text:
    STATE IN the INTEREST OF M.J.F.
    18-584
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2018
   Nicole M. Guidry, Attorney at Law, 100 South Louisiana Street, Suite 500, Abbeville, Louisiana 70510, (337) 740-8885, COUNSEL FOR APPELLANT: J. R. F. (Mother)

L. Antoinette Beard, 825 Kaliste Saloom Road, Brandywine Building 3, Room 150, Lafayette, Louisiana 70508, (337) 262-1555, COUNSEL FOR APPELLEE: Department of Children and Family Services

Tracey Davenport-McGraw, Assistant District Attorney, Post Office Box 3306, Lafayette, Louisiana 70502, (337) 232-5170, COUNSEL FOR APPELLEE: State of Louisiana

Franchesca L. Hamilton-Acker, Acadiana Legal Service Corp., Post Office Box 4823, Lafayette, Louisiana 70502-4823, (337) 237-4320, COUNSEL FOR APPELLEE: M. J. F. (Minor Child)

Barry J. Sallinger, Allyson M. Prejean, Barry J. Sallinger, APLC, 820 East St. Mary Boulevard, Lafayette, Louisiana 70503, (337) 235-5791, COUNSEL FOR INTERVENORS/APPELLEES: J. M., M. M. (Foster/ Potential Adpotive Parents)

Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and John E. Conery, Judges.

CONERY, Judge.

J.R.F., the mother of the minor child M.J.F., appeals the June 7, 2018 judgment of the trial court terminating her parental rights to M.J.F. and certifying him for adoption. The father of M.J.F. is unknown. The trial court's judgment also terminated the parental rights of the alleged unknown father. That ruling has not been appealed and is therefore a final judgment. For the following reasons, we affirm the trial court's judgment in its entirety.

FACTS AND PROCEDURAL HISTORY

M.J.F. was born on October 17, 2015. Prior to receiving a report of neglect on December 2, 2015, the Department of Children and Family Services (DCFS) had received allegations in October 2015 that M.J.F. was a substance exposed newborn who had tested positive for marijuana and amphetamines at birth. J.R.F. and M.H., the presumed father who had signed M.J.F.'s birth certificate, moved to the Travelodge Motel in Lafayette Parish while there was a pending family service case in St. Landry Parish.

DCFS applied for an Instanter Order of Removal of M.J.F. from J.R.F., the child's mother. The affidavit in support of the December 3, 2015 Instanter Order provided that DCFS involvement was required due to the mother's drug use, inadequate sleeping arrangements for the child (allowing M.J.F. to sleep in the bed with J.R.F. and her companion, M.H.), domestic violence incidents (the Lafayette Police having been called twice due to a domestic disturbance), the mother's expressed need for mental health assistance, and the mother's expressed inability to care for her child. J.R.F. had made threats of wanting to dispose of M.J.F by placing him in a dumpster. J.R.F. admitted to using Xanax, ecstasy and marijuana and had been prescribed Depakote as an anti-depressant for post-partum depression.

The Instanter Order was granted on December 3, 2015 and signed on December 4, 2015, committing M.J.F. to the custody of DCFS. A hearing on the continued custody of M.J.F. was fixed for December 8, 2015. Thereafter, the trial court ordered M.J.F. into the care of his foster parents, J.M. and M.M., at the age of eight weeks, where he has remained since that time. J.M. and M.M. are the potential adoptive parents of M.J.F. and are intervenors in this proceeding.

In a random drug test dated December 10, 2015, J.R.F. tested positive for amphetamines, methamphetamines, morphine and marijuana. Based on the stipulation of J.R.F., M.J.F. was adjudicated a "Child in Need of Care" on February 24, 2016. DNA tests were administered to two potential fathers of M.J.F., and both were excluded as the biological father of M.J.F., who remains unknown.

On January 5, 2016 an initial case plan was established by DCFS for J.R.F., followed by five other case plans. The components of the case plans remained the same throughout the proceedings, except that requirements to prevent domestic violence were added to the January 4, 2017 case plan.

The case components included, "stable housing[;]...five dollars ($5) a month for parental contributions, complying with drug screens, mental health counseling, employment, positive supports, visits, parent education, and substance abuse counseling - treatment." Domestic violence classes were also added to the case plan.

DCFS maintained custody of M.J.F. and Permanency and Case Review hearings were held and orders signed on the following dates: May 17, 2016, November 22, 2016, May 23, 2017, November 7, 2017, January 23, 2018, and April 9, 2018.

Case plans were filed into the record at the Permanency and Case Review hearings on January 5, 2016, June 7, 2016, May 8, 2017, October 19, 2017, and March 19, 2018. Additionally, court reports were also entered into the record on May 4, 2016, November 7, 2016, May 8, 2017, October 23, 2017, January 10, 2018, and March 26, 2018.

Although the original goal of the case plan had been reunification, on May 8, 2017 the trial court changed the goal for M.J.F. to adoption. On December 6, 2017 DCFS filed a petition for termination of parental rights and certification for adoption. After several continuances, the trial was eventually held on May 7, 2018. After hearing the evidence and receiving the exhibits, the trial court took the matter under advisement and signed its written reasons, erroneously entitled "Judgment" on May 16, 2018, and filed on May 18, 2018.

A formal judgment was signed on June 7, 2018 terminating the parental rights of the mother J.R.F. and the unknown father, thereby freeing M.J.F. for adoption. M.J.F. was two months old when he entered foster care with J.M. and M.M. At the time of trial in May 2018, he was two years seven months old, having been in foster care for almost two and one half years.

J.R.F. does not contest that all of the hearings were timely held, the facts from the case review hearings are correct, and there are no procedural deficiencies in this case. J.R.F. has now timely appealed the trial court's June 7, 2018 judgment of termination of parental rights and certification for adoption.

ASSIGNMENTS OF ERROR

J.R.F. asserts the following assignments of error on appeal:

1. In light of the entire record, the juvenile court committed manifest error in terminating J.R.F.'s parental rights without clear and convincing evidence to support the following findings:
i. No substantial compliance by J.R.F. with the case plan;
ii. No reasonable expectation of significant improvement in J.R.F.'s condition in the future;
iii. Best interest of the child required termination of J.R.F.'s parental rights

LAW

Standard of Review

The judgment of a trial court terminating parental rights is reviewed on appeal under the manifest error standard of review. State in the Interest of K.V. , 14-163 (La.App. 3 Cir. 11/21/14), 161 So.3d 795.

A trial court's factual determinations as to whether there has been substantial compliance with a case plan, whether a significant indication of reformation has been shown, and whether the parent is likely to reform will not be set aside unless the record reflects that the trial court is clearly wrong.

State in the Interest of G.O. , 10-571, pp. 5-6 (La.App. 3 Cir. 6/8/11), 68 So.3d 636, writ denied , 11-1512 (La. 7/21/11), 67 So.3d 479.

Louisiana Children's Code Articles

Louisiana Children's Code Article 1015(5)(b)-(c), and 1015(6), provide the grounds for termination of parental rights applicable to this case and state:

(5) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
....
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
(6) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.

In making its decision on the issue of a lack of parental compliance with a case plan under La.Ch.Code art. 1015(6), the trial court is guided by La.Ch.Code art. 1036(C), which provides a list of factors which may evidence a lack of parental compliance. Further, La.Ch.Code art. 1036(D) may be used to determine whether there is a reasonable expectation of significant improvement in the parent's behavior and actions.

Louisiana Children's Code Article 1036(C) provides:

C. Under Article 1015(6), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent's failure to attend court-approved scheduled visitations with the child.
(2) The parent's failure to communicate with the child.
(3) The parent's failure to keep the department apprised of the parent's whereabouts and significant changes affecting the parent's ability to comply with the case plan for services.
(4) The parent's failure to contribute to the costs of the child's foster care, if ordered to do so by the court when approving the case plan.
(5) The parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent's lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

Louisiana Children's Code Article 1036(D) provides, in pertinent part:

D. Under Article 1015(6), lack of any reasonable expectation of significant improvement in the parent's conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
....
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

Louisiana Children's Code Article 1037(B) (emphasis added) provides:

When the court finds that the alleged grounds set out in any Paragraph of Article 1015 are proven by the evidentiary standards required by Article 1035 (clear and convincing evidence) and that it is in the best interests of the child, it shall order the termination of the parental rights of the parent against whom the allegations are proven....The consideration of best interests of the child shall include consideration of the child's attachment to his current caretakers.

In cases involving the termination of parental rights, this court in State in the Interest of J.A. , 17-500, pp. 3-4 (La.App. 3 Cir. 1/4/18), 237 So.3d 69, 72 (emphasis added) stated:

A parent has a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with his or her children. State in Interest of A.C. , 93-1125 (La. 1/27/94), 643 So.2d 719. This parental interest includes the "care, custody, and management of their child." State ex rel. J.M., 02-2089, p. 7 (La. 1/28/03), 837 So.2d 1247, 1252. Consistent with the parental interest, the state has a legitimate interest in limiting or terminating parental rights under certain conditions. Id. Because termination of parental rights is a severe action, the state bears the burden of establishing each element of a ground for termination by clear and convincing evidence. La.Ch.Code art. 1035 ; State ex rel. B.H. v. A.H. , 42,864 (La.App. 2 Cir. 10/24/07), 968 So.2d 881. The statutory grounds for involuntary termination of parental rights are found in La.Ch.Code art. 1015, although "only one ground need be established." State ex rel. B.H. , 968 So.2d at 885. Once a ground for termination has been established, the parental rights may be terminated by the trial court if it is in the child's best interest. Id ; La.Ch.Code art. 1037.

Assignment of Error One-Compliance With The Case Plans

In its petition for termination of J.R.F.'s parental rights pursuant to La.Ch.Code art. 1015(5)(b)-(c), DCFS alleged and had the burden to prove the following by clear and convincing evidence:

(5) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
....
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.

Case Plan Compliance

The trial court in its written reasons as well as our independent review of the record reflect the following facts were found in connection with J.R.F.'s compliance or lack of compliance with the case plans.

Housing

The trial court found that J.R.F. has been compliant and has maintained her home since November of 2016. However, Ms. Koryan Clay, the DCFS case worker, testified at the termination hearing that J.R.F. was not paying the rent on her home. She stated that J.R.F.'s mother pays her rent and utilities, although "J.R.F. receives some assistance from SMILE at times."

Income/Employment

The trial court found J.R.F. was not compliant with the income/employment component of her case plan. Currently, J.R.F. is not employed. Further, the trial court found that J.R.F. "did have a couple of part-time jobs during the course of the proceedings but has failed to maintain any full-time employment." Ms. Clay testified that J.R.F. did have a job at Waffle House for a short period, but she was fired based on allegations that she had stolen money from the register. Ms. Clay further testified that J.R.F was not actively seeking employment because she wanted to work on the other aspects of her case plan.

On cross examination, Ms. Clay was questioned about possible employment of J.R.F. at her mother's store and doing side jobs for cash for a family friend identified as Ms. Nicole. However, no documentation had been received by Ms. Clay to verify any employment had taken place and none was furnished to the trial court.

Parental Contributions

The trial court found that J.R.F. was not compliant with her parental contributions to DCFS and/or the foster parents of M.J.F. Ms. Clay testified that J.R.F. was to contribute five dollars a month in support of M.J.F. However, Ms. Clay testified that the first contribution to the support of the minor child was a money order for thirty dollars, which was made approximately one week before the trial on May 7, 2018. J.R.F. had failed to provide any contribution toward the support of M.J.F. for the almost two and one half year period that M.J.F. had been in foster care with M.J. and M.M.

J.R.F.'s counsel argues that poverty should not be the "sole reason the court terminates a parent's rights." However, the trial court found, and the record supports, that poverty was not the sole basis of the trial court's termination, rather her continued drug use, her failure to work, her failure to contribute to M.J.F.'s support, and her having another baby all together warranted termination of J.R.F.'s parental rights.

Mental Health Assessment

The case plan provided that J.R.F. was to "obtain a mental health assessment and comply with all recommendations." The trial court found that she "had not been in compliance with the [sic] portion of her case plan for the majority of the case." Ms. Clay testified J.R.F. "made no effort to obtain a mental health assessment" until January 2018. Ms. Clay testified, and the trial court found that, "In January 2018, she was referred to Acadian Counseling Center, where she is currently receiving services, and is compliant with this portion of her case plan."

Substance Abuse Evaluations/Recommendations

The trial court found that with regard to the substance abuse evaluations and recommendations, J.R.F. "has recently become compliant." Ms. Clay testified that on January 3, 2018, she referred J.R.F. to Acadiana Area Human Service District, where she is seeking treatment. The trial court cited the testimony of Ms. Clay, "that J.R.F. has previously been referred to Tyler Mental Health; but she had not completed that program and was discharged and non-compliant at that time."

Substance Abuse Treatment

Ms. Clay testified that she referred J.R.F. to Family Preservation and she stayed there for a year. However, Ms. Clay received a February 8, 2017 letter from the Family Preservation team indicating that J.R.F. was discharged "due to non-compliance." Ms. Clay testified that J.R.F.'s discharge was based on her testing positive throughout the program and her "behavior in treatment was defiant, agitated and detached."

Random Drug Screens

The trial court found that with regard to the drug screening component of J.R.F.'s case plan, she "has been drug screened numerous time[s] throughout the course of the proceedings and has continued to have positive drug screens and/or not shown up for drug screens." The trial court's findings are based on the testimony of Ms. Clay, who sent J.R.F. to SECON for drug screening. Ms. Clay testified that the last positive drug screen was obtained on February 23, 2018, and that during her entire involvement with J.R.F. she has only had five or six negative drug screens. The written reasons of the trial court indicate that J.R.F. tested positive on March 15, 2018 for marijuana. Her last test on March 30, 2018 was negative.

Positive Support System

Ms. Clay testified that at present, J.R.F.'s mother supports her, and a family friend helps out. Ms. Clay also testified that both the mother and the friend are consistent in their support.

Parenting Classes/Visiting Coaching

The trial court found that J.F.R. was "to complete a parenting education program and visit coaching." Ms. Clay testified that she initially referred J.R.F. to Family Tree, but shortly thereafter she was placed in the Family Preservation Program. J.R.F. attended Extra Mile and completed their nurturing parenting program but did not compete the visiting coaching portion of the program in November 2016.

J.R.F. was re-referred to visiting coaching in April of 2018, just prior to trial, but was discharged due to non-compliance. Apparently, J.R.F. did not like the visiting coach who was working with her because the coach told Ms. Clay that J.R.F. was pregnant. Due to the lack of other visiting coaches available at Extra Mile, J.R.F. was given the choice of working with her former coach or being discharged from the program, and she chose to be discharged. As a result, the trial court found J.R.F. was only partially compliant with this portion of her case plan.

Visitation

The case plan required that J.R.F. was to "maintain contact with the minor child." The trial court found that J.R.F. was only partially compliant with this portion of her case plan. Although J.R.F. had been attending weekly visits since February 18, 2018, J.R.F. only attended thirteen of the fifty-two scheduled visits from May 2017 to May of 2018. J.R.F. did not visit from October 18, 2016 to February of 2017 or from June 17, 2017 to October 5, 2017.

Further, her behavior at the visits was the cause for the requirement that she work with a visiting coach. Her visits with the child were disruptive. Ms. Clay testified that she had attempted to obtain a different visiting coach for J.R.F., but the agency would not pay for the service as J.R.F. was already getting free services from Extra Mile. However, Ms. Clay did testify that J.R.F. had been more consistent with her visits in recent months, and that her interaction with the child was "getting better."

Domestic Violence Classes

The trial court found that J.R.F. was required to participate in domestic violence classes and that she was compliant with this portion of her case plan and is "addressing domestic violence with her counselor."

After an independent review of the record, we find no manifest error in the trial court's ruling that J.R.F. is only partially in compliance "with some portions of the plan since the beginning of 2018." We therefore affirm the trial court's finding that DCFS has proven by clear and convincing evidence pursuant to Louisiana Children's Code Article 1015(6) that J.R.F. has failed to substantially comply with the components of her case plan. We find this assignment of error to be without merit.

Assignment of Error Two - No Expectation Of Significant Improvement

Pursuant to La.Ch.Code art. 1015(6), DCFS must prove by clear and convincing evidence:

(6) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.

More than two years have elapsed since M.J.F. was removed from J.R.F. Based on our independent review of the record, this court finds, as did the trial court, that in the beginning of 2018, after the DCFS initiated proceedings in December 2017 to terminate J.R.F.'s parental rights and free M.J.F. for adoption, J.R.F. began to make some effort to comply with the terms of her case plan. However, the trial court found that J.R.F. continued to have positive drug screens, and her substance and mental health issues have continued to preclude her from maintaining stable employment and independent housing.

Further J.R.F. is presently caring for a one-year old child, born after M.J.F, though not independently and with continued monitoring by DCFS.

Ms. Clay testified on cross examination that J.R.F. had given her the name of a third possible father for M.J.F. about a week before trial, but DCFS had not had the opportunity to contact him. However, on re-examination Ms. Clay testified that J.R.F. did not provide her with any information on the potential father including his address, date of birth, or any additional information that would assist in finding this individual. As previously stated, two other potential fathers for M.J.F., named by J.R.F. have been excluded by DNA testing.

Ms. Clay further testified that J.R.F.'s mother had been considered as a possible placement for M.J.F., however, she tested positive for marijuana, and did not have the living space in her home at the time. Ms. Clay also attempted to contact J.R.F.'s sister, but she failed to respond.

Ms. Clay testified that she felt she had done as much as possible to assist J.R.F. with her case plan and that it was in M.J.F.'s best interest to be freed for adoption.

The trial court found in its May 16, 2018 written reasons:

The minor child has been in the custody of the Department of Children and Family Services since December 4, 2015. The mother has only recently achieved partial compliance with some portions of her case plan beginning in 2018. Throughout these proceeding[s] she has continuously had positive drug screens, the last one being as late as March 15, 2018. J.R.F. has had over two years to address the issues that brought the minor child into custody. There is no reasonable expectation of significant improvement in J.R.F.'s condition or conduct in the near future.

Therefore, for the reasons stated by the trial court and after a thorough review of the record, we find no manifest error in the trial court's determination that J.R.F. "only recently achieved partial compliance with some portions of her case plan beginning in 2018," and there is a lack of any reasonable expectation of significant improvement by J.R.F. in the near future, as she continues to manifest the same problems that brought the minor child into DCFS's custody. See La.Ch.Code art. 1015(5) - (6).

Assignment of Error Three - Best Interest Of The Child

A trial court may terminate parental rights only if it finds that termination is in the best interest of the child. See La.Ch.Code art. 1037(B) ; State in the Interest of D.H.L. , 08-39 (La.App. 3 Cir. 4/30/08), 981 So.2d 906. "This analysis requires a balancing of the child's interests and the parent's interests; however, it has been repeatedly held that the interests of the child are paramount to that of the parent." State in the Interest of G.E.K. , 14-682, p. 3 (La.App. 3 Cir. 1/14/15), 155 So.3d 713, 716.

Ms. Clay testified that M.J.F. was doing well in his placement and that his foster parents were attentive to all of his medical needs and his "necessities." With the assistance of J.M. and M.M., M.J.F. is "making tremendous progress." His cognitive therapist reported that M.J.F. is "exceeding" with his colors, shapes and language. Further, M.J.F. has remained in his foster home with J.M. and M.M. for all but eight weeks of his now three year old life. J.M. and M.M. have stated in their petition of intervention that they are able and willing to adopt M.J.F.

In its findings as to the determination of the best interest of the child in relation to the parental rights of J.R.F., the trial court stated:

The child has a right to permanency and stability which cannot [be] maintain[ed] if placed with [his] mother. It would be an injustice to the child to continue to give the mother unlimited chances to complete her case plan. It is not in the child's best interest to remain in foster care in the hopes that one day [his] mother will address the same issues that brought [him] into care initially. The minor child is in an adoptive placement and has been in the home with the foster parents for over two years.
Considering the child's young age and need for a safe, stable, and permanent home, the best interest of the child is served by terminating the parental rights of his parents, thereby releasing him for adoption.

We agree with the comprehensive and well-articulated reasons of this experienced trial judge. Based on the record before us and especially considering that M.J.F. has been in the custody of the foster parents J.M. and M.M. for all but eight weeks of his young life, we find no manifest error and affirm the trial court's finding that the termination of J.R.F.'s parental rights and releasing M.J.F. for adoption is in the best interest of the minor child.

CONCLUSION

For the foregoing reasons, we affirm in its entirety the trial court's June 7, 2018 judgment terminating the parental rights of J.R.F. and the unknown father, and certifying M.J.F. eligible for adoption. All costs are assessed to J.R.F.

AFFIRMED.

      The initials of the children and their parents are used to protect the identity of the minor child. Uniform Rules-Courts of Appeal, Rules 5-1, 5 -2.

      Louisiana Children's Code Article 1015 was amended effective August 1, 2018. Judgment was rendered on June 7, 2018 and therefore the prior version of La.Ch.Code art. 1015 applies. However, the pertinent provisions of the article have remained the same.

      Louisiana Children's Code Article 1036 was amended effective May 15, 2018. Judgment was rendered on June 7, 2018 and therefore the new version of La.Ch.Code art. 1036 applies. Again, the pertinent provisions of the article have remained the same.


source: Caselaw Access Project

license: Public Domain

text:
    Barbara E. DAVIDSON v. Charles Eugene SANDERS, Sr., et al.
    18-308
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2018
   Russell L. Potter, Stafford, Stewart & Potter, P.O. Box 1711, Alexandria, LA 71309, (318) 487-4910, COUNSEL FOR DEFENDANT: Dixie Roofing and Sheet Metal Company, Inc.

Ricky L. Sooter, Attorney at Law, 4615 Parliament Drive, Suite 202, Alexandria, LA 71309-1791, (318) 767-2226, COUNSEL FOR PLAINTIFF/APPELLANT: Barbara E. Davidson

Charles D. Elliott, Charles Elliott & Associates, 720 Murray Street, Alexandria, LA 71301, (318) 704-6511, COUNSEL FOR DEFENDANTS/APPELLEES: Charles Eugene Sanders, Sr., Charles Eugene Sanders, Jr., Randall Paul Sanders, Russell Todd Sanders, Richard Earl Sanders

Jonathan D. Stokes, Gold, Weems, Bruser, Sues & Rundell, P. O. Box 6118, Alexandria, LA 71307, (318) 445-6471, COUNSEL FOR DEFENDANT/APPELLEE: CMR Construction & Roofing, LLC

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Candyce G. Perret, Judges.

GREMILLION, Judge.

The plaintiff-appellant, Barbara Davidson, appeals the trial court's judgment granting summary judgment in favor of the defendants-appellees, Charles Sanders, Sr., Charles Sanders, Jr., Randall Sanders, Richard Sanders, and Russell Sanders (the Sanders defendants) and granting defendant-appellee, CMR Construction & Roofing, LLC's (CMR), exception of no cause of action. For the following reasons, we reverse in part and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

Davidson, who was eighty-three years old at the time of trial, purchased a home on March 22, 2014, from the Sanders defendants for the purchase price of $174,265.00. Davidson had rented the home from the Sanders defendants for the previous ten years. The parties agreed that $50,000.00 of that sum was for the "cost of roof replacement." CMR and Dixie Roofing and Sheet Metal Company, Inc., another defendant not a party to this appeal, completed the repairs to the roof at the Sanders defendants' behest but it continued to leak. Davidson filed a petition for rescission of sale of residential property on March 30, 2017 seeking a return of all funds paid, due to the roof leaks throughout the home that caused her to relocate to a nearby apartment in June 2016. Attached to her petition was the roof labor warranty agreement issued by CMR warrantying the work for a period beginning May 15, 2014 and ending May 15, 2024.

In their answer, the Sanders defendants pled as affirmative defenses that the claims were in redhibition and, therefore, subject to a one-year prescriptive period and prescribed. The Sanders defendants also alleged that Davidson was aware of the roof problems prior to the purchase. They further urged that the house was sold for $120,000.00 and did not include the purchase price of the roof. CMR filed a peremptory exception of no cause of action urging that Davidson had no privity of contract with it since the Sanders defendants hired CMR. CMR further asserted that Davidson failed to set forth any defect in CMR's workmanship or materials and that she failed to follow the requirements set forth in the warranty, thereby voiding it. To wit, CMR claimed that Davidson contacted a representative of Dixie Roofing (who replaced the flat roof section) to repair the roof, as opposed to CMR (who replaced the Spanish Tile portion of the roof) and failed to comply with the warranty's notice requirements, causing it to be void.

In September 2017, the Sanders defendants filed a motion for a hearing on the exception of prescription and motion for summary judgment. In her opposition to the motion for summary judgment, Davidson argued that her claims were based on a breach of contract claim and that the only parties alleging a redhibitory defect were the Sanders defendants. Davidson amended her petition to allege breach of contract, lack of contract due to failure of cause, consent, and/or future object and urged that all defendants had been unjustly enriched. Attached to her amending petition was a proposal for services from CMR to Dixie Roofing.

Following a hearing on the motion for summary judgment in December 2017, the trial court granted summary judgment in favor of the Sanders defendants and granted CMR's exception of no cause of action. Davidson now appeals and asserts as error:

1. The trial court erred in dismissing Davidson's action against Sanders with prejudice by granting the summary judgment on the issue of redhibition when the facts pled by Davidson lead to issues as to whether there was a valid contract, a breach of contract, detrimental reliance, and/or unjust enrichment.
2. The trial court erred in finding that the Sanders did not judicially admit to the fact that they were paid $50,000 for the replacement of the roof.
3. The trial court erred in granting the Exception of No Cause of Action against CMR as the facts pled are sufficient to state at least one cause of action against CMR.

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La. 7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). This means that judgment must be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party's claim. Id. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.
Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La. 1/16/98), 706 So.2d 979. In deciding whether facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

Am. Zurich Ins. Co. v. Caterpillar, Inc. , 12-270, pp. 4-5 (La.App. 3 Cir. 10/3/12), 99 So.3d 739, 742-43.

At the hearing on the motion for summary judgment, the Sanders defendants argued that Davidson's claim was in redhibition but that it would fail because she knew of the defects prior to the sale, and, even if she did have a claim in redhibition, it was prescribed. Davidson, on the other hand, argued her claims were based on a breach of contract for which rescission was a remedy because she did not receive the house and new roof as agreed upon. The trial court agreed with the Sanders defendants that the claim was one in redhibition and that it was prescribed.

In brief, Davidson points to the fact that she paid the Sanders defendants $174,265.00, which included $50,000.00 for the roof replacement. She argues that the Sanders defendants were responsible for replacing the roof and that she detrimentally relied on their representations that the roof would be replaced. Finally, Davidson argues, pursuant to breach of contract, the parties never had a meeting of the minds as to the scope of the sales contract or the Sanders defendants breached their obligations by failing to have the roof properly replaced.

Moving Party's Motion

Central to Davidson's argument is that her petition was not based in redhibition, but breach of contract, yet the trial court based its grant of summary judgment on redhibition. The issue of the focus of the moving party's pleading in granting a summary judgment has been addressed. In Berman Daferner, Inc. v. Causey , 97-1647 (La.App. 1 Cir. 9/25/98), 723 So.2d 467, the plaintiff's petition sounded in redhibition, but the trial court's grant of summary judgment in the plaintiff's favor was based on breach of contract. On appeal, the appellate court "reserved for another time the issue of whether it was appropriate for the trial court, in a motion for summary judgment, to base its decision on a cause of action (breach of contract) which was not specifically set forth in the allegations of plaintiff's petition." Id. at 468. The appellate court remanded the case. Again, on appeal, the appellate court noted that the trial court referenced breach of contract without discussing redhibition. The appellate court, in addressing the second appeal after remand stated, "Because this was an action for redhibition, Daferner had the burden of proving the existence of a redhibitory defect (forgery) in the summary judgment proceeding." Id. at 469. Thus, the appellate court found that the granting of summary judgment in plaintiff's favor was in error as there were genuine issues of fact. In a footnote, the court noted that the plaintiff may have, in fact, had a cause of action for breach of contract, but noted that "the allegations of the petition do not satisfactorily set forth such a claim; therefore, Daferner's motion for summary judgment based on a claim for breach of contract was improper." Id. at fn 2. Notably, the appellate court found plaintiff's own summary judgment motion inadequate for failing to produce evidence in accordance with the claims in its own petition (redhibition rather than breach of contract). In the facts before us now, the opposing party in its motion for summary judgment seeks to control the pleadings filed by the plaintiff.

The case relied upon by Davidson further supports the position that a motion for summary judgment is not the vehicle to change or challenge the nature of plaintiff's allegations. In Balthazar v. Hensley R. Lee Contracting, Inc. , 16-920 (La.App. 4 Cir. 3/15/17), 214 So.3d 1032, writ denied , 17-777 (La. 9/22/17), 228 So.3d 741, the defendant proposed a theory not advanced by the plaintiff in its motion for summary judgment. In addressing this issue, the appellate court stated:

The basis for HRL's request for partial summary judgment fails to address the actual claim asserted in Plaintiffs' petition.
....
While summary judgment may be rendered only on those issues set forth in the motion under consideration pursuant to La.C.C.P. art. 966(F), the motion itself does not dictate the nature of a petitioner's claim or the theory of recovery upon which a petitioner seeks redress.
We know of no statute or case law by which an argument raised in a summary judgment motion determines the nature of a petitioner's claim. Rather, the "nature of a claim is determined by the pleadings in the case." Cacamo v. Liberty Mut. Fire Ins. Co. , 99-3479, p. 6 (La. 6/30/00), 764 So.2d 41, 45 (citing Jefferson v. Tennant , 107 So.2d 334 (La App. 2nd Cir. 1958) ). "[B]ecause our civil procedure is based on fact pleading ... the courts must look to the facts alleged to discover what, if any, relief is available to the parties." Carter v. Benson Auto. Co. , 94-158, p. 3 (La.App. 5 Cir. 9/27/94), 643 So.2d 1314, 1315. "That is to say, "the [n]ature of a suit is determined by the facts stated in the petition and the intention of the petitioner in stating the facts."

Id. at 1037-39 (emphasis added).

Based on the facts pled by Davidson and the above jurisprudence, we find that the trial court erred in granting summary judgment based on redhibition, a theory first mentioned by the defendants in their motion for summary judgment. Furthermore, as discussed below, the facts set forth by Davidson preclude the application of the redhibition statutes and set forth sufficient facts to assert a breach of contract claim.

Redhibition versus breach of contract

In this case, both the buyer and seller were aware of the defects in the roof, hence Davidson contracted with the Sanders defendants to have them engage a roofing company to replace the roof subsequent to the sale. This uncontested fact alone precludes the application of the redhibition statutes which explicitly apply to latent or hidden defects. Louisiana Civil Code article 2521 provides: "The seller owes no warranty for defects in the thing that were known to the buyer at the time of the sale, or for defects that should have been discovered by a reasonably prudent buyer of such things." Comment (a) to the article reiterates that "apparent defects are not redhibitory vices." Comment (b) to the article provides:

Under this Article, a defect, or vice, is redhibitory when it is hidden, that is, not apparent, nor known to the buyer. Thus, a defect is not hidden, and therefore not redhibitory, when the buyer knows of it either because it was disclosed by the seller or because the buyer discovered it by himself.

Davidson's petition sets forth sufficient facts to state a claim for breach of contract, i.e., Davidson paid the Sanders defendants $50,000.00 to ensure proper replacement of the roof, and that the roof replacement was defective. Accordingly, summary judgment in favor of the Sanders defendants based on redhibition was erroneous and the Sanders defendants' exception of prescription is moot.

EXCEPTION OF NO CAUSE OF ACTION

On appeal, we review the trial court's grant of an exception of no cause of action using the de novo standard of review. ERA Helicopters, LLC v. Amegin , 15-753 (La.App. 3 Cir. 12/9/15), 181 So.3d 241.

The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition. The burden of showing that the plaintiff has stated no cause of action is upon the exceptor. The public policy behind the burden is to afford the party his day in court to present his evidence. Jarrell v. Carter , 577 So.2d 120 (La.App. 1 Cir.), writ denied , 582 So.2d 1311 (La.1991). The exception is triable on the face of the papers, and for the purpose of determining the issues raised by the exception, the court must presume that all well-pleaded facts in the petition are true. All reasonable inferences are made in favor of the nonmoving party in determining whether the law affords any remedy to the plaintiff. LA.CODE CIV.P. arts. 927, 931 ; Mayer v. Valentine Sugars, Inc. , 444 So.2d 618 (La.1984)....
Generally, under LA.CODE CIV.P. art. 931 parties may introduce no evidence to support or controvert the exception. See, e.g., Treasure Chest Casino, L.L.C. v. Parish of Jefferson , 96-1010 (La.App. 1 Cir. 3/27/97), 691 So.2d 751, 754, writ denied , 97-1066 (La. 6/13/97), 695 So.2d 982....
An exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the petition that there is some insurmountable bar to relief. Thus, dismissal is justified only when the allegations of the petition itself clearly show that the plaintiff does not have a cause of action, or when its allegations show the existence of an affirmative defense that appears clearly on the face of the pleadings. [City of New Orleans v.] Board of Comm'rs of Orleans Levee Dist. , 640 So.2d [237] at 237 [ (La. 1994) ]. A court appropriately sustains the peremptory exception of no cause of action only when, conceding the correctness of the well-pleaded facts, the plaintiff has not stated a claim for which he can receive legal remedy under the applicable substantive law.
City of New Orleans v. Bd. of Dir. of Louisiana State Museum , 98-1170, pp. 9-10 (La. 3/2/99), 739 So.2d 748, 755-56.

Sun Coast Contracting Servs., Inc. v. Dien's Auto Salvage, Inc. , 14-307, pp.1-2 (La.App. 3 Cir. 10/1/14), 148 So.3d 964, 966-67, writ denied , 14-2432 (La. 2/13/15), 159 So.3d 465.

At the hearing on the exception of no cause of action, CMR argued that Davidson's own attachment to her petition-the warranty issued by CMR to Davidson-indicated it was voided because another party was called out to do repair work and no notice was given to CMR. Further, CMR claims there can be no detrimental reliance claim because CMR has not made any representations to Davidson. CMR argues that there can be no undue enrichment because Davidson did not pay CMR. The trial court granted CMR's exception finding that the only claim available to Davidson against CMR was a limited warranty claim.

Davidson conceded in brief and at oral argument that CMR's liability is to the Sanders defendants, the party with whom it contracted. Accordingly, we find no error in the trial court's grant of CMR's exception of no cause of action. We take note, however, of CMR's attempt to void the limited warranty given to the third-party beneficiary (the plaintiff) who was not responsible for hiring two different companies to perform the roof replacement. Further, Davidson contacted the other roofing company at the Sanders defendants' instruction.

CONCLUSION

The trial court's judgment granting summary judgment in favor of the defendants-appellees, Charles Sanders, Sr., Charles Sanders, Jr., Randall Sanders, Richard Sanders, and Russell Sanders, is reversed. The trial court's grant of the defendant-appellee, CMR Construction & Roofing, LLC's, exception of no cause of action, is affirmed. All costs of this appeal are assessed to Charles Sanders, Sr., Charles Sanders, Jr., Randall Sanders, Richard Sanders, and Russell Sanders.

REVERSED IN PART;

AFFIRMED IN PART .


author: KEATY, Judge.

text:
    Michael D. VANEK and Vanek Real Estate, LLC v. Charles ROBERTSON and Div-Conn of Lake Charles, LLC
    18-321
    Court of Appeal of Louisiana, Third Circuit.
    December 6, 2018
    Thomas J. Gayle, Gayle Law Firm, LLC, 713 Kirby Street Lake Charles, Louisiana 70601, (337) 494-1220, Counsel for Plaintiffs/Appellants: Michael D. Vanek, Vanek Real Estate, LLC Billy E. Loftin, Jr., Brian M. Bradford, Loftin, Cain & LeBlanc, L.L.C., 113 Dr. Michael DeBakey Drive, Lake Charles, Louisiana 70601, (337) 310-4300, Counsel for Third Party Defendant/Appellee: Bonita Sedano
    Marshall J. Simien, Jr., Simien Law Firm, 2129 Fitzenreiter Road, Lake Charles, Louisiana 70601, (337) 497-0022, Counsel for Defendants/Appellees: Charles Robertson, Div-Conn of Lake Charles, LLC
    Court composed of Phyllis M. Keaty, D. Kent Savoie, and Van H. Kyzar, Judges.
   KEATY, Judge.

This is a breach of contract case. The plaintiff appeals a judgment granting a motion for partial summary judgment filed by the third party defendant insofar as the judgment, in addition to dismissing the third party demands against the third party defendant, also dismissed the plaintiff's claims against the original defendants. More specifically, the plaintiff asserts that the trial court erred, as a matter of law, in dismissing the principal demand when no motion for summary judgment was filed by a party to the principal action. The plaintiff does not appeal the grant of summary judgment in favor of the third party defendant.

FACTS AND PROCEDURAL HISTORY

The facts relative to this appeal are not in dispute. Michael D. Vanek and Vanek Real Estate, LLC (hereafter collectively referred to as Plaintiff or Vanek), filed suit against Charles Robertson and Div-Conn of Lake Charles, LLC (hereafter collectively referred to as Defendant or Robertson), for breach of a listing agreement concerning a commercial building on property located at 2750 Power Center Parkway in Lake Charles, Louisiana (the property). The listing agreement was signed on December 1, 2010, by Robertson as seller, Vanek as broker, and Bonita Sedano as agent, and it expired by its own terms at midnight on October 4, 2011. The listing agreement contained a clause which provided that, "Brokerage fees will also be earned by the BROKER when a tenant, placed by the BROKER, purchases the leased premises during the initial lease period of any lease extensions or within 80 days after the lease/extension expires."

In his suit against Robertson, Vanek sought a commission for a sale of the property that took place on July 31, 2014. Vanek alleged that beginning in May 2011, the property was leased three separate times, each for a one-year term, with the last lease lapsing on June 30, 2014. According to Vanek, Robertson paid him 6% commission on each of those three leases, as called for in the listing agreement. The petition alleged that Robertson failed to pay Vanek a commission in conjunction with the July 2014 sale of the property, instead paying a commission to a different broker. Vanek further alleged that Robertson "ratified the validity and existence" of the listing agreement by paying the three aforementioned commissions and that "Vanek's agency was the procuring cause for the Charter Academy to rent, and subsequently purchase, the building owned by Robertson." In two supplemental and amending petitions, Vanek alleged that "Robertson confirmed and ratified" the listing agreement "by accepting the benefit of the assignment of the listing agreement from 'Charter Schools USA,' to other entities, namely Lake Charles Charter Academy Inc. and Southwest Louisiana Charter Academy Foundation, Inc."

In response to Vanek's petition, Robertson filed an answer, reconventional demand, and third party demand. In his answer, Robertson asserted that the listing agreement relied upon by Vanek had expired when the sale occurred. Robertson further asserted that the listing agreement was a one-party listing for Charter Schools, USA, Inc. and its assigns, and that the purchaser of the property, Southwest Louisiana Charter Academy Foundation, Inc. (SLCAF), a non-profit Louisiana corporation, was not affiliated with or in any way an "assign" of Charter Schools, a Delaware corporation. According to his reconventional demand, Robertson had paid Vanek commissions that were not due, and he sought a refund of those payments from Vanek.

Robertson also filed a third party demand against Sedano, the real estate agent employed by Vanek, who represented Charter Schools when the listing agreement was signed in 2010. Robertson alleged that at some point after the listing agreement expired, Sedano ceased working for Vanek and became employed by Century 21 Mike D. Bono & Co. (Bono). According to Robertson, during the negotiations of the 2014 sale of the property, Sedano had assured him "that Vanek's listing agreement had expired, that she could act as a dual agent to list and purchase the property, that she had been in communication with Vanek, and that if Vanek had any issues with the sale of the property," she would resolve them with him. After the sale of the property was completed in 2014, Robertson paid a commission to Sedano and Bono. When Vanek later filed this suit seeking a commission from Robertson, Robertson filed the third party demand against Sedano, alleging that she was responsible for distributing any commission due to Vanek.

Upon being sued as a third party defendant, Sedano filed a cross-claim against Vanek, alleging that he had waived his right to any commission owed on the sale of the property. Thereafter, Sedano filed a motion for partial summary judgment against Vanek and Robertson. In her motion, Sedano alleged that per the explicit terms of a written agreement that she and Vanek entered into in August 2013 upon the severance of their broker-realtor relationship, it was agreed that Sedano would retain SLCAF as her client and no future commissions involving it would be shared between them. That agreement, which was attached as an exhibit to Sedano's motion, provided:

Mike Vanek and Bonita Sedano have been involved in a broker-realtor Relationship and have jointly participated in the closure of various real estate transactions which entailed a sharing [of] commission[s] on an agreed upon percentage. Each party desires to sever this relationship and agree to release the other from complete liability for all expenses incurred to date by Vanek Real Estate as a result of this relationship. Each party wishes to terminate all collaboration on projects where a commission fee will be paid with the exception of the sale of land to Southwest Louisiana Charter Academy Foundation at the corner of McNeese and South Park St. in the City of Lake Charles. Each party agrees to share the commission on the transaction on an equal basis. Mike Vanek and Bonita Sedano wish to amicably terminate their relationship with each party continuing to recognize that Bonita Sedano shall retain Lake Charles Charter Academy Foundation and [S]outhwest Louisiana [C]harter Academy [F]oundation as her exclusive clients hereinafter, and that no further commission fees shall be shared on any future transactions involving either Foundations.

In her motion for partial summary judgment, Sedano explained that, as called for in their agreement, Vanek received a commission from the November 2013 sale of the land at the corner of McNeese and South Park Street, a property different from the one at issue in this matter. She further explained that after signing the agreement, she and Bono, as agent and broker, entered into a one-time listing agreement with SLCAF in May 2014 regarding the subject property. Finally, she noted that Robertson had paid a commission to her and Bono after the July 2014 sale of that property. Although Sedano was not sued by Vanek, the relief sought in her motion was judgment in her favor dismissing Vanek's claims against Robertson and dismissing Robertson's third party demand against her.

Vanek opposed Sedano's motion on the grounds that many material questions of fact remained, thus precluding the granting of summary judgment. In a pleading titled Defendant's Memorandum in Response to Bonita Sedano's Motion for Partial Summary Judgment, Robertson asserted defenses to the merits of Vanek's claims against him which were not dependent upon the Vanek/Sedano agreement. Robertson also asserted that Vanek's claims against him should be dismissed for the reasons set forth in Sedano's motion; however, Robertson did not file a motion seeking summary judgment against Vanek on his behalf. Alternatively, Robertson suggested that Sedano's motion for partial summary judgment should be denied because of the existence of genuine issues of material fact "regarding what was contemplated" in the agreement between Sedano and Vanek "and their effect on the outcome of any claim" against them.

Sedano's motion for partial summary judgment was heard on November 27, 2017. At the conclusion of the hearing, the trial court granted Sedano's motion from the bench. Sedano's counsel prepared a judgment which was circulated to the parties. Counsel for Vanek filed an objection to the form of the judgment, arguing that there was no procedural mechanism which authorized the trial court to dismiss Vanek's principal demand against Robertson because Sedano was the only party who moved for summary judgment, and Vanek had not sued her. Nevertheless, the trial court signed a judgment on December 11, 2017, which contained the following decretal language: "the Motion for Partial Summary Judgment filed by BONITA SEDANO is hereby GRANTED dismissing plaintiffs' claim against the defendants, and thereby dismissing all third party demands against BONITA SEDANO as third party defendant." This appeal by Vanek followed.

DISCUSSION

Vanek is not appealing the trial court's granting of summary judgment in favor of Sedano. Instead, he appeals the relief granted by the trial court in conjunction with its grant of Sedano's motion for partial summary judgment. We view the question before us as one of law.

"On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record." State, Through La. Riverboat Gaming Comm'n v. La. State Police Riverboat Gaming Enf't Div. , 95-2355, p. 5 (La.App. 1 Cir. 8/21/96), 694 So.2d 316, 319. "Appellate review of a question of law involves a determination of whether the lower court's interpretive decision is legally correct." Johnson v. La. Tax Comm'n , 01-964, p. 2 (La.App. 4 Cir. 1/16/02), 807 So.2d 329, 331, writ denied , 02-445 (La. 3/8/02), 811 So.2d 887.

Billeaudeau v. Opelousas Gen. Hosp. Auth ., 17-895, p. 2-3 (La.App. 3 Cir. 4/18/18), --- So.3d ----, ----.

Before issuing its oral ruling granting Sedano's motion for partial summary judgment, the trial court stated:

This matter comes to the Court on a motion for partial summary judgment filed by counsel for Ms. Bonita Sedano and joined in by counsel for Charles Robertson, et al. The Court is well aware that summary judgment is a favors [sic] proceeding in the State of Louisiana, but summary judgment should only be awarded where there are no genuine issues of material fact. In this particular case, the parties seem to agree on the facts so what is the Court left with is a question of law, in the Court' s opinion, as to whether or not the agreement entered into by Ms. Sedano and Mr. Vanek is applicable to the sale that's in question in this case.... The time that both parties enter[ed] into this contract, they had knowledge of everything in this particular case. In this Court's opinion to allow the broker and the relator [sic] to enter into this particular contract that outlines how they are going to amicably sever their relationship knowing who their clients are at the time, to allow that to work to the detriment of Charles Robertson would be an inequitable result and it just would not be right. The Court wrestled with whether or not this was a factual question versus a legal question and this Court lines [sic] squarely that this is a legal question because this is a question of whether or not this agreement applies. This Court feels that this agreement governs the relationship and how these parties are going to divide up future commissions. This Court finds that the commission, as it relates to the property in question, is a future commission and this contract governs those facts. So applying this contract to those facts, a motion for partial summary judgment is definitely in order and is appropriate because there are no disputed facts. So this Court grants the motion for summary judgment in favor of all defendants.

On appeal, Vanek does not dispute that he entered into an agreement with Sedano in August 2013, and he does not question that she was entitled to partial summary judgment dismissing Robertson's third party demand against her. He claims, however, that the trial court committed a procedural error in dismissing the claims he asserted in his principal demand against Robertson because Robertson did not file a motion for summary judgment against him. Vanek further claims that because he did not sue Sedano, the trial court was procedurally precluded from dismissing any part of his principal demand. In support of his argument, Vanek points to Dennison v. Liberty Mutual Insurance Co ., 94-26 (La.App. 1 Cir. 11/10/94), 645 So.2d 1227, wherein the first circuit reversed the trial court's grant of summary judgment in favor of a third party defendant against the plaintiff who had not named the third party defendant as a direct defendant. In doing so, the Dennison court stated:

Judgment may not be rendered against a party who is not named as a defendant. Luneau v. Hanover Ins. Co ., 478 So.2d 752, 757 (La.App. 3rd Cir.1985).
Moreover, pursuant to LSA-C.C.P. art. 1111, it is necessary that a plaintiff amend his petition to include a third-party defendant as a direct defendant before a judgment may be rendered in favor of plaintiff and against the third-party defendant. Shaffer v. Illinois Central Gulf Railroad Company , 479 So.2d 927, 929 n. 2 (La.App. 1st Cir.1985), writ denied , 483 So.2d 1021 (La.1986).
Applying these principles of law, we conclude that judgment likewise could not be rendered against the plaintiff and in favor of a party not named as a direct defendant by plaintiff. Because Louisiana Indemnity was not a party to the principal action filed by plaintiffs, the trial court could not properly render a judgment in favor of Louisiana Indemnity dismissing plaintiffs' claims against it, where plaintiffs had not yet asserted such claims.

Id. at 1233-34. Finally, Vanek claims that he was due a commission from Robertson on the July 2014 sale of the property per the terms of the listing agreement they entered into in December 2010 because the sale "closed within 80 days" of June 30, 2014, the date the last lease from which he collected a commission from Robertson expired. In essence, Vanek submits that Robertson contractually obligated himself to pay commissions on the July 2014 sale to two separate brokers.

Robertson counters that La.Code Civ.P. art. 1115, which provides that "[t]he third party defendant may assert against the plaintiff in the principal action any defenses which the third party plaintiff has against the principal demand[,]" gave Sedano the procedural right to assert against Vanek any defenses that Robertson had to Vanek's principal demand against him. Robertson submits that the trial court correctly found that "the Vanek-Sedano contract encompassed and controlled the real estate commission in dispute and that Vanek had already contractually agreed the commission properly belonged to Sedano." Robertson contends that because "Vanek's underlying principal demand[, which was] the sole basis for [his third party] indemnity claim against Sedano, had no basis in fact and in law[, Vanek's principal demand] was properly dismissed."

Robertson cites Jones v. American Bank & Trust Co ., 387 So.2d 1360 (La.App. 1 Cir. 1980), in support of his claim that the trial court herein had the authority to grant summary judgment in favor of a third party defendant and to dismiss the plaintiff's principal demand even though the third party defendant was not joined as a defendant in the principal demand. The Jones court, relying on La.Code Civ.P. art. 1115, affirmed the trial court's grant of summary judgment in favor of a third party defendant whom the original plaintiff had not named as a defendant. We note, however, that upon its de novo review of the evidence in Jones , 387 So.2d at 1363, the first circuit found that "[t]he entire thrust of [the original plaintiff's] case" was disproved by evidence offered by the third party defendant in support of his motion for summary judgment. As we will later discuss, such is not the case in this matter.

Robertson argues that Dennison is distinguishable from this matter because the plaintiff therein could only have a claim against the third party defendant through Louisiana's direct action statute, and the plaintiff had not asserted a direct claim against the third party defendant. We disagree, as there is no mention of the direct action statute in Dennison , nor is there any indication that such statute was a basis upon which the first circuit determined the proposition for which Vanek relies upon in that decision.

According to La.Code Civ.P. art. 966(F), "summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time." (Emphasis added.) Louisiana Code of Civil Procedure Article 862 provides, in pertinent part, that "a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief." Nevertheless, this court has held that " Art. 862 was not intended to confer jurisdiction on a trial court to decide controversies which the litigants have not raised. Due process requires adequate notice to parties of the matters which will be adjudicated." Tassin v. Setliff , 470 So.2d 939, 941 (La.App. 3 Cir. 1985) (citations omitted). See also , Glover v. Med. Ctr. of Baton Rouge , 97-1710 (La.App. 1 Cir. 6/29/98), 713 So.2d 1261.

In the instant case, the only matter set for hearing on November 27, 2017, was Sedano's motion for partial summary judgment against both Vanek and Robertson. While Robertson filed a memorandum in response to Sedano's motion, he did not file a motion for summary judgment on his own behalf nor did he file a pleading joining in Sedano's motion. Thus, the claims that Vanek asserted in his principal demand against Robertson were not under consideration at the November 2017 hearing, nor were the claims that Robertson asserted in his reconventional demand against Vanek. Moreover, Vanek and Robertson, through their principal and reconventional demands, made claims and arguments against one another that were not addressed in, nor dispositive of, Sedano's motion for partial summary judgment. Accordingly, while Robertson correctly notes that Sedano had the right to assert against Vanek any defenses available to Robertson, any such defenses are not dispositive of this appeal.

The transcript from the November 2017 hearing, which was quoted earlier in this opinion, makes clear the fact that the trial court mistakenly believed that Robertson "joined in" the motion for partial summary judgment filed by Sedano. Robertson's having aligned himself with Sedano by asserting, in his response to her motion, that Vanek's claims against him be dismissed for the reasons set forth in Sedano's motion, did not serve to give "adequate notice" to Vanek that his claims against Robertson were at issue and would be "adjudicated" at the November 2017 hearing. Tassin , 470 So.2d at 941. Likewise, Sedano, having sought in her motion the dismissal of Robertson's third party demand against her, as well as Vanek's principal demand against Robertson, could not confer upon the trial court jurisdiction to adjudicate the claims made in Vanek's principal demand. Thus, we conclude that the trial court exceeded its authority and committed legal error in dismissing Vanek's claims upon its granting of Sedano's motion and that portion of the judgment must be reversed.

DECREE

For the foregoing reasons, the portion of the December 11, 2017 judgment "dismissing plaintiffs' claim against the defendants" is reversed, and this matter is remanded to the trial court. In all other respects, the judgment is affirmed. All costs of this appeal are assessed against Charles Robertson and Div-Conn of Lake Charles, LLC.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED .

      Div-Conn of Lake Charles, LLC, is a property management company owned by Charles Robertson.

      Robertson later filed a supplemental and amending third party demand in which he added as third party plaintiffs Katherine Vidrine and his wife, Gloria Robertson, who co-owned the subject property with him. For simplicity, we collectively refer to the three co-owners of the property as Robertson.

      Out of an abundance of caution, Sedano filed an appellee brief in response to Vanek's appeal. As noted previously, Vanek does not appeal the grant of summary judgment in favor of Sedano. Thus, the portion of the judgment dismissing Robertson's claims against her is final.

      See La.R.S. 22:1269.


text:
    SUCCESSION OF Colleen MCCALMONT
    CA 18-344
    Court of Appeal of Louisiana, Third Circuit.
    December 12, 2018 Rehearing Denied January 30, 2019
   Michael Hathorn Davis, P.O. Drawer 12180, Alexandria, LA 71315, (318) 445-3621, COUNSEL FOR APPELLANT: James Addison McCalmont, III

Bernard Slattery Johnson, Cook, Yancey, King & Galloway, P. O. Box 22260, Shreveport, LA 71120-2260, (318) 221-6277, COUNSEL FOR OTHER APPELLEES: Heard, McElroy & Vestal, LLC, Ben Woods

Roger Joseph Naus, Wiener, Weiss, & Madison, 333 Texas Street, Suite 2350, Shreveport, LA 71101, (318) 226-9100, COUNSEL FOR OTHER APPELLEE: Grant McCalmont

Curtis Ray Shelton, Ayres, Shelton, Williams, Benson, & Paine, LLC, Post Office Box 1764, Shreveport, LA 71166-1764, (318) 227-3500, COUNSEL FOR APPELLANTS: Alexandria Management Systems, LLC, J. Mack Ind., LLC, McCalmont Ind., LLC, Premier Technical Plastics (Minden) LLC, James Addison McCalmont, III

William Alan Pesnell, Pesnell Law Firm, P. O. Box 1794, Shreveport, LA 71166-1794, (318) 226-5577, COUNSEL FOR OTHER APPELLEE: James Addison McCalmont, IV

Mark Vilar, Aaron L. Green, Paul Boudreaux, Jr., Vilar & Green, L.L.C., P. O. Box 12730, Alexandria, LA 71315-2730, (318) 442-9533, COUNSEL FOR APPELLEE: James Addison McCalmont, IV, in his capacity as the independent executor of the succession of Colleen Hawthorn McCalmont

Beverly A. DeLaune, Deutsch & Kerrigan, 755 Magazine Street, New Orleans, LA 70130-3672, (504) 581-5141, COUNSEL FOR OTHER APPELLEES: Wise, Martin & Cole, LLC, Michael Wise

Matthew Nowlin, Keiser Law Firm, PLC, P. O. Box 12358, Alexandria, LA 71315, (318) 443-6168, COUNSEL FOR OTHER APPELLEES: Lauren McCalmont, James Addison McCalmont, IV, Payton McCalmont

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

EZELL, Judge.

James McCalmont III, appeals the decision of the trial court below ordering the production of documents and entry onto land in favor of his son, James McCalmont, IV, (hereinafter Jay), as part of the succession of his former wife, Colleen McCalmont. For the following reasons, we reverse the judgment of the trial court in part and affirm in part.

Mr. and Mrs. McCalmont were married in 1985 and had three children. Mrs. McCalmont filed for divorce in August of 2016, but before the divorce was finalized or community property partitioned, she passed away from a brain tumor in February of 2017. Contentiousness from the divorce remained high among the family and spilled into the current succession proceedings. Jay was appointed executor of his mother's estate. As part of his duties in preparing the succession's detailed descriptive list, Jay sought information from Mr. McCalmont regarding property that was believed to be part of the McCalmonts' community property regime. After Mr. McCalmont refused to provide the information, Jay sought to compel discovery, filing a motion to show cause for entry onto land and for production of documents.

On December 4, 2017, the trial court heard the discovery dispute, ruling for Jay. The trial court ordered Mr. McCalmont to produce several types of lists, estimates of properties, as well as personal, financial, and business documents relating to him, his community property, and businesses the couple had held an interest in. The trial court further ordered Mr. McCalmont to allow Jay entry onto certain properties for the purpose of appraising their values for the estate. From that decision, Mr. McCalmont appeals.

On appeal, Mr. McCalmont asserts eight assignments of error, though there is significant overlap between the assignments. For conciseness, we will address the assignments of error in terms of the discovery ordered against Mr. McCalmont's business entities, and that ordered against him personally.

In ruling upon discovery matters, the trial court is vested with broad discretion and, upon review, an appellate court should not disturb such rulings absent a clear abuse of discretion. Sercovich v. Sercovich , 11-1780, (La.App. 4 Cir. 6/13/12), 96 So.3d 600.

Generally, a party may obtain discovery of any matter, not privileged, which is relevant to the subject matter involved in the pending litigation, "including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things." La.Code Civ.P. art. 1422. "Relevant evidence is 'evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Sercovich , 96 So.3d at 603 (quoting La.Code Evid. art. 401. "The test of discoverability is not whether the particular information sought will be admissible at trial, but whether the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Wollerson v. Wollerson , 29,183, p. 2 (La.App. 2 Cir. 1/22/97), 687 So.2d 663, 665.

It is well-established in Louisiana jurisprudence that discovery statutes are to be liberally and broadly construed to achieve certain basic objectives of the discovery process:

(1) to afford all parties a fair opportunity to obtain facts pertinent to pending litigation, (2) to discover the true facts and compel disclosure of these facts wherever they may be found, (3) to assist litigants in preparing for trial, (4) to narrow and clarify the issues between the parties, and (5) to facilitate and expedite the legal process by encouraging settlement or abandonment of less than meritorious claims.

Hodges v. Southern Farm Bureau Cas. Ins. Co. , 433 So.2d 125, 129 (La.1983). However, there are limitations on discovery, particularly "when justice requires that a party or other person be protected from annoyance, embarrassment, oppression, or undue burden or expense." Stolzle v. Safety & Systems Assur. Consultants, Inc. , 02-1197, p. 2 (La. 5/24/02), 819 So.2d 287, 289. In addition, Louisiana jurisprudence has required a showing of relevancy and good cause by a party seeking production of records from a non-party. Id. "An appellate court must balance the information sought in light of the factual issues involved and the hardships that would be caused by the court's order when determining whether the trial court erred in ruling on a discovery order." Wollerson , 687 So.2d at 665. Accordingly, we will review the trial court's ruling for an abuse of discretion.

DISCOVERY OF LLC DOCUMENTS

Mr. McCalmont first argues that specific provisions of the Louisiana Limited Liability Companies Act, La.R.S. 12:1301 -12:1270, expressly restrict an assignee of a membership interest in an LLC to statutorily limited rights that specifically do not include the right to inspect the records of the LLC. He asserts that the trial court abused its discretion in granting Jay's motion to compel and ordering the production of certain financial documents of the involved LLCs. He further argues that the operating agreement for J-Mack Industries specifically restricts assignees of a member from inspecting records. We must find merit in Mr. McCalmont's argument.

An operating agreement, whether written or oral, governs the operation of the LLC. La.R.S. 12:1330. In the absence of such an agreement, the default provisions of the Louisiana Limited Liability Companies Act govern. Susan Kalinka, Limited Liability Companies and Partnerships , 9 Louisiana Civil Law Treatise § 1.5, 16 (3d ed.2001). After a review of the record before this court, the only operating agreement in evidence dealing with the keeping of business records and the rights of assignees was that of J-Mack Industries. The record is silent regarding the remaining LLCs as to their operating agreements and those issues; therefore, we must apply the default provisions of the Louisiana Limited Liability Companies Act. The LLCs, other than J-Mack, will be discussed separately below.

J-Mack Industries

An operating agreement is contractual in nature; thus, it binds the members of the LLC as written and is interpreted pursuant to contract law. Powertrain of Shreveport, L.L.C. v. Stephenson, 49,327 (La.App. 2 Cir. 10/1/14), 149 So.3d 1274 ; La.Civ.Code art.1983. In Henderson v. Sellers , 01-529, pp. 4-5 (La.App. 3 Cir. 12/5/01), 815 So.2d 853, 856, we explained the law pertaining to contractual interpretation:

The interpretive purpose is to determine the common intent of the parties. La.Civ.Code art.2045. In attempting to determine that common intent, we may not seek a different interpretation "when the words of a contract are clear and explicit and lead to no absurd consequences." La.Civ.Code art.2046. However, if words of a contract are susceptible of different meanings, we must interpret them in the manner that "best conforms to the object of the contract." La.Civ.Code art.2048. We are required to interpret a doubtful provision "in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties." La.Civ.Code art.2053. Additionally, where the doubt created by a contract provision cannot be removed, we must interpret that provision against the party who furnished it. La.Civ.Code art.2056.

The determination of whether the words of a contract are clear and explicit or ambiguous is a question of law. Thus, an appellate court's determination on review is whether the trial court interpreted the contract correctly or incorrectly. Hebert v. Ins. Ctr., Inc. , 97-298 (La.App. 3 Cir. 1/7/98), 706 So.2d 1007, writ denied , 98-353 (La. 3/27/98), 716 So.2d 888.

The operating agreement of J-Mack Industries states in section 6.1, Books and Records, that certain records, including several sought by Jay, are to be maintained and to be available to "any Member or an assignee of an Interest." However, the operating agreement more specifically states in section 8.5, Rights of Unadmitted Assignees, that:

A person who acquires all or any portion of an Interest but who is not admitted as a Substituted Member ... shall be entitled only to allocations and distributions with respect to such interest ... but shall have no right to any information or accounting of the affairs of the company, shall not be entitled to inspect the books or records of the company, and shall not have any of the rights of a Member.

We are required by La.Civ.Code art. 2050 to interpret each contractual provision in light of the other provisions in order to arrive at the meaning of the contract as a whole. Interpreting the clauses in the manner that best conforms to the object of the contract, we are forced to conclude that Jay, as an assignee, has "no right to any information or accounting of the affairs of the company, shall not be entitled to inspect the books or records of the company, and shall not have any of the rights of a Member." To ignore that clear, specific provision of section 8.5 in favor of the more generally worded records provision would simply eliminate the effects of section 8.5 entirely and would be an absurd reading of the contract as a whole.

Accordingly, it is clear the operating agreement of J-Mack Industries prohibits Jay from receiving the tax, financial, and other such information the trial court ordered the entities to produce. Therefore, Jay was not entitled to that information and the trial court abused its discretion in ordering J-Mack Industries to produce those documents. The trial court's order compelling J-Mack Industries to produce those documents is, therefore, reversed.

The remaining LLCs

Having discussed the specific operating agreement of J-Mack Industries, we now turn to the Louisiana Limited Liability Companies Act, which governs the remaining companies, whose operating agreements were silent as to the rights of assignees of member interests. Louisiana Revised Statutes 12:1333(A) states:

Except as otherwise provided in the articles of organization or a written operating agreement, if a member who is an individual dies ... the member's membership ceases and the member's executor, administrator, guardian, conservator, or other legal representative shall be treated as an assignee of such member's interest in the limited liability company.

Louisiana Revised Statutes 12:1332(A)(2) reads: "Until the assignee of an interest in a limited liability company becomes a member, the assignor shall continue to be a member."

[Thus] the LLC statute recognizes only one form of interest transfer, an assignment. Even when the disposition of an interest is involuntary, as in the case of death or a charging order by a judgment creditor, the person acquiring rights with respect to the interest of the deceased or debtor member is treated strictly as an assignee of the interest involved. An assignee of an LLC interest is entitled to receive only those distributions and allocations of profits, losses, and tax items that the assignor member would otherwise have received. The assignee may not vote or otherwise participate in the management of the LLC unless and until he is actually admitted to membership in the LLC-a step that requires the unanimous consent in writing of the other members of the LLC

Wendell H. Holmes and Glenn G. Morris, 8 Louisiana Civil Law Treatise, Business Organizations § 44:20 (2018) (footnotes omitted).

[B]ifurcation of membership rights occurs when a member (the assignor) transfers an interest in the LLC, whether by voluntary sale, seizure, or death. The recipient of a transferred interest (the assignee) is immediately vested with the financial rights associated with that interest. The assignee is only entitled to the financial rights that the assignor was entitled to receive, unless and until the assignee is admitted as a member to the LLC. As a result, the management rights remain vested with the assignor, even if deceased, until the assignee is admitted as a member to the LLC. Such admission requires the unanimous consent of the remaining members.

William A. Neilson, Uncertainty in Death and Taxes-the Need to Reform Louisiana's Limited Liability Company Laws , 60 Loy. L. Rev. 33, 36 (2014) (footnotes omitted).

In our review of Louisiana jurisprudence, there appears to be only one case that is directly on point with the matter before this Court. In Kinkle v. R.D.C , L.L.C. , 04-1092 (La.App. 3 Cir. 12/8/04), 889 So.2d 405, plaintiff was the personal representative of the estate of a deceased LLC member. There, the plaintiff sought a declaratory judgment against the LLC, seeking judgment declaring that the estate was entitled to its share of distributions and to an accounting of all the LLC's activities since the member's death. Citing La.R.S. 12:1333, this court found that plaintiff, as the representative of the deceased member, became an assignee of decedent's membership interest in the LLC. Id. Applying the provisions relating to the assignment of a membership interest, especially La.R.S. 12:1330, this court found that while the estate was entitled to any distributions to which decedent was due, it was not entitled to an accounting of the distributions. The court found that plaintiff, "as an assignee, is not entitled to inspect [the LLC's] records, since this action is reserved for members of the LLC." Kinkle , 889 So.2d at 413. In the instant case, we likewise apply the specific provisions of the Louisiana Limited Liability Companies Act and find that Jay, as an assignee, is not entitled to inspect any of the business and financial records he seeks from the LLCs, because that right is reserved for members of the LLC.

We agree with Professors Holmes and Morris that "the LLC statute manages to combine the worst features of both corporation and partnership law.... and creates a form of property that, under the default rules of LLC law, has little transferable value." Wendell H. Holmes and Glenn G. Morris, 8 Louisiana Civil Law Treatise , Business Organizations § 44:20 (2018). We further note that the law as written allows for the creation of situations whereby an assignee of a deceased member's rights, while due distributions, may never be able to see company records to ensure he is actually receiving those distributions in full, because remaining members can simply withhold records that would show what, if anything, may be owed. However, the Limited Liability Companies Act and the limited jurisprudence dealing with the transfer issue before us clearly limit what Jay, as an assignee, is entitled to. While Jay and the estate may be entitled to distributions from the LLCs, they are not entitled to the records which they seek. Accordingly, we must again find that the trial court abused its discretion in ordering the LLCs at issue to provide any business, financial, and tax records to Jay and the estate. The granting of all discovery orders and motions to compel regarding the tax returns, daily journals, cash receipts, company credit card statements, financial statements, property deeds, and any other business records of the LLCs are hereby reversed.

PERSONAL, FINANCIAL, AND OTHER NON-LLC INFORMATION

Mr. McCalmont next asserts several assignments of error concerning discovery ordered involving him personally, the former community, and documents relating to a family trust. We will deal with each briefly, as each item sought requires the same showing and review. To reiterate, in order to be granted the information sought, Louisiana jurisprudence only requires Jay show relevancy and good cause. Stolzle , 819 So.2d 287. The information sought need only appear reasonably calculated to lead to the discovery of admissible evidence. Wollerson , 687 So.2d 663. We find that the trial court did not abuse its discretion in granting the discovery sought by Jay.

Mr. McCalmont claims the trial court erred in ordering him to provide financial records, including credit card statements, dating back to 2011. William Cole testified as an expert certified public accountant. He stated that the bank and credit card records were needed to determine the value of community bank accounts and to determine if any reimbursement claims existed for the estate against Mr. McCalmont. Applying the discovery statutes liberally and broadly, as required by Hodges, 433 So.2d 125, we cannot find an abuse of the trial court's discretion based on this testimony.

Mr. McCalmont next claims the trial court erred in ordering him to provide documents relating to the McCalmont Family Trust. Mr. McCalmont laughably claims that there was no evidence to show that Mrs. McCalmont's estate had any interest in the trust. It is obvious that the point of discovery is to gather evidence to determine if the estate did have any interest therein. Mr. McCalmont is seeking to deny trust information to Jay on the basis of Jay's lack of information regarding that trust. To the contrary, Mr. Cole testified that information regarding the trust was relevant to the succession proceedings, especially as pertaining to estate and gift tax purposes. Based on that testimony, the trial court did not abuse its discretion in ordering discovery regarding the trust.

Mr. McCalmont further maintains that the trial court erred in ordering him to produce records regarding expenses surrounding his paramour during the existence of the former community. Mr. Cole testified that this information could be used in the estate seeking a reimbursement claim against Mr. McCalmont for the use of community funds for a purpose that certainly would not have served common community interests. As any reimbursement claim would be an estate asset, it would certainly be relevant to the succession. The trial court, therefore, did not abuse its discretion in ordering discovery regarding any expenses relating to Kimberly Ilercil.

Mr. McCalmont alleges that the trial court erred in ordering him to value movable property that may be assets of the succession by way of the former community. Mr. McCalmont acts as if he is a completely disinterested third party to his former wife's succession, despite the fact that the community property regime had just been terminated roughly three months before Mrs. McCalmont's death, their divorce had not yet been finalized, and community property had not been partitioned. Mr. Cole testified that it was common on smaller assets to use statements to determine value for tax purposes, rather than the appraisals required of more significant assets. Mr. McCalmont was by all accounts the manager of the family finances and property, and him producing the items sought and values therefor should not be the hardship he claims it to be. The trial court did not abuse its discretion in ordering Mr. McCalmont to value the listed movable properties, as any value would certainly be relevant to Mrs. McCalmont's succession.

Finally, Mr. McCalmont avers that the trial court erred in allowing Jay access to immovable property to view, photograph, and appraise the properties and any movables thereon that could be community property. Mr. Cole again testified that access to the properties was necessary to inspect and value the properties for tax purposes. This testimony was unrefuted. Again, applying the discovery statutes liberally and broadly, we can find no abuse of the trial court's discretion.

The record before this court establishes that Jay has good cause to seek information regarding each personal and financial item referenced above and the information sought could lead to admissible evidence relevant to the succession. Accordingly, the trial court did not abuse its discretion in ordering the production of the discovery sought. The trial court's rulings as to all production regarding Mr. McCalmont both personally and as manager of the former community are hereby affirmed.

For the above reasons, we hereby reverse the judgment of the trial court below granting any and all discovery ordered as to the LLCs the McCalmonts had any interest in. We affirm the judgment in all other respects. Costs of this appeal are hereby assessed against Mr. McCalmont.

AFFIRMED IN PART; REVERSED IN PART.