author: PETERS, Judge.

text:
    MAYNE & MERTZ, INC. v. SWEET LAKE LAND & OIL CO., L.L.C., et al. Yuma Exploration and Production Co., Inc. v. Mayne & Mertz, Inc.
    Nos. 09-0763, 09-0764.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      Larry C. Hebert, Paul J. Hebert, David M. Kaufman, Ottinger Hebert, L.L.C., Lafayette, LA, for PlaintiffiAppellant and Defendant/Appellant, Mayne & Mertz, Inc.
    Thomas C. McKowen, IV, James C. Bates, Strain, Dennis & Bates, L.L.P., Baton Rouge, LA, Tim M. Cassidy, Cassidy Law Firm, Jennings, LA, for Plaintiffs/Ap-pellees, Yuma Exploration and Production Company, Inc. The Chalkley Exploration Group, L.L.C.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   PETERS, Judge.

| ,This litigation involves the interpretation of a joint operating agreement entered into by a number of parties to develop and produce the oil, gas, and minerals under certain immovable property located in Jefferson Davis Parish, Louisiana. In these consolidated cases, Mayne & Mertz, Inc. (Mayne & Mertz) appeals the trial court’s grant of a partial summary judgment in favor of Yuma Exploration and Production Co., Inc. (Yuma) and The Chalkley Exploration Group, L.L.C. (Chalkley), awarding the two entities a 2.60500 percent proportionate share of the net revenue produced from the HBY RB SUA, Mayne & Mertz, Inc.-Romero No. 1 Well (Romero well) from the time production began until October 31, 2008. For the following reasons, we amend the trial court judgment to reflect payment through October 10, 2008, instead of October 31, 2008, and affirm the trial court judgment as amended.

DISCUSSION OF THE RECORD

By an October 27, 2005 order, the Louisiana Commissioner of Conservation created Unit HBY RB SUA (the Romero unit), with Mayne & Mertz as the designated unit operator. On February 15, 2006, twelve different entities, including Mayne & Mertz and Yuma, entered into the joint operating agreement at issue in this litigation. The twelve entities asserted in the joint operating agreement that they owned one hundred percent of the oil, gas, and mineral interests in the Romero unit and agreed that the purpose of joining together was to explore and develop various oil and gas leases and interests in that unit. The joint operating agreement listed Yuma’s interest as a 2.60500 percent working interest that Yuma had acquired from two separate oil, gas, and mineral leases from the purported owner of part of the immovable property in the Romero unit, Sweet Lake Land & Oil Company, L.L.C. (Sweet Lake). Sweet Lake executed the first lease in favor of Yuma on March 29, 2005, and the second on pMay 1, 2006. At some point after execution of the joint operating agreement, Yuma assigned one fourth of its interest to Chalkley.

The Romero well is located on the immovable property covered by the Romero unit and began producing on September 22, 2006. At some point thereafter, a dispute arose over the ownership of certain tracts contained in the properties governed by the joint operating agreement (hereinafter the disputed tracts). Because fourteen entities were claiming an ownership interest in the proceeds derived from the production attributable to the disputed tracts, Mayne & Mertz filed a concursus proceeding on March 12, 2007, to obtain a judgment directing the disbursement of the disputed funds. Concurrent with the filing of the concursus proceeding, Mayne & Mertz obtained authorization from the trial court to deposit the disputed proceeds into the registry of the court.

On October 3, 2007, Yuma filed a separate suit against Mayne & Mertz, requesting payment of its proportionate share of revenues produced by the Romero well. Specifically, Yuma alleged that, even if its title was ultimately found to be invalid, it was entitled to its share of revenues from the date production began until ninety days after a final determination of its title failure. The two suits were consolidated on March 5, 2008.

On May 1, 2008, nine defendants (hereinafter the Mallett defendants) filed a motion for summary judgment, seeking to be awarded the royalties attributable to the ^disputed tracts. Yuma, Chalkley, and Sweet Lake opposed this motion for summary disposition.

On July 28, 2008, Mayne & Mertz filed a motion for partial summary judgment seeking a declaration that Sweet Lake had no ownership interest in the disputed tracts, and, therefore, neither Sweet Lake, Yuma, nor Chalkley were entitled to royalty or revenue interests in the Romero well. After a September 16, 2008 hearing wherein Yuma did not oppose Mayne <& Mertz’s motion, the trial court rendered a partial summary judgment in favor of Mayne & Mertz. When reduced to writing on October 10, 2008, the partial summary judgment held that Sweet Lake never owned the disputed tracts,

and that as a consequence thereof Sweet Lake is not entitled to any of the royalty revenues from the Romero Well, the unit well for the above described unit, based on ownership of the said Disputed Tracts and that Yuma, Chalkley and any of their assigns and any other lessee of Sweet Lake are not entitled to any of the working interest revenues from the Romero Well based on their ownership of any lease covering and affecting the Disputed Tracts from Sweet Lake or as a result of Sweet Lake’s claim of ownership of the Disputed Tracts.

However, this judgment explicitly reserved Yuma’s and Chalkley’s claims under the joint operating agreement.

On October 31, 2008, the trial court granted the Mallett defendants’ motion for partial summary judgment as well. In that partial summary judgment, the trial court rejected Sweet Lake's claims to the disputed tracts, recognized the claims of the Mallett defendants to the disputed tracts, and ruled that the Mallett defendants’ interests “are to be further designated among the individual landowners by a division order or orders or by consent.”

Yuma and Chalkley filed their own motion for summary judgment on November 17, 2008. In that motion, they asserted that, regardless of the invalid title Rissue, under the terms of the joint operating agreement they were entitled to receive a 2.60500 percent proportionate share of the revenues, less expenses, from the Romero well from production until October 31, 2008.

Mayne & Mertz responded by filing its own motion for partial summary judgment on December 5, 2008, wherein it asserted that the joint operating agreement prohibited payment of revenues to Yuma because of Yuma’s title failure; that the joint operating agreement is ambiguous, and that it was never the intent of the parties that Yuma would receive revenues during the pendency of the concursus proceeding; that the joint operating agreement is null and void; and that Yuma entered the joint operating agreement in legal bad faith and, therefore, is not entitled to recover under its terms.

On January 22, 2009, the trial court denied Mayne & Mertz’s motion and entered a partial summary judgment in favor of Yuma and Chalkley, holding

that Mayne & Mertz is obligated under the Joint Operating Agreement between the parties to pay Yuma and Chalkley their 2.60500% proportionate share of revenue, less expenses, in regards to the HBY RB SUA, Mayne & Mertz, Inc.Romero No. 1 Well, until October 31, 2008, and awarding Yuma and Chalkley their 100% share of all sums held (or to be deposited) in the Court Registry in Docket Number C-178-07 in regards to the leasehold interest.

The trial court reserved the determination of the amount of revenue, less expenses, and the determination of attorney fees. It is from this partial summary judgment in favor of Yuma and Chalkley that Mayne & Mertz now appeals, asserting three assignments of error:

1. The Trial Court committed legal error in granting the Motion for Summary Judgment of Yuma and denying the Motion for Summary Judgment of Mayne & Mertz.
|s2. The Trial Court committed legal error in interpreting the provisions of the Romero Joint Operating Agreement in favor of Yuma.
3. The Trial Court committed legal error in awarding revenues to Yuma until October 31, 2008.

OPINION

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (La.1963). Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish those ends. La.Code Civ.P. art. 966(A)(2); Racine v. Moon’s Towing, 01-2837 (La.5/14/02), 817 So.2d 21. The burden of proof on the motion for summary judgment remains with the movant. La.Code Civ.P. art. 966(C)(2).

However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2). The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome |fiof the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits.

Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751 (citations omitted).

In determining whether a fact is material, we must consider the substantive law governing the litigation. Davenport v. Albertson’s, Inc., 00-685 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, writ denied, 01-73 (La.3/23/01), 788 So.2d 427.

Appellate review of a summary judgment is de novo, applying the same standard as the trial court. Smith, 639 So.2d 730. Accordingly, we undertake a de novo review of the matter at bar.

Assignment of Error Number One

On appeal, Mayne & Mertz argues that the joint operating agreement was null and void because it contained no lawful cause and, in the alternative, that Yuma cannot recover under the joint operating agreement because Yuma entered into the joint operating agreement in legal bad faith. We find no merit in either of these arguments.

Lack of Cause

Mayne & Mertz asserts that because there was no lawful cause for the joint operating agreement, it is deemed never to have existed, or, alternatively, was a relative nullity as to Yuma.

“A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished.” La. Civ.Code art. 1906. Four elements are required for formation of a contract: ea-pacity, consent, certain object, and lawful cause. McPherson v. Cingular Wireless, L.L.C., 07-462 (La.App. 8 Cir. 10/3/07), 967 So.2d 573. “An obligation cannot exist without a lawful cause.” La.Civ.Code art. 1966.

The joint operating agreement states in its introduction that the parties to the agreement were “owners of Oil and Gas Leases and/or Oil and Gas Interests in the land [in the Romero unit]” and had “reached an agreement to explore and develop these Leases and/or Oil and Gas Interests for the production of Oil and Gas to the extent and as [provided under the terms of the joint operating agreement].” That is to say, the cause of the contract was to join all the parties to the joint operating agreement in an effort to develop the oil and gas opportunities under the Romero unit.

Mayne & Mertz asserts that because Yuma did not own a valid oil and gas lease at the time the joint operating agreement was entered into, no cause to enter into a contract with Yuma existed. However, this argument ignores the very language of Section IV(B)(1) of the joint operating agreement, which clearly contemplates the possibility that one or more of those entering into the joint operating agreement might have title problems and provides for the consequences thereof. That section reads as follows:

B. Loss or Failure of Title:

1. Failure of Title: Should any Oil and Gas Interest or Oil and Gas Lease be lost through failure of title, which results in a reduction of interest from that shown of Exhibit “A,” the party credited with contributing the affected Lease or Interest (including, if applicable, a successor in interest to such party) shall have ninety (90) days from final determination of title failure to acquire a new lease or other instrument curing the entirety of the title failure, which acquisition will not be subject to Article VIII.B., and failing to do so, this agreement, nevertheless, shall continue in force as to all remaining Oil and Gas Leases and Interests; and,

(a) The party credited with contributing the Oil and Gas Lease or Interest affected by the title failure (including, if applicable, a successor in interest to such party) shall bear alone the entire loss and it [ 8shall not be entitled to recover from Operator or the other parties any development or operating costs which it may have previously paid or incurred, but there shall be no additional liability on its part to the other parties hereto by reason of such title failure;
(b) There shall be no retroactive adjustment of expenses incurred or revenues received from the operation of the Lease or Interest which has failed, but the interests of the parties contained on Exhibit “A” shall be revised on an acreage basis, as of the time it is determined finally that title failure has occurred, so that the interest of the party whose Lease or Interest is affected by the title failure will thereafter be reduced in the Contract Area by the amount of the Lease or Interest failed;
(c) If the proportionate interest of the other parties hereto in any producing well previously drilled on the Contract Area is increased by reason of the title failure, the party who bore the costs incurred in connection with such well attributable to the Lease or Interest which has failed shall receive the proceeds attributable to the increase in such interest (less costs and burdens attributable thereto) until it has been reimbursed for unrecovered costs paid by it in connection with such well attributable to such failed Lease or Interest;
(d) Should any person not a party to this agreement, who is determined to be the owner of any Lease or Interest which has failed, pay in any manner any part of the cost of operation, development, or equipment, such amount shall be paid to the party or parties who bore the costs which are so refunded;
(e) Any liability to account to a person not a party to this agreement for prior production of Oil and Gas which arises by reason of title failure shall be borne severally by each party (including a predecessor to a current party) who received production for which such accounting is required based on the amount of such production received, and each such party shall severally indemnify, defend and hold harmless all other parties hereto for any such liability to account;
(f) No charge shall be made to the joint account for legal expenses, fees or salaries in connection with the defense of the Lease or Interest claimed to have failed, but if the party contributing such Lease or Interest hereto elects to defend its title it shall bear all expenses in connection therewith; and
(g) If any party is given credit on Exhibit “A” to a Lease or Interest which is limited solely to ownership of an interest in the wellbore of any well or wells and the production therefrom, such party’s absence of interest in the remainder of the Contract Area shall be [ considered a Failure of Title as to such remaining Contract Area unless that absence of interest is reflected on Exhibit “A.”

In other words, execution of the joint operating agreement was contingent upon assertion of title and took into consideration the possibility that title defects might arise in the future. Given the specific language of the joint operating agreement, we find no merit in Mayne & Mertz’s argument that there was no cause for entering into a contract with Yuma.

Further, we find no merit in Mayne & Mertz’s assertion that the cause of the joint operating agreement is unlawful. Louisiana Civil Code Article 1968 provides that “[t]he cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy.” Mayne & Mertz argues that enforcing the joint operating agreement as written allows Yuma and Chalkley to unjustly enrich themselves at the expense of the actual landowners and their lessee without any compensation, and, therefore, the cause is unlawful or against public policy. However, the joint operating agreement places the burden of the failure of title evenly, providing that there shall be no retroactive adjustments of revenues received or of expenses incurred. That is to say, had the Romero well not been a producer, Article IV(B)(1)(b) of the joint operating agreement would have prevented Yuma from recovering the expenses it incurred before the determination that its title was flawed. Given that all the parties assumed a substantial and mutual risk on the issue of title failure, we conclude that the cause of the joint operating agreement was not prohibited by law or against public policy.

Bad Faith

Finally, Mayne & Mertz asserts that Yuma entered into the joint operating agreement in bad faith. Essentially, Mayne & Mertz argues that its consent was hnvitiated by Yuma’s fraud in representing that Yuma had leases to a property that Yuma knew, or should have known, its lessor did not own.

Louisiana Civil Code Article 1953 defines fraud as “a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.” This court has held that:

[I]n order to succeed on an action for fraud against a party to a contract, three elements must be proven:
(1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (3) the error induced by a fraudulent act must relate to a circumstance substantially influencing the victim’s consent to (a cause of) the contract.

Curtis v. Blue Cross Blue Shield of La., 07-782, p. 12 (La.App. 3 Cir. 12/12/07), 971 So.2d 1249, 1256 (citations omitted).

Although summary judgment is a favored procedure, it is “usually inappropriate in cases requiring a judicial determination of subjective facts, such as motive, intent, good faith, or knowledge.” Greer v. Dresser Indus., Inc., 98-129, p. 4 (La.App. 3 Cir. 7/1/98), 715 So.2d 1235, 1237.

Yuma was the movant in the motion for summary judgment, but at trial Mayne & Mertz would bear the burden of proving that its consent to the joint operating agreement was vitiated by Yuma’s fraud. Thus, Yuma had the initial burden of pointing out an absence of factual support for Mayne & Mertz’s allegation of fraud. To meet this burden, Yuma was not required to provide documents to support this position; its only obligation was to point out to the trial court that Mayne & Mertz would be unable to bear its burden of proving fraud at trial. See Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880. Once Yuma met its initial burden, in order to ¡^establish a genuine issue of material fact Mayne & Mertz was obliged to produce factual support sufficient to establish that it would be able to satisfy its eviden-tiary burden of proof at trial. Id. In support of its own motion for summary judgment, and in opposition to Yuma’s motion, Mayne & Mertz introduced the following documents that it alleged established Yuma’s knowledge that Sweet Lake did not have good title to the mineral rights it purported to lease:

The March 29, 2005 lease of oil and gas rights from Sweet Lake to Yuma, on a total of 84.0360 acres, including the 2.0604 acres that were in the Romero unit;
The 1928 sale of land from North American Land Company, Inc. to Sweet Lake; The 1907 sale of land from Indian Bayou Canal Company, Ltd. to The North American Land and Timber Company, Inc.; and
The 1902 sale of land from Orange Land Company, Ltd. to Indian Bayou Canal Company, Ltd.

Mayne & Mertz argues that examination of the 1928 deed of sale reveals that Sweet Lake purchased only a right of way over the disputed tracts. Thus, because Sweet Lake did not obtain ownership of the land, it had no mineral rights to transfer to Yuma.

While these documents establish failure of title, without more, these leases and deeds are insufficient as a matter of law to establish that there was a genuine issue of material fact whether Yuma misrepresented, suppressed, or omitted true information.

Mayne & Mertz also argues that Yuma and its lessor were engaged in collusion and that this was evidence of fraud. In support of this argument, Mayne & Mertz offered the following:

On August 17, 2004, The Sweet Lake Land and Oil Company, Inc. was merged into Chalkley Limited Liability Company and became “The Sweet Lake Land & Oil Company, L.L.C.”
|12On March 29, 2005, and again on May 1, 2006, The Sweet Lake Land & Oil Company, L.L.C., leased the oil, gas, and mineral rights over the disputed tract to Yuma.
At some time prior to August 25, 2008, Yuma assigned one quarter of its interests in the Romero unit to “The Chalk-ley Exploration Group, L.L.C.”

However, as the trial court noted, “Chalk-ley Limited Liability Company,” with whom Sweet Lake had earlier merged, and “The Chalkley Exploration Group, L.L.C.,” to whom Yuma transferred one quarter of its interest in the Romero unit, are legally separate entities, and this does not suffice to create a material issue of fact regarding collusion.

We find no merit in this assignment of error.

Assignment of Error Number Two

In its second assignment of error, Mayne & Mertz asserts that the trial court committed legal error in its interpretation of the joint operating agreement and that Yuma is not entitled to the disputed revenues.

Questions of contractual interpretation are questions of law which are subject to a de novo standard of review. Contracts have the force of law between the parties, and the courts are bound to interpret them according to the common intent of the parties. La.Civ.Code arts. 1983 and 2045. If the words of the contract are clear, unambiguous, and lead to no absurd consequences, the court need not look beyond the contract language to determine the true intent of the parties. La.Civ.Code art. 2046. “Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La.Civ.Code art.2050. Whether or not a contract is ambiguous is a question of law.

Boykin v. PPG Indus., Inc., 08-117, pp. 4-5 (La.App. 3 Cir. 6/18/08), 987 So.2d 838, 842, writs denied, 08-1635, 08-1640 (La.10/31/08), 994 So.2d 537 (citations omitted).

113Mayne & Mertz asserts that the “shall bear the entire loss” language found in Section IV(B)(1)(a) of the joint operating agreement supports its argument that Yuma should not be allowed to recover. However, Mayne & Mertz ignores the language of Section IV(B)(1)(b) which rejects the “retroactive adjustment of expenses incurred or revenues received” in the event of title failure and provides that a party whose title fails will receive its purported share of the revenues until “it is determined finally that title failure has occurred.”

Under the express language of the joint operating agreement, Yuma and its assign-ee, Chalkley, were entitled to continue to receive the disputed revenues until their lessor’s title to the disputed tracts was finally determined to have failed. We find no error in the trial court’s interpretation of the contract’s language and no merit in this assignment of error.

Assignment of Error Number Three

Finally, Mayne & Mertz asserts that the trial court committed legal error in awarding the disputed revenues to Yuma through October 31, 2008. We agree. The final determination of failure of title was made on October 10, 2008, when the trial court signed the unopposed summary judgment holding that Sweet Lake never had title to the disputed tracts, and not on October 31, 2008. Thus, we amend the trial court’s judgment to reflect that Mayne & Mertz is obligated under the joint operating agreement to pay Yuma and Chalkley their proportionate share of revenue, less expenses, from the Romero well until October 10, 2008.

^DISPOSITION

We amend the trial court’s judgment to reflect a cutoff date of October 10, 2008 instead of October 30, 2008, and affirm the trial court judgment as amended. We assess all costs of this appeal to Mayne & Mertz, Inc.

AFFIRMED AS AMENDED.

      . This litigation includes numerous other issues yet to be resolved and has involved various procedural matters not relevant to this appeal.

      . The nine defendants are Kelly Bree Mallett Lowe, Lacie Beth Mallett Corbello, Susanne Belaire Mallett, Belinda Mallett Delome Fel-senthal, Rose Regina Flournoy Mallett, Margaret Mallet Bebee, Brandi Renee Romero, Wayne Wright Thibodeaux, and Clint Fonte-not.

      . The record does not include Yuma's assignment to Chalkdey, but on August 25, 2008, when Yuma filed its amended petition, Yuma added Chalkdey as a plaintiff, asserting that Yuma had assigned one-quarter of its interest in the Romero unit to Chalkdey.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    Michael and Christine DAUZAT v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 09-793.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.

      Jerold Edward Knoll, The Knoll Law Firm, John Taylor Bennett, Bennett Law Office, Marksville, Louisiana, for Plaintiffs/Appellees, Michael and Christine Dau-zat.
    James D. “Buddy” Caldwell, Attorney General, James E. Calhoun, Assistant Attorney General, Alexandria, Louisiana, for Defendant/Appellant, State of Louisiana through the Department of Transportation and Development.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

| ]The State of Louisiana, through the Department of Transportation and Development (the DOTD), appeals the trial court’s grant of partial summary judgment on the issue of liability in favor of Plaintiffs, Michael and Christine Dauzat. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On March 11, 2005, after boiling four sacks of crawfish, Christine was severely burned when she fell as she and her adult son were attempting to pour the hot water from the boil into a ditch adjacent to a driveway in front of her property. She was taken to a local hospital and then airlifted to a burn center in Houston, Texas, where she remained hospitalized for twenty-nine days.

Christine and her husband, Michael, filed suit against the DOTD on April 21, 2005, to recover damages for the injuries Christine suffered in the accident and for the loss of consortium suffered by Michael as a result of his wife’s injuries. Plaintiffs alleged that the accident occurred on highway property included in the DOTD’s right of way. They further alleged that the DOTD was responsible for their damages because of the following nonexclusive acts of negligence: failing to properly maintain its right of way, failing to properly maintain its drainage, failing to provide culverts, and providing inadequate and substandard material. They asserted that the DOTD had committed the aforementioned negligent acts “all the while knowing that its actions or inactions created a dangerous situation which ... resulted in [their] damages.”

The DOTD responded to Plaintiffs’ petition by filing an exception of vagueness, after which Plaintiffs amended to allege sixteen additional acts of ^negligence on behalf of the DOTD, including failing to properly inspect and maintain the driveway and ditch. Thereafter, the DOTD answered the petitions, admitting that Plaintiffs’ driveway was partially located within the DOTD right of way. The DOTD averred that the accident was solely caused through the negligence of Plaintiffs and/or some other third party, in the following non-exclusive acts or omissions: failing to exercise reasonable care in carrying extremely hot and potentially hazardous substances; failing to see what should have been seen; failing to take effective evasive actions; failing to comply with the law by discharging a noxious matter into the ditch on the state highway right of way without the prior written consent of the chief engineer, or his representative, and the secretary of the Department of Health and Hospitals; failing to maintain the driveway in a safe condition; knowingly walking on an unsafe driveway; and failing to supply an appropriate culvert meeting DOTD requirements and allowing the driveway permit to expire. The DOTD requested a jury trial in its answer, and the record contains two notices of trial by jury.

The DOTD filed a motion for summary judgment on June 18, 2008, alleging that Plaintiffs had failed to sustain their burden of proof. More specifically, it alleged that it owed no duty to Christine regarding her driveway because she was not a motorist using the adjacent roadway or a pedestrian using the roadway in a reasonably prudent manner. The DOTD further insisted that it was not required to furnish any culverts for Plaintiffs’ driveway. Attached to its motion was deposition testimony of Christine; Huey Lipsey, Jr., a DOTD engineer; and Gerard Lemoine, the DOTD Highway Maintenance Supervisor for Avo-yelles Parish; as well as a DOTD “Project Diary” relating to a 1980 project on Highway 1194 in front of Plaintiffs’ property. Plaintiffs opposed DOTD’s motion, alleging that material issues of fact remained lawhich precluded summary judgment. They attached to their opposition the deposition of James Clary, Sr., an engineer specializing in highway design, safety, maintenance, and signage, whom they had retained as an expert witness. Following a hearing, the trial court denied the DOTD’s motion on the basis that genuine issues of fact remained.

In March of 2009, Plaintiffs filed their own motion for summary judgment on the issue of liability. They presented no additional evidence in support of their motion. The DOTD opposed Plaintiffs’ motion, submitting the deposition of Kelley Adam-son whom it had retained as an expert in the field of civil and structural engineering. It argued that Plaintiffs’ motion should be denied because many issues of fact remained, including whether the DOTD owed Plaintiffs a duty to remove the subject driveway, whether Christine acted reasonably in carrying hot water at night over an area of her yard which she knew was dangerous, and the exact circumstances surrounding the accident. Following a hearing, the trial court granted summary judgment in favor of Plaintiffs, finding that they had met their burden of proof on the issue of liability.

The DOTD now appeals, asserting in its sole assignment of error that “[t]he trial court erroneously granted a partial summary judgment where defendant has alleged comparative fault and where deposition[s] were presented showing that plaintiff knew of the danger but carried a large boiler of hot water into an area prone to cave-ins.”

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.... ” La.Code Civ.P. art. 966(A)(2).

“DOTD has a duty to maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence. La. R.S. 48:21(A).” Brown v. La. Indem. Co., 97-1344, p. 3 (La.3/4/98), 707 So.2d 1240, 1242. Moreover, in Oster v. Dept. of Transp. and Dev., State of La., 582 So.2d 1285, 1291 (La.1991), the supreme court stated:

As to the area off the shoulder of the road, but within the right of way, DOTD owes a duty to maintain the land in such a condition that it does not present an unreasonable risk of harm to motorists using the adjacent roadway or to others, such as pedestrians, who are using the area in a reasonably prudent manner.

In Cole v. State ex rel. Dept. of Transp. & Dev., 99-912, p. 5 (La.App. 3 Cir. 12/22/99), 755 So.2d 315, 321, writ denied, 00-199 (La.4/7/00), 759 So.2d 766, we stated:

To hold [the] DOTD liable, the plaintiff has the burden of proving that:
1. the defendant had custody of the property which caused plaintiffs damages;
2. the property was defective because of a condition that created an unreasonable risk of harm;
3. the defendant had actual or constructive knowledge of the defect and the risk and failed to take corrective measures within a reasonable time; and,
154. the defect was a cause-in-fact and legal cause of the plaintiffs injuries. Odom v. State, Dep’t of Transp. and Dev., 95-1605 (La.App. 3 Cir. 9/25/96); 688 So.2d 1082.

This court reversed the trial court’s grant of a partial summary judgment on the issue of liability in favor of the plaintiff in Benniefiel v. Zurich American Insurance Co., 08-1416, p. 6 (La.App. 3 Cir. 5/6/09), 10 So.3d 381, 386, finding that the evidence in the record “clearly create[d] a genuine issue of material fact relative to the issue of comparative fault which must go to the trier of fact and not be disposed of via summary judgment.” We further noted that “ ‘it is not a function of the trial court on a motion for summary judgment to determine or even inquire into the merits of issues raised or to weigh conflicting evidence on the existence of material facts.’ ” Id. at 385 (quoting Bell v. Gold Rush Casino, 04-1123, p. 7 (La.App. 3 Cir. 2/2/05), 893 So.2d 969, 973-74).

The parties appear to agree on the following facts. The driveway where the accident occurred was in existence when the Dauzats purchased their property in 1979. In August of 2003, Christine contacted Mr. Lemoine about a tree on her father’s property that was partially blocking the view of anyone exiting his driveway. While Mr. Lemoine was out inspecting the tree, Christine, who lived across the street from her father, asked him to have a look at a culvert and driveway in front of her house on Highway 1194. The driveway ramp was badly eroded and culvert appeared to be in very bad shape. Mr. Lemoine explained to Christine that if she were to get a permit from the DOTD and supply a culvert and materials, his crew would dig out the old culvert and install the new one if their workload permitted. He also offered her the option of digging out the old culvert rather than replacing it; Christine turned |fidown the second option because she needed the old driveway to move her boat and tractor.

Thereafter, Christine contacted Mr. Lip-sey about getting a driveway permit and he came out to her property with the permit paperwork. A permit was issued on August 21, 2003. It called for a thirty inch by thirty foot long culvert. At first, the permit specified that the Dauzats would supply a corrugated metal pipe culvert. Later, it was amended to reflect that the Dauzats would supply a reinforced concrete pipe culvert. The change was due to the fact that the Dauzats’ son would be able to make the concrete culvert at his job and they wanted to give him the business. Christine contacted Mr. Lipsey again on October 15, 2003, to inform him that her son had delivered the concrete culvert and that she was ready to have it installed. When Mr. Lipsey came out to inspect the culvert, he discovered that it was thirty-six inches wide, instead of thirty inches wide as called for in the permit. As a result, he told Christine that the culvert could not be installed because it was too big. The Dauzats chose to let the permit expire rather than getting another culvert or having the old driveway and culvert removed. They stopped using the old driveway for tractors and other vehicles because it needed to be repaired.

On the other hand, the DOTD clearly alleged in its answer, and later in opposition to Plaintiffs’ motion for summary judgment, that Christine was guilty of negligence in her decision to transport extremely hot water across her yard at night into an area known to be in an unsafe condition. In addition, numerous issues of material fact remain. For example, Christine stated in her deposition that Mr. Lip-sey did not inspect the driveway and ditch when he came out to her property to issue a permit to replace the old culvert. On the other hand, Mr. Lipsey stated that he had | ./inspected the area on his visit to the Dauzat property. Christine and Mr. Lip-sey also disagree on what size culvert he told her to get. Christine said that he told her it could be thirty inches or more but not less than that, while he said that he told her that it could not exceed thirty inches. Furthermore, there is an issue as to whether the culvert supplied by the Dauzats was defective, as Mr. Lipsey and Mr. Lemoine testified that it did not appear to be reinforced and the ends of each section were chipped and cracked such that they would not make a complete seal if connected to other sections of culvert. Additionally, there is disagreement amongst the various experts as to whether or not the DOTD guidelines called for the State to bring Highway 1194 up to current standards in conjunction with any or all of the various projects involving that roadway over the years. Moreover, there is conflicting testimony as to whether at any point prior to the accident the ditch in question was blocked such that the DOTD would have been required to rectify the situation to promote the safety of motorists and/or pedestrians traveling on Highway 1194 in front of Plaintiffs’ property. Clearly the number of factual issues increased between the date of the trial court’s denial of the DOTD’s motion for summary judgment and the subsequent filing of Plaintiffs’ motion for summary judgment.

After having reviewed all of the summary judgment evidence before us, we are convinced that genuine issues of material fact remain which cannot be properly disposed of via summary judgment. The trial court erred in granting Plaintiffs’ motion for partial summary judgment on the issue of liability. This case must be remanded to the trial court for further proceedings to allow a jury to determine the multiple issues of fact that remain with regard to liability and damages.

|rDECREE

For the foregoing reasons, the judgment of the trial court is reversed and this matter is remanded for further proceedings. Costs of this appeal are assessed against Plaintiffs, Michael and Christine Dauzat.

REVERSED AND REMANDED.


author: AMY, Judge.

text:
    Shawn SHELTON v. WAL-MART LOUISIANA, LLC, et al.
    No. 09-871.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.
    Rehearing Denied March 10, 2010.

      R. O’Neal Chadwick, Jr., Chadwick Law Firm, LLC, Alexandria, LA, for Defendant/Appellant, Wal-Mart Louisiana, LLC, Michael Gremillion.
    Charles D. Elliott, Vilar & Elliott, L.L.C., Alexandria, LA, for Plaintiff/Appel-lee, Shawn Shelton.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

11The plaintiff alleges that she injured her post-surgical knee when she fell at the defendant store. She sought damages related to the injury and a subsequent knee surgery. A jury apportioned sixty percent of the fault to the defendant and forty percent to the plaintiff. It awarded only a portion of the damages sought by the plaintiff. Thereafter, the trial court granted a JNOV, increasing the medical expenses and the general damages. The defendant appeals the granting of the JNOV. The plaintiff answers the appeal, seeking an increase in general damages and the imposition of costs and interest. For the following reasons, we vacate the judgment granting the JNOV and reinstate the judgment reflecting the jury verdict. As the record contains an incomplete version of the judgment being reinstated, we remand for supplementation of the appellate record in this regard.

Factual and Procedural Background

The plaintiff, Shawn Shelton, visited the Wal-Mart in Pineville on August 4, 2007. In the petition instituting this suit, she alleged that she “was shopping in the dairy section when she slipped and fell on a clear, pink, watery substance.” She asserted that there were no wet floor or caution signs marking the area and that the accident occurred because Wal-Mart employees improperly cleaned a spill. Ms. Shelton denied that she could have prevented the fall. She alleged that the fall caused knee injuries, requiring surgery, as well as injury to her back. Ms. Shelton sought medical expenses and general damages. The petition listed Wal-Mart, the Pineville store manager, and one of its employees as defendants.

|2In its defense of the case, Wal-Mart pointed out that Ms. Shelton had an extensive medical history, including a prior knee surgery for which she was still under a physician’s care at the time of this fall. Furthermore, while it acknowledged a spill in the dairy section of its store, it contended that the spill was marked with a cone at the time it was attended to by its employee immediately prior to the fall.

A jury determined that Ms. Shelton proved that Wal-Mart or its employees were at fault in causing Ms. Shelton’s injuries, that Wal-Mart had actual or constructive knowledge of the unreasonably dangerous condition, and that the condition caused/contributed to the accident. The jury also found Ms. Shelton to be at fault in causing the injuries and assessed her with forty percent of the fault. The jury awarded $2,788.84 in past medical expenses and $3,000.00 for past physical pain and suffering.

Thereafter, Ms. Shelton filed a motion for judgment notwithstanding the verdict and alternative motion for additur. Ms. Shelton argued that the jury impermissi-bly ignored the testimony of one of her orthopedic surgeons, Dr. Michael Brunet. As pointed out by Ms. Shelton, Dr. Brunet testified that the fall at Wal-Mart was most likely the cause of the subsequent knee injury and need for a second surgery. Thus, she asserted that she was entitled to the entirety of her medical expenses claimed rather than the limited portion awarded by the jury and an increase in general damages. Ms. Shelton also contended that the jury erred in assessing her with forty percent of the fault as she testified there was nothing marking the spill. The trial court granted the motion, in part, explaining as follows in reasons for ruling:

[T]he Court believes that the jury erred in its award of $2,788.84 for Ms. Shelton’s medical expenses. The jury did not follow the Court’s instructions as to evidence presented at trial, particularly expert testimony and evidence of special damages. A reasonable person could |anot find that the medical expenses incurred were not a result of the fall at the Wal-Mart store. It was apparent from the documents presented and the testimony of Dr. Brunet that Ms. Shelton sought medical treatment and continued to receive medical treatment as a result of her fall and injury at the Wal-Mart store. Her treatment began shortly after the fall. The testimony of Dr. Brunet was not contradicted nor was there any objection to the admission of the medical bills. The jury should have awarded all of the medical expenses.
Therefore, this Court hereby grants the plaintiffs Motion Notwithstanding the Verdict as to special damages award. This court awards the plaintiff $26,142.47 for her medical expenses.
As to general damages, the jury awarded $3,000 to Ms. Shelton for pain and suffering for the year and a half prior to trial and awarded zero dollars for future physical pain and suffering, past mental pain and suffering, future mental pain and suffering, past loss of enjoyment of life and future loss of enjoyment of life.
This Court believes that the jury erred in its award of $3,000.00 for Ms. Shelton’s past pain and suffering. Ms. Shelton has obviously suffered as a result of the knee injury. She has had surgery to the knee and has required continued physical therapy. Therefore, this Court increases the plaintiffs award of $3,000 for past pain and suffering to $75,000.
However, this Court does not believe the jury erred in its award for the general damages of future physical pain and suffering, past mental pain and suffering, etc. Therefore, the Court will not change the jury’s award for those damages.

Wal-Mart appeals, questioning “[wjhether there was sufficient evidence presented at trial to support the jury’s verdict so that the trial court erred in upsetting that verdict[.j” Ms. Shelton answered the appeal, asserting that the jury wrongly attributed her with forty percent of the fault in causing the accident. She also seeks general damages for future physical pain and suffering as well as past and future mental anguish and loss of enjoyment of life.

Discussion

JNOV

Wal-Mart contends that the trial court erred in entering the JNOV and that the 14record contained a basis for the jury’s verdict. In particular, Wal-Mart contends that the trial court’s determination was based on impermissible credibility calls and weighing of the evidence.

Louisiana Code of Civil Procedure Article 1811 provides for the trial court’s use of a JNOV, which “is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict.” Forbes v. Cockerham, 08-762, p. 30 (La.1/21/09), 5 So.3d 839, 857. A trial court should enter a JNOV “only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions.” Id. It is not sufficient that there is a preponderance of evidence for the mover. Davis v. Wal-Mart Stores, Inc., 00-445 (La.11/28/00), 774 So.2d 84. Rather, “[i]f there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied.” Id. at 89. In considering this point, the trial court should not evaluate the credibility of the witnesses. Id. Finally, the trial court must resolve all reasonable inferences or factual questions in favor of the non-moving party. Id.

On review of a JNOV, the appellate court’s inquiry is two-part. Davis, 774 So.2d 84. First, the appellate court must determine whether the trial court erred in ^granting the JNOV. Id. Therefore, the appellate court considers “whether the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict.” Forbes, 5 So.3d at 858. If the appellate court concludes that reasonable persons might reach a different conclusion, the trial court’s granting of the motion was erroneous and the jury verdict should be reinstated. Id. However, if the trial court applied the correct standard, the appellate court reviews the JNOV using the manifest error standard of review. Davis, 774 So.2d 84.

The evidence in this case indicates that reasonable persons could have found as the jury did in its judgment. The jury awarded $2,788.84 in medical expenses. This figure equals that amount sought for Ms. Shelton’s ambulance transport from the scene ($1,136.00), the related emergency room visit ($1,004.84), the emergency room physician’s charges ($508.00), and two physical therapy treatments at $70 per treatment. The jury awarded no additional expenses. Thus, it appears that the jury found that Ms. Shelton reasonably sought medical evaluation at that time given the pain experienced in the fall and the fact that she was still under medical care for the knee surgery she had undergone in June 2007, approximately two months pri- or to the Wal-Mart incident. The record supports a determination that Ms. Shelton failed to prove that the subsequent treatment sought was related to the fall.

In particular, the jury was presented with Ms. Shelton’s medical records which evidenced her history of knee complaints. Her June 2007 knee surgery was performed by Dr. Erik Bruce, an orthopedic surgeon. Dr. Bruce continued to treat Ms. Shelton following that surgery, including at the time of and after Ms. Shelton’s fall. The office’s records indicate that on August 3, 2007, the day before the fall at | (¿Wal-Mart, Ms. Shelton reported to Dr. Bruce for an office visit. The notes from that visit reflect that:

Patient is a 47 year old female status post left VMO advancement. Wednesday afternoon her car stalled and she was pushing her car and felt a pop in her left leg. Since that time she has had pain in the left leg. She has 7 out of 10 pain.

Dr. Bruce aspirated both of Ms. Shelton’s knees, gave her an injection, and prescribed continued physical therapy. Dr. Bruce instructed Ms. Shelton to return to the clinic in six to eight weeks.

It was the day following this incident in which she reported pushing her car, feeling a “pop” in her left leg, and experiencing increased pain, that she fell in Wal-Mart. Although Ms. Shelton explained at trial that the incident involving the car was inaccurately recorded and that she did not push the car, but instead struck her knee on the steering wheel, the jury could have placed little weight on Ms. Shelton’s testimony in light of the medical notation. This type of credibility assessment is within the province of the trier of fact and is inappropriate in a trial court’s review of a motion for JNOV. Joseph v. Broussard Rice Mill, Inc., 00-628 (La.10/30/00), 772 So.2d 94.

Two days after the fall at Wal-Mart, Ms. Shelton returned to the orthopedic surgeon’s office where she reported the fall and that “she sustained a hyperflexion type injury to her knee and landed directly on her patella.” Yet, the examination revealed: “No effusion. 0-90 degrees range of motion. Little tender about patella. No prepateller swelling. As far as I can tell, she can do a good straight leg raise. Her VMO advancement appears intact.” The report indicates that the x-rays taken at the emergency room after the fall did not evidence a fracture. At her subsequent visit on August 22, 2007, Dr. Bruce recorded that Ms. Shelton was “very scared and |7apprehensive” after the Wal-Mart fall and that she reported pain as 9 out of 10. However, his examination revealed that her left knee had “full range of motion. Patient is neurovascularly intact distally. She has a stable patella and no effusion.” In the subsequent months, Ms. Shelton returned to the office with continued complaints of pain.

Eventually, Dr. Brunet became Ms. Shelton’s treating orthopedic surgeon. In addition to Dr. Bruce’s relocation to another state, Ms. Shelton explained that she became dissatisfied with Dr. Bruce’s care after her fall at Wal-Mart because he felt that her first knee surgery had proven a success. Thereafter, Dr. Brunet began treating Ms. Shelton. While he testified at trial that he felt that the Wal-Mart fall was most likely the cause of the need for Ms. Shelton’s second knee surgery, the entirety of his statement was as follows:

It — it’s the only thing, historically, that — that I was able to determine from talking with — with Ms. Shelton, that as a reasonable source of — of the patella not necessarily dislocation, but enough to have stretched out some of the reconstruction where she was continuing to be symptomatic.

Accordingly, the jury could have permissibly rejected Dr. Brunet’s theory of causation as it was based on a history as reported by Ms. Shelton. While Ms. Shelton argued both in support of her motion on JNOY and again in her brief on appeal that the jury could not have disregarded Dr. Brunet’s testimony because it was un-contradicted, this is incorrect. Just as with lay witnesses, a factfinder can reject expert testimony in part or in full. Green v. K-Mart Corp., 03-2495 (La.5/25/04), 874 So.2d 838.

Construed in favor of the nonmoving party, the jury was presented only with a plaintiff who had a history of a variety of health complaints, including treatment for | spain in both knees, who personally attributed her escalating knee complaints to her fall at Wal-Mart. As Dr. Brunet’s history was dependant on Ms. Shelton’s own history of the fall, the jury clearly could have determined that his statement regarding causation was insufficient for Ms. Shelton to carry her burden of proof as to causation of all of her claimed damages.

Accordingly, as the record supports the jury’s determination as to the damages awarded, we reverse the judgment granting the JNOV and reinstate the jury’s verdict.

Allocation of Fault

In her answer to the appeal, Ms. Shelton contests the jury’s determination that she was forty percent at fault in causing the accident resulting in her injuries. She asserts that the jury should have accepted her testimony that the spill was not marked in any way.

Issues of causation and apportionment of fault are factual in nature. Smith v. Alexandria Coca Cola Bottling Co., 05-686 (La.App. 3 Cir. 12/30/05), 918 So.2d 522. A factfinder’s determination as to these issues will not be overturned absent manifest error. In this case, the jury reasonably determined that conditions were such that Ms. Shelton either saw or should have seen the condition of the floor at the accident scene, thus failing to exercise reasonable care as a patron. It is not disputed that the floor was still wet and that Wal-Mart was responsible for that condition under the facts as presented. Yet, Michael Gremillion, the Co-Manager at Wal-Mart at the time of the accident, testified that when he arrived at the scene, Ms. Shelton was lying on a wet floor sign. Similarly, Robert Sluss, Assistant Manager at the store, also testified that a wet floor sign was underneath Ms. Shelton when he responded to the scene.

[¡Although Ms. Shelton testified that there were no signs in the area, the jury could have rejected this in finding that at least one sign was in place and should have alerted Ms. Shelton to the floor’s condition if she had exercised reasonable caution. Accordingly, the jury’s determination as to Ms. Shelton’s fault and its apportionment of fault are not manifestly erroneous.

Damages

As pointed out by Ms. Shelton the jury only awarded general damages for past physical pain and suffering. It awarded zero dollars for future physical pain and suffering, past and future mental anguish, and past and future loss of enjoyment of life. She contends that no reasonable fact finder could have denied damages for these elements.

As explained above, the jury’s award of medical expenses seemingly demonstrates that it found the fall at issue only caused the expenses of the ambulance transport from the scene, the emergency room visit, and the physical therapy sessions completed within two weeks of the fall. The jury obviously found that the consequences of Ms. Shelton’s fall were limited and that her other claimed damages were caused by other events or conditions. In light of this circumstance, we find no abuse of discretion in the jury’s award of $3,000 for past physical pain and suffering in general damages. See La.Civ.Code art. 2324.1. Accordingly, we do not disturb the general damages award on review.

Costs and Interests

In her answer, Ms. Shelton seeks the imposition of costs and interest in the judgment in the event that this court affirmed the judgment granting the JNOV. In | flight of the determination that the JNOV was erroneously entered, this decision is rendered moot.

DECREE

For the foregoing reasons, the May 5, 2009 judgment granting the motion for judgment notwithstanding the verdict is reversed. The trial court’s judgment of February 19, 2009 is reinstated. This matter is remanded with orders to the trial court to file a copy of the judgment reflecting the jury’s verdict in its entirety into the appellate record. Costs of this proceeding are assessed to the plaintiff/appel-lee, Shawn Shelton.

REVERSED AND REMANDED WITH INSTRUCTIONS.

      . The appellate record includes the completed jury verdict form. However, it contains only the first page of the trial court's judgment entering that verdict and the Notice and Certificate of the Signing of Judgment. The portion of the judgment included in the record at page 125 does not include the entirety of the jury's verdict, information regarding costs and interest, or the trial court's signature. The Notice indicates that the Judgment was signed on February 19, 2009.

      . Article 1811 provides, in part:
      A. (1) Not later than seven days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of judgment under Article 1913, a party may move for a judgment notwithstanding the verdict. If a verdict was not returned, a party may move for a judgment notwithstanding the verdict not later than seven days, exclusive of legal holidays, after the jury was discharged.


author: PICKETT, J.

text:
    Jeffery Alexander ARKELL v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT, et al.
    No. 09-918.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.
    Robert L. Ellender, Voorhies & Labbe, Lafayette, LA, for Defendant/Appellee, Colony Insurance Company.
    Richard J. Petre Jr., Onebane Law Firm, Lafayette, LA, for Defendant/Appel-lee, Cloutier Monceaux Entertainment LLC.
    D. Patrick Daniel, Jr., Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Jeffery Alexander Arkell.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PICKETT, J.

|, The plaintiff, Jeffery A. Arkell, appeals a judgment of the trial court granting motions for summary judgment filed by the defendants, Cloutier Monceaux Entertainment, LLC (d/b/a Marley’s Sports Bar, hereinafter, Marley’s) and its insurer, Colony Insurance Company, and dismissing the plaintiff’s suit against them. We affirm the judgment of the trial court.

FACTS

The facts, which are undisputed, are taken from the deposition of the plaintiff, Jeffery Arkell. At approximately 8:30 p.m. on Sunday, November 14, 2006, Jeffery and two of his friends, Jeremy Doucet and Troy Rivers, went to Marley’s which is located at 407 Jefferson Street in Lafayette. Jeremy, who had driven, parked his truck in the city-owned parking lot on the corner of Jefferson and Garfield Streets. The trio entered Marley’s through the front door on Jefferson Street. Marley’s also has a back door through which the parking lot is accessible. Upon entering the bar, the trio spotted a mutual acquaintance, Steven Murphy, who was sitting at the bar with a date. The three walked over, said hello, got some beer and began to play pool. It should be noted that Marley’s closes at midnight on Sunday nights.

Somewhere around 11:40-11:45 p.m., six men entered Marley’s through the rear door. According to Jeffery, “they weren’t dressed well ... they looked sort of out of place.” The group stood around near the rear door. Jeffery stated that at or near midnight, as Steven and his date were making their way toward the back door past the six men,

they grabbed her butt.... [Steven] told them not to — that they shouldn’t do that, and from what I’ve heard from Steven, because I didn’t actually hear what they told him, they said: “Do you want to take it outside?” And basically, they were looking for some reason to start something. .]2.. [Steven] said he didn’t want any part, they walked out, and from that point on others [other patrons] followed suit out as they — as they walked outside to the parking lot.
And so as me and Jeremy were leaving to get in the car, we noticed them [Steven and several other patrons] arguing back and forth with the six [... ] guys. We just walked to our car, didn’t really know what the initial — why they were continuing to argue, but we really didn’t have any part in that. So as we were going to leave, you know, that’s— that was happening right outside [in the far side of the parking lot].

Although he had arrived with Jeffery and Jeremy, Troy Rives had left about five minutes before, stating that he had a ride home with a lady-friend he met at the bar.

Jeffery and Jeremy got into Jeremy’s truck and were preparing to leave when someone ran up to the truck and told Jeremy that “they hit Troy in the head with a bottle.” Jeffery stated that at that point, “From then Jeremy jumped out of the car and when I looked up, they were— the six guys were — one was holding him up and one was in front of him with a baseball bat, hitting him in the leg.”

In Ms deposition, Jeffery stated the following:

So from this point, this sort of — I got out of the car mainly to go and basically pull him away or stop it. It was sort of fight or flight mode, you know. And so when I went over there to stop them, they let him go and they hit me in the back of the head with a bat.
From this point, I stood up. I’m not sure if I was knocked out for a period of time or what. I just remember standing up. Everybody was gone. And then I was weak, so I sat back down. And then Jeremy came over, and that’s whenever they witnesses the stab wounds and my arm was broken and my head was bleeding.
From that point, they tied my head up and my arm with this jacket. And when the ambulance arrived, they took off my shirt and everything and they noticed that I had a stab wound in my stomach also.

IgJeffery stated that all of the preceding happened about 60 feet from Jeremy’s truck. A sketch he drew shows the attack happened in the middle of Garfield Street near its intersection with Jefferson Street.

On October 15, 2007, Jeffery filed suit against the Lafayette City-Parish Consolidated Government and Marley’s and its insurer, Colony Insurance Company (Colony). In his suit the plaintiff alleged the following in respect to the fault of Marley’s:

Marley’s was negligent and is responsible in the following non-exclusive particulars:
a. Failing to provide adequate security;
b. Failing to place into effect a policy providing adequate security;
g.[sic] Failing to honor its duty to provide a safe environment for its patrons;
c. Allowing a dangerous and unsafe environment to exist for its patrons after being provided actual or constructive notice of this condition; and
d. Any and all other acts of negligence that will be proven at the trial on the merits in this matter.

In response, Marley’s and Colony filed the motion for summary judgment which is the subject of this appeal.

LAW AND DISCUSSION

In this case, the facts are not in dispute. What is before us are questions of law: did the defendant owe a duty to the plaintiff and if it did, was that duty breached? In Olson v. Rapides Parish Sheriff, 07-57, pp. 2-3 (La.App. 3 Cir. 5/2/07), 957 So.2d 282, 284, a panel of this court discussed the applicable law:

The law applicable to summary judgments and to the appellate review thereof is well settled:
The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); Yarbrough v. Federal Land Bank of Jackson, 31,815 (La.App.2d Cir. 03/31/99), 731 So.2d 482. The motion should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Leckie v. Auger Timber Co., 30,103 (La.App.2d Cir. 01/21/98), 707 So.2d 459. The burden of proof remains with the mover. However, if the party moving for summary judgment will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, then that party need not negate all essential elements of the adverse party’s claim, action, or defense but may simply point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense; thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy the evidentiary burden of proof at trial, there is no genuine issue of material fact. See, La. C.C.P. art. 966(C)(2). When a motion is made and supported, as required by La. C.C.P. art. 966, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967.
Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Kennedy v. Holder, 33,346 (La.App.2d Cir.05/10/00), 760 So.2d 587.
Semien v. EADS Aeroframe Servs., LLC, 04-760, pp. 1-2 (La.App. 3 Cir. 2/2/05), 893 So.2d 215, 216-17 (quoting Sidwell v. Horseshoe Entm’t Ltd. P’ship, 35,718, pp. 2-4 (La.App. 2 Cir. 2/27/02), 811 So.2d 229, 230-31) (first emphasis added).

Our initial inquiry in this case is whether Marley’s owed Jeffery a duty to protect him from attack in the middle of Garfield Street after closing hours. The law is clear, it did not. In Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217, pp. 7-8 (La.4/3/02), 816 So.2d 270, 276 (emphasis ours), our supreme court stated as follows:

|fiThe threshold question in any duty-risk analysis is whether the defendant owed a duty to the plaintiff. Posecai [v. Wal-Mart Stores, Inc.], 99-1222 at 4 [(La. 11/30/99)], 752 So.2d [762] at 766; Meany v. Meany, 94-0251, p. 6 (La.7/5/94), 639 So.2d 229, 233. Whether a duty is owed is a question of law. Peterson v. Gibraltar Savings & Loan, 98-1601, 98-1609, p. 7 (La.5/18/99), 733 So.2d 1198, 1204; Faucheaux v. Terrebonne Consolidated Government., 615 So.2d 289, 292 (La.1993).
In Posecai, we held that while business owners generally have no duty to protect others from the criminal acts of third persons, “they do have a duty to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable.” Posecai, 99-1222 at 5, 752 So.2d at 766. Determining when a crime is foreseeable is a critical inquiry in the duty equation. Id. This inquiry is answered employing a balancing test. As we explained in Posecai:
The foreseeability of the crime risk on the defendant’s property and the gravity of the risk determine the existence and the extent of the defendant’s duty. The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business. A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using surveillance cameras, installing improved lighting or fencing, or trimming shrubbery. The plaintiff has the burden of establishing the duty the defendant owed under the circumstances.
The foreseeability and gravity of the harm are to be determined by the facts and circumstances of the case. The most important factor to be considered is the existence, frequency and similarity of prior incidents of crime on the premises, but the location, nature and condition of the property should also be taken into account. It is highly unlikely that a crime risk will be sufficiently foreseeable for the imposition of a duty to provide security guards if there have not been previous instances of crime on the business’ premises.
Posecai, 99-1222 at 8-9, 752 So.2d at 768.

First, we note that there was no contact or communication between Jeffery, Jeremy and their attackers while all were in Marley’s. Steven, who had contact with | (¡the group, walked away and exited Marley’s rather than escalate the situation. Accordingly, there was no foreseeability.

Next, we note that both Jeremy and Jeffery left Marley’s and went to the city-owned parking lot where Jeremy’s truck was parked. They were in the truck, in a position of safety, when “someone” ran up to the truck and told Jeremy that “they hit Troy in the head with a bottle.” Jeremy, then, left his position of safety to check on Troy. He was attacked in the middle of Garfield Street, a public thoroughfare. Upon observing the attack on Jeremy, Jeffery also left his position of safety to go to the aid of his friend. This is when he was attacked, also in the middle of Garfield Street.

In Thompson v. Winn-Dixie Louisiana Inc., 01-1259, pp. 4-6 (La.App. 4 Cir. 3/6/02), 812 So.2d 829, 832-33, writ denied, 02-0971 (La.5/21/02), 817 So.2d 104 (citations omitted)(italic emphasis ours) our colleagues of the fourth circuit, with whom we agree, stated:

It is simply not reasonable to hold a business responsible for the safety of persons who are potential patrons or immediate former patrons, where injury is caused by the intentional acts of others inflicted off the business premises. Duty is a question of law. The scope of the duty is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. The sovereign is responsible for the safety of the public streets.
As the Supreme court said in Posecai, 752 So.2d at 768:
The economic and social impact of requiring businesses to provide security on their premises is an important factor. Security is a significant monetary expense for any business and further increases the cost of doing business in high crime areas that are already economically depressed. Moreover, businesses are generally not responsible for the endemic crime that plagues our communities, a societal problem that even our law enforcement and other government agencies have been unable to solve. At the same time, business owners are in the best position to | appreciate the crime risks that are posed on their premises and to take reasonable precautions to counteract those risks. [Emphasis added.]
Additionally, there is the problem for businesses and their insurers to determine the extent of the geographic boundaries of their liability under plaintiffs theory of off premises liability. Undoubtedly, insurers would err on the side of caution in calculating premiums for off-premises liability. When society as a whole has not managed to solve the problem of crime in the streets with all of the vast resources of the sovereign, it seems unreasonable to expect [Marley’s] to do so. A business also faces increased liability for activities it might undertake off of its premises. Does society really want private citizens and entities undertaking law enforcement activities on the public streets? That strikes this court as being akin to vigilante justice and harks back to feudal societies where the local lord was expected to provide some measure of security. It is generally felt that modern society has moved beyond those concepts.

Since the attack on the plaintiff consisted of criminal acts of third persons and took place on a public street a significant distance from Marley’s premises we find that the attack did not fall within Marley’s scope of duty to protect its patrons.

As to the summary judgment granted in favor of Colony, it is well settled that if there is no liability on the part of insured, there can be no liability on the part of the insurer. Cavalier v. Rivere’s Trucking, Inc., 03-2197 (La.App. 1 Cir. 9/17/04), 897 So.2d 38. Furthermore, the insurance policy contained a clause which excluded liability for any injury “arising out of or resulting from (1) Assault and Battery committed by any person.”

Accordingly, for the reasons stated, the judgment of the trial court, granting summary judgments in favor of defendants, Cloutier Monceaux Entertainment, LLC (d/b/a Marley’s Sports Bar) and its insurer, Colony Insurance Company, and dismissing the plaintiffs suit against them is affirmed. Costs of this appeal are assessed against the plaintiff/appellant, Jeffery A. Arkell.

AFFIRMED.


text:
    Dianne ALEXANDER, et ux. v. LAFAYETTE CRIME STOPPERS, INC., et al.
    No. 09-927.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 3, 2010.
    Rehearing Denied March 10, 2010.

      Douglas C. Longman, Jr., Longman Russo, Lafayette, LA, for Defendant/Ap-pellee, Lafayette Crime Stoppers, Inc. Baton Rouge Crime Stoppers, Inc.
    L. Clayton Burgess, Lafayette, LA, for Plaintiff/Appellant, Dianne Alexander, Herman Alexander.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

| ,The plaintiffs brought suit for specific performance against the defendants for failure to pay them reward money they alleged was due to them. The defendants filed motions for summary judgment asserting there was no genuine issue of material fact in that the plaintiffs would be unable to prove at trial that a contract ever existed between the parties. The trial court granted the motions. For the following reasons, we affirm.

Factual and Procedural Background

In the summer of 2002, after several South Louisiana women had been murdered, the Multi Agency Homicide Task Force (Task Force) was established to investigate these murders, believed to be committed by the same individual referred to as the South Louisiana Serial Killer. In April 2003, the Baton Rouge Crime Stoppers (BCS) began publicizing a reward offer in newspapers, television stations, and billboards around the Baton Rouge area regarding the South Louisiana Serial Killer. A short time later, Lafayette Crime Stoppers (LCS) also publicized a reward offer. Both reward offers provided an expiration date of August 1, 2003.

According to the plaintiffs’ petition, on July 9, 2002, Dianne Alexander was attacked in her home in St. Martin Parish. Ms. Alexander’s son, Herman Alexander, arrived home during the attack and chased the attacker from the property. Ms. Alexander reported the attack to local police and, later, both Ms. Alexander and her son described the attacker to the St. Martin Sheriffs Department.

According to his investigative report, Lieutenant Boyd, the lead investigator on Ms. Alexander’s attack, began to suspect that Ms. Alexander’s attacker could be the same man identified as the South Louisiana Serial Killer, after investigators linked the death of a Lafayette woman to the suspected serial killer. In May 2003, |2Lieutenant Boyd shared information regarding Ms. Alexander’s attack with the Lafayette Sheriffs Department, who in turn shared the information with the Task Force.

On May 22, 2003, Ms. Alexander was interviewed by an FBI agent assisting the Task Force. Based upon that interview, a composite sketch was drawn and released to the public on May 28, 2003. Investigators believed the composite sketch matched the description of a possible suspect in an investigation being handled by the Louisiana Attorney General’s Office and the Zachary Police Department. On May 25, 2003, a photo lineup was prepared and presented to Ms. Alexander, who identified her attacker as the same man suspected in the Zachary investigation, Derrick Todd Lee.

On or about August 14, 2003, Ms. Alexander contacted LCS and sought to collect the advertised award, however, LCS informed her she was ineligible to receive the award. On February 22, 2006, Ms. Alexander and her son filed a lawsuit against BROS and LCS, alleging that the defendants owed them $100,000 and $50,000, respectively, for the information they provided to the defendants. The defendants filed motions for summary judgment asserting that a valid contract never existed between the parties. Specifically, the defendants argued that the plaintiffs never provided information to Crime Stoppers via the tipster hotline and thus did not comply with the “form, terms, or conditions required by the Crime Stoppers offers[.]” The trial court granted the defendants’ motions for summary judgment, finding that the offer from Crime Stoppers was conditioned on the information being provided to the defendant entities rather than law enforcement.

|sThe plaintiffs appeal, asserting that there is a genuine issue of material fact that the LCS and BRCS offers contained a requirement that acceptance of the reward must be done through the Crime Stoppers’ tipline.

Discussion

Summary Judgment

Louisiana Code of Civil Procedure Article 966(B) provides, in part, that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Paragraph C(2) of that article sets forth the burden of proof applicable to the motion for summary judgment, providing:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

On appeal, a trial court’s ruling on a motion for summary judgment is reviewed pursuant to the de novo standard of review. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002.

Contract

Louisiana Civil Code Article 1927 provides:

A contract is formed by the consent of the parties established through offer and acceptance.
^Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.
Unless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the acceptance is made.

“Louisiana jurisprudence has recognized that an advertisement may constitute an offer susceptible of giving rise to a binding contract upon acceptance in instances where a prize is offered or where the terms of a contest are announced.” Woods v. Morgan City Lions Club, 588 So.2d 1196, 1200 (La.App. 1 Cir.1991). Once a plaintiff performs all of the requirements of the offer in accordance with the published terms, it creates a valid and binding contract, under which one is entitled to the promised rewards. Id.; Schreiner v. Weil Furniture Co., 68 So.2d 149 (Orl.Ct. of App.1953).

The offer made by LCS in a May 14, 2003 press release, reads as follows:

The Greater Lafayette Chamber of Commerce has joined with Lafayette Crime Stoppers to offer a reward of $50,000 for information relating to the murders of five south Louisiana women. A $25,000 reward offer by Lafayette Crime Stoppers has been matched through commitments from Chamber members
In order to qualify for the reward, the tipster must p[r]ovide information which leads to the ar[r]est, DNA match, and the formal filing of charges against a suspect through grand jury indictment or Bill of Information. In addition, the qualifying tip must be received prior to midnight, August 1, 2003. Investigators with the Serial Killer Task Force have expressed optimism that a large enough reward might provide the impetus for someone with knowledge of the killings to come forward. By stipulating a deadline, investigators hope to expedite receipt of the information.
All callers to the Crime Stoppers Tips-line remain anonymous. A code number is issued as the only means of identification. Tips can be submitted 24 hours a day at 232-TIPS or toll free at 1-800-805-TIPS.

The offer from BRCS, as published in the Morning Advocate, reads as follows:

| sCrime Stoppers, Inc. $100,000 reward for information on the South Louisiana Serial Killer. A $100,000 reward will be given for information leading to the arrest and indictment of the South Louisiana Serial Killer. Call today and help make Baton Rouge a safer place for you and your family. All calls remain anonymous. 334-STOP or 1-877-723-7867. Reward expires August 1, 2003.

Both LCS and BRCS offers were irrevocable offers because they specified a period of time for acceptance. See La.Code Civ. art. 1928. Louisiana Civil Code Article 1934 provides that “acceptance of an irrevocable offer is effective when received by the offeror.” Acceptance is received when it comes into the possession of a person authorized by the offeror to receive it, or when it is deposited in a place the offeror has indicated as the place where communications of that kind are to be deposited for him. See La.Civ.Code art. 1938; Kent v. Hogan, 03-2424 (La.App. 1 Cir. 10/29/04), 897 So.2d 68.

The plaintiffs argue that there is a genuine issue of material fact as to whether they accepted the Crime Stoppers’ reward offers; however, the plaintiffs admit that they did not contact either Crime Stopper organization before August 1, 2003. The plaintiffs argue that they accepted the offers by performance when they provided information about the serial killer to law enforcement. Further, the plaintiffs contend that this performance is a customary manner of accepting reward offers from Crime Stopper organization.

In the present matter, the plaintiffs’ acceptance of the reward offers must have been received by the defendants (offerors) by the time prescribed in the offer (August 1, 2003) in the place where communications of that kind were to be deposited (the phone number cited in the offers). The record contains no evidence indicating the defendants were notified by the plaintiffs in the time and manner indicated in the offer. While the plaintiffs may have provided information related to the arrest or | (¡indictment of Derrick Todd Lee to local law enforcement and the Task Force, there is no indication in the offer that either of those parties were the offerors of the reward or persons authorized to receive acceptance on their behalf.

The plaintiffs argue that they accepted the offers by performance when they provided information about the serial killer to law enforcement. Further, the plaintiffs contend that this performance is a customary manner of accepting reward offers from Crime Stopper organization. While acceptance may be valid if customary in similar transactions, according to La.Civ. Code art. 1936, it must be “customary in similar transactions at the time and place the offer is received.” (Emphasis added.) As indicated above, there is no evidence in the record that the defendants received any acceptance of the offer. Accordingly, no contract was formed between the parties. La.Civ.Code art. 1927.

DECREE

For the foregoing reasons, the judgment granting the defendants’ motions for summary judgment is affirmed. All costs of these proceedings are assessed against the plaintiffs-appellants.

AFFIRMED.

COOKS, J., Dissents.