author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Michael MCPHERSON
    NO. 2018-KH-1158
    Supreme Court of Louisiana.
    April 29, 2019
    Denied. Applicant has previously exhausted his right to state collateral review.
    See State ex rel. McPherson v. State, 15-2127 (La. 3/31/17), 214 So.3d 851.
   WEIMER, J., recused.


source: Caselaw Access Project

author: GUIDRY, J., recused.

license: Public Domain

text:
    STATE of Louisiana v. Corey FLAG aka Co
    NO. 2019-KO-0205
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.
   GUIDRY, J., recused.


text:
    STATE of Louisiana v. Jarrett ANDREWS
    NO. 2019-KO-0354
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


text:
    Cardell ELLIS v. Heath C. MCDONALD, Waterworks Industrial Services, LLC and State National Insurance Company
    Tramissiam Davis v. Heath C. McDonald, Water Works Industrial Services, LLC, State National Insurance Company, Inc., and State Farm Mutual Automobile Insurance Company
    NO. 2019-C-0380
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.
   GUIDRY, J., recused.


text:
    Brady BASS v. DISA GLOBAL SOLUTIONS, INC., Convenient Care, LLC d/b/a Total Occupational Medicine, Randy B. Barnett, D.O., and Psychemedics Corporation
    NO. 2019-CC-0377
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.


text:
    The LATHAN COMPANY, INC. v. The State of Louisiana, DIVISION OF ADMINISTRATION, Office of Facility Planning and Control
    NO. 2019-CC-0331
    Supreme Court of Louisiana.
    April 29, 2019
    Denied.
    WEIMER, J., would grant and docket.
    GUIDRY, J., would grant and docket.
    GENOVESE, J., would grant and docket.


author: GUIDRY, J.

text:
    WORKBOX, L.L.C. v. KENWORTH OF SOUTH LOUISIANA, L.L.C.
    NUMBER 2017 C A 1434
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2018
    Patrick B. Kennedy, Jr., Benjamin P. Mouton, Baton Rouge, LA, Counsel for Plaintiff/Appellee, Workbox, L.L.C.
    Peter B. Sloss, New Orleans, LA, Counsel for Defendant/Appellant Kenworth of South Louisiana, L.L.C.
    BEFORE: WHIPPLE, C.J., GUIDRY, PETTIGREW, McCLENDON, AND CRAIN, JJ.
   GUIDRY, J.

Defendant, Kenworth of South Louisiana, L.L.C. (Kenworth), appeals from a judgment of the trial court awarding plaintiff, Workbox, L.L.C. (Workbox) $49,453.33 in damages. For the reasons that follow, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On August 24, 2007, Workbox purchased a 2006 Kenworth T800 series truck equipped with a 8.9L Cummins Turbo Diesel engine. Workbox designated this truck as "truck # 103," and it was immediately placed into service by Workbox as part of its fleet of delivery trucks.

Thereafter, on June 23, 2011, Workbox brought truck # 103 to Kenworth's service center in Port Allen, Louisiana because the engine was consuming large amounts of oil and was running hot. At the time truck # 103 was brought to Kenworth's Port Allen service center, the truck had 172, 176 miles on the engine. Kenworth inspected the engine and determined that the engine had internal damage and needed an overhaul. Workbox authorized the repairs, and Kenworth completed the repairs on June 28, 2011. Workbox paid Kenworth $15,942.59, plus applicable sales tax for the engine overhaul.

After the repairs were completed, Workbox placed truck # 103 back into service. Truck # 103 was subsequently returned to Kenworth's Port Allen service center several times after June 2011 for various issues and/or problems unrelated to the engine overhaul. However, on August 2, 2012, truck # 103 began leaking oil out of the exhaust and was taken out of service. Thereafter, on August 15, 2012, Workbox returned truck # 103 to Kenworth, where it was determined that it had suffered another engine failure and would require another complete engine overhaul. At the time truck # 103 was returned to Kenworth, it had only accumulated 46,868 miles since the last engine overhaul. Kenworth completed the repairs, for which Workbox paid $18,010.74, and truck # 103 was returned to service in October 2012.

Thereafter, on August 8, 2013, Workbox filed a petition for damages and for breach of contract, naming Kenworth and its insurer as defendants. Workbox asserted that Kenworth breached its obligation to perform the June 2011 diesel engine overhaul in a good and workmanlike manner, which resulted in premature and catastrophic engine failure in truck # 103 approximately one year later. Workbox also asserted that the cause of the 2012 engine failure was the negligence of Kenworth in failing to properly perform the June 2011 diesel engine overhaul; failing to meet or exceed industry standards for repair work of a diesel engine; using replacement parts, components, and/or tools that failed to meet or exceed industry standards for a diesel engine overhaul; allowing employees who were not adequately experienced, certified or trained to perform a diesel engine overhaul; failing to properly inspect and/or discover defects in the engine and/or the repair work prior to providing the repaired engine to petitioner; and failing to properly remove, replace, and install cylinder components. Additionally, Workbox asserted that Kenworth breached implied and express warranties of merchantability and fitness of the repair work performed and parts used in the repair work. Workbox claimed that it sustained damages, including damages to truck # 103's diesel engine and its components, additional expenses to repair/replace the diesel engine, loss of income and profits, increase in expenses due to loss of use of truck # 103, loss of use, and inconvenience. Workbox also specifically sought return of the entire amount it paid for the defective repairs performed by Kenworth on June 28, 2011.

Kenworth answered Workbox's petition, generally denying allegations contained therein and further answering that any alleged damages are attributable solely to Workbox's action or inaction, pleaded as a bar or reduction to Kenworth's liability. Particularly, Kenworth asserted that Workbox's damages, if any, are attributable solely to Workbox's defective, faulty, and deficient maintenance practices. Kenworth further asserted that Workbox failed to mitigate its damages. Finally, Kenworth asserted that Workbox's claims against it are prescribed.

Following a one-day bench trial, the trial court issued written reasons for judgment finding Workbox carried its burden of proving that Kenworth's failure to perform the June 2011 engine overhaul in a workmanlike manner caused truck # 103's diesel engine to fail in August 2012, resulting in damages. The trial court awarded $15,942.59 for the first engine overhaul, $18,010.74 for the second engine overhaul, and $15,500.00 for loss of business income due to truck # 103 being out of service for two months due to the second engine failure. The trial court likewise found Kenworth's claims of liberative prescription and disclaimer of warranties to be without merit. The trial court signed a judgment in conformity with its written reasons, awarding Workbox $49,453.33 in money damages, plus judicial interest and court costs. Kenworth now appeals from the trial court's judgment.

DISCUSSION

Prescription

Ordinarily, a party urging an exception raising the objection of prescription has the burden of proving facts sufficient to support the exception. See Carter v. Haygood, 04-0646, p. 8 (La. 1/19/05), 892 So.2d 1261, 1267. When evidence is introduced at the hearing on an exception of prescription, the trial court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. Onstott v. Certified Capital Corporation, 05-2548, p. 3 (La. App. 1st Cir. 11/3/06), 950 So.2d 744, 746.

In the instant case, Kenworth contends that the claims asserted in Workbox's petition sound in tort and as such, are subject to a liberative prescriptive period of one year. Furthermore, Kenworth contends that because the evidence establishes that truck # 103's engine failed on August 2, 1012, and Workbox did not file its action until August 8, 2013, its claims are clearly prescribed.

From our review of the record, Workbox alleged in its petition that it brought truck # 103 to Kenworth for repairs in June 2011, that Kenworth performed the repairs (i.e., diesel engine overhaul) for a certain price, and that Workbox paid the price to Kenworth for the work performed. With regard to the work performed, Workbox alleged the negligence of Kenworth with regard to the 2011 diesel engine overhaul as well as the breach of contract by Kenworth by breaching its obligation to perform the June 2011 diesel engine overhaul in a good and workmanlike manner.

It is well settled that the same acts or omissions may constitute breaches of both general duties and contractual duties giving rise to actions in both tort and contract. Franklin v. Able Moving & Storage Company, Inc., 439 So.2d 489, 491 (La. App. 1st Cir. 1983). As such, a plaintiff may have two remedies, a suit in contract or an action in tort, and he may elect to recover his damages in either of the two actions. Wilson v. Two SD, LLC, 15-0959, p. 18 (La. App. 1st Cir. 12/23/15), 186 So.3d 103, 116. In such cases, the applicable prescriptive period is determined by the character the plaintiff gives to his pleadings and the form of his action. Wilson, 15-0959 at p. 19, 186 So.3d at 116. If the action is purely one in tort, then it is prescribed by one year. If the action is predicated on breach of the contract, then it is only prescribed by ten years. Wilson, 15-0959 at p. 19, 186 So.3d at 116.

A contract for work or services carries an implied obligation on the contractor to perform in a workmanlike manner, in default of which he must respond in damages for the losses that may ensue. See La. C.C. arts. 1994, 2769 ; Stipp v. MetLife Auto and Home Insurance Agency, Inc., 17-61, p. 11 (La. App. 5th Cir. 8/30/17), 225 So.3d 1182, 1189, writ denied, 17-1774 (La. 12/5/17), 231 So.3d 632. It is clear from Workbox's petition and the evidence introduced at trial that Workbox is claiming damages as a result of Kenworth's failure to perform this obligation. Accordingly, from our review of the record, we find no error in the trial court's finding that Workbox has asserted a claim for breach of the implied obligation of the service contract to perform in a workmanlike manner, and therefore, likewise find no error in the trial court's denial of Kenworth's exception raising the objection of prescription.

Breach of Contract

In order to prevail on a breach of contract claim, the plaintiff must prove by a preponderance of the evidence that: 1) the defendant owed him an obligation; 2) defendant failed to perform the obligation; and 3) defendant's failure to perform resulted in damage to the plaintiff. Stipp, 17-61 at p. 11, 225 So.3d at 1189. A party claiming that repairs are defective or unsatisfactory bears the burden of proving by a preponderance of the evidence that the work was defective. Stipp, 17-61 at p. 11, 225 So.3d at 1189-1190.

It is well settled that a court of appeal may not set aside a finding of fact by a trial court in the absence of manifest error or unless it is clearly wrong, and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings, for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell, 549 So.2d at 844. The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Lirette v. State Farm Insurance Company, 563 So.2d 850, 853 (La. 1990). The effect and weight to be given such expert testimony depends upon the qualifications and experience of the expert and the underlying facts upon which the opinion is based. See ScenicLand Construction Company, LLC v. St. Francis Medical Center, Inc., 41,147, p. 9 (La. App. 2nd Cir. 7/26/06), 936 So.2d 247, 253. When an expert opinion is based on assumed facts that are not supported by the record in the case, the opinion may be rejected. Jordan v. Intercontinental Bulktank Corporation, 621 So.2d 1141, 1153 (La. App. 1st Cir.), writs denied, 623 So.2d 1335 and 1336 (La. 1993).

At trial, plaintiffs introduced the expert testimony of Junius Thomas, a certified diesel engineer. Thomas worked for Workbox as a consultant, inspecting equipment and machinery spaces and the working facility. Thomas stated that he did not know the condition of truck # 103's engine before the 2012 engine failure. Thomas stated that he externally inspected truck # 103's diesel engine in 2012 after it had been disassembled by Kenworth, and in his opinion, the cause of the 2012 engine failure was an incorrect assembly procedure, meaning something was left in the engine. According to Thomas, if dirt or contaminants got into the diesel engine in June 2011, it could cause abnormal wear and engine failure thirteen and a half months later. Thomas further stated that an engine should be cleaned before you remove it out of the compartment, because if an engine is dirty and you disassemble it, that increases the risk that dirt and contaminants can get in the engine during the repair process.

However, Thomas stated that he did not review any documents regarding the 2011 engine overhaul and he did not know what Kenworth did in 2011. Particularly, Thomas stated that he could not say that there was any dirt in the diesel engine when the 2011 engine overhaul was completed. Furthermore, while Thomas speculated that if the engine was dirty and it was not cleaned before disassembling it in 2011, then dirt could have gotten into the engine and caused the 2012 engine failure, the June 28, 2011 invoice clearly states that Kenworth "[p]ressure wash[ed] engine and surrounding area, could not see anything it was so dirty! Steam cleaned the engine and engine bay area." The June 28, 2011 invoice further states that following disassembly and reassembly of the engine, the engine was again steam cleaned. Therefore, the evidence clearly demonstrates that the engine was cleaned both prior to and following the disassembly of the engine in 2011, and therefore, there is no factual basis in the record to support Thomas's opinion that dirt or contaminants were left in or got into the engine in 2011 and that they caused the 2012 engine failure.

Additionally, Thomas stated that Kenworth had failed to document the tolerances and clearances in the 2011 diesel engine overhaul, and without proper clearances and tolerance, the risks for early engine failure are enhanced. Thomas further stated that he knew that the engine would not have failed as quickly as it did if the clearances would have been within specification and, apparently, the clearances were out of tolerance; however, he stated that he did not know that, it was just his opinion. Thomas also acknowledged in his testimony that he did not know what the tolerances were for the June 2011 engine overhaul, and that he did not personally see any evidence of any symptom of improper clearances or tolerances from the June 2011 overhaul. Therefore, the record is completely devoid of any factual evidence supporting that the tolerances or clearances in the June 2011 engine overhaul were improper, or that the failure to document these tolerances and clearances caused the 2012 engine failure.

Accordingly, based on our thorough review of the record, we find that the trial court was manifestly erroneous in affording any weight to Thomas's expert testimony, which had no factual basis in the record. Furthermore, because Workbox failed to produce any other evidence establishing that Kenworth failed to perform the June 2011 engine overhaul in a workmanlike manner, the trial court manifestly erred in finding that Workbox met its burden of establishing its entitlement to damages.

CONCLUSION

For the foregoing reasons, we affirm the portion of the trial court's judgment overruling Ken worth's exception raising the objection of prescription. In all other respects, we reverse the judgment of the trial court. All costs of this appeal are assessed to Workbox, L.L.C.

AFFIRMED IN PART; REVERSED IN PART.

WHIPPLE, C.J., dissents for reasons assigned by J. Crain

McCLENDON, J. concurs in the result reaches by the majority

CRAIN, J. dissents and assigns reasons

CRAIN, J., agrees in part and dissents in part.

I agree Workbox, L.L.C.'s claim is not prescribed, and I concur to the extent the majority reverses a part of the damage award. I disagree with the majority's conclusion the trial court manifestly erred in finding Workbox met its burden of proof. That finding is adequately supported by the following evidence and the inferences reasonably drawn therefrom: (1) the rebuilt engine experienced catastrophic failure only 14 months and about 47,000 miles after the repair; (2) the oil in the engine when it failed was tested and contained no contaminants, controverting the defendant's assertion the engine failed due to ongoing contamination caused by an improperly fitted or maintained air filter; and (3) the plaintiff's expert, based on his review of the disassembled engine and the oil-test results, opined the engine failure was due to the improper reassembly of the engine in the 2011 repair. The parties presented evidence in support of dueling explanations for the engine failure-improper repair versus improper maintenance-and the trial court chose to believe the plaintiffs evidence. That finding is not manifestly erroneous.

As to the waiver of warranty, although the Louisiana Civil Code does not specifically authorize a waiver of Article 2769's implied warranty of good workmanship, such a waiver is permissible if, like a waiver of redhibitory warranties, it is clear and express. See Degeneres v. Burgess, 486 So.2d 769, 773 (La. App. 1 Cir. 1986). The subject waiver does not mention the warranty of good workmanship and appears instead to be an effort to waive any redhibitory warranties issued "in connection with this sale ." (Emphasis added.) While the plaintiff's representative acknowledged he read the provision and understood it was a "disclaimer of what warranties are being provided with the repair," he did not further elaborate or indicate any understanding that the provision, as urged by Kenworth, completely divested the plaintiff of any recourse if Kenworth, after being paid almost $16,000, failed to properly rebuild the engine. The trial court's finding the waiver did not apply to the warranty of good workmanship is not manifestly erroneous. See Degeneres, 486 So.2d at 774.

For the damage award, the trial court manifestly erred in awarding the cost of both repairs, essentially resulting in the plaintiff receiving a rebuilt engine for no charge. That aspect of the award should be limited to the expense incurred to repair the damage caused by the faulty repair, which was $18,010.74 (the bill for the second repair). I concur with the majority to the extent it reverses the award of $15,942.59, the cost of the first repair.

      Kenworth also asserted on appeal that the trial court erred in failing to find that Workbox had waived all warranties as against Kenworth related to the June 2011 repair. Because we find that the trial court erred in finding that Workbox met its burden of establishing a breach of the obligation to perform in a workmanlike manner, we pretermit discussion of Kenworth's affirmative defense regarding waiver of warranty. However, we note that the waiver in the instant case, which Martin Padial, the CEO and owner of Workbox, acknowledged reading and understanding prior to his authorization of the June 2011 diesel engine overhaul, was brought to the attention of the buyer and therefore was effective as against Workbox. See Business Credit Leasing, Inc., v. Lobman, Carnahan & Batt, 635 So.2d 1196, 1199 (La. App. 5th Cir. 1994) (finding that the waiver of warranties clause was brought to the attention of lessee, an attorney, by lessee's own admission that he read the document and saw the waiver of warranties language).


author: PENZATO, J. WHIPPLE, C.J., dissenting.

text:
    ADVANCED LEVELING & CONCRETE SOLUTIONS v. The LATHAN COMPANY, INC.
    2017 CA 1250
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 20, 2018
    Richard L. Crawford, Baton Rouge, Louisiana, Attorney for Plaintiff/Appellee, Advanced Leveling & Concrete Solutions
    Lloyd N. Shields, Andrew G. Vicknair, Alana L. Riksheim, New Orleans, Louisiana, Attorneys for Defendant/Appellant, The Lathan Company, Inc.
    BEFORE: WHIPPLE, C.J., GUIDRY, PETTIGREW, McDONALD, McCLENDON, WELCH, HIGGINBOTHAM, CRAIN, THERIOT, HOLDRIDGE, CHUTZ, AND PENZATO, JJ.
   PENZATO, J.

This is an appeal from a trial court judgment granting a motion for summary judgment in favor of the plaintiff. For the following reasons, we dismiss this appeal.

FACTS AND PROCEDURAL HISTORY

This case involves the construction of the St. Roch Market in New Orleans, Louisiana. The Lathan Company, Inc. ("Lathan") served as the primary contractor on the project and selected Advanced Leveling & Concrete Solutions ("Advanced Leveling") to furnish materials and install concrete floor topping for the project. Without executing a written subcontract, but with agreement on a contract price of $52,800.00, Advanced Leveling began work on the project sometime around August of 2013. On or about February 13, 2014, a representative for the owner of the St. Roch Market accepted the work performed by Advanced Leveling and authorized payment in full by Lathan.

On August 11, 2016, Advanced Leveling filed a petition on open account, alleging that it sold and delivered to Lathan, on open account, goods, wares, merchandise, and/or services. According to the petition, Lathan failed to pay the balance due within thirty days after receipt of written demand, and therefore Advanced Leveling was entitled to recover reasonable attorney's fees in addition to the balance due. Lathan filed an answer to the petition, after which Advanced Leveling filed a motion for summary judgment. Lathan opposed the summary judgment, arguing that there was no evidence of an open account and that genuine issues of material fact existed as to deficiencies in Advanced Leveling's work and the costs Lathan incurred to correct those deficiencies. The matter was heard by the trial court on April 17, 2017, and judgment was rendered in favor of Advanced Leveling. A judgment was signed on May 2, 2017, which provided:

IT IS ORDERED, ADJUDGED AND DECREED, judgment be rendered herein in favor of plaintiff, Advanced Leveling & Concrete Solutions, and against defendant, The Lathan Company, Inc., in the full sum of $16,420.00, together with legal interest from date of judicial demand August 11, 2016 until paid in full, together with reasonable attorney's fees under LSA R.S. 9:2781 and for all costs of these proceedings.

Lathan appealed, asserting that the trial court erred in finding that an open account existed between the parties, and in granting summary judgment when there were factual issues concerning the amount due to Advanced Leveling.

This court subsequently issued an order advising that the matter would be submitted on briefs for en banc consideration by the court. The parties were granted leave to file supplemental briefs specifically addressing the issue of whether the awarding of "reasonable attorney's fees" in the May 2, 2017 judgment rendered the judgment, in whole or in part, non-appealable as uncertain and indefinite in nature. In response to the order, the parties filed a joint motion for limited remand, acknowledging therein that the judgment at issue is non-appealable and requesting that this court stay the appeal to remand the matter for the limited purpose of having the trial court amend the May 2, 2017 judgment to comply with the provisions of La. C.C.P. Art. 1918. The joint motion for limited remand was denied by an order of this court issued October 19, 2018.

APPELLATE JURISDICTION

Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc., 2011-0520 (La. App. 1 Cir. 11/9/11), 79 So.3d 1054, 1059, writ denied, 2012-0360 (La. 4/9/12), 85 So.3d 698. Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court. La. C.C.P. art. 2082. Louisiana Code of Civil Procedure article 2083(A) provides that a final judgment is appealable. A final judgment is one that determines the merits in whole or in part. In contrast, an interlocutory judgment does not determine the merits but only preliminary matters in the course of an action. La. C.C.P. art. 1841.

A valid judgment must be "precise, definite, and certain." Laird v. St. Tammany Parish Safe Harbor, 2002-0045 (La. App. 1 Cir. 12/20/02), 836 So.2d 364, 365. Moreover, a final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Carter v. Williamson Eye Center, 2001-2016 (La. App. 1 Cir. 11/27/02), 837 So.2d 43, 44. These determinations should be evident from the language of the judgment without reference to other documents in the record. Laird, 836 So.2d at 366. The specific nature and amount of damages should be determinable from a judgment so that a third person is able to determine from a judgment the amount owed without reference to other documents. Vanderbrook v. Coachmen Industries, Inc., 2001-0809 (La. App. 1 Cir. 5/10/02), 818 So.2d 906, 913-14.

The May 2, 2017 judgment, sought to be appealed herein, rendered judgment in favor of Advanced Leveling in the amount prayed for. It farther awarded to Advanced Leveling "reasonable attorney's fees," but did not specify the amount of such fees. Because the exact amount of attorney's fees cannot be determined from the judgment, there is no final, appealable judgment before us. In accordance with prior First Circuit jurisprudence, we find that in the absence of a valid final judgment this court lacks subject matter jurisdiction and the appeal should be dismissed.

See Harrison v. Nature's Way Safety Solutions, LLC, 2017-1744 (La. App. 1 Cir. 6/4/18), 251 So.3d 1148, 1151 ; Rosewood Enterprises, Inc. v. Rosewood Development, LLC, 2016-0352 (La. App. 1 Cir. 3/6/17), 2017 WL 900041 (unpublished); In re Interdiction of Metzler, 2015-0982 (La. App. 1 Cir. 2/22/16), 189 So.3d 467, 469.

In dismissing this entire appeal for lack of subject matter jurisdiction, we recognize that there is jurisprudence in which this court elected to vacate only the portion of the judgment that was found to be uncertain and indefinite and concluded that the remaining portions of the judgment were properly reviewable. See Crockerham v. Weyerhaeuser Holden Wood Prod., 2016-0331 (La. App. 1 Cir. 6/2/17), 223 So.3d 533, 544, writ denied, 2017-1121 (La. 10/27/17), 228 So.3d 1232 ; In re Succession of Wagner, 2008-0212 (La. App. 1 Cir. 8/8/08), 993 So.2d 709, 725 ; Vanderbrook, 818 So.2d at 914 ; Clark v. Diamond B. Construction, 2000-2146 (La. App. 1 Cir. 12/28/01), 803 So.2d 1113, 1117. However, we find that the indefinite award of "reasonable attorney's fees" renders the entire judgment non-appealable. That is, Lathan does not have the right to appeal this judgment; thus our appellate jurisdiction is not invoked. We therefore lack appellate jurisdiction to review the remainder of the judgment. We decline to exercise our supervisory jurisdiction to facilitate a review of less than all issues presented. See Best Fishing, Inc. v. Rancatore, 96-2254 (La. App. 1 Cir. 12/29/97), 706 So.2d 161, 166. To the extent that Crockerham and the cases cited therein purport to review portions of a judgment that is not final and appealable pursuant to the court's appellate jurisdiction, those cases are overruled.

CONCLUSION

For the foregoing reasons, we dismiss the appeal of the May 2, 2017 judgment. Costs of this appeal are assessed against the defendant, The Lathan Company, Inc.

APPEAL DISMISSED.

Whipple, C.J. dissents and assigns reasons.

McDonald, J. concurs, but would remand for a proper final judgment.

Chutz, J. - Dissents without reasons

Pettigrew, J. Dissents

Theriot, J. - Dissents

Higginbotham, J. dissents for reasons assigned by C.J. Whipple.

Holdridge J. concurs with reasons

HOLDRIDGE, J., CONCURS, AND ASSIGNS REASONS.

I respectfully concur with the result reached by the majority. The judgment rendered by the trial court was a partial final judgment. It contained the proper decretal language, named the party in whose favor the judgment was rendered, the party against whom the judgment was rendered, and the relief that was granted. See La. C.C.P. art. 1918. See also Carter v. Williamson Eye Center, 2001-2016 (La. App. 1 Cir. 11/27/02), 837 So.2d 43.

However, the judgment was a partial judgment in that it was still necessary for the trial court to fix the amount of "reasonable attorney's fees." In accordance with La. C.C.P. art. 1911(B), "[N]o appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B)."

Since the judgment in this case was not designated a final judgment after an express determination by the trial court, the judgment does not constitute a final judgment for the purpose of an immediate appeal. La. C.C.P. art. 1915(B)(1). It may be revised at any time prior to the rendition of the judgment adjudicating all of the claims of all of the parties. La. C.C.P. art. 1915(B)(2). Had the judgment been certified, the trial court would have retained jurisdiction to adjudicate the remaining issue of the amount of the "reasonable attorney's fees" that the court awarded. Therefore, I concur with the result reached by the majority that the judgment in this case was not appealable since it was a partial final judgment that was not certified by the trial court in accordance with La. C.C.P. art. 1915(B).

WHIPPLE, C.J., dissenting.

I respectfully dissent for the reasons previously expressed in Crockerham v. Weyerhaeuser Holden Wood Products, 2016-0331 (La. App. 1st Cir. 6/2/17), 223 So.3d 533, writ denied, 2017-1121 (La. 10/27/17), 228 So.3d 1232.


author: WHIPPLE, C.J. McClendon, J., concurring.

text:
    Curtis WASHINGTON and Almallica Allen v. Chris W. GUILLOTTE and Louisiana Farm Bureau Casualty Insurance Company
    NUMBER 2018 CA 0301
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2018
    Daniel Frazier, Jr., Baton Rouge, LA, Counsel for Plaintiffs/Appellants, Curtis Washington and Almallica Allen
    Stacey Moak, Christopher W. Stidham, Breann Crane, Baton Rouge, LA, Counsel for Defendant/Appellee, Chris W. Guillotte
    R. Heath Savant, Mark T. Assad, Andrew L. Plauché, Jr., Attie B. Carvill, Baton Rouge, LA, Counsel for Defendant/Appellee, Louisiana Farm Bureau Casualty Insurance Company
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

Plaintiffs, Curtis Washington, Jr. and Almallica Allen, appeal a judgment of the trial court granting summary judgment in favor of defendant, Louisiana Farm Bureau Mutual Insurance Company ("Farm Bureau") and dismissing with prejudice plaintiffs' claims against this defendant. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

This matter arises from an accident, which occurred on I-10 westbound on December 13, 2015, when the car the plaintiffs were traveling in struck a cow allegedly owned by defendant, Chris W. Guillotte ("Mr. Guillotte"). The plaintiffs filed the instant suit, seeking to recover from Mr. Guillotte and the homeowner's insurance policy issued to him and his wife, Amy Guillotte, by Farm Bureau.

Farm Bureau denied coverage for the accident based upon a policy provision, which provides, in pertinent part, as follows: "Coverage E - Personal Liability and Coverage F - Medical Payments to Others do not apply to bodily injury or property damage ... b. arising out of business pursuits of an insured or the rental or holding for rental of any part of any premises by an insured." However, the policy also provides that coverage applies "to a person off the insured location, if the bodily injury ... is caused by an animal owned by or in the care of an insured ." Subsequent to denying coverage, on August 2, 2017, Farm Bureau filed a motion for summary judgment, seeking dismissal of plaintiffs' claims and contending no coverage was provided under the homeowner's policy at issue. On October 20, 2017, a hearing was held on the motion for summary judgment. In support of the motion, Mr. Guillotte's deposition testimony was submitted, which set forth, in pertinent part, the following facts.

Mr. Guillotte has had various animals on his property since approximately 2007. Over the years, he has owned goats, turkeys, ducks, and chickens, but did not own cattle until approximately 2010. Although Mr. Guillotte owned various animals, he generally only sold the cows.

Mr. Guillotte initially decided to begin raising cattle because the upkeep of the farm was expensive. Accordingly, based on the suggestion of a co-worker, Mr. Guillotte purchased a few cattle and began claiming his farm expenses as a deduction on his federal taxes. Mr. Guillotte believed that "if you go and claim the - the animals [as a deduction on your federal taxes] as a farm, you have to show some kind of income." Thus, he used cattle sales to show this income. From the time Mr. Guillotte began keeping cows, until the accident in 2015, he estimated he had bought and sold a maximum of 25 cows. Mr. Guillotte only kept a few cows at a time because he "didn't want to have to maintain so many cows. [He] just wanted them for - for the farm as a write-off, so [he] was just keeping them for - keeping the numbers down."

The cows and donkeys owned by Mr. Guillotte were kept on property neighboring his property. This property is pastureland of approximately 20 to 22 acres that is not owned by Mr. Guillotte, but the owner of the pastureland allowed him to keep his animals on the land as long as he cut the grass and maintained the fencing. Mr. Guillotte only maintained approximately six to seven acres of the pastureland for the cattle to graze upon. Mr. Guillotte did not consistently have cows on the pastureland, but he eventually opted to keep cows on the pastureland so that the upkeep of the land would be more manageable.

Mr. Guillotte testified that his family's traditional farm animals were like pets to them. Further, Mr. Guillotte has no knowledge regarding breeds of cattle, the method by which profit is made from cattle, or how the price for cattle is set. Mr. Guillotte also does not know how to successfully breed cattle. Additionally, Mr. Guillotte did not number his cows or register them with the state; he only recognized them by their physical markings. When Mr. Guillotte first began keeping cattle, he admittedly did not know how to properly feed them.

At the time of the accident, Mr. Guillotte had five cows, which he had purchased at auction in June 2015. Mr. Guillotte testified that one of these cows, a pregnant heifer, escaped confinement shortly after he placed it in the pasture. A man with pastureland in the area, Mr. Culotta, subsequently advised Mr. Guillotte that he believed the missing cow was in his pasture with his herd. The cow remained on Mr. Culotta's property until December 2015. At that time, Mr. Culotta told Mr. Guillotte that he returned the cow to Mr. Guillotte's pasture. However, Mr. Guillotte did not personally see the cow returned to his pasture. In fact, he did not see the cow again after the day of the action. The plaintiffs contend this is the cow involved in their accident.

In his answers to interrogatories and in his deposition testimony, Mr. Guillotte affirmatively stated that on December 13, 2015, the date of the accident, he was not raising livestock for profit. Further, he never intended to actually make a profit from his farming activities, and he has never "broken even" with the farming operation. Instead, the "farming activities" he described always resulted in a loss. However, Mr. Guillotte conceded that he had represented to the federal government on his taxes that he was conducting a farming business for purposes of obtaining the tax deduction. Every year from 2010 through 2016, Mr. Guillotte claimed only losses, never a profit, associated with his "Beef Cattle Ranching and Farming" activities on his federal taxes.

By contrast, Mr. Guillotte testified that his primary source of income has been his employment as an operator at the Valero Refinery, where he has been employed since April 1, 2001. Mr. Guillotte works at least 40 hours per week at the refinery and, by comparison, only spends approximately five to ten hours per year maintaining his cattle.

Other evidence presented to the trial court was the affidavit of Dr. Timothy Page, who was retained by Mr. Guillotte and opined regarding whether Mr. Guillotte's farming operations could be considered "profit making activity" based upon the number of cows Mr. Guillotte kept and the amount of pastureland he had. Dr. Page opined that, at best, a cattle operation such as Mr. Guillotte's would be classified as a part-time hobby, family entertainment, or a 4-H project. He further opined that a farmer with herd of less than 20 to 50 cattle and 40 to 100 acres of pasture "would be unable to conduct any type of profit making beef production activity."

In granting summary judgment, the trial court relied upon the fact that Mr. Guillotte had claimed losses on his federal taxes as a farmer for "Beef Cattle Ranching and Farming" for years 2010 through 2016 and thus, concluded Mr. Guillotte was per se "raising cattle for business purposes." Accordingly, the trial court rendered judgment in favor of Farm Bureau in open court, and on November 7, 2017, the trial court signed a judgment granting Farm Bureau's motion for summary judgment. On June 1, 2018, the trial court signed an amended judgment, which again granted Farm Bureau's motion for summary judgment, but specifically dismissed plaintiffs' claims against Farm Bureau with prejudice and certified the judgment as final under Louisiana Code of Civil Procedure article 1915.

Plaintiffs now appeal, contending the trial court erred in granting summary judgment by failing to recognize that genuine issues of material fact exist for the trier of fact to determine regarding whether Mr. Guillotte's conduct constituted "business pursuits" under the policy, so as to trigger the exclusionary provision of the policy, and by failing to require that Farm Bureau demonstrate that no reasonable interpretation of the policy exists that would afford coverage based upon the foregoing facts.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo under the same criteria that govern a district court's consideration of whether summary judgment is appropriate. Greemon v. City of Bossier City, 2010-2828, 2011-0039 (La. 7/1/11), 65 So.3d 1263, 1267. Generally, in ruling on a motion for summary judgment, a district court cannot make credibility determinations. Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, 99-2257 (La. 2/29/00), 755 So.2d 226, 236. Moreover, the court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of material fact. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam ); Penn v. CarePoint Partners of Louisiana, L.L.C., 2014-1621 (La. App. 1st Cir. 7/30/15), 181 So.3d 26, 30. A fact is "material" when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Hardy v. Bowie, 98-2821 (La. 9/8/99), 744 So.2d 606, 610 ; Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La. App. 3d Cir. 1991), writ denied, 596 So.2d 211 (La. 1992). Simply put, a "material" fact is one that would matter at a 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, 639 So.2d at 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765-766.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover'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 the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P. art. 966(D)(1). The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. LSA-C.C.P. art. 966(D)(2).

When a motion for summary judgment is made and supported as provided in LSA-C.C.P. art. 967, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in LSA-C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B). Whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Larson v. XYZ Insurance Company, 2016-0745 (La. 5/3/17), 226 So.3d 412, 417.

DISCUSSION

Here, the issue for determination is whether the trial court erred in failing to find the existence of a genuine issue of material fact with regard to whether Mr. Guillotte's farming activities constituted "business pursuits" under the applicable policy of insurance.

Plaintiffs contend, essentially, that the trial court erred by weighing evidence, making credibility determinations, and making findings of fact regarding whether Mr. Guillotte's activities constituted a business or business pursuits under the policy at issue, rather than simply asking whether a genuine dispute of material fact existed on the issue.

Farm Bureau, on the other hand, contends the jurisprudence, specifically Melder v. Louisiana Farm Bureau Mutual Insurance Company, 2003-2674 (La. App. 1st Cir. 2/11/05), 906 So.2d 513, writ denied, 2005-0671 (La. 5/6/05), 901 So.2d 1098, dictates that Mr. Guillotte's farming activities must per se be a business pursuit because he claimed tax deductions based on his farming operations from 2010 through 2016. Farm Bureau also contends that the jurisprudentially established elements for finding a business pursuit have been established. Farm Bureau contends that a business pursuit involves continuity of the activity and the expectation of monetary gain, and both of these elements are met in this matter. Farm Bureau asserts that under these elements, Mr. Guillotte's activities constituted a business pursuit.

An insurance policy is a conventional obligation that constitutes the law between the insurer and insured and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. LSA-C.C. art. 1983 ; Peterson v. Schimek, 98-1712 (La. 3/2/99), 729 So.2d 1024, 1028 ; Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183. Words and phrases used in a policy are to be construed using their plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning. LSA-C.C. art. 2047. Where the language in the policy is clear, unambiguous, and expressive of the intent of the parties, the agreement must be enforced as written. LSA-C.C. art. 2046.

Although the purpose of liability insurance is to afford the insured protection for damage claims, liability policies are issued primarily for the protection of the public rather than the insured. See Hickey v. Centenary Oyster House, 97-1074 (La. 10/20/98), 719 So.2d 421, 425. Policies therefore should be construed to effect, and not to deny, coverage. Thus, a provision which seeks to narrow the insurer's obligation is strictly construed against the insurer, and ,if the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied. Reynolds, 634 So.2d at 1183. Finally, it is the insurer's burden to show that a loss falls within a policy exclusion. Classert v. Butler, 98-1991 (La. App. 1st Cir. 11/5/99), 746 So.2d 787, 792.

Under the policy of insurance at issue, liability coverage is excluded for damages "arising out of business pursuits of an insured. " Thus, at the summary judgment stage, Farm Bureau had the burden of proving no genuine issue of material fact existed regarding whether the damages arose out of "business pursuits." On review, we find it clear that genuine issues of material fact exist regarding whether Mr. Guillotte's fanning activities constituted "business pursuits."

First, despite Farm Bureau's heavy reliance on Melder, we find it distinguishable from the present matter. In Melder, an insured sought to recover under his homeowner's policy for damages that occurred when his shed caught fire. However, the insured admitted that he baled hay to sell and that he had upgraded his herd of cattle in an attempt to profit on their sales. Melder, 906 So.2d at 516. Moreover, the insured in Melder also held a separate policy of insurance for farming. A tractor damaged in the fire was admittedly used in the hay baling operation conducted by the insured. The trial court concluded that the shed was not "used in whole or in part for business" and thus, the policy afforded coverage. Upon review, this court took into account all of the aforementioned facts, coupled with the evidence of the tax returns, in concluding that the property damaged was "used in whole or in part for business" and reversed the trial court. The facts in Melder, however, are clearly distinguishable from the facts at hand.

First, a different provision of the insurance policy is at issue herein. We disagree with Farm Bureau's contention that this court has "adjudicated the exact Louisiana Farm Bureau 'business pursuits' exclusion," as the language of the exclusion under consideration in the instant matter clearly varies from the policy language in Melder.

In Melder, the language quoted from the applicable portion of the policy at issue precluded coverage of the shed because it was "used in whole or in part for business," as it was used to store the tractor and other tools used in the insured's farming business. Importantly, the policy language varies from the policy language relied upon by defendants which excludes personal liability coverage for injury "arising out of business pursuits of an insured." The plain language of "used in whole or in part for business" is broader than "arising out of business pursuits." Indeed, this court in Melder, recognized the important difference between these provisions, stating as follows:

Most of the cases discussing "business" exceptions to coverage under homeowners insurance policies deal with "business pursuits" exceptions to liability coverage, under which liability coverage does not apply to injuries or damages arising out of any "business pursuit" of the insured or while the insured is engaged in "business activity." These cases do not provide much guidance for the situation before us, which calls for a determination of whether a damaged building was "used in whole or in part for business."

Melder, 906 So.2d at 515 (internal citations omitted). The opinion in Melder thus recognizes that these provisions are distinct, and accordingly, we find that Melder is of little use in guiding our determination of the matter presently before us.

Second, we find Richard v. Milazzo, 2001-2233 (La. App. 1st Cir. 11/8/02), 831 So.2d 1055, also relied upon by Farm Bureau, to be unpersuasive. Although Richard succinctly states "that a business pursuit must involve two elements: continuity of the activity, and monetary gain, or at least the hope or expectation of monetary gain," we find this case likewise of little use given the facts involved herein. Richard, 831 So.2d at 1058-59. Specifically, Mr. Guillotte testified that he did not always keep cattle on the property and that he had years with no cattle sales, rendering the "continuity of the activity" factor questionable and unripe for summary judgment. Further, Mr. Guillotte testified that he never expected to profit from his farming activities. Summary judgment is seldom appropriate for determinations involving subjective facts of intent, such as the intent to make a profit. Charles v. Moore Petroleum, Inc., 2017-0909 (La. App. 1st Cir. 1/23/18), 241 So.3d 1022, 1027, writ denied , 2018-0456 (La. 5/11/18), 242 So.3d 567, citing Jones v. Estate of Santiago, 2003-1424 (La. 4/14/04), 870 So.2d 1002, 1006. There are many factors for a fact finder to consider in making a determination as to whether Mr. Guillotte intended to make a profit from his farming activities, including the facts testified to above, such as Mr. Guillotte's lack of knowledge regarding farming for profit and the manner in which his animals were treated. Considering the subjective question regarding whether Mr. Guillotte intended to or expected to make a profit, we find summary judgment inappropriate. We also note that the coverage determinations in both Melder and Richard were made after a full trial on the merits; the issues were not disposed of via summary judgment proceedings.

Finally, we find the trial court erred in relying solely on the statements made on the insured's federal tax returns. Statements made on a federal income tax return do not constitute conclusive proof for purposes of summary judgment. See Haydel v. State Farm Insurance Company, 2005-0701 (La. App. 1st Cir. 3/24/06), 934 So.2d 726. In Haydel, a father made a claim under his umbrella insurance policy for his son's death. Insurance coverage was denied because the insurer found that the decedent was not residing in the insured's household at the time of the accident causing his death. This finding was based upon tax returns indicating that the decedent was residing with his mother and not his father, the insured. However, the father, in deposition testimony, testified that his son resided with him. The trial court granted summary judgment. This court found that the tax return evidence of residence was not dispositive and reversed summary judgment, finding that material issues of fact existed and that summary judgment had been improperly granted. Haydel, 934 So.2d at 730 ; see also Jacobs v. Kimbrough, 376 So.2d 1273, 1275 (La. App. 2nd Cir. 1979) (wherein the Second Circuit Court of Appeal held that income tax returns are not conclusive evidence for purposes of fixing damages for loss of wages); see also Betz v. Riviere, 211 La. 43, 29 So.2d 465, 472 (1947).

Moreover, although the trial court found that the tax returns were akin to a signed affidavit, this court's jurisprudence also indicates that conflict between an affidavit and deposition testimony may preclude summary judgment. Cf. Bradford v. Coody, 2008-1059 (La. App. 1st Cir. 12/23/08), 6 So.3d 815, 819. As indicated by the testimony above, there is a clear conflict herein between the characterization of Mr. Guillotte's farming activities on his federal tax returns and his sworn deposition testimony.

In addition to Mr. Guillotte's testimony, the testimony of Dr. Page likewise supports the conclusion that Mr. Guillotte's farming activities were not "business pursuits." Dr. Page attested that at least 40 acres of land and 20 cattle is necessary to run a cattle business. Mr. Guillotte only had 5 cows and approximately 20 acres of land, only 6 to 7 acres of which was usable. This evidence created genuine issues of material fact which cannot be resolved without weighing evidence and making credibility determinations, neither of which is proper in considering a motion for summary judgment. Here, the testimony of Mr. Guillotte and Dr. Page was essentially disregarded from consideration.

Although a fact finder may ultimately conclude that Mr. Guillotte's activities constituted "business pursuits," considering the credibility issues that must be resolved and genuine issues of material fact that remain herein, this determination is not proper for summary judgment. Having found that genuine issues of material fact exist, we pretermit discussion of whether Farm Bureau carried its burden of proving that no reasonable interpretation of the policy would provide coverage under the given facts.

CONCLUSION

After carefully considering the record herein, we find genuine issues of material fact exist precluding summary judgment at this juncture. For the above and foregoing reasons, the June 1, 2018 judgment of the trial court, which granted summary judgment in favor of the defendant, Louisiana Farm Bureau Casualty Insurance Company, and dismissed the claims of Curtis Washington and Almallica Allen against Louisiana Farm Bureau Casualty Insurance Company with prejudice, is hereby reversed. This matter is remanded for further proceedings consistent with the views expressed herein. Costs of this appeal are assessed against the defendant, Louisiana Farm Bureau Casualty Insurance Company.

RULE TO SHOW CAUSE ORDER RECALLED; JUDGMENT REVERSED; REMANDED.

McClendon, J. concurs and assigns reasons.

McClendon, J., concurring.

While I do not find that the trial court was necessarily wrong in its factual determination that Mr. Guillotte was engaged in a business pursuit with regard to his cattle, it appears that this conclusion required a determination of Mr. Guillotte's credibility. Therefore, I am constrained to concur with the result reach by the majority.

      For ease, only Mr. Guillotte is referred to as the policyholder herein, although the policy was in fact issued in both his and his wife's names.

      "Business" is defined in the policy as "trade, profession or occupation including farming."

      According to his deposition testimony, at one point, Mr. Guillotte did sell some chickens because his family was leaving for a vacation, and he did not want to have to find someone to feed the chickens while they were away. Mr. Guillotte has also sold goats in the past when he determined he had too many or when the family did not have any cows and "needed to show some kind of income" for tax purposes. Mr. Guillotte essentially acquired his animals, other than cows, as a result of others giving them away, rather than by buying them at auction or otherwise.

      Farm Bureau recently raised as an issue the fact that the pastureland was not an insured location under the policy as if this somehow affected coverage. However, the fact that these animals were kept on the neighboring property clearly does not affect coverage and is of no moment, because the policy specifically provided coverage for injury "caused by an animal owned by or in the care of an insured " without any limitation regarding where that animal was kept. Since no real argument was made in the court below that the fact that the cows were kept on a non-insured location somehow affected coverage, we pretermit further discussion of this argument.

      Mr. Guillotte testified regarding how the family's pets, including cattle, were treated. He said the donkeys and goats were pets, and the cattle, especially if they were calves, were like pets. The Guillotte family worked with the calves in an attempt to make them friendlier, so they could be family pets. Mr. Guillotte tried bottle-feeding calves at one point because he assumed if they were bottle fed, they would be friendlier, and he could eventually play with the cows. He and his family also named the cows like pets. Mr. Guillotte and his family liked spending time with the animals. Also, the Guillotte family never consumed their animals.

      Mr. Guillotte testified that he did not know how a price was set for a cow at auction, did not have any knowledge regarding what a "good price" for a cow was, or how to determine the market value of a cow. Mr. Guillotte also did not know how to distinguish one breed of cattle from another.

      Mr. Guillotte once attempted to allow two of his cows to breed, but since he was unfamiliar with breeding cattle, one pregnant cow died trying to give birth, so he sold the second pregnant cow to avoid another tragedy.

      On Mr. Guillotte's federal tax return for 2015, the year of the accident, Form 1040, line 34, indicates Mr. Guillotte had a loss of $28,167.00 for "farm income or loss." The same form indicates Mr. Guillotte earned $3,640.00 as a profit for "sales of livestock and other resale items." The sales for 2015 included sales of some goats, but testimony indicates these goats were sold merely because Mr. Guillotte needed them off of the property, so he could fix the fence. Mr. Guillotte also claimed a depreciation loss on his vehicle as part of his farming operation. The depreciation of five cows Mr. Guillotte had in 2015 as well as some equipment was also claimed in federal taxes. Mr. Guillotte also claimed other deductions for animal feed (for all animals), fuel, gasoline, oil, repairs, and maintenance. Mr. Guillotte claimed off-highway business expenses for fuel for items such as his "skid-steer," which he used to pick up feed or lift anything that was too heavy for him to handle, although he mostly used the "skid-steer" in connection with his property (referencing the property his home was on), not in relation to caring for the cattle.

      Dr. Page is a full-time professor at Louisiana State University's School of Animal Science and is classified as a "Beef Cattle Specialist."

      This court issued a rule-to-show-cause order on March 7, 2018 with respect to the original judgment, noting that the judgment appeared to lack the appropriate decretal language. Plaintiffs thereafter filed a motion to remand and to continue the show-cause rule. On May 14, 2018, this court granted the motion to remand for the limited purpose of allowing the trial court to sign a judgment containing appropriate decretal language, but denied the motion to continue the rule to show cause. Thus, a motion to amend judgment was filed by plaintiffs in the trial court, and on June 1, 2018, an amended judgment was signed by the trial court. The amended judgment included language indicating that the plaintiffs' claims against Farm Bureau were dismissed with prejudice. Since the judgment dismisses the plaintiffs' claims against Farm Bureau, this constitutes a final judgment subject to immediate appeal pursuant to LSA-C.C.P. art. 1915(A)(1). Thus, the previously recognized deficiency is cured, and as such, we recall the March 7, 2018 show-cause order. We note the trial court also designated the judgment as final and appealable pursuant to LSA-C.C.P. art. 1915, which designation has no effect on the already final judgment and is superfluous.

      Superseded on other grounds as stated in Adolph v. Lighthouse Property Insurance Corporation, 2016-1275 (La. App. 1st Cir. 9/8/17), 227 So.3d 316.

      We recognize that the definition of "business" in Melder is the same as the definition of "business" in the policy at issue herein, but this is not dispositive in guiding our analysis because, at best, there exist genuine issues of material fact regarding whether Mr. Guillotte's farming activities could even be considered a "trade, profession or occupation" as required by the plain language of the definition of "business." We note that although Farm Bureau quotes the definition of business in its brief, it does not suggest that farming was Mr. Guillotte's "trade, profession or occupation." Indeed, the record does not support such a conclusion. Rather, the record before us suggests that Mr. Guillotte's "trade, profession or occupation" was his employ at the Valero Refinery. We recognize that an individual may have more than one occupation, but again note that Farm Bureau has failed to make the requisite showing that the facts establish that farming was actually a "trade, profession or occupation" of Mr. Guillotte's. Rather, in claiming it is entitled to summary judgment in its favor, Farm Bureau focuses on whether farming was a "business pursuit" as it has been defined in the applicable case law.

      Indeed, in Richard, the insurer filed a motion for summary judgment, prior to trial, seeking to be dismissed based on the argument of no coverage due to the business pursuits exclusion. The motion was denied, although at trial, the trial court found no insurance coverage existed due to the business pursuits exclusion. Richard, 831 So.2d at 1057. This court reversed the trial court and held that insurance coverage applied. Richard, 831 So.2d at 1059.

      Also guiding in our determination is the fact that, as mentioned above, liability insurance is for the protection of the public, not only the insured. Thus, taking the tax returns as conclusive proof regarding whether Mr. Guillotte was operating a business would wrongfully deprive the plaintiffs, the primary party whom liability insurance is meant to protect, of a true determination regarding whether a business was indeed being operated.

      By this statement, we do not imply that a material issue of fact may be created merely by an individual testifying to one fact, then signing an affidavit attesting to the opposite fact at a later date. However, in some circumstances, especially as those presented herein, a conflict between facts attested to in previously signed documents, unrelated to the present litigation, and facts attested to in a later deposition may, in particular, raise an issue of credibility, which is not appropriately considered on summary judgment.


author: HIGGINBOTHAM, J.

text:
    PONTCHARTRAIN NATURAL GAS SYSTEM, K/D/S Promix, L.L.C., and Acadian Gas Pipeline System v. TEXAS BRINE COMPANY, LLC
    NO. 2018 CA 0606
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2018 Rehearing Denied February 28, 2019
    Leopold Z. Sher, James M. Garner, Peter L. Hilbert, Jr., Neal J. Kling, Jeffrey D. Kessler, Amanda R. Schenck, New Orleans, LA, Theodore L. Jones, Baton Rouge, LA, Travis J. Turner, Robert Ryland Percy, III, Gonzales, LA, Eric J. Mayer, Houston, TX, Attorneys for Appellant/Defendant, Third-Party Plaintiff, Texas Brine Company, LLC
    Joseph L. Shea, Jr., Katherine Smith Baker, Ashley G. Gable, Joshua S. Chevallier, Shreveport, LA, Attorneys for Appellee/Third-Party Defendant, Reliance Petroleum Corporation
    Sidney W. Degan, III, Julia A. Dietz, Wade B. Hammett, Matthew F. Morgan, New Orleans, LA, Catherine N. Thigpen, Baton Rouge, LA, Attorneys for Appellee/Third-Party Defendant, Chicago Insurance Company
    Martin A. Stern, Leigh Ann Schell, Raymond P. Ward, Sara Valentine, Alexandra Roselli, New Orleans, LA, Brad D. Brian, Daniel B. Levin, Bethany W. Kristovich, Los Angeles, CA, Kathy Patrick, Angus J. Dodson, Laura J. Kissel, Houston, TX, Attorneys for Appellees/Third-Party Defendants, Occidental Chemical Corporation, Occidental Petroleum Corporation, Basic Chemicals Company, LLC, and Occidental VCM, LLC
    Frank H. Spruiell, Jr., Reid A. Jones, Seth M. Moyers, Shreveport, LA, Attorneys for Appellee/Third-Party Defendant, Sol Kirschner
    Matthew J. Randazzo, III, Christopher B. Bailey, Will Montz, Lafayette, LA, Attorneys for Appellees/Third-Party Defendants, LORCA Corporation and Colorado Crude Company
    BEFORE: PETTIGREW, McCLENDON, AND HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

This appeal relates to one of several lawsuits surrounding the Bayou Come sinkhole that developed on August 3, 2012, following the collapse of a salt mine cavern connected with Texas Brine Company, LLC's operation of a brine production well known as Oxy Geismer # 3 Well ("OG3"). Texas Brine appeals the district court's summary judgment dismissal of its third-party tort claims, as well as its indemnity and contribution claims, against the non-operators of an adjacent oil and gas well known as the Adams-Hooker # 1 Well ("AH1"). The dismissed non-operators of the oil and gas well are Reliance Petroleum Corporation, LORCA Corporation, Colorado Crude Company, and Sol Kirschner.

PERTINENT FACTS AND PROCEDURAL HISTORY

The plaintiffs, Pontchartrain Natural Gas System, K/D/S Promix, L.L.C., and Acadian Gas Pipeline (collectively "Pontchartrain"), own and operate natural gas pipelines and storage facilities in the vicinity of property affected by the Bayou Come sinkhole near the Napoleonville Salt Dome in Assumption Parish. After the sinkhole developed, Pontchartrain and other pipeline companies brought several lawsuits against Texas Brine, seeking recovery for damage to their pipelines due to the alleged negligence of Texas Brine in operating the OG3 brine well.

In reply, Texas Brine filed incidental demands against various parties in all of the lawsuits, seeking recovery of its own damages in the form of reimbursement for environmental-response costs paid out by Texas Brine after the sinkhole appeared, litigation expenses, and lost profits, along with claims for indemnity and/or contribution for the damages allegedly sustained by Pontchartrain and the other pipeline companies. The relevant third-party defendants sued by Texas Brine include the owners of the land where the sinkhole occurred, Occidental Chemical Corporation, Occidental Petroleum Corporation, Basic Chemicals Company, LLC, and Occidental VCM, LLC (collectively "Oxy"), and the non-operators of the AH1 oil well: Reliance, LORCA, Colorado Crude, and Kirschner (collectively "the non-operators").

In its incidental demands and attachments to its pleadings filed against Oxy and the non-operators, Texas Brine alleged that some of the acts of negligence that caused the sinkhole occurred as early as 1983, when Oxy first leased property for the commercial oil and gas drilling operations of the AH1 oil well, resulting in the AH1 well's reservoir sharing a common wall with the cavern related to Texas Brine's OG3 brine production well. The non-operators were assigned various working interests in the AH1 oil well and the drilling of the AH1 oil well began in early 1986. Texas Brine contends: (1) that the non-operators jointly shared the "garde" and controlled the operation of the AH1 oil well along with the operators, until the AH1 oil well was plugged and abandoned in 2010; (2) that the non-operators breached their duty to control the AH1 oil well operators; and (3) that the non-operators negligently delegated specific duties to various operators related to pressure monitoring in the AH1 oil well's reservoir.

Because some of Texas Brine's negligence claims allegedly originated before Louisiana's tort reform legislation became effective in 1996, when strict liability was a form of relief, Texas Brine argues that those claims are governed by pre-96 law and that the rest of its third-party negligence claims are governed by post-96 law.

Reliance brought several motions for summary judgment seeking dismissal of Texas Brine's pre-96 and post-96 tort claims, as well as Texas Brine's indemnity and contribution tort claims. All of the other non-operators and Oxy joined in Reliance's motions and/or filed similar motions of their own, with Oxy reserving its right to arbitration. The non-operators and Oxy argue that Texas Brine's damages for response costs and lost profits did not occur until 2012, when the sinkhole emerged and, thus, any damages sustained by Texas Brine were caused by the sinkhole event rather than some hidden changes that might have occurred underground before the development of the sinkhole. The non-operators maintain that the substantive law in effect at the time that Texas Brine sustained its damages for response costs and lost profits in August 2012 is the law that applies. The non-operators and Oxy further assert that, because Pontchartrain and the other pipeline companies have not claimed that they sustained any of their damages prior to the sinkhole, Texas Brine is unable to prove any pre-sinkhole tort liability on the part of Oxy and the non-operators. Additionally, Oxy and the non-operators point out Texas Brine has admitted some responsibility for the formation of the sinkhole and, therefore, Texas Brine cannot maintain an action based on indemnity or contribution. Texas Brine opposed all of the motions.

After a hearing where multiple motions and exceptions were heard by the district court in several of the pipeline company lawsuits, a judgment was signed on August 28, 2017, granting summary judgment in favor of all of the non-operators and Oxy, dismissing Texas Brine's tort claims based on pre-96 law, including the claims for tort indemnity and contribution, with prejudice. The district court also granted summary judgment in favor of all of the non-operators, dismissing Texas Brine's post-96 law tort claims, including the claims for tort indemnity and contribution, with prejudice. In summary, the district court held that pre-96 tort law did not apply and that the non-operators of the AH1 well were not responsible to Texas Brine for any tort liability, indemnity or contribution. Therefore, the August 28, 2017 judgment effectively dismissed all of Texas Brine's third-party tort claims against the non-operators, finding that the non-operators had absolutely no control or authority over the operations of the AH1 oil well.

Texas Brine appeals, assigning three errors regarding the district court's judgment: (1) the district court erred in deciding on summary judgment that pre-96 law did not apply since Texas Brine presented evidence that genuine issues concerning underground damage began as early as 1986 and manifested later; (2) the district court erred in concluding that Texas Brine did not have viable tort claims against the non-operators since Texas Brine is seeking reimbursement for remediation costs; and (3) the district court erred in determining that the non-operators did not have a duty to ensure proper monitoring of the AH1 oil well pressure to protect adjacent brine well operators such as Texas Brine.

LAW AND ANALYSIS

A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. Code Civ. P. art. 966(A)(4).

The burden of proof on motion for summary judgment rests on the mover. But if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense. Instead, the mover must point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to then produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. P. art. 966(D)(1). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Talbert v. Restoration Hardware, Inc., 2017-0986 (La. App. 1st Cir. 5/31/18), 251 So.3d 532, 535, writ denied, 2018-1102 (La. 10/15/18), 253 So.3d 1304.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the district court's determination of whether summary judgment is appropriate. Thompson v. Center for Pediatric and Adolescent Medicine, L.L.C., 2017-1088 (La. App. 1st Cir. 3/15/18), 244 So.3d 441, 444, writ denied, 2018-0583 (La. 6/1/18), 243 So.3d 1062. Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing a motion for summary judgment, and all doubt must be resolved in the opponent's favor. Id. at 445. As Texas Brine is asserting third-party tort claims against the non-operators, Texas Brine had the burden of proving the elements of tort liability in Louisiana, pursuant to a duty-risk analysis - duty; breach of duty; cause-in-fact; scope of protection; and actual damages. See Bufkin v. Felipe's Louisiana, LLC , 2014-0288 (La. 10/15/14), 171 So.3d 851, 855. See also Rando v. Anco Insulations Inc., 2008-1163 (La. 5/22/09), 16 So.3d 1065, 1086. The threshold issue in any negligence action is whether the defendant owed the plaintiff a duty, and whether a duty is owed is a question of law. Bufkin, 171 So.3d at 855. A negative answer to any of the elements of the duty-risk analysis prompts a no-liability determination. Talbert, 251 So.3d at 536. In negligence cases, there is an almost universal duty on the part of a defendant to use reasonable care to avoid injuring another. Rando, 16 So.3d at 1086.

In the non-operators' motions and supporting documents, they sufficiently pointed out an absence of factual support for one or more elements essential to Texas Brine's tort claims in that the record was entirely devoid of any evidence that the non-operators took any unreasonable action or inaction with respect to the AH1 oil well that would constitute a breach of any duty owed to Texas Brine. Prior to the drilling of the AH1 oil well, the non-operators entered into an Operating Agreement dated December 16, 1985, that provided that the operator - at that time, the operator was Adams Resources Exploration Corporation ("Adams") - was to have "full control of all operations" and granted Adams the exclusive authority to operate the AH1 oil well. The AH1 oil well was operated from 1986 to 2010 by various operators, during which time the non-operators remained passive working interest owners that never performed any operation on the AH1 oil well.

Pontchartrain and the other pipeline companies sought recovery for damages to their pipeline facilities as a result of the sinkhole formation in August 2012, not any pre-2012 damages. Notably, Texas Brine did not allege that any of its damages were incurred prior to the formation of the sinkhole in 2012. The non-operators pointed out to the district court that Texas Brine could not prove any pre-2012 damages or meaningful acts/omissions by the non-operators that were connected with the AH1 oil well operations and the eventual emergence of the sinkhole. Thus, the burden of proof shifted to Texas Brine to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the non-operators were not entitled to judgment as a matter of law. See La. Code Civ. P. art. 966(D)(1).

To meet its burden, Texas Brine primarily relied on experts' reports that were attached to its opposition memoranda, specifically focusing on one expert's opinion that earth movement due to the depressurization of the AH1 oil well reservoir could have caused continuous damage to the underground pipelines earlier than when the sinkhole occurred. The non-operators timely objected to the use of the experts' opinions as improper summary judgment evidence. The non-operators argued that the experts' opinions could not establish pre-sinkhole negligence and/or possible exposure to damages through pre-96 law on strict liability, since none of the pipeline companies nor Texas Brine had claimed any of their damages occurred until after the appearance of the sinkhole in 2012. The non-operators also objected because the experts' opinions focused on possible damage to Oxy's underground property prior to the sinkhole's emergence, rather than any property actually owned by Texas Brine.

We note that Texas Brine's reliance on conclusions set forth in unverified experts' reports that have been attached to pleadings or memoranda are inappropriate summary judgment evidence. See La. Code Civ. P. art. 966(A)(4). However, even if we were to accept Texas Brine's experts' statements in reports and depositions as credible, we find that the experts' opinions only establish the mere possibility that damage could have occurred to Oxy's underground property sometime prior to the occurrence of the sinkhole. Those experts' opinions are wholly irrelevant as to any actions or omissions by the non-operators of the AH1 oil well, and do not raise any genuine issue of material fact as to any damage to property owned by Texas Brine. The record reveals that all of Texas Brine's property and/or equipment was allegedly damaged after the sinkhole occurred, and the remaining third-party tort claims concerning litigation expenses, lost profits, and environmental-response costs certainly occurred after the emergence of the sinkhole in August 2012. Thus, the substantive law in effect at that time applies. Proof that establishes only possibility, speculation, or unsupported probability does not suffice to establish a tort claim. See Todd v. State Through Department of Social Services, Office of Community Services, 96-3090 (La. 9/9/97), 699 So.2d 35, 43. Therefore, we find that the district court did not err in granting summary judgment in favor of the non-operators and dismissing all of Texas Brine's third-party tort claims, including indemnity and contribution, against each of the non-operators.

CONCLUSION

The August 28, 2017 summary judgment dismissing Texas Brine's incidental demands for pre-96 and post-96 tort claims, including indemnity and contribution, against the non-operators of the Adams-Hooker # 1 oil and gas well, Reliance Corporation, LORCA Corporation, Colorado Crude Company, and Sol Kirschner, is affirmed. All costs of this appeal are assessed to Texas Brine Company, LLC.

AFFIRMED.

McClendon, J. concurs.

Pettigrew, J. concurs.

      The insurer for Reliance, Chicago Insurance Company, was also dismissed in the summary judgment.

      Oxy maintains that all of Texas Brine's claims against it - both in tort and in contract - are subject to arbitration. One of the operators of the AH1 well, Browning Oil Company, filed similar motions for summary judgment against Texas Brine, which was joined by Legacy Vulcan, LLC. Additionally, Reliance filed a separate motion for summary judgment regarding Texas Brine's breach of contract claims against the non-operators. However, the outcomes of all of those additional motions and Oxy's argument concerning arbitration are not relevant to this particular appeal.

      The August 28, 2017 judgment also granted Oxy's motion for partial summary judgment and dismissed Texas Brine's claims under pre-96 law against Oxy. Oxy responded to the instant appeal; however, Texas Brine does not specifically seek review of that ruling in this particular appeal. Therefore, that portion of the August 28, 2017 judgment is not before this court at this time.