author: WILLIAMS, C.J.

text:
    SAND BEACH PROPERTIES, LLC, Plaintiff-Appellant v. CITY OF SHREVEPORT, Defendant-Appellee
    No. 52,436-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019 Rehearing Denied February 21, 2019
    HARPER LAW FIRM By: Jerald R. Harper, Shreveport, Anne E. Wilkes, Counsel for Appellant
    PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, LLP By: Edwin H. Byrd, III, ABRAMS & LAFARGUE, L.L.C. By: Julie M. Lafargue, Shreveport, Counsel for Appellee
    Before WILLIAMS, MOORE and STEPHENS, JJ.
   WILLIAMS, C.J.

The plaintiff, Sand Beach Properties, LLC, appeals a judgment granting summary judgment in favor of the defendants, City of Shreveport, William Bradford, Brian Crawford and Barbara Featherston, and denying the plaintiff's motions for partial summary judgment on the issues of breach of contract and misappropriation of trade secrets. For the following reasons, we affirm.

FACTS

In January 2015, the Shreveport City Council adopted an ordinance establishing new rates for residential water use based on a tiered structure. Under the ordinance, tier 1 included 0-3,000 gallons of water usage billed at $1.32 per 1,000 gallons; tier 2 was 4,000-7,000 gallons of water billed at $2.63 per 1,000 gallons; tier 3 was 8,000-14,000 gallons of water billed at $3.95 per 1,000 gallons; and tier 4 included water use above 14,000 gallons billed at $4.47 per 1,000 gallons. However, an error in the implementation of the new system caused the tier 2 rate to be incorrectly applied to usage from 4,000 through 10,000 gallons; the tier 3 rate was applied to usage from 11,000 through 24,000 gallons; and the tier 4 rate applied to use above 24,000 gallons. As a result, some customers were charged a lower rate than required by the ordinance.

Sharon Pilkinton, the Superintendent of Customer Service for the Shreveport Department of Water and Sewerage, was responsible for implementing the changes in the water billing system in conformity with the ordinance. She was assisted by Bill Farmer, an employee of Systems and Software, the company hired by the City of Shreveport ("City") to install the new tiered rates into the billing software.

In March 2015, the City issued the first water bills under the ordinance. That same month, Pilkinton was informed by a residential water customer that the bill had not been calculated correctly. After reviewing the bill with the customer, Pilkinton determined that the new billing rates had been calculated incorrectly. On March 30, 2015, she sent an email to Bill Farmer advising him that there was an error in the billing rate and pointing out what the amount should have been under the correct calculation. Although Pilkinton was aware that the calculation of the rates charged for water consumption was incorrect, the City continued to issue water bills reflecting the same error throughout 2015 and into 2016.

After receiving his water bill in March 2015 and comparing it to the new tier rates issued by the City, Scott Pernici noticed there seemed to be an error in his bill and that of his neighbor. Pernici did not contact the City at that time, but spent the next several months gathering and reviewing the water bills sent to a number of other customers. Pernici determined that some of the bills were incorrect and as a result, residential customers using 8,000 gallons of water or more were billed at a lower rate than required under the ordinance. Pernici discussed this billing error with his friend, attorney Michael Wainwright. In August 2015, they hired Manchac Consulting Group, Inc. ("Manchac"), a company with experience in municipal water systems, to review Pernici's findings. Pernici and Wainwright required the CEO of Manchac, Justin Haydel, to sign a confidentiality agreement before giving him the water billing information, which they believed could be of value. Haydel confirmed that the water bills that he was shown had been calculated incorrectly. Believing that they could obtain payment from the City for this information, Pernici and Wainwright hired attorney Charles Grubb to negotiate with the City.

In March 2016, attorney Grubb contacted City Attorney William Bradford. Grubb represented that his client possessed "confidential information" which could provide the City with increased revenue without enacting new taxes or fees. City Attorney Bradford advised Grubb that the City would need some disclosure regarding the nature of the information. Attorneys Wainwright and Grubb then drafted a nondisclosure agreement ("NDA"), which provides that Manchac (the "company") would provide confidential information to the City ("recipient") for the purpose of considering contracting with the company to identify areas for realizing additional revenue. Manchac requested that any of its confidential proprietary or trade secret information ("confidential information") provided be "treated and maintained as confidential to the extent permitted by Louisiana law." The term "confidential information" is defined as all "data and information contained in any tangible or intangible form ... provided by company to recipient relating to operational, technical, financial or other affairs of recipient's business activities previously unknown" to the City.

On April 21, 2016, City Attorney William Bradford signed the NDA. Haydel then gave a PowerPoint presentation to Bradford showing that the City's billing for water usage was incorrect and stating what the billing should be under the ordinance. Haydel gave Bradford a paper copy of the PowerPoint and a proposed "revenue enhancement agreement," whereby the City would pay a percentage of any additional revenue received by implementing Manchac's recommendations. On June 8, 2016, Haydel and attorney Grubb met with Bradford, Shreveport Chief Administrative Officer Brian Crawford and Barbara Featherston, director of the City's Water and Sewerage Department. After Crawford and Featherston signed an acknowledgment of the NDA, Haydel again made the PowerPoint presentation. The next day, Featherston sent an email regarding the billing error to Pilkinton and instructed her to research the situation and respond. In July 2016, Featherston informed Haydel that the City had corrected the billing error so that future water bills would be accurate. The City later offered to pay attorney Grubb's client 10% of the amount of the revenue that was uncollected because of the City's billing error.

At some point, Manchac assigned any rights it held under the NDA to Pernici and Wainwright, who are principals of Sand Beach Properties, LLC ("Sand Beach"). Pernici and Wainwright then assigned their rights acquired from Manchac to Sand Beach. In October 2016, the plaintiff, Sand Beach, filed a petition for breach of contract against the City. The plaintiff later amended the petition to add William Bradford, Brian Crawford and Barbara Featherston as defendants. The City filed an exception of no cause of action alleging that the NDA could not be used to prevent the City from correcting the billing error. The district court denied the exception.

In October 2017, plaintiff filed a motion for partial summary judgment as to the City's liability for breach of contract and a motion for partial summary judgment on the issues of misappropriation of trade secrets and breach of confidence. The City and the individual defendants filed a motion for summary judgment alleging that the information contained in the PowerPoint was already possessed by the City through Pilkinton's knowledge of the water billing problem in March 2015. After a hearing, the district court found that Pilkinton's email to Farmer showed that she was aware of the billing error and of the correct amount that should have been billed under the ordinance as of March 2015. The trial court rendered judgment granting the defendants' motion for summary judgment and denying the plaintiff's motions for partial summary judgment. Plaintiff appeals the judgment.

DISCUSSION

The plaintiff contends the trial court erred in granting summary judgment in favor of the defendants. Plaintiff argues that the City should not have been allowed to claim knowledge of the billing error information at summary judgment because the City previously made a judicial confession in pleadings that it did not know the information.

A judicial confession is a declaration made by a party in a judicial proceeding. The confession is full proof against that party. La. C.C. art. 1853. To constitute a judicial confession the statement must be the express acknowledgment of an adverse fact. Additionally, the adverse party must have believed the fact was no longer at issue or relied on it to his detriment for the statement to be a judicial confession. State v. Lamb , 31,919 (La. App. 2 Cir. 5/7/99), 732 So.2d 1270.

First, we note that the City's answer and exception refer to unknowingly violating an ordinance and do not expressly state that certain information was unknown. Second, the record also shows that the City filed its amended exception in December 2016 and its answer in May 2017, before Pilkinton's deposition in June 2017, when she testified that she had learned of the billing error in March 2015. Based on this testimony, plaintiff acknowledged in its statement of uncontested facts filed with the motions for partial summary judgment that Pilkinton had previously determined there was a problem with application of the tiered rates and that the City had actual knowledge of the error. Thus, plaintiff has not shown detrimental reliance on a statement that the City did not know about the billing error. Consequently, the record does not support plaintiff's argument that a judicial confession by the City precluded the district court from granting summary judgment in favor of the City. This assignment of error lacks merit.

In the alternative, plaintiff argues that the trial court erred in granting the City's motion for summary judgment because a genuine issue of material fact exists as to whether the City knew the information presented in the Power Point.

A contract is formed by the consent of the parties. La. C.C. art. 1927. In interpreting contracts, the court should determine the common intent of the parties. Baldwin v. Board of Supervisors for the Univ. of La. System , 2014-0827 (La. 10/15/14), 156 So.3d 33. Contractual intent is determined by the words of the contract. Barrera v. Ciolino , 636 So.2d 218 (La. 1994). The words of a contract must be given their generally prevailing meaning. La. C.C. art. 2047.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Argonaut Great Central Ins. Co. v. Hammett , 44,308 (La. App. 2 Cir. 6/3/09), 13 So.3d 1209, writ denied , 2009-1491 (La. 10/2/09), 18 So.3d 122. Summary judgment shall be rendered if the motion, memorandum and supporting documents show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The burden of proof remains with the mover. However, if the mover will not bear the burden of proof at trial on the matter before the court, then the mover is not required to negate every essential element of the adverse party's claim, action or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim or defense. The adverse party has the burden to produce factual support to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

In the present case, we shall assume the NDA is a valid contract solely for the purpose of summary judgment. The NDA addresses "confidential information," which is defined as "information contained in any tangible or intangible form ... provided by company to recipient relating to operational, technical, financial or other affairs of recipient's business activities previously unknown" to the City. In addition, paragraph 6 of the NDA provides that the agreement shall not "deprive recipient of the right to use or disclose any information (a) which is possessed by recipient before receipt thereof [.]"

In her deposition, Sharon Pilkinton testified that in March 2015 she was informed by a customer that the person's water bill did not seem to have been calculated correctly. After reviewing the bill, Pilkinton saw that the tiered billing rates had been applied incorrectly. Pilkinton stated that she sent an email to Bill Farmer, an employee of Systems and Software, using an example of 17,000 gallons of usage that showed how the bill had been incorrectly calculated and showed how the bill should have been properly calculated. Pilkinton then spoke with Farmer on the telephone and asked him to place the correct rates in production, but this was not done. Pilkinton testified that after their phone call she never followed up to make sure the tiered rates had been corrected. Pilkinton stated she did not know why she did not inform Featherston of this problem at the time. Pilkinton testified that she felt a sinking feeling when she saw Featherston's June 2016 email noting that there was a problem with the tiered water rates in the billing system and realized the error had not been corrected. Pilkinton stated that she contacted Systems and Software for help in changing the tier rates in the system and on June 13, 2016, a Systems and Software employee explained how to correct the rate structure. Pilkinton testified that Featherston's email noting that tier 2 rates had been applied to usage of up to 10,000 gallons and tier 3 rates had been applied to usage of up to 24,000 gallons was the same type of problem she had seen in March 2015 and was not new information. Pilkinton stated she never saw the PowerPoint information.

Scott Pernici testified in deposition as follows: in March 2015, his water bill seemed incorrect when compared with the new tiered rates issued by the City; his neighbor's bill also seemed incorrect; he gathered additional water bills and using the tiered rate structure issued to the public by the City he saw that some bills were correct and some were incorrect and thought something was wrong; it took him a period of time to gather enough bills to specify the "break point" between correct and incorrect bills because he needed to wait for the City to issue the monthly water bills; he reviewed water bills in various increments of usage and the rates stated in the ordinance and performed numerous mathematical calculations to determine that the bills for 7,000 gallons of water usage and below were correct and the bills for 8,000 gallons of usage and above were incorrect; he did not look at the City's enQuesta billing software and does not know how that software works; Haydel was not hired to show him how to fix the billing error; he told Haydel that Manchac might need to handle a software issue to make a correction for the City and Haydel thought his company could "figure it out."

In his deposition, Justin Haydel testified as follows: he is a civil engineer and co-owner of Manchac; in August 2015, Pernici showed him "several water bills" and there was an error in the bills he was shown, but he would have needed more information to determine the extent of the problem; he had "no idea" what would be required to correct the billing error or what changes would need to be implemented to correct the error; he did not tell any city official how to correct the billing error.

Plaintiff asserts in its brief that the PowerPoint, by simply showing the specific usage levels to which the tiered rates were incorrectly applied, gave the City a "method" to fix the billing error. Plaintiff also alleges that even if the City had knowledge of the error, it did not know how to correct the problem until it received the PowerPoint. Contrary to plaintiff's assertion, the PowerPoint's specification of where the error occurred demonstrated the problem, not the method for resolving the billing error. A review of the PowerPoint shows that the information being disclosed involved (1) the way the ordinance was being applied to each 1,000-gallon billing increment at the time and (2) the way the ordinance should have been applied to each billing increment. There is no disclosure of how to correct the error. Haydel, the person who gave the PowerPoint presentation, specifically acknowledged that he did not know how to fix the billing error and did not communicate a method for correcting the error to the City.

Additionally, Pilkinton's March 2015 email shows that she was aware the tier 2 rate of $2.63 was incorrectly applied to usage up to 10,000 gallons, rather than to the 7,000 gallon level in the ordinance, and the tier 3 rate of $3.95 was incorrectly applied to usage up to 17,000 gallons when the ordinance required that usage increments of more than 14,000 gallons be billed at $4.47. The email demonstrates that Pilkinton previously knew the same information that is displayed in the PowerPoint document on which plaintiff relies.

Pilkinton's knowledge of the incorrect application of the tiered rates in the City's water bills, whether acted upon or not, constitutes knowledge of the City for purposes of the NDA, which defines confidential information as information which the City did not previously know or possess. The City also possessed the ordinance provisions and the contents of the water bills sent to customers, including the rates charged for the various levels of water usage. This information is the basis of the PowerPoint.

Based upon this record, there is no showing that the City used or disclosed confidential information, as this term is defined in the NDA, because the information at issue was previously known and possessed by the City. Thus, the evidence presented supports the conclusion that the City did not breach the NDA.

The plaintiff contends the district court erred in denying plaintiff's motions for partial summary judgment. Plaintiff argues that the City's use of the confidential information to correct the billing error was the misappropriation of a trade secret.

A trade secret is information, including a formula, pattern, compilation or method that derives independent economic value from not being generally known and not being readily ascertainable by other persons who can obtain economic value from its use and is subject to reasonable efforts to maintain its secrecy. La. R.S. 51:1431(4). The Louisiana Uniform Trade Secrets Act ("LUTSA") defines misappropriation of a trade secret as the disclosure or use of another's trade secret without consent by a person who used improper means to acquire the secret or who knew that his knowledge of the trade secret was acquired while under a duty to maintain its secrecy or from a person owing such a duty. La. R.S. 51:1431(2). Under LUTSA, recovery for misappropriation of trade secrets requires proof that (1) the information is a legally protected trade secret, (2) an express or implied contractual relationship existed between the parties obligating the receiver not to disclose the information and (3) the receiving party wrongfully misappropriated the information to the plaintiff's detriment. Bihm v. Deca Systems, Inc. , 2016-0356 (La. App. 1 Cir. 8/8/17), 226 So.3d 466. If the principal person who can obtain economic benefit from the information is aware of it, there is no trade secret. Comment ( e), La. R.S. 51:1431.

In the present case, as previously discussed, the City was already aware of the information at issue. Since the City is the principal entity which could obtain economic benefit from the information regarding the billing error, the City's knowledge of this information means there is no protected trade secret. In addition, pursuant to the contract between the parties, the City was not precluded from using the information at issue because that information was not confidential as defined by the NDA. Further, the PowerPoint was derived from data maintained and published by the City. There would have been no numbers for Pernici to calculate without the water bills issued by the City. Based on the evidence presented, the record does not support plaintiff's contention that the PowerPoint information was a legally protected trade secret. Thus, this assignment of error lacks merit.

The plaintiff contends the trial court erred in denying plaintiff's motion for partial summary judgment as to breach of contract. As stated above, we assume that the NDA is a valid and binding contract solely for the purposes of summary judgment. Based upon our conclusion in the previous discussion that the City did not breach the NDA, this assignment of error lacks merit.

After reviewing this record, we conclude that the district court did not err in granting the defendants' motion for summary judgment and denying the plaintiff's motions for partial summary judgment.

CONCLUSION

For the foregoing reasons, the district court's judgment is affirmed. Costs of this appeal are assessed to the appellant, Sand Beach Properties, LLC.

AFFIRMED.

APPLICATION FOR REHEARING

Before Felicia Toney Williams - Writing, Daniel Milton Moore III, Shonda D. Stone, Jeff Cox, and James Mark Stephens.

Rehearing denied.


source: Caselaw Access Project

author: MCCALLUM, J.

license: Public Domain

text:
    Rhonda Routon HAYGOOD, Plaintiff-Appellee v. Blane Dudley HAYGOOD, Defendant-Appellant
    No. 52,435-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019
    MICHAEL HATHORN DAVIS, Counsel for Appellant
    BREITHAUPT, DUBOS & WOLLESON By: Robert Alan Breithaupt, Monroe, Counsel for Appellee
    Before STONE, MCCALLUM, and BLEICH (Pro Tempore), JJ.
   MCCALLUM, J.

Blane Haygood appeals the judgment of the trial court asserting two errors: (1) the trial court erred when it signed a judgment pursuant to a stipulation that he alleges was made in error; and (2) the trial court erred when it denied his motion for new trial without holding a hearing.

For the following reasons, we affirm the trial court's judgment.

FACTS

Rhonda Haygood ("Rhonda") and Blane Haygood ("Blane") were formerly married. In the divorce proceedings, they entered into an oral stipulation regarding the partition of their community property. The attorney for Rhonda recited the stipulation into the record. Counsel for Blane agreed that the terms, as stipulated, accurately reflected the parties' agreement. Blane was present during the entry of the stipulation, and acknowledged under oath that he heard the stipulation and agreed to abide by it. The court accepted the stipulation and deemed it a "final order."

Subsequently, a dispute arose regarding the judgment. Specifically, the parties could not agree on the application of the phrase, "gain they will have to realize." The parties each filed a proposed judgment reflecting his or her respective position. In the alternative, Blane filed a motion for new trial, seeking to vacate the stipulation on the ground that there was no "meeting of the minds."

Blane alleged that the two parties attached different meanings to the term "gain." He argued that the trial court should have allocated to him 70.60% of the net cash proceeds from the sale, but only 50% of the taxable gain generated by that sale.

Without holding a hearing on Blane's motion for new trial, the trial court signed Rhonda's proposed judgment and issued written reasons for judgment, rejecting Blane's contentions.

Blane then appealed the trial court's judgment. He argues that where a "meeting of the minds" did not occur, then the court could not enforce the stipulation. Therefore, he asserts that the trial court erred in signing Rhonda's proposed judgment. He further argues that the court erred when it ex parte denied his motion for new trial.

Stipulation and Judgment

With regard to the stipulation in question, both parties agree that the applicable passage is as follows, to-wit:

Then, I'll mention that there is in Mr. Chris Bowman's trust account, former counsel for Mr. Haygood, the sum of ... $1,258,650 in cash. That will be allocated $370,000 in cash to... [Rhonda and]... $886,650 of said sum to Blane. These sums representing the sales price of items 13, 14, and 15 from the hearing officer's master list, which were three (3) tracts of land and a camp that is located on one of those lands. So I guess I should clarify by saying those having been liquidated, the cash will be allocated in the manner that I just mentioned. Likewise, the parties have agreed that the gain they will have to realize from the sale of that property will be allocated proportionately based on those cash numbers I recited. And just for clarity of the record, my client's portion will be 29.40%. 29.40% will be allocated of the gain, that is will be allocated to my client. The remainder will be allocated to Mr. Haygood.

Likewise, contained in the judgment signed by the trial court, the applicable portions are as follows, to-wit:

IT IS ORDERED, ADJUDGED AND DECREED that the following assets are hereby allocated to defendant, Blane Dudley Haygood, to-wit:
1. $888,650.35 in cash, representing a portion of the net proceeds from the July 2017 sale of immovable property formerly owned by the community, which net proceeds total $1,258,650.35 before partition
...
IT IS ORDERED, ADJUDGED AND DECREED that the following assets are hereby allocated to Plaintiff, Rhonda Routon Haygood, to-wit:
1. $370,000, representing a portion of the net proceeds from the July 2017 sale of immovable property formerly owned by the community, which proceeds total $1,258,650.35 before partition
...
IT IS ORDERED ADJUDGED AND DECREED that the following obligations/liabilities are hereby allocated to Defendant, Blane Dudley Haygood, and he shall be solely responsible for each, to-wit:
...
2. All income taxes due on his proportionate share of the taxable gain realized as a result of the July 2017 sale of immovable property, which share consists of seventy and 60/100 percent (70.60%), calculated by determining the proportionate share of net sale proceeds allocated to him herein
...
IT IS ORDERED, ADJUDGED AND DECREED that the following obligations/liabilities are hereby allocated to Plaintiff, Rhonda Routon Haygood, and she shall be solely responsible for each, to-wit:
1. All income taxes due on her proportionate share of the taxable gain realized as a result of the July 2017 sale of immovable property, which share shall consist of twenty-nine and 40/100 percent (29.40%), calculated by determining the proportionate share of net sale proceeds allocated to her herein

LAW

"A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished." La. C.C. art. 1906. Under Louisiana law, the irreducible minimum for an enforceable contract consists of the following four elements: (1) contractual capacity, La. C.C. art. 1918 ; (2) consent, La. C.C. art. 1927 ; (3) cause, La. C.C. art. 1966 ; and (4) object, La. C.C. art. 1971. A "meeting of the minds" is essential to that consent. Belin v. Dugdale , 45,405 (La. App. 2 Cir. 6/30/10), 43 So.3d 272.

"A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship." La. C.C. art. 3071. "A compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express." La. C.C. art. 3076. To be valid, a compromise must be either made in writing or recited in open court. La. C.C. art. 3072.

"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.

Consent to a contract may be vitiated by error, fraud, or duress. La. C.C. art. 1948. "Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party." La. C.C. Art. 1949. "Cause" is a "reason why a party obligates himself." La. C.C. art. 1967. Thus, there are three elements that a party claiming error must prove to obtain relief from the contract: (1) that he was in error; (2) the error concerned a "cause;" and (3) the other party knew or should have known of that cause.

The requirement that the party seeking enforcement of the contract have actual or constructive knowledge of the errant party's affected cause creates an objective standard for establishing consent to a contract. The mere lack of a subjective "meeting of the minds" does not prevent formation of an enforceable contract.

However, even where the elements of La. C.C. Art. 1949 are proven by a party, Louisiana courts refuse to grant relief to the errant party if the error is deemed "inexcusable." Peironnet v. Matador Res. Co. , 2012-2292 (La. 6/28/13), 144 So.3d 791. The Peironnet Court stated:

We cite with approval the [following] summary...which clearly sets forth the distinction between excusable and inexcusable error:
... excusable, that is, that the party in error did not fail to take elementary precautions that would have avoided his falling into error, such as making certain that he was reasonably informed. Otherwise the error is regarded as inexcusable, in which case the party does not obtain relief...
... [P]ersonal circumstances of the party in error, such as age, experience and profession, are to be taken into account. An error made by a professional person concerning a matter within his field of expertise would no doubt be regarded as inexcusable.

Id. at 810.

The trial judge's findings of fact regarding a party's error claim are subject to manifest error review.

Davidson, Meaux, Sonnier, McElligott & Swift v. Broadhead, 94-97 (La. App. 3 Cir. 11/2/94), 649 So.2d 479 writ denied 94-2910 (La. 1/27/95), 650 So.2d 243, citing Canter v. Koehring Co. 283 So.2d 716 (La. 1973). "Where there are two permissible views of the evidence, the trial court's choice between them can virtually never be manifestly erroneous or clearly wrong." Davidson supra , citing Rosell v. ESCO , 549 So.2d 840 (La. 1989).

DISCUSSION

Blane admitted that he listened as the attorney recited the stipulation into the record. He acknowledged that his own attorney agreed to the language and Blane testified, under oath, to abide by that stipulation. Blane's consent to the entire compromise included the provision allocating the gain realized on the sale of the former community properties. These facts are clearly established.

To establish his error claim, Blane must prove: (1) he was in error regarding the effect of the provision allocating the "gain" proportionately with the division of the cash proceeds; (2) his error concerned a "cause," in that he assented to the stipulation because he thought he was only responsible for 50% of the taxes generated by the sale; and (3) Rhonda knew or should have known of such "cause." Additionally, the error must be "excusable" or relief will be denied.

Blane asserts that the parties attached different meanings to the word "gain." Specifically, he emphasizes that the stipulation recited into the record simply used the word "gain" while the corresponding provisions of the judgment used the phrase "taxable gain."

Indeed, appellant describes his alleged understanding as follows, to-wit:

It is apparent now that the attorney for Rhonda intended that the word "gain" was referring to "taxable gain." Unfortunately, Mr. Haygood thought that the meaning of this particular part of the stipulation was that he was receiving $888,650 from the gain that the parties realized by selling the property.
...
It is submitted that Mr. Haygood had no understanding and, indeed, did not agree to pay 70.60% of the taxable gain on the sale of former community properties.

Thus, Blane alleges his belief that "gain" referred only to the entire amount of the cash price received for the sale of the properties, not the tax liability. As a result, he argues that the stipulation did not allocate the tax liability resulting from the sale between the parties. Instead, he alleges that each party, by default, should bear 50% of the tax liability. Thus, he asserts that his consent to the compromise was vitiated by error. In contrast, Rhonda argues that "gain," as used in the stipulation, is synonymous with the term "profit."

The generally prevailing meaning of "gain," in the context of a sale, is the same as "profit." "Profit" is the excess of the price that the seller received over the seller's financial investment in the thing sold. Furthermore, the technical meaning of "gain" in the Internal Revenue Code is, in substance, the same.

We hold that the stipulation allocated the taxable gain in the same proportion that it divided the cash proceeds. In this case, it makes no difference whether the word "gain" is given its generally prevailing meaning or its technical meaning. Use of either renders the same outcome. Allocation of the taxable gain in the same proportions as the division of the net cash proceeds was a "necessary consequence" of the provision in question.

Rhonda did not share Blane's erroneous definition of the word "gain." She clearly accorded the generally prevailing and technically correct meaning of the word "gain" to the stipulation. Blane's burden is compounded by the illogical presumption that Rhonda would agree to allow him to reap the benefit of 70.60% of the cash proceeds, but only pay 50.00% of the tax liability. In short, Rhonda intended the contract as stipulated. Therefore, Blane's error was unilateral, not mutual.

Furthermore, as a threshold matter, Blane's alleged understanding ignores the stipulation's inclusion of the word "likewise." In effect, he takes the position that the gain allocation did nothing more than restate the express division of the cash proceeds from the sale twice, first by reference in dollar amounts and second by reference in percentages. Rhonda cannot be charged with actual or constructive knowledge of such an unreasonable belief as the appellant posits. Clearly, the stipulation, as recited into the record, refers first to the cash proceeds and then to the tax liability, wherein it apportions the tax liability likewise to the cash proceeds.

Finally, Blane's alleged "error" was inexcusable. The record supports the finding that Blane is a tax professional. As of January 2015, Blane worked at the IRS as a "manager" and earned $9,110 average monthly gross income in that position. At the time of the stipulation, he had been employed by the Internal Revenue Service long enough to have a pension through that employment. Thus, Blane's alleged error was directly within his field of expertise and therefore inexcusable.

Invalidation of a compromise and stipulation, voluntarily entered into on the record and under oath by parties represented by counsel, is not an action to be taken lightly by this Court. This approach fosters various laudatory policy concerns. First, parties should be encouraged to interact with counsel at all points of a proceeding, particularly before entering into a compromise and settlement. Next, the ends of judicial economy are promoted by the avoidance of needlessly re-litigating matters thought to have been concluded. Third, good faith in settlement negotiations, compromises, and stipulations is encouraged and potential manipulation of the courts and opposing parties is discouraged. Finally, parties need to be able to rely on the sworn stipulations of one another and govern their future actions based on compromises and settlements memorialized thereby.

In consideration of the above, we find that the trial court did not commit manifest error when it denied Blane's alleged "error," and instead signed the proposed judgment filed by counsel for Rhonda.

Motion for new trial

"A trial judge may deny a motion for new trial ex parte without a contradictory hearing." Johnson v. European Motors-Ali, 48,513 (La. App. 2 Cir. 11/20/13), 129 So.3d 697, citing Sonnier v. Liberty Mut. Ins. Co., 258 La. 813, 248 So.2d 299 (1971). The Sonnier Court reasoned as follows, to-wit:

... [T]o rehash a trial recently conducted to a conclusion, in the absence of a clear showing in the motion of facts or law reasonably calculated to change the outcome or reasonably believed to have denied the applicant a fair trial, would be to compound unnecessarily delays which already plague the administration of justice.

Sonnier at 303. Denial of a motion for new trial is subject to abuse of discretion review. Johnson, supra .

Blane's motion for new trial failed to clearly show law or facts that were either reasonably calculated to change the outcome or reasonably believed to have denied the applicant a fair trial. Therefore, the trial judge was within his discretion in denying the motion without a hearing.

CONCLUSION

The judgment of the trial court is AFFIRMED. All costs of this appeal are assigned to the appellant.

      Blane's pleading was actually styled "Rule to Show Cause Why Consent Judgment Should Not Be Signed, Alternative Rule for Reconsideration and/or Alternative Motion For New Trial." For this opinion, the Court refers to it as Blane's "motion for new trial."

      Comment (d) to La. C.C. art. 1949, states: "When only one party is in error, that is, when the error is unilateral, there is theoretically no meeting of the minds, but granting relief to the party in error will unjustly injure the interest of the other party if he is innocent of the error. Louisiana courts have often refused relief for unilateral error for this reason. Yet...they have granted relief for unilateral error in cases where the other party knew or should have known that the matter affected by the error was the reason or principal cause why the party in error made the contract..." See also Walker v. Hixson Autoplex of Monroe, LLC, 51,758 (La. App. 2 Cir. 11/29/17), 245 So.3d 1088.
      "Error is mutual, or bilateral, when both parties to a contract share a wrong belief concerning a cause without which the contract would not have been entered." Saul Litvinoff, Vices of Consent, Error, Fraud, Duress and an Epilogue on Lesion , 50 La. L. Rev. 1, 34 (1989).

      Internal Revenue Code Section 1001(a) provides that "[t]he gain from the sale...of property shall be the excess of the amount realized therefrom over the adjusted basis provided in section 1011 for determining gain." Section 1001(b) provides that "[t]he amount realized from the sale...of property shall be the sum of any money received plus the fair market value of... [any]... property(other than money) received." Generally, the "basis for determining gain or loss from the sale... of property...shall be the cost of such property" to the seller. Section 1011(a); section 1012(a).

      In fact, that pension was partitioned as part of the subject compromise agreement. The hearing officer conference report regarding child custody and child support was filed in the record in January 2015. It states as a "finding of fact" that Blane is a manager for the IRS earning an average of $9,110 per month gross income. The trial court adopted the report.


author: PITMAN, J.

text:
    Bert HOWELL, Jr., Plaintiff-Appellee v. Teresa Green JURGENS, Defendant-Appellant
    No. 52,458-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019.
    JAMES E. CALHOUN, Baton Rouge, Counsel for Appellant
    GARY D. NUNN, Counsel for Appellee
    Before MOORE, PITMAN, and McCALLUM, JJ.
   PITMAN, J.

Defendant-Appellant Teresa Green Jurgens appeals the trial court's judgment in favor of Plaintiff-Appellee Bert Howell, Jr. For the following reasons, we vacate the judgment of the trial court and remand for further proceedings.

FACTS

On December 27, 2017, Mr. Howell filed a petition and stated that he and Ms. Jurgens lived together for many years, but recently separated. He alleged that she refused to allow him to retrieve from her house items belonging to him and his mother. He provided a list of these items: personal documents such as his birth certificate, social security card and tax returns; two horses, a horse trailer and a saddle and tack; a boat, boat trailer and fishing equipment; bedroom furniture, including a bed, a dresser and a chest of drawers; two mounted deer heads; an alarm; two cowboy hats; tool boxes and tools; a gas generator and two gas cans; two window air conditioners; a Bowflex exercise system; his clothing; his pillow; and a crossbow. Mr. Howell requested that the trial court issue an ex parte temporary restraining order enjoining Ms. Jurgens from abusing or harassing him and from transferring, damaging or disposing of his property. He requested that she return all his items or pay their value in the event that she has disposed of or damaged them.

On January 8, 2018, the trial court signed a temporary restraining order.

At a hearing on March 5, 2018, counsel for Mr. Howell noted that counsel for Ms. Jurgens was not present in court because he was in the hospital, but that they agreed to continue the case to May 1, 2018. Counsel for Mr. Howell stated that counsel for Ms. Jurgens would be notified by telephone call of the new court date. The minutes of the court from this date state "No notice to be sent by clerk."

A hearing was held on May 1, 2018. Mr. Howell and his counsel were present, but Ms. Jurgens was not present and was not represented by counsel. Counsel for Mr. Howell stated that in a letter dated April 11, 2018, Ms. Jurgens's counsel informed her that he would not be able to represent her further. Mr. Howell testified that he and Ms. Jurgens lived together in her house, but never married. He discussed the items listed in his petition and stated that he wanted all of his possessions except the bed, the horse named Blue Girl and two gas cans. He requested that a law enforcement officer accompany him to retrieve his items from Ms. Jurgens's house. He also requested that the restraining order be made permanent to stop Ms. Jurgens from harassing him and destroying his property. The trial court found that the items listed in the petition were the property of Mr. Howell. It specified that the horse trailer and boat trailer were the property of Mr. Howell and ordered Ms. Jurgens to execute any documents necessary to place ownership in Mr. Howell's name. It ordered that Ms. Jurgens return to Mr. Howell all of the items that Mr. Howell testified that he wanted and stated that she would be held in contempt for her failure to do so. It also ordered a sheriff's deputy to accompany Mr. Howell to retrieve his property. It granted Mr. Howell's requests for restraining orders and assessed all costs of the proceeding against Ms. Jurgens.

On May 9, 2018, the trial court filed a judgment and issued a preliminary and permanent injunction restraining, enjoining and prohibiting Ms. Jurgens or her agents from any form of abuse or harassment of Mr. Howell and from going to his place of residence, his place of employment or any place where he is located. It ordered that Ms. Jurgens return to Mr. Howell the items listed in his petition, except for a bed, the horse named Blue Girl and two gas cans.

On May 21, 2018, Ms. Jurgens filed a motion for new trial. She stated that she was not represented by counsel and was not notified that the hearing set for March 5, 2018, was continued to May 1, 2018. She received notice of the judgment on May 17, 2018. She argued that the judgment should be declared null and void and that the matter be set for trial.

A hearing on the motion for new trial was held on June 22, 2018. The trial court discussed the procedural history of the case and stated that Ms. Jurgens's counsel was present in court when the continuance was granted. Ms. Jurgens stated that her attorney did not inform her of the May 1, 2018 court date and that she was not served with notice of this court date. The trial court found that there was no basis for ordering a new trial and denied Ms. Jurgens's motion.

Ms. Jurgens appeals.

DISCUSSION

In her sole assignment of error, Ms. Jurgens argues that the trial court erred in granting judgment where the principal demand must be tried as an ordinary proceeding, the issues were not joined either by preliminary default or answer and she did not appear and waive the lack of preliminary default or answer. She requests that this court take notice of the record showing that the issues were not joined, find that the judgment is invalid and remand the case for trial after the issues are joined between the parties.

Mr. Howell argues that the trial court correctly ruled that a permanent injunction should issue and that Ms. Jurgens should deliver the property to him. He states that Ms. Jurgens was served with the original petition and that her counsel agreed to a new court date of May 1, 2018. He contends that when neither Ms. Jurgens nor her counsel was present in court on March 5 or May 1, 2018, it was proper for the trial court to proceed on the case and render judgment. He states that although Ms. Jurgens did not file an answer and no preliminary default was entered, the matter was properly set for a hearing on the preliminary injunction and trial by consent of the parties.

Louisiana Code of Civil Procedure article 1571 requires adequate notice of trial to all parties. Procedural due process requires an opportunity to be heard at a meaningful time. Hayes v. Panola-Harrison Elec. Co-op., Inc. , 564 So.2d 738 (La. App. 2 Cir. 1990). The trial of the case is unquestionably one of the meaningful occasions at which the parties must be given an opportunity to be heard. Id.

A review of the record does not demonstrate that Ms. Jurgens received adequate notice of the May 1, 2018 trial date. The record suggests that Ms. Jurgens was served with Mr. Howell's petition and an order setting a rule to show cause hearing for March 5, 2018. She did not file an answer, and no default judgment was entered. Neither she nor her attorney was present in court on March 5, 2018, when counsel for Mr. Howell moved to continue the matter to May 1, 2018. Although counsel for Mr. Howell and the trial court stated that counsel for Ms. Jurgens would be notified of the continuance by phone call, the record does not demonstrate whether her counsel received this notice or if he notified Ms. Jurgens of the continuance prior to withdrawing as her counsel.

The transcript of the June 22, 2018 hearing on Ms. Jurgens's motion for new trial suggests that the trial court based its denial of her motion on an incorrect recitation of the procedural history. The trial court stated that Ms. Jurgens's counsel was present at the March 5, 2018 hearing and requested a continuance, which was granted and was, therefore, aware of the new court date. To the contrary, the transcript and minutes from March 5, 2018, state that counsel for Ms. Jurgens was not present in court that day and that counsel for Mr. Howell requested the continuance.

Fundamental fairness and due process dictate that Ms. Jurgens was entitled to receive adequate notice of the May 1, 2018 trial date. The record does not demonstrate that she received proper notice. Accordingly, this assignment of error has merit, and we vacate the judgment of the trial court.

CONCLUSION

For the foregoing reasons, we vacate the judgment of the trial court in favor of Plaintiff-Appellee Bert Howell, Jr. and against Defendant-Appellant Teresa Green Jurgens and remand for further proceedings. Costs are assessed to Plaintiff-Appellee Bert Howell, Jr.

VACATED AND REMANDED.


text:
    Niran GUNASEKARA and Suzanne O'Neill v. CITY OF NEW ORLEANS, Through Its Director of Safety and Permits, Dr. Jared E. Munster
    NO. 2018-CA-0639
    Court of Appeal of Louisiana, Fourth Circuit.
    January 30, 2019
   Madro Bandaries, MADRO BANDARIES, P.L.C., 938 Lafayette Street, Suite 204, Post Office Box 56458, New Orleans, LA 70113, COUNSEL FOR PLAINTIFF/APPELLANT

Mark D. Macnamara, Sunni J. LeBeouf, Cherrell S. Taplin, CITY OF NEW ORLEANS, 1300 Perdido Street, Suite 5E03, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins )

Judge Rosemary Ledet This is a mandamus suit. The trial court sustained a peremptory exception of no right of action filed by the defendant, the City of New Orleans, through its Director of Safety and Permits, Jared E. Munster ("the City"), and dismissed the suit. The plaintiffs, Niran Gunasekara and Suzanne O'Neill (the "Taxi Cab Drivers"), appeal. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Taxi Cab Drivers filed a petition for writ of mandamus directed to the Department of Safety and Permits of the City of New Orleans (the "Department"), seeking to have transportation network company ("TNC") vehicles regulated in the same manner as taxi cabs. The Taxi Cab Drivers alleged that the Department requires taxi cab drivers and owners to submit their vehicles for inspection pursuant to certain New Orleans Code of Ordinances and that such inspection requires an application and a payment of a fee. The Taxi Cab Drivers further alleged that the Department did not enforce these requirements for TNC vehicles. The Taxi Cab Drivers contended that "[t]his failure of the Department ... to enforce this ministerial duty puts the public at risk, causes extra time constraints and expense to taxicab drivers and creates an un-level playing field as to competition, as well as denying taxidriver[s] equal protection under the law." In response, the City filed an exception of no right of action.

Granting the City's exception of no right of action, the trial court found that the Taxi Cab Drivers lacked a special interest in requiring such enforcement. In so doing, the trial court provided the following written reasons for judgment:

An action can only be brought by a "person having a real and actual interest which he asserts." [ La. C.C.P. art. 681.] A citizen and taxpayer must show a special interest in the performance sought of the public officer, which is separate and distinct from the interest of the public at large. The special interest alleged by taxicab drivers is a competitive disadvantage. Even if the Code of Ordinance Articles governing TNCs were more strictly enforced by the City, Petitioners would still be required to comply with safety inspections for taxicab drivers required under the same Code.
Courts have held mandamus relief was appropriate where petitioners expressed a special interest where they would suffer harm in the enforcement of a statute by a public officer or agency. There is a significant amount of precedence on whether or not competitive harm qualifies as a special interest. Courts have consistently held competitive harm does not qualify as a special interest, and Petitioners alleging competitive harm do not have standing to bring a writ of mandamus. Petitioners' allegation of a competitive disadvantage is an insufficient special interest to maintain a cause of action. Therefore the City's exception of no right of action is sustained.

The Taxi Cab Drivers appealed. This court converted the appeal to a writ (due to the lack of decretal language), granted the writ, denied relief, and remanded to allow the Taxi Cab Drivers leave to amend their petition pursuant to La. C.C.P. art. 934. Gunasekara v. City of New Orleans through Munster , 17-0914 (La. App. 4 Cir. 3/28/18), 243 So.3d 623 (" Gunasekara I "). In so doing, we reasoned as follows:

When seeking to compel the action of a public official, "the plaintiff must demonstrate that he has a special interest, which is separate and distinct from the general public." Sewell v. Huey , 2000-0385, p. 3 (La.App. 4 Cir. 1/24/01), 779 So.2d 1003, 1005. In Sewell , plaintiff filed a petition for writ of mandamus directed to the Orleans Parish Levee Board ("the Board"), which had granted rent relief to a casino. Plaintiff argued the Board's "failure to exercise its duty to collect [unpaid rents] to prevent flood and hurricane damage put him and his home at risk." Id. This Court found plaintiff had no right of action as plaintiff failed to assert a "special interest," reasoning that "plaintiff's allegations of jeopardy to his interest in hurricane and flood protection and a right not to drown are not, however, peculiar to him. Such interests are common to the public at large." Id. at 1006.
The City advances the same argument here; that is, Appellants have failed to allege a special interest in requiring the Department to enforce the relevant sections of the City Ordinances against TNCs.
We agree that Appellants have no standing to seek mandamus relief by arguing the Department's failure to regulate TNCs in the same manner as taxi cabs puts the public at risk. As in Sewell , the Department's failure in this regard places the public at large at risk, such that Appellants can assert no "special interest."
Appellants' argument that the Department's inaction places them at a competitive disadvantage also fails. Although Appellants disputed its applicability to the facts of this case, we find the City's reliance on Lauer v. City of Kenner , 536 So.2d 767 (La. App. 5[th] Cir. 1988), is not misplaced. In Lauer , plaintiff sought damages resulting from declined business after the City of Kenner granted a land use variance to plaintiff's business competitor. Id. at 768. In affirming the district court's judgment in favor of the City of Kenner, the Fifth Circuit reasoned:
In the present case, Lauer's only complaint is that competition from the [business competitor's] grocery has hurt his grocery business. This competition is a factor shared by all other grocers in the municipality, and is therefore not distinct to him. In the factual circumstances of this case, we hold that this mere competitive disadvantage is not such a particular interest as to confer standing upon Lauer to bring this suit.
Id. at 772. Though not a case concerning an exception of no cause of action, the same issue of standing to bring suit is implicated. Here, in order to bring suit, Appellants were required to show that they had standing by virtue of a special interest. The Court in Lauer squarely held that "competitive disadvantage" is insufficient to confer standing, as that disadvantage was not unique to plaintiff, but shared by all other similarly-situated grocers.
Here, only two New Orleans [Certificates of Public Necessity] CPNC taxi cab drivers have filed suit, asserting a competitive disadvantage presented by the Department's failure to enforce the City Ordinance, as written. However, as the Court did in Lauer , we find that mere competitive disadvantage does not confer the requisite standing, as this disadvantage is shared by all other taxi cab drivers in the City of New Orleans.

Gunasekara I , 17-0914, pp. 4-6, 243 So.3d at 627-28.

On remand, the Taxi Cab Drivers amended their petition primarily to add class action allegations; otherwise, the allegations of their petition remained essentially unchanged. In response, the City renewed its exception of no right of action. Granting the City's renewed exception, the trial court orally reasoned that "economic disadvantage" was insufficient to confer standing. In so finding, the trial court cited to its reasons for judgment in granting the prior exception. This appeal followed.

DISCUSSION

The sole issue on appeal is the correctness of the trial court's ruling, granting the exception of no right of action. "The standard of review of a ruling on an exception of no right of action, which presents a question of law, is de novo. " State v. Thompson , 16-0409, p. 13 (La. App. 4 Cir. 11/23/16), 204 So.3d 1019, 1029.

The following procedural articles govern an exception of no right of action:

• La. C.C.P. Art. 681 provides "[e]xcept as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts."
• La. C.C.P. Art. 927(A)(6) provides that an exception of "[n]o right of action, or no interest in the plaintiff to institute the suit" is a peremptory exception.
• La. C.C.P. Art. 923 provides that "[t]he function of the peremptory exception is to have the plaintiff's action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action."

N. Clark, L.L.C. v. Chisesi , 16-0599, pp. 4-5 (La. App. 4 Cir. 12/7/16), 206 So.3d 1013, 1016.

The pertinent jurisprudential principles governing the review of a ruling on an exception of no right of action are as follows:

• An exception of no right of action is a threshold device to terminate a suit brought by one who has no interest in judicially enforcing the right asserted.
• The function of an exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.
• When the facts alleged in the petition provide a remedy under the law to someone, but the plaintiff who seeks the relief for himself or herself is not the person in whose favor the law extends the remedy, the proper objection is no right of action, or want of interest in the plaintiff to institute the suit.
• The burden of proof of establishing the exception of no right of action is on the defendant-exceptor.
• The exception of no right of action does not raise the question of the plaintiff's ability to prevail on the merits or the question of whether the defendant may have a valid defense.
• On consideration of an exception of no right of action the averments of fact in the pleading must be taken as true in the absence of evidence to the contrary.
• In examining an exception of no right of action, a court should focus on whether the particular plaintiff has a right to bring the suit while assuming that the petition states a valid cause of action for some person.
• The exception of no right of action presents a question of law; thus, as noted earlier, appellate review of that exception is de novo and involves determining whether the trial court was legally correct in sustaining such exception.
• In reviewing a trial court's ruling on an exception of no right of action, an appellate court begins with an examination of the pleadings.

N. Clark , 16-0599, pp. 5-6, 206 So.3d at 1016-17 (internal quotation marks and citations omitted).

The Taxi Cab Drivers acknowledge, as we held in Gunasekara I , that in order for them to have a right of action (standing), they must have a special and peculiar interest apart from the interest of the general public. According to the Taxi Cab Drivers, their special, particular, or peculiar interest, giving them a right of action, is established based on their allegations in Paragraph 6 of the amended petition, which states as follows:

[N]ot one transportation network company vehicle, also identified as app-based services such as Uber and Lyft, has even been required by the "bureau" to be inspected. This failure of the Department of Safety and Permits to enforce this ministerial duty puts the public at risk, causes extra time constrains [sic] and expense to the taxicab drivers and creates an un-level playing field as to competition, as well as denying taxi drivers equal protection under the law. Plaintiffs are clearly burdened with extra costs of compliance that are not enforced as to transportation network companies. The New Orleans City Council, as well as Louisiana law, have delegated a duty to the "bureau" to enforce the ordinances as provided to them. The "bureau" is allowed no discretion by the plain terms of the ordinances. As such, the duty is ministerial and a writ of mandamus is proper in this dispute to contest the manner in which the "bureau" fails to act.

The Taxi Cab Drivers further contend that the trial court erred in focusing on damages-competitive disadvantage-as part of its analysis of whether the Taxi Cab Drivers stated a special and peculiar interest. They contend that damages are not a factor in the analysis of whether they have a right of action; rather, they contend that the appropriate standard is whether they have a special interest, which they contend they have sufficiently plead.

The City counters that the Taxi Cab Drivers, though given an opportunity to amend their petition, have failed to assert anything beyond an alleged competitive disadvantage. The City emphasizes that this court has already decided that an alleged competitive disadvantage is insufficient to confer a right of action here. We agree.

Contrary to the Taxi Cab Drivers' contention, the trial court's focus on the Taxi Cab Drivers' damages-competitive disadvantage-was not misplaced. The plaintiffs' damages are relevant in determining whether they have a special interest that would confer a right of action to file a mandamus action. Explaining this point, one commentator observes as follows:

A plaintiff alleging breach of contract or tortious injury by a public official clearly has standing to sue unless barred by a constitutional, statutory, or jurisprudential doctrine of sovereign immunity or other, more specific bars .... Also, where a public official grants a contract to a party who has not made a legal bid, a party who has made a legal bid has standing to sue for rescission. Additionally, public employees have standing to compel mayors and council members to approve and disburse pay increases required by statute. What these cases have in common is the special or peculiar interest which sets the individual apart from the general public. That is, some act or omission of the state has harmed or threatens to harm the plaintiff individually and does not harm the public generally. Thus, when the injury sustained or the right sought to be enforced is private, standing should be measured by the standards involved in a lawsuit between two private parties.

J. Keith Hardie, Jr., League of Women Voters v. City of New Orleans: Standing in Suits Against Public Officials , 46 LA. L. REV. 169, 172 (1985).

As the Louisiana Supreme Court observed, the reason it imposed the "special interest" requirement on a plaintiff in a mandamus action was "to insure a fair presentation and development of the issues by truly adverse parties." Louisiana Associated Gen. Contractors, Inc. v. Calcasieu Par. Sch. Bd. , 586 So.2d 1354, 1358 (La. 1991). The Supreme Court added that "[w]ithout a showing of such a personal and special interest in mandamus cases, [it] feared interference by the judiciary would surpass the authority allocated by the tripartite system." Id.

Neither of the interests cited by the Taxi Cab Drivers-public safety and competitive disadvantage-is sufficient to confer standing. The interest of public safety is a risk shared by the public at large; it is not unique to the Taxi Cab Drivers. "[M]ere competitive disadvantage does not confer the requisite standing, as this disadvantage is shared by all other taxi cab drivers in the City of New Orleans." Gunasekara I , 17-0914, p. 6, 243 So.3d at 628.

Finally, although the Taxi Cab Drivers, on remand, added class action allegations, it is well settled that "[a] class action is simply a procedural device; it confers no substantive rights." Galjour v. Bank One Equity Investors-Bidco, Inc. , 05-1360, p. 7 (La. App. 4 Cir. 6/21/06), 935 So.2d 716, 723. As one commentator has explained, "class standing" is not recognized:

There is no such thing as "class standing." This precept is of a piece with black letter doctrine that, as a procedural mechanism, a class action enlarges no substantive rights, eliminates no defenses to individual claims, and creates no Article III case or controversy where none would otherwise exist.

1 MCLAUGHLIN ON CLASS ACTIONS § 4:28 (15th ed. 2018). The addition of class action allegations to the petition, thus, could not confer standing on the Taxi Cab Drivers. Accordingly, the trial court correctly sustained the City's peremptory exception of no right of action and dismissing the Taxi Cab Drivers' suit.

DECREE

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

AFFIRMED

      A TNC is "an organization that connects passengers with drivers using their personal vehicle for purposes of for-hire transportation services by means of a TNC digital network." Rasier, LLC v. City of New Orleans , 16-0930, p. 2 (La. App. 4 Cir. 6/14/17), 222 So.3d 806, 810 (internal quotation marks omitted). As the Taxi Cab Drivers point out in their brief, TNCs are also known as "app-based service" companies, examples of which include Uber and Lyft.

      In the amended petition, the Taxi Cab Drivers defined the class they purport to represent as follows:
      [A]ll New Orleans CPNC "taxi cab drivers", licensed by the City of New Orleans and who are required to have their vehicles inspected by the Department of Safety and Permits, a city department under the direction of Jared E. Munster and are forced to engage in other acts required by city ordinance that are not enforced by the City of New Orleans as to TNC for-hire persons.
      The Taxi Cab Drivers also alleged that "there are around 1,400 other and similarly situated persons, both natural and juridical in Orleans Parish, with Plaintiffs also seeking to represent them as class representatives" and that "the customs and practices challenged in this action apply equally to Plaintiffs and all members of the similarly situated, proposed class."

      Indeed, the Taxi Cab Drivers allege in their amended petition the following:
      Defendant's failure to enforce performance of it's [sic] duty represent[s] a special, peculiar, or financial interest common only as to Plaintiffs and the putative class, and is a duty not due any other citizens of New Orleans .... Plaintiffs' interest and concern in this respect is one that is common to no other citizens with Plaintiffs' pleading, herein, demonstrating their special, particular, or peculiar interest in having these laws enforced that is not also common and peculiar to others. (See: State ex rel. Schoeffner v. Dowling , 158 La. 706, 104 So. 624 (1925) ).

      See also Jones v. Capitol Enterprises, Inc. , 11-0956, p. 29 (La. App. 4 Cir. 5/9/12), 89 So.3d 474, 493 (quoting Galjour , supra ) ; Andry v. Murphy Oil, U.S.A., Inc. , 97-0793, p. 2 (La. App. 4 Cir. 4/1/98), 710 So.2d 1126, 1128-29 (observing that "[a] class action is no more than a procedural device"); Marshall ex rel. Minor Children v. Air Liquide-Big Three, Inc. , 08-0668, p. 6 (La. App. 4 Cir. 12/17/08), 2 So.3d 541, 546.


author: Judge Daniel L. Dysart

text:
    CENTRAL ST. MATTHEW UNITED CHURCH OF CHRIST v. Dale ATKINS, in Her Official Capacity as Recorder of Mortgages for the Parish of Orleans, Keeping Our Legacy Alive, Inc., and Ernest Jones
    NO. 2018-CA-0823
    Court of Appeal of Louisiana, Fourth Circuit.
    January 30, 2019
    Vincent James Booth, BOOTH & BOOTH, APLC, 138 North Cortez Street, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLEE
    Ernest L. Jones, 4211 S. Claiborne Avenue, New Orleans, LA 70125, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Paula A. Brown )
   Judge Daniel L. Dysart

This is an appeal of a trial court judgment granting a petition for a writ of mandamus in favor of plaintiff-appellee, Central St. Matthew United Church of Christ ("CSM") and ordering that the Clerk of Court for the Parish of Orleans remove a notice of lis pendens. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

CSM, a non-profit religious organization, was named as a defendant in a declaratory judgment action filed on May 23, 2017 by Keeping Our Legacy Alive, Inc. ("KOLA"). That action was the subject of a prior decision of this Court. In Keeping Our Legacy Alive, Inc. v. Cent. St. Matthew United Church of Christ , 17-1060 (La. App. 4 Cir. 10/31/18), 2018 WL 5660143, --- So.3d ---- (hereafter, " KOLA I "), the following factual background was set forth:

In the spring of 2005, Central Congregational United Church ("Central") entered into a rental agreement with St. Matthew United Church of Christ ("St. Matthews") to temporarily hold church services in a chapel at St. Matthew while Central's church building was undergoing repairs. At that time, Central owned the church building at 2401 Bienville Street, as well as several adjacent properties on Bienville Street, North Tonti Street, and Conti Street. St. Matthew owned a church on South Carrolton Avenue.
Until August 29, 2005, when Hurricane Katrina made landfall, the members of Central worshipped as their own congregation in the chapel leased from St. Matthew. But as a result of the impact from Hurricane Katrina, Central's congregation was disbursed and fewer members gathered to worship at the chapel. In October 2005, members of Central began to worship with the congregation of St. Matthew.
In September 2007, Central and St. Matthew entered into a "covenant" agreement to worship together as two congregations. By a second "covenant" agreement, Central and St. Matthew agreed to unify their congregations but maintain separate ownership of church properties.
In January 2010, Central and St. Matthew filed Articles of Incorporation with the Louisiana Secretary of State to create CSM, a nonprofit religious corporation. In October 2014, CSM filed Articles of Merger with the Louisiana Secretary of State to officially unite and merge Central and St. Matthew into the surviving corporation of CSM.
The Articles of Merger included the following provision:
At and after the Effective Time, all rights and ownership of the assets of St. Matthew and Central Congregational shall vest in CSM as the Surviving Corporation and CSM shall possess all the rights, privileges, immunities, powers and purposes of St. Matthew and Central Congregational, pursuant to La. R.S. 12:246.C and 12: 246.D.
The Articles of Merger listed the assets affected by the merger, including the church building at 2401 Bienville Street.
In December 2015, the Governing Council of CSM voted to sell the Bienville Street property. In January 2016, in response to CSM's vote to sell the property, a group of "pre-Katrina members of Central" organized and filed Articles of Incorporation to create KOLA, for the purpose of preserving the historic legacy and property of Central.

Id. , 17-1060, --- So.3d. at ----, at *2-3. (footnote omitted).

KOLA then filed suit on May 23, 2017, seeking "to 'declare invalid a purported merger' of Central and St. Matthew, and to enjoin the sale or encumbrance of immovable property purportedly transferred from Central to CSM in the Articles of Merger." Id. , --- So.3d. at ----, ----, at *3. The suit further alleged that "the 'purported merger' of Central and St. Matthew was null and void for failure to comply with the required procedures for the merger of non-profit corporations under La. R.S. 12:243." Id. --- So.3d. at ----, ---- at *3-4. KOLA then sought "a declaratory judgment voiding the Articles of Merger filed and recorded on October 20, 2014, and an injunction on the sale or encumbrance of 'any property acquired in the purported merger.' " Id. , --- So.3d. at ----, ---- at *4.

In response to this lawsuit, CSM filed an exception of prescription, which was granted by the trial court. On appeal, this Court found that the matter was not prescribed. However, the Court found that KOLA's Petition for Declaratory Judgment and Injunction, as amended, failed to disclose a right of action and failed to state a cause of action. In so finding, the Court noted that CSM's incorporation was legally valid "when the merger agreement was filed and recorded and the Secretary of State issued a certificate of merger." Id. , --- So.3d at ----, ---- at *6. It then noted that "the certificate of merger is conclusive evidence of the ... transfer of all property owned by Central to CSM as the surviving corporation of the merger." Id. Thus, the Court found that the petition did not "state an ultra vires claim seeking to invalidate 'an act of a corporation' as contemplated by La. R.S. 12:208(A) ; instead, plaintiffs' petition challenge[d] the legal authority - the act of merger - by which CSM claims title to the property formerly owned by Central." Id. , --- So.3d at ----, ---- at *7. It concluded that the trial court erred in finding that the claims were prescribed.

The Court then rejected the argument that the petition set forth a petitory action for which prescription does not run. This finding was based on KOLA's failure to allege a viable claim pursuant to La. C.C.P. art. 3651, the petitory action article, which requires that an action be "brought by a person who claims ownership , but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff's ownership ." Id. , --- So. 3d at ----, ----- at *8 (emphasis supplied). First, KOLA failed to allege that it owned the property at issue; to the contrary, KOLA's petition simply alleged that the property had been owned by Central before the merger. Second, KOLA failed to specifically seek a judgment recognizing it as the owner of the property. Accordingly, the petition failed to state a cause of action.

The Court likewise found that KOLA had no right of action to challenge the validity of the merger and transfer of title to the subject property to CSM because, under Louisiana law, and specifically, La. R.S. 12:205 (B), such a challenge could be brought "only in a proceeding ... by the State." Id. , --- So.3d at ----, ---- at *9.

On February 21, 2018, prior to the KOLA I decision of this Court, but after the trial court had dismissed KOLA's suit on the exception of prescription, KOLA filed a notice of lis pendens in the mortgage records for Orleans Parish against the various properties owned by CSM. It is this lis pendens which is the subject of the instant matter.

On April 10, 2018, CSM filed its Writ Petition and named as defendants: KOLA, Dale N. Atkins, in her capacity as the clerk of court and recorder of mortgages for Orleans Parish, and Ernest L. Jones, KOLA's attorney. The Writ Petition alleges that the lis pendens was improper "as a matter of law" because "Louisiana statutory law and jurisprudence clearly limit[ ] the filing of a lis pendens to matters relating to claims of ownership of the real property or where there is a claim to be a privilege on the immovable property." KOLA claimed neither an ownership interest in the property nor a privilege on any of the properties.

The Writ Petition alleges that, prior to filing suit, CSM wrote to KOLA's counsel, advising of the improper filing of the lis pendens, and requesting its removal from the mortgage records. Ten days then elapsed during which time KOLA failed to remove the lis pendens. CSM thus sought a writ of mandamus ordering the cancellation of the lis pendens pursuant to La. R.S. 44:114. CSM also sought damages and attorney's fees under La. R.S. 9:4833.

A hearing on the Writ Petition was conducted on April 26, 2018, following which the trial court rendered judgment on June 13, 2018 in CSM's favor, granting the writ of mandamus and ordering that the lis pendens be canceled. The judgment awarded attorney's fees in the amount of $ 1,000.00 and all costs. KOLA timely appealed this judgment.

DISCUSSION

In this appeal, KOLA maintains that the trial court improperly ordered the cancellation of the lis pendens, assigning error to the trial court's holding that "in the absence of a mortgage or lien, a claim of ownership must be asserted in the litigation supporting a notice of" lis pendens. We note that the record before us does not contain any reasons for judgment and the judgment does not expressly state the holding suggested by KOLA, although we note that, at the end of the hearing, the trial court did comment that "the ownership of the property ... is what governs" and that KOLA "does not have ownership interest in the property." The trial court took the matter under advisement; thus, it did not make any factual findings on the record.

A "district court's findings of fact in a mandamus proceeding are subject to a manifest error standard of review." St. Bernard Port, Harbor & Terminal Dist. v. Guy Hopkins Constr. Co ., 16-0907, p. 4 (La. App. 4 Cir. 4/5/17), 220 So.3d 6, 10, writ denied sub nom. St. Bernard Port, Harbor & Terminal Dist. v. Got Hopkins Constr. Co. , 17-0746 (La. 9/15/17), 225 So.3d 1088 ; Constr. Diva, L.L.C. v. New Orleans Aviation Bd. , 16-0566, p. 13, n.6 (La. App. 4 Cir. 12/14/16), 206 So.3d 1029, 1037, writ denied , 17-0083 (La. 2/24/17), 216 So.3d 59. We have reviewed the record before us and find no manifest error in the trial court's judgment.

"A notice of lis pendens may be recorded to give notice of the pendency of an action affecting immovable property" pursuant to La. C.C.P. art. 3751. Campbell v. Melton , 01-2578, p. 5, n.4 (La. 5/14/02), 817 So.2d 69, 74. La. C.C.P. art. 3752 B specifies that the "notice shall be recorded in the mortgage office of the parish where the property to be affected is situated and has effect from the time of the filing for recordation." The purpose of a notice of lis pendens is to give effective notice to third persons of the pendency of an action affecting immovable property. Campbell, p. 5, n.4, 817 So.3d at 74.

Louisiana Code of Civil Procedure Article 3571 provides as follows:

The pendency of an action or proceeding in any court, state or federal, in this state affecting the title to, or asserting a mortgage or privilege on, immovable property does not constitute notice to a third person not a party thereto unless a notice of the pendency of the action or proceeding is made, and filed or recorded, as required by Article 3752.

Under the clear terms of this article, there are three manners for which a notice of lis pendens has effect; namely where an action (1) affects title to immovable property; (2) asserts a mortgage on immovable property; or (3) asserts a privilege on immovable property. In this case, there is no dispute that KOLA is not asserting an actual ownership interest in any of the properties or asserting a mortgage or privilege on the properties. Rather, KOLA takes the position that it is " 'a party' to an action 'affecting title,' " and thus, the lis pendens was properly filed.

Where a party asserts that a filing in the mortgage records has been made improperly, La. R.S. 44:114 authorizes an action against the recorder of mortgages to "compel the cancellation from the records of any instrument or document authorized or permitted to be cancelled," and to "cancel from the records any improperly recorded instrument or document." La. R.S. 44:114(2) and (3). This may be accomplished by seeking a writ of mandamus, defined as "a writ directing a public officer ... to perform any of the duties set forth in Articles 3863 and 3864." La. C.C.P. art. 3861. It is clear that, under Louisiana law, a writ of mandamus is the appropriate means by which to obtain the removal of a lien improperly recorded in the mortgage records. See Gootee Const., Inc. v. Atkins , 15-0376, p. 4, (La. App. 4 Cir. 11/4/15)178 So.3d 629, 632 ; Klein v. Recorder of Mortgages for Orleans Par., 430 So.2d 1047, 1050 (La. App. 4 Cir. 1983).

The question of whether the lis pendens in this case was improperly recorded turns on a determination of whether the interest asserted in the underlying suit is an action affecting title.

Initially, KOLA argues that "[t]he notice [of lis pendens is not concerned with the merits of the litigation." We do note that, even recently, this Court has recognized that "[s]o long as an action is pending and affects title to immovable property, then the notice of lis pendens giving notice of that action is proper and the merits of the pending action do not affect the propriety of the notice of lis pendens." Deutsche Bank Nat'l Tr. Co. for Morgan Stanley ABS Capital I Inc., Tr. 2004-WMC2 v. McNamara , 7-0173, p. 11, n. 3 (La. App. 4 Cir. 10/18/17), writ denied , 17-1918 (La. 2/2/18), 235 So.3d 1111 (quoting Ducote v. McCrossen , 95-2072, p. 2 (La. App. 4 Cir. 5/29/96), 675 So.2d 817, 818 ). However, while the merits of the underlying action may not affect "the propriety of the notice," there is still a requirement that the "pending action" affect title to immovable property.

KOLA relies heavily on the Ducote decision which found that a "suit seeking cancellation of ... a lease ... would be viewed as 'affecting title' [to the leased property] as the term 'affecting title' is used in Article 3751. Id. , p. 3, 675 So.2d at 819." KOLA argues that "if a 'lease cancelation' suit 'affects title' to the leased property such as to sustain a [lis pendens] on that property, then surely a 'petitory action' on named property must be held to sustain a [lis pendens] on that property."

KOLA's argument in this regard would require this Court to again consider whether the underlying action asserts a petitory action claim. This Court has already made the determination in KOLA I that KOLA's "allegations are wholly insufficient to state a petitory action," KOLA I , --- So.3d ----, ---- at *16. We will not reconsider that issue in this appeal.

We further note that the Notice of Lis Pendens KOLA filed in the mortgage records contradicts its contention that it is not claiming an ownership interest. In that Notice, KOLA specifically stated that "the object of the original suit [KOLA I] and of the [then-pending] appeal is to establish the ownership and title in the Central Congregational Church, represented by plaintiffs/appellants [KOLA] and against defendant/appellee [CSM] in certain corporate church property," listing those properties owned by CSM. See , footnote 5.

As we have already noted, and as KOLA has conceded, there is no dispute in this matter that the object of the underlying suit is not "ownership." This was clearly established at the hearing on the Writ Petition, when the trial court heard testimony from Ernest Jones, counsel for KOLA and a defendant in this matter. Mr. Jones testified that KOLA has never asserted any claim to a "right, title or interest in any of the properties" listed in the lis pendens. To the contrary, KOLA "was seeking to invalidate the merger" between Central and St. Matthew. While Mr. Jones testified that the underlying suit also sought to "show that the title [to the properties] was still in the name of [Central], not in the name of KOLA," KOLA sought to do so by challenging the validity of the merger. In KOLA I , KOLA requested an "injunction on the sale or encumbrance of 'any property acquired in the purported merger.' " KOLA I , --- So.3d ----, ---- at *3-4. Its claim was premised on the petition's allegation that the " 'purported merger' of Central and St. Matthew was null and void." Id. Thus, the object of the underlying action was the dissolution of the merger ; if KOLA was successful in the dissolution of the merger, the property would then revert back to Central.

Accordingly, we find that the pending action is not, as KOLA suggests, an action "affecting the title to" the properties. Even if, for the sake of argument, the merger between Central and St. Matthew was ultimately determined to have been improper, this Court already found in KOLA I , that KOLA has "no right of action against CSM to invalidate the merger and transfer of title to property." KOLA I , --- So.3d ----, ---- at *1. We know of no case law upholding the right of a party with no actual interest in an action to file a notice of lis pendens based on the action in which he has no interest. See Settoon v. Settoon , 413 So.2d 634, 635 (La. App. 1 Cir. 1982) ("[i]t is only when the action affects the title to, or asserts a mortgage or privilege on, immovable property that the party claiming or asserting such right is entitled to file a notice of lis pendens.").

Nor do we find that because this Court's decision in KOLA I is not final and is technically still "pending," insofar as KOLA may seek review of that decision with the Louisiana Supreme Court, that title to the properties in question is still "affected." Our jurisprudence reflects that, "[t]o allow an illegal or improper notice to remain recorded until the conclusion of the pending litigation would hamper or even prevent a land owner in his efforts to freely encumber or dispose of his property upon which the illegal or improper notice is recorded." McClain v. NMP, LLC , 18-297 (La. App. 5 Cir. 12/12/18), 262 So.3d 409, 416, 2018 WL 6520427 at *4-5 (citing Karst v. Fryar , 430 So.2d 318, 320-321 (La. App. 3rd Cir. 1983) ).

CONCLUSION

Based on the foregoing, we find no manifest error in the trial court's judgment granting the mandamus and ordering the cancelation of KOLA's lis pendens. The trial court's judgment is affirmed.

AFFIRMED

      According to the Petition for Writ of Mandamus Pursuant to [La.] R.S. 44:114 (hereafter, "Writ Petition"), which initiated the instant lawsuit, the proper name of the entity is "Keeping Our Legacy Alive Community Development Corporation." KOLA's pleadings, too, reflect this name.

      In its exception, CSM maintained that KOLA's claim seeking to invalidate the merger was an ultra vires action which was untimely filed pursuant to La. R.S. 12:208 (A)(1), which provides that "[a]n action by a member of a corporation, or of a conveyance or transfer of immovable property to or by a corporation, by reason of the fact that the corporation was without capacity or power to perform such act or make ... such conveyance or transfer" must be "brought within one year after the act was done or the conveyance or transfer was consummated, which time limit shall not be subject to suspension on any ground or interruption on any ground other than a timely suit."

      KOLA filed two amending petitions. The first added four additional, individual plaintiffs, while the second added two specific allegations; (1) that the "purported merger was legally invalid to transfer title to real estate from Central Congregational to CSM for lack of consent for and for being signed by no individual with authority to bind Central Congregational ..." and (2) the "action is brought by the possessor of the subject property who denies any titled asserted by defendants."

      La. R.S. 12:205 (B) provides, in pertinent part, that "[t]he certificate of incorporation shall be conclusive evidence of the fact that the corporation has been duly incorporated, except that in any proceeding brought by the state to annul, forfeit, or vacate a corporation's franchise, the certificate of incorporation shall be only prima facie evidence of due incorporation."

      Those properties include 2401 Bienville St., 2305 Bienville St., 219 N. Tonti St., 329 N. Tonti St., and 2400 Conti St. See KOLA I .

      The judgment in the record is entitled "Amended Judgment" and is accompanied by "Reasons for Amended Judgment" which state that a "prior judgment rendered on May 25, 2018 in case number 2017-4952 ... was done in error." The reasons further explain that proposed judgments were submitted by the parties and "because of the similarities in the parties, the court failed to recognize and correct the error made in the caption." The court then vacated the May 25, 2018 judgment. The May 25, 2018 judgment, apparently entered into the record of KOLA I rather than the instant matter, is not in the record. While counsel for KOLA has attached a copy of that judgment and the reasons for judgment to its appellate brief, because neither is contained within the record, this court cannot consider them. See , e .g ., State ex rel. Dep't of Health & Human Servs. v. Ellis , 04-1825, p. 2 (La. App. 4 Cir. 3/2/05), 898 So.2d 600, 601 ("[a]s a court of record, we must limit our review to that which is in the record before us."); See also , Bd. of Directors of Indus. Dev. Bd. of City of New Orleans v. All Taxpayers, Prop. Owners, Citizens of City of New Orleans , 03-0826, p. 4 (La. App. 4 Cir. 5/29/03), 848 So.2d 740, 744 ("appellate briefs and attachments thereto are not a part of the record on appeal ....").

      The Motion for Appeal was filed by KOLA and also by "Cheryl Q. W. Cramer, Michael C. Dejoie, Fay D. Kaufman, and Karen V. Lodrig, and Ernest L. Jones" who allege to be "defendants in the above entitled and numbered cause." While Ernest L. Jones was named as a defendant in the Writ Petition, as KOLA's attorney, none of the other parties listed in the Motion for Appeal are parties to this lawsuit. They were not named as defendants; nor did they intervene in this action. Likewise, none of these parties are identified in the trial court's judgment.


author: SAUNDERS, Judge.

text:
    Judy CLARK v. CIRCLE K STORES, INC.
    18-454
    Court of Appeal of Louisiana, Third Circuit.
    February 6, 2019
    Ryan J. Roemershauser, Jade A. Forouzanfar, Blue Williams, L.L.P., 3421 North Causeway Boulevard, Suite 900, Metairie, LA 70002, (504) 831-4091, COUNSEL FOR DEFENDANT/APPELLEE: Circle K Stores, Inc.
    Melissa Shaw-Brown, Erin McCall Alley, Baggett, McCall, Burgess, Watson & Gaughan, L.L.C., 3006 Country Club Road, P.O. Drawer 7820, Lake Charles, LA 70606-7820, (337) 478-8888, COUNSEL FOR PLAINTIFF/APPELLANT: Judy Clark.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and D. Kent Savoie, Judges.
   SAUNDERS, Judge.

This is a case involving a slip and fall at a convenience store. The merchant was granted a summary judgment under a finding of the trial court that the patron could not prove the elements under La.R.S. 9:2800.6 at trial. This appeal follows.

FACTUAL AND PROCEDURAL HISTORY:

Plaintiff/Appellant, Judy Clark, was a customer at the Circle K store located at 4501 S. Highway 27 in Sulphur, Louisiana on October 20, 2014. After exchanging a "Good Morning" with a Circle K employee, Clark went to get a fountain drink. As she approached the fountain drinks, she slipped, fell, and allegedly injured herself.

Prior to the slip and fall, Mr. Adam McCoy and Mr. Robert Cummings entered the store as customers. Mr. Cummings filled his 44-ounce cup then proceeded to spill the drink onto the floor accidentally. Mr. McCoy, the husband of a Circle K employee who was not working at that time, went to grab a mop. According to Mr. McCoy, he yelled out generally that someone had spilled, and he thought that the employee had heard his declaration. Video evidence indicated that 11 seconds transpired between the spill and Clark's slip and fall.

On July 9, 2015, Clark filed suit against Circle K Stores, Inc. (Circle K). She alleged injuries to her neck, back, right shoulder, right elbow, and headaches. After discovery inclusive of depositions and exchange of the video of the incident, Circle K filed a motion for summary judgment on the matter. The trial court heard arguments on November 28, 2017, and granted Circle K's motion.

It is from this judgment that Clark presents two assignments of error.

ASSIGNMENT OF ERROR NUMBERS ONE AND TWO:

Clark's first assignment of error is that the trial court erred in granting Circle K's Motion for Summary Judgment on the issue of notice because she met her burden by offering evidence of actual notice on the part of Circle K. In her second assignment of error, Clark asserts that the trial court erred in considering reasonable care as it is a factual determination not proper for summary judgment. It was not an issue brought forth in Defendant's Motion for Summary Judgment, and ultimately Plaintiff/Appellant offered evidence that Circle K failed to use reasonable care, thereby precluding summary judgment.

Appellate courts review summary judgments de novo, under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co. , 06-363 (La. 11/29/06), 950 So.2d 544. As such, both assignments of error require a de novo review wherein we give no weight to the trial court's finding. Thus, we will simply look to whether the trial court's grant of summary judgment in this case was appropriate.

Louisiana Revised Statutes 9:2800.6(B) states:

In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Louisiana Revised Statutes 9:2800.6(C)(1) states:

"Constructive notice" means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

In the case before us, Clark must show that she could prove the elements of La.R.S. 9:2800.6 at trial. The first element is that "[t]he condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable." "In determining whether a defect presents an unreasonable risk of harm, the trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair." Reed v. Wal-Mart Stores, Inc. , 97-1174, p. 5 (La. 3/4/98), 708 So.2d 362, 365.

Here, we are faced with a spilled liquid on a floor. The gravity of the harm is great as a slip and fall can cause great bodily damage to a customer. The risk of harm is great as a customer would not reasonably expect a slippery substance to be present on the floor as his or her attention is directed to items for sale in the store. There is no social utility to a spilled liquid on a merchant's store, and the cost and feasibility to repair is as minimal as supplying a mop and bucket. As such, we find that the evidence in the record is such that Ms. Clark can prove at trial that a slippery substance on a Circle K's presents an unreasonable risk of harm.

Next, Ms. Clark must show that Circle K "either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence." La.R.S. 2800.6(C)(2). There is no evidence that Circle K created the condition. Thus, Ms. Clark must present evidence that Circle K had actual or constructive knowledge of the condition. Here, Adam McCoy, a customer, witnessed his friend spill the drink that created the risk of harm. Mr. McCoy was the husband of a Circle K employee who was not working at that time. As to informing a Circle K employee, he testified to the following:

Q But do you remember calling out a warning to somebody?
A Yeah, just a shout out. I didn't look, I just hollered, you know.
Q Okay.
A I said, "Hey you made a mess."
Q Do you remember if there was an employee kind of out there on the floor?
A Yeah, somebody was there. I remember somebody came. I really don't remember who it was though.
Q Now, you shout out the warning and then you go to mop?
A Yes.
....
Q Okay. So even though you just kind of shouted out to the general floor, you felt like you heard a cashier respond back, that they recognized that there was a spill on the floor?
A Yes.

This testimony provides evidence that Ms. Clark can prove at trial that Circle K had actual notice of the spilled substance prior to her fall. It is clear from Mr. McCoy's testimony that one could reasonably find that Circle K had actual notice of the hazardous condition prior to Ms. Clark's slip and fall.

Circle K points out that a mere 11 seconds transpired between the spill and Ms. Clark's fall according to video evidence. We find this fact irrelevant when determining whether Ms. Clark could prove that Circle K had actual notice of the hazardous condition. There is no temporal element to a showing of actual notice of the hazardous condition. Such a temporal element is only relevant relative to notice when adjudicating whether a merchant has constructive notice under La.R.S. 9:2800.6.

Third, Clark must show that she can prove at trial that Circle K "failed to exercise reasonable care." In discussing this element of a claim under La.R.S. 9:2800.6, this court has determined that a merchant has a duty to "warn persons of known dangers." Dotson v. Brookshire Grocery Co. , 04-83, p. 2 (La.App. 3 Cir. 5/12/04), 872 So.2d 1283, 1285, (quoting Jones v. Brookshire Grocery Co. , 37,117, pp. 8 (La.App. 2 Cir. 5/14/03), 847 So.2d 43, 49 ). Here, Clark has presented evidence that Circle K had actual knowledge of the unreasonable risk of harm and failed to warn her of its presence. Thus, a trier of fact could reasonably find that Circle K breached its duty to Ms. Clark. As such, summary judgment was not appropriate in this case.

CONCLUSION:

Judy Clark raises two assignments of error. Both assignments allege it was improper for the trial court to grant Circle K Stores, Inc.'s motion for summary judgment.

Judy Clark provided evidence that she could prove at trial that the substance that caused her slip and fall constituted an unreasonable risk of harm, that Circle K Stores, Inc. had actual knowledge of its presence, and that Circle K Stores, Inc. failed to warn her of a known danger. As such, we reverse the trial court's dismissal of Judy Clark's claim against Circle K Stores, Inc. via summary judgment and remand the case for further proceedings consistent with this opinion. Costs of this appeal are assessed to Circle K Stores, Inc.

REVERSED AND REMANDED.