile, and appeared to have been drinking. Deputy Martin informed Deputy Wilson of the complaints and asked Deputy Wilson to provide assistance for back-up.

On the night of the shooting, Deputy Martin was wearing his Criminal Sheriffs uniform with his badge displayed on his jacket. Deputy Martin observed a red truck occupied by two males who appeared to be Latino. The driver of the red truck was driving from right to left. As he proceeded around the parking lot he observed the defendant, naked from the waist up, walking back and forth, screaming and fussing. Deputy Martin walked toward the defendant, and Deputy Wilson followed in his vehicle.

Ms. Biggs testified that the deputy did not identify himself as a deputy, and she believed he was a bystander. She testified that the deputy was wearing green pants, a light colored shirt and a brown coat. While the deputy was wearing a hip-length jacket, Ms. Biggs did not see any identification on the outside of the deputy’s coat. Deputy Martin testified that he did not verbally identify himself as a deputy sheriff, however, he testified that his badge was displayed on the outside of his uniform jacket.

The men in the red truck continued to circle the parking lot, but Ms. Biggs was not sure whether the men in the red truck were attempting to leave the parking lot. Ms. Biggs testified that a deputy approached the defendant and escorted him back to their vehicle. However, Ms. Gibson testified that she did not see the deputy escort the defendant to his vehicle. Ms. Biggs testified that the defendant | ..¡retrieved a gun from under the driver’s seat of the vehicle and held it close to his side near his waist.

When he initially approached the defendant, Deputy Martin testified that he did not observe a weapon. Deputy Wilson was approximately five feet from Deputy Martin and the defendant, and he testified that he observed the defendant approaching, holding a gun.

Upon approaching the defendant, Deputy Wilson exited his vehicle with his gun in his hand and turned to cover the car containing the defendant’s companions. Both deputies approached the defendant, who was yelling that he was going “to kill a n-, kill a n-.” Deputy Martin testified that he asked the defendant, “Hey, man, what’s going on? Calm down.” The defendant responded, “F— that s — , I’m about to kill the mother f-, I’m going to kill 'em.” Deputy Martin, repeated, “Hey, man, calm down. Relax.” The defendant responded, “F— that s — , I’m going to kill me a n-I’m going to Ml 'em.”

Deputy Martin testified that his objective was to calm the defendant down and get him off the property because he could see that the defendant had been drinking. Deputy Martin continued to order the defendant to calm down and told him to leave the parking lot or he would have to arrest him. The defendant continued to resist Deputy Martin’s attempts to calm him down and responded, “You don’t Mow who you f with. You not going to do me anything [sic].” Also, the trial testimony re-fleets that the defendant threatened Deputy Martin, telling him, “You don’t want to “F — ” with me, I’m going to kill an-."

Deputy Martin directed Deputy Wilson to cover the vehicle containing the defendant’s friends, and when Wilson approached the car, the defendant already | ,;had the gun in his hand. Deputy Wilson did not fire upon the occupants of the car because he did not observe evidence that they had a weapon.

Deputy Martin identified himself as a deputy sheriff and repeatedly ordered the defendant to drop his weapon while standing behind a parked truck as a shield. The defendant began to walk to the vehicle, toward his companions, when he suddenly turned and pulled the black, semiautomatic gun from his waistband, pointing it downward, toward the parking lot. Ms. Gibson also testified that she saw the defendant begin to walk away and suddenly turn around, reaching into his waistband and pointing a gun at the deputy. When the defendant pulled the gun from his waistband, Deputy Martin took cover behind a parked vehicle. Deputy Martin drew his weapon and ordered the defendant to “Drop the weapon. Drop the weapon now.” Deputy Martin testified that he repeated his order to drop the weapon several times more in a more forceful tone. The defendant turned, raised the gun towards Deputy Martin and yelled, ‘Well, f— it, I’ll kill you.” Deputy Martin fired several shots at the defendant. The defendant again responded, “F— that s — . I’m going to get ‘em. I’m going to kill ‘em. I’m going to kill the mother f-.”

Ms. Gibson testified that while she could hear the deputy and the defendant exchanging words, she was unable to distinguish what was said. Further, Ms. Biggs testified that she could not hear what the conversation was between the deputy and the defendant.

The testimony adduced at trial conflicts with regard to Deputy Martin’s identification of himself as an officer and the number of shots fired before the defendant fell to the ground. The testimony also conflicts with regard to whether the defendant fired the gun prior to Deputy Martin firing his weapon. Deputy |7Wilson testified that he was certain that the defendant fired the first shot and Deputy Martin returned fire. Deputy Martin testified that he fired the first shot, followed by four or five additional shots, before the defendant fell to the ground.

Ms. Biggs testified that something startled the defendant, he turned, and was shot by the deputy. She further testified that the defendant pointed his gun at the deputy, however she testified that she did not hear the defendant use any racial epithets or threaten to kill anyone. Also, Ms. Gibson testified that she observed the deputy fired several shots at the defendant, who fell to the ground. Deputy Martin denied shooting the defendant after he fell to the ground.

Ms. Biggs then observed who she believed was a security guard approach the scene; she did not hear anyone identify themselves as the police or order the defendant to drop his weapon. Deputy Martin testified that he kicked the defendant’s gun from away from him and called for an ambulance. Deputy Wilson contacted the New Orleans Police Department and Sheriffs department supervisors and informed them of the shooting.

Ms. Gibson did not observe another deputy on the scene until after the shooting. Ms. Gibson called 911 and reported the incident. Deputy Martin also testified that he called 911 and requested an ambulance. Deputy Martin testified that he knew Deputy Derika Gibson and recognized her as she walked into the parking lot after the shooting.

Sergeant Randy Mannix, a staff sergeant with the United States Army 177(h Armor Brigade, testified to the following:

Sgt. Mannix met the defendant five years prior to the incident, when the brigade mobilized for deployment in Iraq. The defendant was one of his soldiers.

|sSgt. Mannix supervised the defendant’s gun safety training, which entailed the manner in which a weapon is held, properly loaded, and carried. Sgt. Mannix testified that no alcohol use is allowed when handling a weapon, and all military personnel are trained in what does and does not mix with alcohol use. He testified that the defendant would have been trained and advised not to use or handle a weapon if he had consumed alcohol. Sgt. Mannix further testified the defendant was fired upon while deployed in Iraq and fatally fired upon others. He was aware that the defendant had been diagnosed with post-traumatic stress disorder upon his return from Iraq. Sgt. Mannix referred the defendant for counseling with the Veterans Center in Biloxi, Mississippi.

ERRORS PATENT

A review of the record for errors patent reveals that the defendant was sentenced on March 2, 2009, the same date that his motion for a new trial and motion for judgment of acquittal were denied, without a waiver of the delay required by La. C. Cr. P. art. 873. However, in State v. Collins, 584 So.2d 356 (La.App. 4 Cir.1991), this court held that the failure to observe the delay would be deemed harmless error where the defendant did not challenge his sentence on appeal. Therefore, because the defendant in this case raises no error relative to his sentence, the failure of the trial court to observe the delay is harmless error.

STANDARD OF REVIEW

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court “must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact |nthat all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Neal, 2000-0674 (La.6/29/01), 796 So.2d 649, 657 (citing State v. Captville, 448 So.2d 676, 678 (La.1984).

SUFFICIENCY OF EVIDENCE

The defendant asserts that the evidence was insufficient to support his conviction because the State failed to prove every element of the crime of aggravated assault upon a peace officer. Specifically, the defendant argues that the State failed to prove that Deputy Martin was acting in the course and scope of his duties as a peace officer when he encountered the defendant in the parking lot. In support of his argument, the defendant relies on the principles of tort and contractual liability and cites cases where an off-duty police officer working a private paid detail were either tortfeasors in negligence cases or were parties whose benefits were at issue for purposes of indemnity.

Assault is defined as “an attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery.” La. R.S. 14:36. Aggravated assault is defined as “an assault committed with a dangerous weapon.” La. R.S. 14:37(A). Aggravated assault upon a peace officer with a firearm is defined as “an assault committed upon a peace officer who is acting in the course and scope of his duties with a firearm.” La. R.S. 14:37.2(A). La. R.S. 40:2402 defines a peace officer to include a deputy sheriff.

| ipThe State has the burden of proving the following: 1) that the victim was a peace officer; 2) that the defendant was aimed with a firearm; 3) that the defendant committed an assault with a firearm upon the peace officer; and, 4) that the peace officer was acting in the course and scope of his duties.

In State v. Berry, 391 So.2d 406, 412 (La.1980), a Jefferson Parish deputy sheriff, while working a paid security detail at a Metairie bank, was fatally shot during the perpetration of an armed robbery. The defendant assigned as error that, as a matter of law, the victim was not a peace officer engaged in his lawful duties at the time of the shooting and that it was error for the trial court to deny his request for a special jury charge on that issue. In upholding the trial court’s denial for the special jury charge, the Supreme Court stated:

The victim was a Jefferson Parish Sheriffs Deputy wearing his regular Deputy Sheriffs uniform and on guard duty, a security detail, at the bank during normal banking hours at the time of the offense. He, just as other deputy sheriffs often do, had volunteered for this detail, drawing extra pay from the bank. It might be said that he was “moonlighting.” He was killed by defendant because he was an armed deputy whose presence was a threat to defendant’s bank robbery mission, and his death came during an effort to prevent defendant’s successful commission of a serious felony.
Whatever the nature of the deputy’s general activities at the bank in the context of the question of whether he was engaged in his lawful duties-it was surely within the scope of his lawful duties as a deputy sheriff for him to try to prevent an armed robbery in his presence.
Therefore, we conclude that the trial judge did not err in refusing defendant’s request to charge the jury that the victim was not a peace officer engaged in his lawful duties.

In State v. Wilkerson, 367 So.2d 319 (La.1979), an off-duty deputy sheriff conducted a warrantless search of the defendant’s belongings at the request of the apartment manager. The deputy worked as a security guard at the apartment |! complex, where the apartment manager was told by the defendant’s roommate that the defendant had stolen items from the manager’s brother. The Court found that the deputy sheriff was acting in his capacity as a law enforcement officer at the time he conducted the search and stated that a Louisiana deputy sheriff never truly goes off duty but remains at all times a member of the law enforcement agency, charged with greater knowledge and responsibility in criminal affairs.

In State v. Muse, 548 So.2d 21 (La.App. 5 Cir.1989), in upholding the defendant’s conviction, the court found that the officer was in his official police uniform and was attempting to keep peace and order in and ai’ound the lounge. The fact that he was receiving extra pay from the lounge owner was of no consequence. Id.

Under this line of reasoning, we find that the State established their burden of proof that Deputy Martin was acting within the scope of his lawful duties as a deputy sheriff when the instant incident transpired. The testimony adduced at trial established that Deputy Martin was an Orleans Parish Criminal Deputy Sheriff when he shot the defendant. Deputy Martin approached the defendant to investigate complaints made at the parking lot.

Although he was receiving extra pay for working a paid private detail at the parking lot, Deputy Martin remained “a member of the law enforcement agency, charged with greater knowledge and responsibility in criminal affairs” when he came upon the defendant, who was conducting himself in a belligerent manner while carrying a gun. The record reflects that the defendant was armed with a gun, verbally threatened Deputy Martin,' and pointed the gun at him.

Further, Deputy Martin’s confrontation of the defendant came as a result of Deputy Martin’s attempt to intervene and prevent the defendant from committing a 112serious felony upon the customers and employees of Central Parking. Additionally, like Muse, the record reflects that Deputy Martin was wearing his full deputy uniform with his badge clearly displayed on the front of jacket when he approached the defendant.

We further find the officers’ testimony was sufficient to prove that the defendant committed aggravated assault upon the police officers as required by La. R.S. 14:37.2. In State v. Payne, 00-2129 (La.App. 4 Cir. 7/25/01), 794 So.2d 79, writ denied, 01-3342 (La.11/1/02), 828 So.2d 570, this Court affirmed the defendant’s aggravated assault convictions. We noted that two police officers testified that the defendant pulled a gun and attempted to fire upon them. Payne, 00-2129 at p. 6, 794 So.2d at 83. One of the officers testified that he was pursuing the defendant in his police vehicle when the defendant stopped, turned around, pulled out a gun from his waistband, and aimed at him. Id. This officer ducked for protection, which caused him to crash into a church. Id. Then, the defendant pointed the weapon at another officer. Id. The other officer testified that he was scared when the defendant aimed the weapon at him. Id. We found the officers’ testimony sufficient to prove that the defendant committed aggravated assaults upon the police officers as required by law. Id.

The facts of the present case are similar to the facts in Payne. The deputies’ testimony reflects that customers reported to the cashier that the defendant was belligerent, hostile, and appeared to have been drinking, and he was running around the parking lot with a gun. Deputy Martin approached the defendant, and the defendant pulled a gun from his waistband. Deputy Martin took cover behind a parked vehicle and Deputy Wilson provided backup. The testimony of the |isdeputies as well as that of an observing, off-duty deputy reflects that the defendant pointed the gun at Deputy Martin.

Deputy Martin testified that after making repeated attempts to calm him, the defendant continued to resist his efforts. The defendant grew increasingly belligerent, yelling expletives and racial slurs. Deputy Martin ordered the defendant to drop his weapon and he refused. Deputy Martin then fired shots at the defendant. The 911 supervisor authenticated the tape of the 911 call received in connection with the incident, in which a code 108, “officer needs assistance,” request was made.

We conclude that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime were proved beyond a reasonable doubt. Applying the Jackson v. Virginia standard, this Court cannot second guess the rational credibility determinations of the fact finder at trial. State v. Vincent, 07-239, p. 8 (La.App. 5 Cir. 12/27/07), 978 So.2d 967, 973. We therefore find the evidence sufficient to support the defendant’s conviction.

DECREE

Accordingly, the defendant’s conviction is affirmed.

AFFIRMED.

      . The factors employed by Louisiana courts to determine whether an employee's negligent conduct falls within the "course and scope" of his employment duties are: (1) the payment of wages by the employer, (2) the employer’s power of control, (3) the employee’s duty to perform the particular act, (4) the time, place and purpose of the act in relation to service of the employer, (5) the relationship between the employee's act and the employer's business, (6) the benefits received by the employer from the act, (7) the motivation of the employee for performing the act, and (8) the reasonable expectation of the employer that the employee would perform the act. Baumeister v. Plunkett, 95-2270, p. 3 (La.5/21/96), 673 So.2d 994, 996, Orgeron on Behalf of Orgeron v. McDonald, 93-1353, p. 4 (La.7/5/94), 639 So.2d 224, 226, LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974). See also, Wright v. Skate Country, Inc., 98-0217, (La.App. 4 Cir. 5/12/99), 734 So.2d 874, Duryea v. Handy, 96-1018 (La.App. 4 Cir. 10/3/97), 700 So.2d 1123, and Luccia v. Cummings, 94-416 (La.App. 5 Cir. 11/16/94), 646 So.2d 1142.


author: LOLLEY, J.

text:
    BLOUNT BROTHERS CONSTRUCTION, INC., Plaintiff-Appellee, v. Alphonso WILLIAMS and A. Williams Enterprises, LLC d/b/a Williams Enterprises, Defendants-Appellants.
    No. 44,813-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.

      Margrett Ford, for Appellant, Calvin Lester.
    Wray & Pierce by Russel W. Wray, Baton Rouge, The Pesnell Law Firm by Billy R. Pesnell, Shreveport, Gary Albert Bowers, for Appellee, Blount Brothers.
    Before CARAWAY, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| Calvin B. Lester, Jr. appeals a judgment from the First Judicial District Court for the Parish of Caddo, State of Louisiana, in favor of Blount Brothers Construction, Inc. For the following reasons, we vacate the judgment and remand for further proceedings.

Facts

This litigation arises out of a claim by Denzil Blount on behalf of his company, Blount Brothers Construction, Inc. (“Blount Brothers”). Blount claims that Alphonso Williams trespassed upon his property on November 26, 2006, and dumped loads of dirt (approximately 4,500 cubic yards) on his property that was being used to operate a rock crusher. The petition was amended later to add Calvin B. Lester in his individual capacity. Blount Brothers alleged that Lester conspired with Williams to dump the dirt at the site.

During the course of litigation, the following series of events occurred:

May 2, 2008: Blount Brothers propounded discovery to Lester, which discovery included interrogatories, requests for production of documents, and requests for admissions;

|2June 5, 2008: Blount Brothers contacted Lester’s attorney (the same attorney as on appeal) regarding the responses to the discovery requests; she requested an extension of time to answer, which Blount Brothers granted until June 10th;

June 10, 2008: According to Blount Brothers, Lester’s attorney requested another extension for responding until June 13th;

June 17, 2008: Letter sent by Blount Brothers to Lester’s attorney notifying her that Blount Brothers would file a motion to compel discovery if the answers were not forthcoming;

June 27, 2008: Blount Brothers files its motion for an order compelling discovery from Lester;

July 28, 2008: Hearing on Blount Brother’s motion to compel; the trial court granted the motion and ordered Lester to respond within twenty (20) days; also on that date, the trial court issued its scheduling order fixing the trial for February 17, 2009, and a discovery cutoff date of January 19, 2009;

September 12, 2008: Twenty-six days after the court-ordered response date, Lester had not filed responses to discovery request; Blount Brothers files its motion for sanctions seeking to have sanctions imposed against Lester for defying the trial court’s July 28th order; the motion for sanctions was set for hearing on October 27, 2008;

October 27, 2008: The hearing on Blount Brothers’ motion for sanctions was held, and the trial court rendered judgment against Lester adjudicating him in contempt of court for his defiance of the July 28th | .¡order. Lester was ordered again to respond to the discovery within twenty (20) days, with the admonition that a failure to do so would result in the trial court entering “judgment in favor Blount Brothers Construction, Inc. and against defendant, Calvin Benjamin Lester, Jr., finding and adjudicating [him] liable on all allegations contained in the Petition, as amended”;

November 24, 2008: Blount Brothers files its motion for sanctions and default judgment, because Lester had not responded to the original discovery request as ordered by the trial court; and,

November 25, 2008: Lester files his responses to Blount Brother’s first request for discovery (207 days after receiving them).

On December 15, 2008, a contradictory hearing on the motion for sanctions and default judgment was conducted, and the trial court rendered judgment against Lester, assessing him with liability as a co-conspirator with Williams; additionally, Lester was assessed with attorney’s fees in the amount of $1,000.00 and all court costs incurred by Blount Brothers in prosecuting its discovery motions. This appeal by Lester ensued.

DISCUSSION

We disagree with Lester’s argument in his first assignment of error that the trial court erred in not sustaining the “objection of res judicata” he raised at the trial court regarding Blount Brothers’ discovery attempts. He maintains that the exception should have been granted by the trial court in light of the previous litigation by Blount Brothers against Lester. Lester Largues that res judicata applies because the same parties are in both lawsuits, and the claims in the current lawsuit arise out of the same transaction or occurrence of the prior lawsuit.

Initially, although Lester stated he objected to the discovery on the grounds of res judicata, we note that the record does not reflect that Lester formally objected to the discovery. In fact, he did not appear to object to the discovery by any other means than ignoring it. Nonetheless, we will address his argument on appeal. A reading of La. R.S. 13:4231 (Louisiana’s statute pertaining to res judicata) reveals that a second action is precluded when all of the following are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. All elements must be satisfied in order to make a finding of res judicata. The third requirement of res judicata is that the parties in both suits are the same. Burguieres v. Pollingue, 2002-1385 (La.02/25/03), 843 So.2d 1049. In this litigation, that is not the case.

Both the civilian law and the common law mandate that there must be “identity of parties” before the doctrine of res judicata can be used to preclude a subsequent suit. This requirement does not mean that the parties must have the same physical identity, but that the parties must appear in the same capacities in both suits. In Burguieres, supra, a first lawsuit was brought by the testator’s children against the testator’s sister, in which the | Rchildren sought to nullify an olographic testament. This lawsuit was not res judi-cata barring a second action by the children against the sister and her husband, on claims of breach of fiduciary duty, because the sister appeared in her capacity as executrix in the first action as opposed to trustee and curatrix in the second action. Id. at 1056. Here, Lester has clearly been named in two different capacities: first in his capacity as a city councilman and subsequently as a private individual. Further, it is plain that the allegation for conspiracy to commit a trespass against Lester as an individual is different than the allegations that were made against him in his capacity as a city councilman, even if the two lawsuits were tangentially related. Obviously, the doctrine of res judicata does not apply.

We also disagree with Lester’s second argument that this lawsuit against him and the associated discovery requests were barred by Lester’s immunity as an elected official and that the trial court erred in failing to rule as such. As stated, Lester was named in this litigation by Blount Brothers in his private capacity, not in his capacity as a city councilman. Thus, he is not entitled to immunity as an elected official, and this assignment of error is without merit.

Finally, we will address Lester’s third and fourth assignments of error together, as they are related. Lester argues that the trial court erred in failing to review all interrogatories and the transcript of Lester’s deposition before determining whether Lester properly responded to Blount Brother’s discovery requests. Lester also maintains that the trial court erred in imposing sanctions against him that removed all defenses and held him pliable for Blount Brothers’ damages. Lester states that “dismissal and default are draconian penalties which should be applied only in extreme circumstances.” Lester argues that the trial court failed to consider the necessary factors in making its ruling.

Louisiana C.C.P. art. 1471 sets out the sanctions available against a party failing to comply with discovery orders. These sanctions include the entry of an “order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.”

As explained in Horton v. McCary, 1993-2315 (La.04/11/94), 635 So.2d 199, 203:

There is a distinction between the sanctions available for failure to comply with discovery and the sanctions available for disobedience of court ordered discovery. Refusal to comply with court ordered discovery is a serious matter. Trial judges must have severe sanctions available to deter litigants from flouting discovery orders.
Both dismissal and default are draconian penalties which should be applied only in extreme circumstances. Because the sanctions of dismissal or default involve property rights, those sanctions are generally reserved for the most culpable conduct. (Citations omitted).

Dismissal and default are generally reserved for those cases in which the client, as well as the attorney, is at fault. Id. at 204. The record must support “a finding that the failure was due to ... wilfulness, bad faith, or fault.” Id. The trial court has much discretion in imposing sanctions for failure to comply with discovery orders, and its ruling should not be reversed absent an abuse of discretion. Hutchinson v. Westport Ins. Corp., 2004-1592 (La.11/08/04), 886 So.2d 438; L & M Hair Products, Inc. v. State, Dept. of Transp. and Development, 29,998 (La.App.2d Cir.12/10/97), 704 So.2d 415.

Four factors should be considered before granting a default judgment: (1) whether the violation was willful or resulted from inability to comply; (2) whether less drastic sanctions would be effective; (3) whether the violations prejudiced the opposing party’s trial preparation; and (4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney. Id., citing Batson v. Neal Spelce Associates, Inc., 765 F.2d 511 (5th Cir.1985).

Notably, we can appreciate the trial court’s frustration in dealing with this clearly contemptuous party. Lester’s lack of regard for the judicial process is incredible. His actions served to delay the judicial process surrounding this lawsuit and is of the most culpable sort of behavior envisioned by the code article. We disagree with Lester that the trial court failed to consider the factors set out by the supreme court in Horton, supra. Displaying a surprising and undeserved amount of patience with Lester at the December hearing, the trial court considered all of the Horton factors, particularly the factor regarding the client’s (ie., Lester’s) participation in the violation. There was emphasis on the fact that Lester was trained as an attorney, albeit suspended from the practice of law by the Louisiana Supreme Court, and the obvious procedural and substantive knowledge he had as a result of his training and education. Furthermore, we also agree |swith the trial court that Lester’s written discovery responses were vague and evasive, despite the fact that he had given himself abundant time to answer.

However, the troubling aspect in this case is the fact that Lester did eventually appear for his deposition, which the trial court did not review. In fact, the trial court acknowledged the taking of Lester’s deposition and noted it was ruling without a review of the deposition. The parties were advised by the trial court that the deposition should be made part of the record (it was not). Considering the severity of the sanction, we believe the trial court should have reviewed Lester’s deposition, to make a complete determination that Lester was indeed “ducking and dodging” (as his actions were characterized by the trial court) before imposing the most severe sanction of a default judgment against him.

The allegations against Lester of conspiracy to trespass and to cause property damage are broad. Likewise, the request for discovery against Lester was also broad. Interrogatories No. 7 and 8 pertained to Lester’s communication with or about Williams (his alleged co-conspirator) specifically. He basically responded that he could not recall, although he did not deny communicating with Williams. We believe the trial court should have considered Lester’s deposition testimony, in the unforeseen event that it might have been more forthcoming than his written discovery responses. Thus, we vacate the judgment and remand this matter to the trial court to review Lester’s deposition and ensure that Lester did not more thoroughly elaborate upon his otherwise ambiguous responses to |ainterrogatories propounded by Blount Brothers. If, in fact, Lester was as evasive in person as he was on paper, we cannot help but conclude that the trial court’s initial decision was proper.

Conclusion

For the foregoing reasons, we vacate the trial court’s judgment in favor of Blount Brothers Construction, Inc. and remand this matter to the trial court for further consideration in accordance with our reasons stated herein. All costs of this matter are to be assessed to Blount Brothers Construction, Inc.

VACATED AND REMANDED.

      . Prior to the filing of the instant lawsuit, Blount had filed a suit against the City of Shreveport, the Mayor of the City of Shreveport, and the Shreveport City Council in their individual and official capacities. That suit arose from a decision by the Shreveport City Council where it overturned a ruling by the Shreveport Metropolitan Planning Commission and denied Blount's zoning request, which was made in order to operate a rock crusher on his property on North Hearne Avenue in Shreveport, LA. That lawsuit against Lester was dismissed under the theory of legislative immunity.

      . On February 9, 2009, summary judgment was entered against Alphonse Williams and A. Williams Enterprises, LLC in favor of Blount Brothers, determining them to be solidarily liable to Blount Brothers. After a trial on the quantum held April 21, 22, and 23, 2009, Williams, A. Williams Enterprises, LLC, and Lester were cast in judgment, jointly and in solido, in the amount of $47,900.00. That judgment is dated May 8, 2009, and is not the subject of this appeal.


author: STEWART, J.

text:
    Gladys RICKS, Plaintiff-Appellant v. CITY OF MONROE, Monroe Transit Authority, Defendants-Appellees.
    No. 44,811-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 2009.
    Rehearing Denied Jan. 21, 2010.

      Anthony J. Bruscato, for Appellant.
    Irwin Fritchie, Urquhart & Moore, LLC by Gus A. Fritchie III, McDonald G. Pro-vosty, for Appellees.
    Before STEWART, GASKINS and CARAWAY, JJ.
   STEWART, J.

| |Plaintiff/Appellant, Wanda Ricks, is appealing a summary judgment granted in favor of the Defendants/Appellees, City of Monroe, Monroe Transit Authority, and Coregis Insurance Company (hereinafter collectively known as the “City”). For the reasons that follow, we affirm.

FACTS

On January 9, 2002, Mrs. Gladys Ricks was hit by a car and severely injured after exiting a city bus. She was attempting to cross the street in order to go to the Piccadilly Cafeteria in the Twin City Shopping Center.

The city bus runs east and west on Louisville Avenue, which is a five-lane highway with a 40 mile per hour speed limit. The Piccadilly Restaurant is located on the north side of and adjacent to Louisville and is a part of the Twin City Shopping Center. The bus stop is in the middle of the block directly across the street from the Piccadilly Cafeteria.

Mrs. Ricks died three years later as a result of complications from the injuries. Mrs. Ricks’s daughter, Wanda Ricks, filed a lawsuit for the wrongful death of Mrs. Ricks. She made the following contentions:

1. The City was negligent in selecting the location of the bus stop where the accident occurred.
2. The City was negligent in failing to move the bus stop to a safer location after bus drivers assigned to the route notified their supervisors that the location was hazardous and suggested that the bus stop be moved to a safer location.
3. When the bus drivers offered passengers “free returns” so that passengers could avoid the bus stop by going to the end of the line, making the return trip, and getting out at a safer location on the opposite side of the street, the City prohibited the bus drivers from offering these “free returns.” Further, the City threatened to discipline bus drivers who offered these “free returns.”

12The City filed a Motion for Summary Judgment arguing the plaintiff could not prove that the bus stop at issue contained a vice or defect that caused an unreasonable risk of injury or that the injury was caused by the defect. Additionally, the City of Monroe asserted that the plaintiff could not prove a claim pursuant to La. C.C. art. 2317 and/or La. R.S. 9:2800 because this bus stop had been in place for over 30 years and Mrs. Ricks’s injury was the first of its kind with an alleged connection to it. Therefore, the plaintiff could not establish that the City had actual or constructive knowledge/notice that the bus stop contained an unreasonably dangerous vice/defect. The City also contended that the plaintiff had the burden of establishing that she was injured while on a public conveyance and that she failed to prove her destination. Lastly, the City argued that the plaintiff could not prove causation because the actual cause of her injury was her attempting to cross this busy street and being hit by a vehicle. In response to discovery requested by the plaintiff regarding the uninsured motorist coverage, the City denied ever having uninsured motorist coverage.

On March 23, 2009, the district court granted summary judgment in favor of the City of Monroe, Monroe Transit System, and Coregis Insurance Company, after finding that “the actions of the defendants do not qualify as a cause in fact of the plaintiffs damages or, alternatively, that Mrs. Rick’s conduct was an intervening and or superseding cause absolving the defendant’s from any liability.” The plaintiff appeals, asserting four assignments of error.

1 oLAW AND DISCUSSION

Duty

In the first assignment, the plaintiff argues that the city had a duty to place bus stops in locations where it would be easier and safer for passengers to reach their destinations or to allow passengers to take a free return to the bus stop on the opposite side of the street in order to avoid crossing a hazardous five-lane street. In the second assignment, the plaintiff asserts that, at the least, the City had a duty to exercise reasonable care to protect Mrs. Ricks from the hazards involved in crossing Louisville Street. Since these two assignments are interrelated, we will discuss them together.

Appellate courts review summary judgments de novo using the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Although the summary judgment procedure is favored and must be construed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law, factual inferences reasonably drawn from the evidence nevertheless must be construed in favor of the party opposing the motion, and all doubt must be | .¡resolved in favor of the opponent to summary judgment. Freeman v. Teague, 37,932 (La.App. 2 Cir. 12/10/03), 862 So.2d 371.

The City argues that the trial court did not err in granting its motion for summary judgment because the plaintiff failed to establish her prima facie claim against the City, as a common carrier. The plaintiff cannot prove that Mrs. Ricks was injured while riding a city bus or while attempting to disembark the city bus at the bus stop.

A carrier has two levels of duty. Crear v. National Fire and Marine Insurance Company, 469 So.2d 329 (La.App. 2 Cir.1985), writ denied, 475 So.2d 364 (La.1985). It is well established that common carriers, such as buses or taxis, assume a high duty of care to their passengers. Id. While common carriers are not insurers of their passengers, they are required to exercise the highest degree of vigilance, care, and precaution for the safety of those whom they transport. Id.

Once a passenger freely disembarks at his chosen destination free from harm, his status as a passenger, and the public carrier’s contract to transport for hire, ceases. Teer v. Continental Trailways, 341 So.2d 1306 (La.App. 3 Cir.1977). At that point the public carrier only owes such person the duty of ordinary care. It is under no duty to warn the former passenger of “a danger which is apparent, obvious, and known to every person in good mind and sense, nor to personally transport, convey, or assist the former passenger in crossing a street or highway.” Id.

In this case, Chuck Norman, who was employed at the Mazda Dealership across the street from the Piccadilly Cafeteria, testified that he ^witnessed Mrs. Ricks, along with two other females, exiting a Monroe City bus at the designated bus stop in front of the Mazda dealership. He stated that the three females began crossing Louisville Avenue after the bus had left the bus stop and that Mrs. Ricks was struck by a pickup truck while attempting to do so.

The evidence clearly indicates that Mrs. Ricks safely departed from the city bus. Once she did so, she became a former passenger and the City only owed her a duty of ordinary care.

Here, Mrs. Ricks was a 56-year-old woman who suffered from Huntington’s disease, which is an incurable neuro-degenerative genetic disorder. Common carriers can owe a greater duty to disabled passengers. Crear, swpra. However, a common carrier’s duty to assist a disabled passenger is not determined solely by the fact of disability. Id. The disability must be one that has somehow been made known to the carrier, and must be one of sufficient seriousness to make assistance necessary under the circumstances presented. In the absence of any of any apparent necessity for personal assistance to passengers boarding or alighting, the carrier is not required to furnish it. 13 C.J.S. CARRIERS § 727 p. 1362. Furthermore, the employees of a carrier are not required to use diligence to discover the feeble condition of a passenger and his inability to help himself. 13 C.J.S. CARRIERS § 727, p. 1364.

Even though Ricks suffered from this disease and high blood pressure, she was capable of doing things for herself prior to the accident. Since she frequently rode the Monroe City bus either to go downtown or to | fieat at the Piccadilly Cafeteria, Mrs. Ricks was fully cognizant of the obvious danger in crossing Louisville Avenue. Additionally, the record does not contain any evidence that Mrs. Ricks requested assistance on the day that the accident occurred or on any past occasion.

Andrew Jackson, who was formerly employed by the City as a bus driver, expressed his concern to his supervisors for passengers exiting the bus on the south side of Louisville Avenue in front of the Mazda Dealership and crossing Louisville Avenue in order to go to the Twin City Shopping Center or Piccadilly Cafeteria. Many times, he would allow the passengers going to those places to remain on the bus and get off on his return trip on the north side of Louisville Avenue at the bus stop adjacent to them. Jackson was advised by his supervisor that he could not allow the passengers to remain on the bus and ride free on the return trip and instructed him to charge a fare for the return trip. Jackson did not comply with supervisor’s orders, and continued to allow the passengers to remain on the bus and get off on his return trip for no additional charge.

Leon Williams, who was also formerly employed by the City, testified that he advised his supervisors many times on the dangers associated with passengers crossing Louisville Avenue from the designated bus stop in front of the Mazda Dealership. Williams also submitted his comments via suggestion box at the Monroe Transit Authority, but no one from management contacted him concerning his suggestion.

Joseph Comerford, who is employed by the City as the general manager at Monroe Transit Authority, testified that the policies and ^procedures of the transit authority did not have any guidelines regarding the selection or relocation of bus stops. Even though Comerford admitted that he never evaluated the bus stops that were a part of the Monroe Transit Authority’s bus stop system, he stated that the bus stops are constantly evaluated by his two supervisors. Some safety factors evaluated in determining whether a bus stop is safe include the landing of the bus stop, whether the bus stop is wheelchair accessible, and the distance from an intersection. Comerford also testified that none of the bus operators expressed their concern over the bus stop in question at any of the safety meetings. He also denied ever receiving any comments from any of the bus drivers about this bus stop being unsafe.

Even though there appears to be a factual dispute about whether the City knew the potential danger of a passenger disembarking and then crossing Louisville Avenue’s busy lanes of traffic, the fact remains that once the passenger disembarks, the City only has a duty of ordinary care. The City does not have the duty assist Mrs. Ricks or any other former passenger in crossing a street or highway.

In the 2200 block of Louisville Avenue, there are two bus stops. One bus stop is located directly in front of the Piccadilly Cafeteria on the north side of Louisville, while the other bus stop is directly opposite of the Picadilly, in the middle of the block on the south side. We can be certain that when the bus stop was placed on the south side of Louisville, it was not intended to be used to cross busy Louisville Avenue. Rather, it was | intended to serve the businesses on the south side of Louisville, such as the Mazda dealership, as well as some apartment complexes.

However, if a passenger decides to get to the Piccadilly by exiting the bus at the bus stop in the middle of the block on the south side, the passenger has three ways to reach the restaurant:

1. The passenger can get off at the stop on the south side of the street, walk 300-400 feet to the corner, where there’s a street light to control traffic, cross the street, and then walk 300-400 feet back to the Picadilly;
2. The passenger can ride to the end of the bus line, pay an extra fare, and then ride the bus back to the Pica-dilly, getting off at the bus stop immediately in front of the Piccadilly; or
3. The passenger can get off at the bus stop opposite the Piccadilly and go directly across the street in the middle of the block.

Even though crossing the street in the middle of the block is the easiest and shortest way to reach the restaurant it is not the safest. Comerford suggested that the passengers take the safest option by walking to the intersection and crossing at the light. He also testified that anyone who has a legitimate reason for remaining on the bus and getting off on the return trip, such as being disabled or elderly, can remain on the bus, free of charge, so that they can exit at the bus stop directly in front of the Piccadilly Cafeteria. Comer-ford stated that he did not have any knowledge of the bus drivers being “threatened” if they allowed the passengers to remain on the bus and get off on the return trip.

In the 30 years that this bus stop has been in existence, the plaintiff was the first and only individual to assert that the bus stop at issue is unreasonably dangerous because of its location. We cannot agree. Rather, |nit is the unsafe actions of the passengers after they leave the bus stop that are unreasonably dangerous. It is clear that Mrs. Ricks’s conduct is the cause of her injury, not the placement of the bus stop.

Based on the evidence presented, we find that the bus stop is not inherently dangerous and the City had no duty to change it. Therefore, the plaintiffs first and second assignments of error bear no merit.

Comparative Fault

The plaintiff argues that summary judgment is not the appropriate vehicle to determine the issue of comparative fault and that this issue must be submitted to a jury under proper instruction.

In support of her assertion that Mrs. Ricks is not 100% at fault for her injuries, she notes that Mrs. Ricks was a 54-year-old woman with Huntington’s Disease. Since she had a physical impairment, crossing with a stop light would only reduce, not completely eliminate the hazard of crossing a busy, heavily traveled street.

Ordinarily, the determination of whether negligence exists in a particular case is a question of fact. Freeman, supra. Therefore, cases involving a question of negligence ordinarily are not appropriate for summary judgment. Id. This principle extends to questions of comparative fault as well. However, where reasonable minds cannot differ, a question of comparative fault is a question of law that may be resolved by summary judgment. Id.

After reviewing the facts and evidence presented, we find that Mrs. Ricks was fully at fault for her injuries. Mrs. Ricks’s decision to cross the [ ¡(¡middle of the busy street after she left the bus stop caused her to get hit by the truck. The location of the bus stop had nothing do with her decision. Since reasonable minds cannot differ on that conclusion, the trial court properly granted summary judgment to the City.

Uninsured Motorist Coverage

In the fourth and final assignment, the plaintiff argues that the Uninsured Motorist (UM) rejection form was invalid because Mr. Pumphrey, an employee of Monroe Transit System, was not authorized to execute an UM rejection. Thus, the policy provides UM coverage.

As stated in Teer, supra., once a passenger freely disembarks at his chosen destination free from harm, his status as a passenger, and the public carrier’s contract to transport for hire, cease. Here, Ricks had already exited the bus at the bus stop at issue, so she no longer was a passenger. She was hit while crossing the street in the middle of the block. Since Ricks no longer had a connection with the city bus, the insurance does not provide any coverage. This issue regarding UM coverage is moot.

CONCLUSION

For the reasons stated above, we affirm the trial court’s decision. Costs of this appeal are assessed against the appellant, Wanda Ricks.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, CARAWAY and LOLLEY, JJ.

Rehearing denied.

LOLLEY, J., would grant rehearing.