author: WEIMER, J., would deny.

text:
    STATE of Louisiana v. Anthony STOKES
    NO. 2018-KH-0846
    Supreme Court of Louisiana.
    November 5, 2018
    Writ granted. The sentence is vacated and the matter is remanded to the district court for resentencing pursuant to State ex rel. Esteen v. State, 16-0949 (La. 1/30/18), 239 So.3d 233.
   WEIMER, J., would deny.

CLARK, J., would deny.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Freddie NAVARRE
    NO. 2016-KO-0800
    Supreme Court of Louisiana.
    November 5, 2018
    Not considered. See La.S.Ct.R. IX, § 6.


author: CLARK, J., would grant.

text:
    Joseph P. LOPINTO, III, Sheriff of the Parish of Jefferson (as Successor in Office to Harry Lee) and Jefferson Law Enforcement District v. PROFESSIONAL CONSTRUCTION SERVICES, INC. and Swager Communications, Inc.
    NO. 2018-CC-1339
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.
   CLARK, J., would grant.

CRICHTON, J., would grant.


text:
    STATE of Louisiana v. Ronnie YORK
    NO. 2018-KH-1592
    Supreme Court of Louisiana.
    November 5, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. York v. State, 15-1775 (La. 11/15/16), 206 So.3d 184.


text:
    STATE of Louisiana v. Desmond Herbert COUSIN
    NO. 2018-KO-0184
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    ROY ANDERSON CORPORATION v. 225 BARONNE COMPLEX, L.L.C.
    NO. 2018-C-1334
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


author: HUGHES, J., would grant.

text:
    CJ MAYFIELD and Dorothy Mayfield v. CERTAINTEED CORPORATION, et al.
    NO. 2018-CC-1289
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.
    JOHNSON, C.J., would grant for reasons assigned by Judge McKay.
   HUGHES, J., would grant.


text:
    Jeremy SHEPHARD and Emily Shephard and Michael Jackson and Tamisia Jackson v. AIX ENERGY, INC., AIX Operating Company, Bear Creek Services, LLC, National Union Fire Insurance Company, Avery Graves, IV, Republic Well Testing
    NO. 2018-C-1266
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE EX REL. John RILEY v. STATE of Louisiana
    NO. 2017-KH-1681
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    Matthew Ragan GREEN, III, Individually, and on Behalf of Minor Child, K.G. v. STATE of Louisiana THROUGH the DEPARTMENT OF CHILDREN AND FAMILY SERVICES
    NO- 2018-CJ-1329
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    Lloyd RICHARD (DOC# 125784) v. Willie J. MARTIN, Jr. - Sheriff, et al.
    NO. 2018-CP-1341
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    Forrest P. WALL, M.D., F.A.C.S. v. Gregory W. BRYAN, DPM, Michelle R. Ritter, M.D., R. Blair Drummond, DPM, Janna Cruey-Roark and Ambulatory Surgery Center of Louisiana, L.L.C.
    NO. 2018-C-1270
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE EX REL. Anthony O. STOKES v. STATE of Louisiana
    NO. 2017-KH-1282
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    Francis Kathleen CRAWFORD, etc. v. CONTINENTAL CASUALTY COMPANY, et al.
    NO. 2018-CC-1321
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE of Louisiana v. Jonas KELLY
    NO. 2018-KO-0153
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    Succession of Thelma Carrick SCHEXNAYDER, THROUGH Its Duly Constituted Executor, ELWOOD L. SCHEXNAYDER, Elwood L. Schexnayder, Individually, Douglas B. Schexnayder, Nancy Schexnayder v. Bruce SCHEXNAYDER and Mark Schexnayder
    NO. 2018-C-1300
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE of Louisiana v. Timmy W. DOUCET
    NO. 2018-KO-0196
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE of Louisiana v. Navarius SIMON
    NO. 2018-KO-0283
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE of Louisiana v. Emma J. HAINE
    NO. 2018-K-0437
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


author: GENOVESE, J., recused.

text:
    STATE of Louisiana v. Roy JACKSON
    NO. 2018-KH-0653
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.
   GENOVESE, J., recused.


text:
    STATE of Louisiana v. Reginald Anthony SAULSBERRY
    NO. 2018-KO-1067
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE of Louisiana v. Carl A. DUPERON
    NO. 2018-KH-1245
    Supreme Court of Louisiana.
    November 5, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Duperon v. State, 15-2154 (La. 3/13/17), 213 So.3d 1144.


text:
    Joseph ADAMS v. GEORGIA GULF LAKE CHARLES, LLC, et al.
    NO. 2018-C-1272
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    Michael L. ECKSTEIN v. Steven A. BECNEL
    Stratus Systems, Inc. v. Michael L. Eckstein.
    Michael L. Eckstein, Eckstein Law Firm, a Professional Corporation, and Stratus Realty, L.L.C. v. Steven A. Becnel and Kristine M. Becnel
    NO. 2018-C-1275
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


author: JOHNSON, C.J., would grant.

text:
    STATE of Louisiana v. Troherro Keith BATISTE
    NO. 2018-K-0960
    Supreme Court of Louisiana.
    November 5, 2018
    Reconsideration denied.
   JOHNSON, C.J., would grant.


text:
    Robert ARMBRUSTER, Nicole Armbruster, F.I.N.S. Construction, LLC, and Cambrie Celeste Developer, LLC v. Steven ANDERSON, Cambrie Celeste, LLC, Cambrie Partners I, LLC, Cambrie Celeste Commercial Tenant, LLC, Avalon RE: Partners, LLC
    NO. 2018-C-1276
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE of Louisiana v. Devin GARRISON
    NO. 2017-K-0695
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    B. Steve SLAUGHTER, et ux. v. CENTRAL UNITED LIFE INSURANCE COMPANY
    NO. 2018-C-1281
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE EX REL. Arthur BIAS, Jr. v. STATE of Louisiana
    NO. 2017-KH-1267
    Supreme Court of Louisiana.
    November 5, 2018
    Denied. Relator has previously exhausted his right to state collateral review.
    See State ex rel. Bias v. State, 16-1584 (La. 1/9/18), 232 So.3d 542.


text:
    STATE EX. REL. Elrick J. GALLOW v. STATE of Louisiana
    NO. 2017-KH-1359
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.
   HUGHES, J., would grant.


author: HUGHES, J., recused.

text:
    John HOOGACKER and Wendy Hoogacker v. Charles M. HUGHES, Jr., Britan F. Trainor, Talley, Anthony & Hughes, Montalbano & Trainor, ABC, MNO, XYZ Insurance Companies
    NO. 2018-C-1306
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.
   HUGHES, J., recused.


text:
    STATE EX REL. Kenneth W. LAVIGNE v. STATE of Louisiana
    NO. 2017-KH-0935
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


author: CRICHTON, J., recused.

text:
    STATE of Louisiana v. Randy ANDERSON
    NO. 2017-KO-1913
    Supreme Court of Louisiana.
    November 5, 2018
    Not considered. See La.S.Ct.R. IX, § 6.
   CRICHTON, J., recused.


text:
    Landis J. CAMP v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2017-CI-1331
    Supreme Court of Louisiana.
    November 5, 2018
    Writ not considered. Petitioner has not demonstrated that he sought review in the court(s) below before filing in this Court nor shown the "extraordinary circumstances" that would justify bypassing that level of review. La.S.Ct.R, X 5(b).


text:
    STATE EX REL. Anthony YOUNG, Jr. v. STATE of Louisiana
    NO. 2017-KH-1378
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE ex rel. Jeremy Jermaine BROOKS v. STATE of Louisiana
    NO. 2017-KH-1674
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE EX REL. Darrell Lamont ALGERE v. STATE of Louisiana
    NO. 2017-KH-1804
    Supreme Court of Louisiana.
    November 5, 2018
    Denied. Relator has previously exhausted his right to state collateral review. See State ex rel. Algere v. State, 15-1827 (La. 1/23/17), 209 So.3d 89.


text:
    STATE EX REL. Brian K. MOSBY v. STATE of Louisiana
    NO. 2018-KH-0030
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


text:
    STATE of Louisiana v. JAMES C. Graham
    NO. 2018-KP-0150
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.
   HUGHES, J., would grant.


text:
    OCEANS HEALTHCARE, LLC, Oceans Behavioral Hospital of Greater New Orleans, Greenbrier Hospital, LLC, Sahara Health Systems, LLC d/b/a Westend Hospital, Seaside Behavioral Center, LLC, and Beacon Behavioral Health, Inc. v. COMPREHENSIVE BEHAVIORAL CARE, INC., Peoples Health, Inc., Peoples Health Network
    NO. 2018-CC-1336
    Supreme Court of Louisiana.
    November 5, 2018
    Not considered; not timely filed. See State v. Crandell, 05-1060 (La. 3/10/06), 924 So.2d 122 ; Morris v. Stueben, 01-0137 (La. 3/16/01), 781 So. 2d 1220.


text:
    STATE of Louisiana v. Jerxavier LANE
    NO. 2018-KH-1391
    Supreme Court of Louisiana.
    November 5, 2018
    Denied; moot. The court of appeal has acted.
   CRICHTON, J., recused.


text:
    Barbara ARDOIN and Michael Parks v. BUTCHER AIR CONDITIONING COMPANY, LP
    NO. 2018-CC-1328
    Supreme Court of Louisiana.
    November 5, 2018
    Denied.


author: CRAIN, J.

text:
    Jesse and Dena MCCARTNEY v. SHELTER MUTUAL INSURANCE COMPANY
    NO. 2017 CA 1398
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JULY 10, 2018
    Charles S. Norris Jr., Christopher J. Norris, Vidalia, Louisiana, Attorneys for Plaintiffs/Appellants, Jesse and Dena McCartney
    Henry G. Terhoeve, Brad M. Boudreaux, Baton Rouge, Louisiana, Attorneys for Defendant/Appellee, Shelter Mutual Insurance Co.
    David R. Nelson, Baton Rouge, Louisiana, Attorney for Defendant/Intervenor, Tensas State Bank
    BEFORE: GUIDRY, PETTIGREW, WELCH, CRAIN, AND THERIOT, JJ.
   CRAIN, J.

The plaintiffs appeal a summary judgment dismissing their claims against their insurer based upon a breach of the terms and conditions of the policy. We reverse.

FACTS

After their home was destroyed by a fire on June 24, 2016, Jesse and Dena McCartney made a claim under their homeowner's policy issued by Shelter Mutual Insurance Company. The policy required that the insured cooperate with the insurer in any matter relating to a claim, answer under oath any questions posed by the insurer, then sign a written transcript of the questions and answers. The policy further required that the insured submit a proof of loss, submit to examinations under oath, produce records reasonably required by the insurer, and authorize the insurer to obtain records and documentation relevant to the claim. Payment under the policy was contingent upon receipt by the insurer of proof of loss and the insured's compliance with the policy conditions. The McCartneys filed suit seeking recovery under the policy, plus penalties and attorney's fees for Shelter's refusal to tender any payments.

Shelter filed a motion for summary judgment seeking dismissal of the suit. Shelter claims the McCartneys violated the terms and conditions of the policy by failing to provide requested information and refusing to submit to an examination under oath. The McCartneys opposed the motion, asserting there is no evidence they failed to cooperate with Shelter's investigation. The McCartneys claim they submitted extensive documentation and provided Shelter with two recorded statements. Further, they claim they only postponed, but did not refuse, the examination under oath. They also point out Shelter's request for examination under oath was made more than sixty days after the McCartneys submitted their proof of loss and past the time when Shelter was required to make either payment or a written settlement offer under the policy.

The trial court granted Shelter's motion for summary judgment, finding the McCartneys' failure to submit to an examination under oath voided the policy. The McCartneys appeal.

DISCUSSION

After an opportunity for adequate discovery, a summary judgment shall be granted if the motion, memorandum, and supporting documents show no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria governing the trial court's determination of whether summary judgment is appropriate. In re Succession of Beard, 13-1717 (La. App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue before the court on the motion for summary judgment, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated, but only that it point out the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden then shifts to 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. La. Code Civ. Pro. art. 966D(1). 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. Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050 (per curiam ).

A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam ); Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. A genuine issue is one upon which reasonable persons can disagree; if reasonable persons can only reach one conclusion, that issue need not be tried and summary judgment is appropriate. Hines, 876 So.2d at 765-66 ; Smith, 639 So.2d at 751. The applicable substantive law determines materiality. Therefore, whether a fact in dispute is material must be viewed in light of the applicable substantive law. Bryant v. Premium Food Concepts, Inc., 16-0770 (La. App. 1 Cir. 4/26/17), 220 So.3d 79, 82, writ denied, 17-0873 (La. 9/29/17), 227 So.3d 288.

A cooperation clause protects the insurer against fraud by enabling it to obtain relevant information concerning the claimed loss while the information is fresh. See Johnson v. Geovera Spec. Ins. Co., 657 Fed. Appx. 301, 304 (5th Cir. 2016) (per curiam ) (applying Louisiana law to determine whether coverage was voided for violating a cooperation clause). Violating a cooperation clause has been held to be both a material breach of the insurance contract and a defense to a suit on the policy. See Lee, 607 So.2d at 688. The failure to submit to an examination under oath or the refusal to produce documentation can constitute such a violation. See Id ; Hamilton v. State Farm Fire & Cas. Ins. Co., 477 Fed. Appx. 162, 165 (5th Cir. 2012) (per curiam ).

However, a cooperation clause is not an escape hatch for the insurer to flee liability for trivial policy violations, and dismissing a suit for breach of a cooperation clause is a draconian remedy. See Beasley v. GeoVera Specialty Ins. Co., 13-395, 2015 WL 2372328, p.3 (E.D.La. 2015) ; Jackson v. State Farm Fire & Cas. Co., 06-7202, 2010 WL 724108, p.8 (E.D.La. 2010) ; see also Lee, 607 So.2d at 685. Thus, an insurer must show a diligent effort to obtain the requested information. Natl. Union Fire Ins. Co. of Pittsburgh, Pa. v. Cagle, 68 F.3d 905, 912 (5th Cir. 1995). Further, the insured's breach must be both material and prejudicial. See King v. King, 210 So.2d 917, 922 (La. App. 1 Cir. 1967) ; see also Williams v. Lowe, 02-355, 02-356 (La. App. 5 Cir. 10/16/02), 831 So.2d 334, 336 ; Desadier v. Safeway Ins. Co., 97-1412 (La. App. 3 Cir. 4/8/98), 712 So.2d 925, 928, writ denied, 98-1249 (La. 6/26/98), 719 So.2d 1058 ; Trosclair v. CNA Ins. Co., 93-1741 (La. App. 4 Cir. 5/17/94), 637 So.2d 1168, 1170, writ denied, 94-1596 (La. 9/30/94), 642 So.2d 874. The burden is on the insurer to prove actual prejudice. Trosclair, 637 So.2d at 1170 ; see also Breaux v. Cozy Cottages, LLC, 14-597 (La. App. 3 Cir. 11/12/14), 151 So.3d 183, 190.

Whether an insured breached the duty of cooperation is a factual inquiry. Breaux, 151 So.3d at 190. Courts have allowed an insured to avoid dismissal upon finding the insured had a reasonable explanation for his actions. See Beasley, 2015 WL 2372328 at p.4 ; see also Freyou v. Marquette Cas. Co., 149 So.2d 697, 700 (La. App. 3 Cir. 1963).

In support of its motion for summary judgment, Shelter submitted the affidavit of Sonya White, the claims representative tasked with investigating the McCartneys' claim. According to White, coverage questions arose after Shelter's investigation revealed the McCartneys were living across the street from the burned home, which was vacant when the fire started. Mr. McCartney was believed to be out of work and was the last person seen at the property. Thus, White determined additional documents and an examination under oath were needed to fully investigate the claim.

White forwarded a letter to the McCartneys on September 9, 2016, requesting additional documents and an examination under oath. She then learned the McCartneys had an attorney who needed to review the matter before submitting to the examination. On September 27, 2016, White sent another letter requesting information and an examination under oath, but the McCartneys "failed to provide the information requested and failed to give an examination under oath." White attested, "[t]he ability to investigate and investigate early is critical," and claimed the inability to do so substantially prejudiced Shelter's investigation into the McCartneys' claim.

Shelter also submitted the affidavit of Mary Gladney, the claim supervisor for the McCartneys' claim, who attested to the facts provided by White. According to Gladney, the McCartneys refused Shelter's request for documents and an examination under oath, choosing to sue rather than comply with the terms of the policy.

The affidavit of Laurie Johnson, a paralegal employed by the law firm representing Shelter in this litigation, was also submitted by Shelter. According to Johnson, she contacted the McCartneys on September 19, 2016, and scheduled their examination under oath for September 27, 2016. By letter dated September 21, 2016, counsel for the McCartneys notified Shelter of his representation and requested copies of documents, Shelter's investigative reports, and the policy at issue. Counsel also postponed the examination under oath until he could review the file and confer with the McCartneys. By letter dated September 27, 2016, Shelter requested the examination under oath be rescheduled. Johnson telephoned the McCartneys' counsel on October 20, 2016 to reschedule but "was informed that suit had been filed and therefore, examinations under oath would not be allowed to be scheduled."

After de novo review, we find Shelter failed to prove entitlement to summary judgment. The summary judgment evidence establishes Shelter first requested an examination under oath and additional documents in September 2016, months after the June 2016 fire and after the McCartneys submitted what they believed was the required proof of loss. The McCartneys reasonably explained the examination under oath was postponed to allow their counsel to review the relevant material, and Shelter did not object. The McCartneys refused to reschedule the examination because suit was filed alleging Shelter's failure to timely pay the claim. Shelter immediately sought dismissal of the suit based on that refusal. Shelter acknowledged that after suit was filed, the McCartneys agreed to submit to an examination under oath.

Shelter's summary judgment evidence establishes a delay between the fire and its requests, but the delay was due as much to the dilatory action of Shelter as the McCartneys. The jurisprudence cautions against allowing an insurer to use a cooperation clause to flee liability based on trivial policy violations. See Beasley, 2015 WL 2372328 at p.3 ; Jackson , 2010 WL 724108 at p.8. Given the evidence submitted, the McCartneys' one-time refusal to schedule an examination under oath does not warrant the draconian remedy of dismissing their suit. Additionally, the record contains no evidence suggesting Shelter was prejudiced by any action or inaction by the McCartneys. Consequently, the summary judgment is reversed.

CONCLUSION

The summary judgment is reversed, and this matter is remanded for further proceedings. The answer to appeal is denied as moot. Costs of this appeal are assessed to Shelter Mutual Insurance Company.

REVERSED AND REMANDED; ANSWER TO APPEAL DENIED.

Welch, J., concurs without reasons.

Guidry, J., dissents and assigns reasons.

I respectfully disagree with the majority's opinion reversing the trial court's granting of summary judgment in favor of Shelter Mutual Insurance Company (Shelter). The homeowner's insurance policy at issue required the McCartneys to cooperate with the insurer and to, among other things, submit a proof of loss and submit to an examination under oath and produce records reasonably required by the insurer. Payment under the policy was contingent upon receipt by the insurer of proof of loss and the insured's compliance with the policy provisions.

In support of its summary judgment, Shelter presented the affidavit of Sonya White, the claims representative who investigated the McCartneys' claim. White stated that she requested an examination under oath and the production of additional requested documents, but that the examination was postponed because the McCartneys had retained counsel and counsel needed additional time to review the file and confer with his clients. In another affidavit, Laurie Johnson, a paralegal employed by the law firm representing Shelter in this litigation, stated that she attempted to contact the McCartneys to reschedule their examination, but she was informed that suit had been filed and examinations under oath would not be allowed to be scheduled. As such, based on this affidavit testimony, Shelter clearly provided evidence meeting its burden of establishing that the McCartneys failed to submit to the examination under oath, which constituted a violation of the cooperation clause in their contract of insurance.

Furthermore, Shelter submitted affidavits establishing that Shelter was prejudiced by the McCartneys' violation. White stated that the information requested of the McCartneys as well as the examination under oath were essential to the investigation of the claim. White explained that ascertaining detailed facts and events around the date of the loss, information regarding the house and its contents, the whereabouts of the McCartneys and those they were allegedly with, information regarding the financial status, phone information, contents issues, building documents, information from and about those who may have been in contact with the McCartneys and what information those people may know, and other information was particularly critical to the investigation. According to White, this information was necessary in order to advance the investigation and address, obtain, and acquire information while it was fresh in the minds of the McCartneys and those whom they may have been in touch with. White stated that the investigation efforts were material to her overall investigation of the claim and the McCartneys' failure to comply with the terms and conditions of the contract of insurance prejudiced her ability to complete the investigation of the claim. White stated that in a claim of this nature, timing is important; it is critical to be able to learn information and obtain information at such time as the information is readily available, can be secured, and information can be obtained from persons when details about time, place, and others present is fresh in that person's mind. White further stated that being able to take an examination under oath early on leads to the ability to contact other individuals to see if stories are similar about events and this is typically only successful if it can be done early on.

Additionally, Shelter submitted the affidavit testimony of Mary Gladney, claims supervisor for Shelter, who supervised the handling of the McCarnteys' claim. Gladney stated that Shelter made a request that the McCartneys submit to an examination under oath and produce documents, which steps were necessary to investigate their claim. According to Gladney, the examination under oath and request to produce documents were material to Shelter's overall consideration of the McCartneys' claim, and the failure on the part of the McCartneys to comply with the terms and conditions of the contract of insurance prejudiced Shelter's ability to complete the investigation of the claim. Gladney reiterated the importance of the examination as an investigative tool and the importance of obtaining information early on and at a time when information is fresh in the minds of the insureds. Accordingly, the affidavit testimony submitted by Shelter clearly establishes that Shelter was prejudiced by the McCartneys' failure to comply with the contract of insurance. See Kerr v. State Farm Fire & Casualty Co., 934 F.Supp.2d 853, 861-863 (M.D.La. 2012).

Therefore, I respectfully disagree with the majority in finding that Shelter failed to meet its burden of establishing that the McCartneys violated the terms and conditions of the contract of insurance by failing to provide the requested documents and refusing to submit to an examination under oath and in reversing the summary judgment granted in favor of Shelter.

      Louisiana courts have recognized federal jurisprudence is particularly relevant to consideration of the issues raised herein. See Lee v. United Fire & Cas. Co., 607 So.2d 685, 688 (La. App. 4 Cir. 1992).

      Shelter answered this appeal seeking review of the trial court's refusal to strike affidavits submitted in opposition to the motion for summary judgment. Because we find Shelter failed to meet its burden of proof on the motion, the relief requested in Shelter's answer is moot.


author: THERIOT, J.

text:
    Chris MARKERSON, Jr. and Amy Markerson v. COMPOSITE ARCHITECTURAL DESIGN SYSTEMS, LLC, 2long, LLC, the City of Gonzales and Barney Arceneaux
    NO. 2017 CA 1252
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JULY 10, 2018
    Christopher T. Cascio, Baton Rouge, Louisiana, Counsel for Defendant/Appellant, Composite Architectural Design Systems, LLC
    Kim Segura Landry Gonzales, Louisiana, Counsel for Defendant/Appellant, 2Long, LLC
    Mary Anne Wolf, Chelsea A. Payne, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellees, Chris Markerson, Jr. and Amy Markerson
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   THERIOT, J.

Composite Architectural Design Systems, LLC (CAD) and 2Long, LLC (2Long) appeal the judgment of the Twenty-Third Judicial District Court that found in favor of Chris Markerson, Jr. and Amy Markerson. 2Long has also filed a peremptory exception of prescription with this Court. For the following reasons, we deny the peremptory exception, affirm the judgment in part, and reverse in part.

FACTS AND PROCEDURAL HISTORY

In May of 2014, Chris and Amy Markerson purchased a home located in Gonzales, Louisiana. At the time of the purchase, an adjacent lot contained vacant buildings zoned by the City of Gonzales (the City) as "B-1," or a limited business district.

On August 28, 2014, 2Long purchased the adjacent lot and was informed by real estate broker Melissa Warren of the zoning restriction at the time of the closing on August 29, 2014. Ms. Warren advised Todd Long, a member and co-owner of 2Long, that his anticipated business operations on the property may not fall within the zoning restrictions and that he should forward any questions he had regarding the issue to the City. In the weekend following the closing, CAD, who began leasing the disputed property from 2Long, moved its business onto the premises. CAD, an aluminum composite material (ACM) fabricator, was advised by Mr. Long to get in touch with the City regarding zoning restrictions.

CAD was first issued a "retail occupational" business license from the City on September 4, 2014, then renewed the license before its expiration on November 11, 2014. The Markersons alleged that CAD operated its business all day and all night, using a rotary saw to cut sheets of metal, which was extremely loud. They further alleged that bright lights from trucks at CAD's business shone directly into their bedroom window through the night. The Markersons claimed to have recorded twenty-five instances of the disruptive activities from November 2014 to April 2015.

Mr. Markerson alleged he had advised the City that CAD was in violation of the zoning ordinance, claiming the noise to be a nuisance, and formally requested that the City investigate and rectify the situation. The City subsequently took sound measurements on the disputed property. On January 9, 2015, Clay Stafford, clerk for the City, informed Mr. Markerson that CAD was made aware of the Markersons' complaints and that CAD explained the noise was due to renovations that were being made on the property. Mr. Stafford further explained that CAD assured the City that the renovations had been completed, and upon the City's measuring the sound levels on the disputed property, the noise "barely registered." The Markersons claimed the City took no further action to enforce the zoning restriction.

On June 8, 2015, the Markersons filed a petition for injunction and damages, or, in the alternative, for a writ of mandamus. The Markersons made the aforementioned allegations and further alleged that the activities of 2Long and CAD constituted a nuisance, causing a permanent diminution of their value and enjoyment of their property. The Markersons petitioned the trial court to enjoin 2Long and CAD from further conducting its business of fabricating ACM at the disputed property and to award damages for nuisance. In the alternative, the Markersons petitioned for a writ of mandamus against the City and its mayor to enforce its zoning ordinances with respect to the disputed property.

On October 5, 2015, the Markersons filed a supplemental and amending petition for damages against 2Long and CAD, in which they claimed both parties had violated the Louisiana Unfair Trade Practices and Consumer Protection Law (LUTPA), La. R.S. 51:1401, et seq. Specifically, the Markersons claimed that 2Long "knowingly purchased a B-l zoned property with the intention of leasing the property to [CAD], and knew or should have known that [CAD]'s business operations violated the zoning ordinances." As to CAD, the Markersons claimed "[CAD] misrepresented the extent of its business operations by representing to [the City] that the loud rotary saw used in its fabrication business was only used temporarily during renovations, when in fact the loud saw was and continues to be used to fabricate products." Pursuant to La. R.S. 51:1409(A), the Markersons prayed for attorney fees.

On November 12, 2015, the Markersons filed a motion for partial summary judgment to permanently enjoin 2Long and CAD from using the disputed property in violation of the zoning ordinance. In a judgment and order signed January 20, 2016, the trial court granted the partial summary judgment, finding CAD to be in violation of the City's zoning ordinance and enjoining 2Long and CAD from conducting business on the disputed property in violation of the zoning ordinance. The trial court further issued a writ of mandamus against the City to enforce the zoning ordinance on the disputed property.

In a motion to set status conference and trial date filed on March 24, 2016, the Markersons claimed that despite the partial summary judgment, injunction, and writ of mandamus, 2Long and CAD continued to violate the City's zoning ordinance in contravention of the trial court's order with the same activities of loud noise and bright lights both day and night, including weekends. After a bench trial, the trial court signed a judgment on May 10, 2017, finding 2Long and CAD liable in solido to the Markersons for nuisance violations, violations of the trial court's injunction order, and pursuant to LUTPA. Chris and Amy Markerson were each awarded $20,000.00 in damages for the nuisance violations and violation of the injunction, with interest and costs. Pursuant to LUTPA, the trial court awarded to Chris Markerson $1,049.99 in costs for surveillance fees and also awarded reasonable attorney's fees to the Markersons, which were to be determined by a subsequent show cause hearing. Both 2Long and CAD have appealed.

Subsequent to the appeal, 2Long filed a peremptory exception of prescription with this Court, claiming that the Markersons's supplemental and amending petition for injunction and damages, which raised LUTPA as a cause of action, was prescribed on its face pursuant to La. R.S. 51:1409.

ASSIGNMENTS OF ERROR

2Long has cited the following assignments of error:

1. The trial court committed manifest error in finding the Markersons's claims fall under the protection of LUTPA as set forth in La. R.S. 51:1409.
2. The trial court committed manifest error in determining the actions of 2Long and CAD were a violation of LUTPA under La. R.S. 51:1401, et seq.
3. The trial court's finding of an ascertainable loss of money by the Markersons as required under La. R.S. 51:1409 was manifest error.
4. The trial court committed manifest error in its evidentiary rulings by:
A. Considering evidence not introduced into the record at trial.
B. Accepting the Markersons's exhibit P-21 into evidence when the Markersons failed to lay a foundation and authenticate each video included on the exhibit.
C. Accepting Exhibit P-22 into evidence as a summary when the underlying materials were not so voluminous they could not be conveniently examined in court and by not requiring the evidence being summarized to be admitted.
D. Striking the police officers listed as witnesses by 2Long in the pretrial order.
5. The trial court committed manifest error in finding that the fabrication operations of CAD were a nuisance under La. C.C. art. 667.
6. The trial court's award of $20,000.00 to each plaintiff for loss of use and enjoyment of property, stress and anxiety as a result of the nuisance violations was manifest error.
7. The trial court committed legal error by expanding the pleadings to render a judgment of contempt against 2Long.
8. The trial court committed manifest error in holding 2Long and CAD solidarily liable under La. C.C. art. 2324.
9. The trial court committed legal error by failing to apportion fault to 2Long and CAD as required by La. C.C. art. 2323.
10. The trial court's award of attorney fees to the Markersons was manifestly erroneous and legal error.

CAD has cited the following assignments of error:

1. The trial court committed legal error in determining the actions in finding Chris Markerson was entitled to damages and attorney fees pursuant to LUTPA.
2. The trial court erred in finding Chris Markerson sustained an ascertainable loss of money as a result of the alleged unfair trade practices as required under La. R.S. 51:1409.
3. The trial court erred in finding that CAD's business operations constituted a nuisance under La. C.C. art. 667.
4. The trial court erred in making an award for mental anguish when there was no actual damage to property or evidence of psychic trauma, and further erred by making said award excessive.
5. The trial court erred in finding CAD guilty of contempt when a rule to show cause stating the facts alleged to constitute the contempt has not been filed or served.

PEREMPTORY EXCEPTION OF PRESCRIPTION

Louisiana Code of Civil Procedure article 2163 states:

The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears in the record.
If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial on the exception.

The instant case went to trial, and the Markersons did not request that the case be remanded for trial on the exception; rather, the Markersons have contended in their opposition to the exception that their LUTPA action against 2Long has not prescribed because 2Long's actions constituted a continuing tort. Because there is a complete trial record before us and a remand is not demanded by the Markersons, we shall dispose of the exception of prescription.

Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Carter v. Haygood, 2004-0646 (La. 1/19/05), 892 So.2d 1261, 1267. According to the Markersons' amended petition, 2Long violated LUTPA when it "knowingly purchased a B-l zoned property with the intention of leasing the property to [CAD], and knew or should have known that [CAD]'s business operations violated the zoning ordinances." In the original petition, the Markersons alleged that 2Long purchased the property on August 28, 2014. Louisiana Revised Statutes 51:1409 provides for a prescriptive period of one year running from the time of the transaction or act that gave rise to the right of action. Since the Markersons filed the LUTPA claims on October 5, 2015, the petition was prescribed on its face.

In their opposition to the exception, the Markersons point to the factual findings of the trial court that 2Long and CAD made a series of misrepresentations, committed nuisance violations, and violated the injunction over an extended period of time that constituted deceptive acts or practices in violation of LUTPA.

Louisiana Revised Statutes 51:1405(A) declares as unlawful trade practices "unfair methods of competition and unfair deceptive acts or practices in the conduct of any trade or commerce." The Markerson's sole LUTPA allegation against 2Long deals with the purchase of the property. At trial, Clay Stafford testified that in the application for CAD's business license, he had a discussion with Mr. Long about whether the business operations would be intrusive to the surrounding neighborhood. Mr. Stafford concluded that the operations were allowable and would not be very intrusive. Mr. Stafford also recalled Mr. Long saying that CAD would be "an unobtrusive business," and that the cutting of sheet metal was never mentioned. Based on these representations by Mr. Long, who acted on behalf of 2Long as a member and co-owner, the City issued a business license to CAD.

We find that the alleged false statements of Mr. Long contributed to CAD's acquisition of a business license to operate its business as late as November 11, 2014. Without speaking to the merits of that argument, we find that a purported "deceptive act" occurred less than one year from the Markersons' filing the amended petition on October 5, 2015, which contained the LUTPA claim against 2Long. Therefore, the LUTPA claim against 2Long has not prescribed, and we deny 2Long's exception of prescription.

STANDARD OF REVIEW

2Long and CAD cite both factual and legal errors by the trial court. This state's appellate review standard, which is constitutionally based and jurisprudentially driven, is that a court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding which is manifestly erroneous or clearly wrong. Stobart v. State through Dept, of Transp. and Development, 617 So.2d 880, 882, n.2 (La. 1993) Any legal issues are reviewed using the de novo standard of review, under which the trial court's legal conclusions are not entitled to deference. TCC Contractors, Inc. v. Hospital Service Dist. No. 3 of Parish of Lafourche, 2010-0685 (La. App. 1 Cir. 12/8/10), 52 So.3d 1103, 1108 ; Gordon v. Gordon, 2016-0008 (La. App. 4 Cir. 6/8/16), 195 So.3d 687, 689, writ denied , 2016-1282 (La. 10/28/16), 208 So.3d 886.

DISCUSSION

LUTPA

2Long's first three assignments of error and CAD's first two assignments of error question the court's ruling that they had injured the Markersons through deceptive or unfair trade practices as provided in the Louisiana Unfair Trade Practices Act.

In its reasons for judgment, the trial court stated that "any person who suffers an ascertainable loss of money or property as a result of the use by another of an unfair or deceptive method, act or practice declared unlawful under [ La. R.S. 51:1405 ] may bring an action to recover damages, attorney fees and costs," citing Cheramie Services, Inc. v. Shell Deepwater Production, Inc., 2009-1633 (La. 4/23/10), 35 So.3d 1053, 1056. Traditionally, Louisiana courts have limited causes of action under LUTPA to consumers and business competitors. NOLA 180 v. Treasure Chest Casino, LLC, 2011-0853 (La. App. 5 Cir. 3/27/12), 91 So.3d 446, 449, writ denied, 2012-0949 (La. 6/15/12), 90 So.3d 1066. After Cheramie Services, however, LUTPA has been extended to plaintiffs who did not have any business relationship with the defendants.

In NOLA 180, a charter school sued Treasure Chest Casino under LUTPA after its manager embezzled approximately $667,000.00 to gamble at the casino. While not finding a LUTPA violation on the merits, the Fifth Circuit did find, under Cheramie Services, that the school had a right of action under LUTPA. See NOLA 180, 91 So.3d at 450.

In Harp v. Autrey, 47,749 (La. App. 2 Cir. 8/21/13), 121 So.3d 1260, writ denied, 2013-2263 (La. 12/2/13), 126 So.3d 1286, the Second Circuit found that the holding in Cheramie Services established a LUTPA right of action for a plaintiff property owner against the defendant who refused to provide water services to the plaintiff, as he was obligated to do. Reversing the trial court, the Second Circuit found the defendant was involved in a bad-faith scheme to drive the plaintiff from his property by cutting off the water supply, so that the defendant could then purchase the property for himself. Harp, at 1264, 1265.

Cheramie Services broadens the right of action under LUTPA to any person who has suffered an ascertainable loss through another's deceptive or unfair trade practices, regardless of whether the person is a business consumer or competitor of the defendant. Therefore, the Markersons have a right of action under LUTPA against 2Long and CAD, and now we must determine whether the Markersons have first, suffered an ascertainable loss, and second, whether that loss directly resulted from deceptive or unfair trade practices of 2Long and/or CAD.

Louisiana Revises Statutes 51:1405(A) prohibits any "unfair or deceptive acts or practices in the conduct of trade or commerce." In determining whether a LUTPA violation occurred, courts must decide on a case-by-case basis whether the conduct falls within the statute's prohibition.

Cheramie Services, 35 So.3d at 1059, citing Dufau v. Creole Engineering, Inc., 465 So.2d 752, 758 (La. App. 5 Cir. 1985), writ denied, 468 So.2d 1207 (La. 1985). A trade practice is unfair when it offends established public policy and when the practice is unethical, oppressive, unscrupulous or substantially injurious. A trade practice is deceptive when it amounts to fraud, deceit, or misrepresentation. Indest-Guidry Ltd. v. Key Office Equipment, Inc., 2008-0599 (La. App. 3 Cir. 11/5/08), 997 So.2d 796, 806, writ denied. 2008-2851 (La. 2/6/09), 999 So.2d 782. The Markersons alleged in their petition that 2Long knowingly purchased the property with actual or constructive knowledge that CAD's operations were in violation of the zoning ordinance, and that CAD misrepresented its operations to the City by saying the loud noise was due to renovations, when it was actually a continuous noise from its daily operations. On its face, the petition alleges unfair or deceptive trade practices.

The trial court found 2Long and CAD had violated LUTPA and awarded $1,049.99 in costs for surveillance fees to the Markersons. The award is based on an invoice introduced by the Markersons showing the purchase of equipment for that amount. The invoice does not adequately describe the equipment, but Mr. Markerson testified he purchased a security camera system after the injunction was ordered to show that CAD's operations continued at night.

A summary of the recordings prepared by Mr. Markerson was admitted into evidence, over objection. The summary contains descriptions of each recording or photograph and the date and time on which they were taken. Most of the videos are described as being taken with Mr. Markerson's iPhone, while only two videos were taken by the security camera. The photographs were taken with Mr. Markerson's Canon SLR camera. All iPhone and Canon footage is in color, the images are high quality, and in most of the videos the saw can be clearly heard. The iPhone recordings were taken both during the day and at night. In contrast, the security camera footage is in black and white, the images are of a slightly lesser quality, and there is no sound.

The sole purpose of the security camera footage was to prove the violation of the injunction; however, that footage only shows a truck pulling into a parking lot with its headlights remaining on and pointing toward the camera's location from the Markersons' backyard. No sound can be heard. Several of the videos taken with the iPhone are dated after the injunction was ordered, which makes the security camera footage unnecessary to prove any of the Markersons' claims. The security camera system that the Markerson's chose to buy was used as a discovery tool, and therefore not an ascertainable loss. We find that the trial court committed manifest error in awarding the cost under LUTPA of the security camera, and, as no ascertainable loss has been proven, there can be no violation under LUTPA. In so finding, the Markersons are not entitled to attorney's fees, and we pretermit discussion on 2Long's tenth assignment of error.

Evidentiary Rulings

In its brief, 2Long states that no evidence of unfair methods of competition and/or unfair deceptive acts or practices in the conduct of any trade or commerce pursuant to La. R.S. 51:1405 were presented by the Markersons at trial. Since we have found that the Markersons did not suffer an ascertainable loss under LUTPA, we pretermit discussion of part (A) of 2Long's fourth assignment of error.

Parts (B) and (C) of 2Long's fourth assignment of error concern the Markersons' exhibits P-21 and P-22, respectively. P-21 is the flash drive on which Mr. Markerson saved all of his photographs and video recordings, and P-22 is a summary of those photographs and videos compiled by Mr. Markerson. P-22 is divided into P-22A, which contains the date, time, and description of each file saved on the flash drive, and P-22B, which contains the dates of all the videos taken, most of which were not saved on the flash drive.

As P-21 was being filed and introduced into evidence, the defendants objected; however, just before the defendants raised the objection, the evidence was received by the court, as reflected in both the transcript and the court minutes. The objection regarded a lack of foundation for the photographs and videos. Counsel for the Markersons expressed her intent to show each photograph and video in order to lay a foundation, and the court allowed her to proceed. Each video was played before the court, and Mr. Markerson gave an explanation as to each one.

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. La. C.E. art. 901(A). Such evidence may come in the form of testimony by a witness with knowledge that the matter is what it is asserted to be. La. C.E. 901(B)(1) ; State v. Rice, 2017-0446 (La. 6/29/17), 222 So.3d 32, 33 (per curiam ).

With each video and photograph, Mr. Markerson explained to the court the date and time he recorded it, the method in which he recorded it, and what the images depicted. He further explained that while each video was only several seconds long, the noise from the saw, which can be heard in the videos, lasted for several hours. He also explained that the surveillance videos had no sound. The trial court found, as we find, that the videos and photographs depict what Mr. Markerson claimed. See Rice, at 33-34.

Generally, the trial court is granted broad discretion on its evidentiary rulings and its determinations will not be disturbed on appeal absent a clear abuse of discretion. Henry v. Sullivan, 2016-0564 (La. App. 1 Cir. 7/12/17), 223 So.3d 1263, 1274. 2Long contends the trial court abused its discretion when it failed to definitively admit the evidence after the foundation had been laid. We disagree. Prior to the laying of the foundation, the trial court clearly received the evidence into the record. After the foundations for each video and photograph were completed, the trial continued. Had the trial court felt that no proper foundation had been given as to any piece of evidence, it would have refused to admit the evidence at that time. Since the court made a general acceptance of P-21 at its introduction and made no subsequent modification to that ruling, we find that the trial court had intended to admit the entirety of P-21 after the foundation had been laid.

The admission of P-22 as evidence was largely unnecessary since Mr. Markerson was present to identify each file in P-21 himself. Since the material on P-21 was not so voluminous that they required a summary, we pretermit discussion on the admissibility of this evidence. See La. C.E. art. 1006.

In the final part of its fourth assignment of error, 2Long avers that the trial court improperly excluded the testimony of eight police officers it intended to call as witnesses. In a bench trial order dated May 4, 2016, the trial court initially scheduled the trial for September 30, 2016, and set a deadline for listing new witnesses at sixty days prior to trial. The bench trial began December 1, 2016. The pre-trial order, filed the same day, listed eight officers from the Gonzales Police Department as witnesses for 2Long and CAD. The Markersons filed opposition to the inclusion of these witnesses on the same date. Although CAD makes reference to the Gonzales Police Department in its answer to the original petition, it failed to list the eight individual officers prior to the deadline for listing new witnesses, which would have been October 1, 2016.

The theory inherent in pre-trial civil procedure is to avoid surprise and to permit an orderly disposition of the case. Robertson v. Lafayette Ins. Co., 2011-0975 (La. App. 4 Cir. 2/8/12), 85 So.3d 186, 189, citing Eanes v. McKnight, 262 La. 915, 931-32, 265 So.2d 220, 226-27 (La. 1972). The trial court may order parties to produce an identification of witnesses, documents and exhibits, pursuant to La. C.C.P. art. 1551(A)(8). Furthermore, in the event that a party disobeys the trial court's pretrial order, the trial court may make such orders that are just, including the striking of witnesses or other evidence. La. C.C.P. art. 1471(A)(2).

After a brief hearing before the trial on December 1, 2016, the court ordered that the testimony of the eight officers be stricken, pursuant to the Markersons' objection. Since the Markersons were not made aware of the eight witnesses until the day of the trial, we cannot say that the trial court abused its discretion by striking the eight police officers from the witness list. See Robertson , at 190.

Nuisance and Violation of Injunction

2Long's assignments of error five through seven and CAD's remaining assignments of error center around the trial court's award to each plaintiff of $20,000.00 for nuisance violations and violations of the trial court's injunction.

Louisiana Civil Code article 667 states, in pertinent part:

Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Whether an activity constitutes a nuisance is a question of fact dependent upon the circumstances of each particular case. Schulker v. Roberson, 91-1228 (La. App. 3 Cir. 6/5/96), 676 So.2d 684, 688. One claiming damages arising out of a condition constituting a nuisance has the burden of proving that the condition constitutes a nuisance and that damages resulted therefrom. Butler v. Baber , 529 So.2d 374, 379 (La. 1988). As stated, the Markersons presented testimony and visual evidence of CAD's activities adjacent to their property. The evidence presented to the trial court illustrated that from a documented period of November 2014 to October 2016, CAD's operations produced continuous noise day and night, and at night trucks pulling into CAD's loading dock would shine their headlights in the direction of the Markersons' home, waking them up. We do not find that the trial court's conclusion that CAD's operations constituted a nuisance was manifestly erroneous; furthermore, we cannot substitute our own opinion for the trial court's without a finding of manifest error. See Lasyone v. Kansas City Southern R.R., 2000-2628 (La. 4/3/01), 786 So.2d 682, 698.

In addition to proving the existence of the nuisance, the Markersons also had to prove damage resulting from the nuisance. In the original petition, the Markersons alleged loss of enjoyment of their property, discomfort, annoyance, diminishment of property value, inconvenience, mental stress, pain and suffering, and inability to sleep, entertain, or take solace in their residence. Mr. Markerson testified as to landscaping work he had done to his backyard, including an irrigation system and generator, which he claimed totaled approximately $2,000.00. He had started the landscaping project in the summer of 2014.

In addition to the cost of the landscaping, Mr. Markerson testified that since CAD started its operations in November of 2014, the noises, especially the metal saw noise, was an aggravation that could be heard both inside and outside the home. In a letter to the mayor of Gonzales, Mr. Markerson stated neither he or his wife were able to enjoy their property because of the daily noise. He further testified that had he known he would have to live next to the noise coming from CAD's workshop, he would not have bought the property.

In addition to Mr. Markerson's testimony, Amy Markerson testified that she and her husband purchased their property with the intent of expanding their family, installing a pool, and enjoying a quiet neighborhood, with the backyard being the most important feature to the home. Prior to the beginning of CAD's operations, the Markersons would use the backyard on a daily basis and entertain guests in the yard. Ms. Markerson discovered that she was pregnant in early 2015, and she testified that while undergoing the stress of the noise from CAD, the lack of sleep from trucks' headlights shining into their bedroom, and stress from her job as an occupational therapist, she suffered a miscarriage in March of 2015. Ms. Markerson testified that all the noises coming from CAD, but especially the saw noise, were a constant mental distraction. Due to the noise, the Markersons lost almost all use of their backyard. Ms. Markerson also testified that on occasion, workers from CAD would approach the fence and look into the backyard, which scared her.

In determining whether an activity or work occasions real damage or mere inconvenience, a court is required to determine the reasonableness of the conduct in light of the circumstances. The analysis requires consideration of factors such as the character of the neighborhood, the degree of intrusion and the effect of the activity on the health and safety of the neighbors. Badke v. USA Speedway, LLC, 49,060 (La. App. 2 Cir. 5/14/14), 139 So.3d 1117, 1126, writ denied, 2014-1533 (La. 10/24/14), 151 So.3d 606. The evidence and testimony presented by the Markersons show that for almost one year they suffered stress, loss of enjoyment of their home and backyard, and pecuniary loss due to the activities at CAD's business.

The trial court awarded $20,000.00 to each of the Markersons for damages they sustained due to the activities of CAD. The trial court was not manifestly erroneous in the amount of the award for the kind of damage sustained. See Jones v. Capitol Enterprises, Inc., 2011-0956 (La. App. 4 Cir. 5/9/12), 89 So.3d 474, 509-510, writ denied, 2012-1634 (La. 10/26/12), 99 So.3d 651. Since we find the trial court's award is justified solely on the nuisance violations, it is unnecessary to discuss whether the trial court improperly expanded the pleadings to find 2Long and CAD in contempt.

Solidary Liability and Comparative Fault

Louisiana Civil Code article 2324(A) states that "he who conspires with another to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act." 2Long asserts in its eighth assignment of error that no evidence was introduced to establish solidary liability between 2Long and CAD. Insofar as it relates to the nuisance violations, we disagree. The record is clear that without 2Long's application to the City for a business license on behalf of CAD, and without 2Long leasing its property to CAD, CAD never could have operated its business next to the Markersons' property.

The actionable element in a claim for solidary liability for conspiracy is not the conspiracy itself, but rather the tort which the conspirators agreed to perpetrate and which they actually commit in whole or in part. Boudreaux v. Jeff, 2003-1932 (La. App. 1 Cir. 9/17/04), 884 So.2d 665, 672. Although CAD created the noise and had headlights from trucks shining into the Markersons' bedroom at night, 2Long enabled and facilitated those actions to occur. We find the trial court was not manifestly erroneous in holding 2Long and CAD liable to the Markersons in solido for the nuisance violations.

2Long's ninth assignment of error avers that the trial court made no determination as to comparative fault of the parties pursuant to La. C.C. art. 2323. As stated above, 2Long and CAD are solidary liable, meaning the debt owed is not divided, and each are obligated for the whole, as if it were alone. See Kelley v. General Ins. Co. of America, 2014-0180 (La. App. 1 Cir. 12/23/14), 168 So.3d 528, 535-36, writs denied, 2015-0157, 20150165 (La. 4/10/15), 163 So.3d 814, 816. In finding the defendants solidarily liable, the trial court did not have to make a determination of comparative fault.

DECREE

The peremptory exception of prescription filed before this Court by the appellant 2Long, LLC, is denied. The judgment of the Twenty-Third Judicial District Court, with respect to the Louisiana Unfair Trade Practices Act claim, is reversed. In all other respects, the judgment is affirmed. Costs of this appeal shall be assessed equally between the appellants, Composite Architectural Design Systems, LLC and 2Long, LLC, and the appellees, Chris and Amy Markerson.

PEREMPTORY EXCEPTION DENIED; JUDGMENT AFFIRMED IN PART, AND REVERSED IN PART.

Welch J. agrees in part and dissents in part and assigns reasons.

McClendon J. Concur for reasons as signed.

I concur in the result reached by the majority.

I agree with the majority opinion except with respect to the issue of solidary liability. Based on my review of the record, I find that the trial court manifestly erred in holding 2Long, LLC and CAD solidarily liable to the Markersons. The evidence in the record does not support a finding that 2Long, LLC conspired with CAD to create a nuisance. Therefore, I would reverse that portion of the judgment of the trial court and remand for the allocation of fault, if any of 2Long, LLC pursuant to La. C.C. art. 2323.

Thus, I respectfully dissent in part.

      Gonzales City Ordinance 22-10(b)(l), as of August 25, 2015, outlined permitted uses of a "B-1 limited business district" as "office buildings, provided that no goods, wares or merchandise shall be prepared or sold on the premises; personal service shops such as beauty shops and barber shops; single-family residential detached conventional homes."

      The partial summary judgment was not appealed.

      The award of attorney's fees in the amount of $90,823.00 was appealed by 2Long and CAD and is the sole issue in Chris Markerson, Jr. and Amy Markerson v. Composite Architectural Design Systems, LLC and 2Long, LLC, 2018-CA-0028 (La. App. 1 Cir. 10/07/2018), 255 So.3d 1222, 2018 WL 3372626.

      See Martin v. City of Baton Rouge, 2000-0896 (La. App. 1 Cir. 6/22/01), 858 So.2d 440, 442, where this Court remanded the matter to the trial court and held the appeal in abeyance solely for consideration of a peremptory exception of prescription where the plaintiff had made demand for a rehearing pursuant to La. C.C.P. 2163 after the defendants had filed the exception for the first time with this Court.


text:
    DANOS TREE SERVICE, LLC and Daniel Laham v. PRORIDE TRAILERS, LLC and Jason Jarreau
    NO. 2017 CA 1546
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JULY 10, 2018
    Michael E. Parks New Roads, Louisiana, Counsel for Defendant/Appellant Jason Jarreau
    John W. JoyceMadison A. Sharko New Orleans, Louisiana, Counsel for Plaintiffs/Appellees Danos Tree Service, LLC and Daniel LaHam
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   THERIOT, J.

Proride Trailers, LLC ("Proride") and Jason Jarreau appeal the judgment of the Eighteenth Judicial District Court granting Danos Tree Service, LLC and Daniel LaHam's (collectively "Appellees") motion for summary judgment. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On January 11, 2016, Jason Jarreau and Proride (collectively "Appellants") entered into a contract with Daniel LaHam, the owner of Danos Tree Service, LLC ("DTS"). Appellants agreed to manufacture a grapple trailer for DTS by March 27, 2016 for a total price of $33,511.97. Mr. LaHam gave Appellants a check for $30,000 as a down payment. According to Appellees, Appellants never provided the trailer, never returned the down payment, and never responded to Appellees' demands for information.

On July 1, 2016, Appellees filed suit against Appellants, alleging fraud, violations of the Louisiana Unfair Trade Practices Act ("LUTPA") pursuant to La. R.S. 51:1401, et seq. , breach of contract, and unjust enrichment. Appellees further alleged that Mr. Jarreau was solidarily liable with Proride under a veil piercing theory. Appellees also brought a revocatory and oblique action pursuant to La. Civ. Code arts. 2036 and 2044 for the return of funds improperly received that caused or increased Proride's insolvency. Additionally, Appellees alleged they were entitled to damages for detrimentally relying on the promises of Mr. Jarreau and Proride, and alleged that Proride and Mr. Jarreau committed the tort of conversion by improperly receiving and never returning the $30,000 deposit. On the same date, Appellees submitted interrogatories, requests for admissions, and requests for production of documents to both Mr. Jarreau and Proride. Appellees also attached nine different consumer complaint forms to the petition that accused Appellants of conduct such as issuing temporary tags without a permit, missing delivery deadlines, failing to provide license plates and/or title documents, refusing to return deposits, and incorrectly installing equipment.

On July 27, 2016, Mr. Jarreau submitted a document entitled "Defendants Response" on behalf of himself and Proride. In the "Defendants Response," Appellants contested each of the nine customer complaints attached to the petition. As for the contract at issue, Appellants denied the allegation of fraud and alleged that Proride had been forced to shut down its business during the process of Appellees' trailer being built. The response also states that because Proride is a limited liability company, none of its members or entities are personally liable for the funds in question. The response also indicates that Appellants have never refused to refund the $30,000 deposit to Appellees.

On March 16, 2017, Appellees filed a motion for summary judgment. In a supporting memorandum, Appellees argue that because Appellants failed to deny the allegations in the petition and failed to answer the requests for admissions, those allegations were deemed admitted and evidenced the absence of a genuine issue of material fact. Appellants did not file an opposition to Appellees' motion for summary judgment however, Mr. Jarreau did appear pro se on behalf of himself and Proride at the hearing on the motion.

The trial court signed a judgment on May 3, 2017, granting Appellees' motion for summary judgment finding Proride and Mr. Jarreau, in his individual capacity, solidarily liable to Appellees in the amount of $30,000. The trial court also ordered Mr. Jarreau to pay $11,000 in attorney's fees and $968.50 in court costs to Appellees. This appeal followed.

ASSIGNMENTS OF ERROR

Appellants assign the following as error:

(1) The trial court was clearly wrong in granting summary judgment in this matter.
(2) The trial court was clearly wrong in ruling that Jason Jarreau was liable in solido with Proride Trailers, LLC.
(3) The trial court was clearly wrong in awarding attorney's fees in this matter.

STANDARD OF REVIEW

A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Schultz v. Guoth, 2010-0343 (La. 1/19/11), 57 So.3d 1002, 1005-06.

DISCUSSION

Assignment of Error # 1

In their first assignment of error, Appellants argue that the trial court erred in granting Appellees' motion for summary judgment. Appellants argue that the "Defendants Response" was their response to the petition, requests for admissions, requests for production of documents, and interrogatories. Further, Appellants allege that the trial court never considered the "Defendants Response" and that examination of such would have made it clear that material issues of fact do exist in this case.

Denials to allegations of fact contained within a petition are governed by La. Code Civ. P. art. 1004, which states:

The answer shall admit or deny the allegations of fact contained in each paragraph of the petition, and all such allegations, other than those as to the amount of damages, are admitted if not denied in the answer. If the defendant is without knowledge or information sufficient to justify a belief as to the truth of an allegation of fact made in the petition, he shall so state and this shall have the effect of a denial. Denials shall fairly meet the substance of the allegations denied. When the defendant intends in good faith to deny only a part of or to qualify an allegation of fact, he shall admit so much of it as is true and material and shall deny or qualify the remainder. (Emphasis added).

Louisiana Code of Civil Procedure article 1467 governs requests for admissions and states in relevant part:

A. Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney.

Appellees filed their petition and propounded requests for admissions on July 1, 2016. Appellants filed their "Defendants Response" on July 27, 2016. The "Defendants Response" consists of three sections, which correspond to the sections of the petition. In the first section, Appellants dispute the claims that they defrauded various customers. In the second section, Appellants state that Proride is a limited liability company. The third section addresses paragraphs 14, 15, 16, 21, 25, 26, 27, 30, 32, 33, 34, and 48 of the petition. The "Defendants Response" does not dispute that an agreement was entered into for the manufacture of a trailer, nor does it dispute that Appellants failed to provide the trailer. In regard to Appellees' fraud claim, Appellants state only that there was no proof that Appellants had not begun fabricating the trailer and that there was no fraud involved in this case. In their response to the piercing the corporate veil claim, Appellants claim that Proride is a limited liability company and that none of its members or entities are responsible for funds, and that Proride had no choice but to shut down its business while the trailer was being built. As to the LUTPA claim, Appellants again dispute the attached complaints and state that they did not intend to not deliver the trailer. Finally, as to the unjust enrichment claims, Appellants state that they never refused to refund the down payment. Appellants do not acknowledge the Appellees' revocatory and/or oblique action, breach of contract claims, detrimental reliance claims, or conversion claims. Further, although the "Defendants Response" addressed some of the petition's paragraphs, it does not answer any of the requests for admissions.

As stated in La. Code Civ. P. art. 1004, the answer must admit or deny the allegations of fact contained in each paragraph of the petition, and those allegations not denied are deemed admitted. The language of La. Code Civ. P. art. 1467 is very clear; the matter is admitted unless a written answer or objection is served on the party making the request within the specified time after service of the request. Vardaman v . Baker Center, Inc ., 96-2611 (La. App. 1 Cir. 3/13/98), 711 So.2d 727, 732-33. However, Article 1467 is not a trap set for the litigant; it provides many options for the party on whom the request is served. Id. at 733. If the party cannot answer within the specified time, the court may allow additional time. Id. The answer itself may take many forms; the party may admit the facts alleged, deny them, state reasons why it cannot truthfully admit or deny the matter, or give reasons why it objects to the request. Id. But if a party fails to take any of these steps, the matter is admitted and, according to La. Code Civ. P. art. 1468, is conclusively established. Id.

In the present case, Appellants only responded to a few of the allegations in the petition and failed to answer the requests for admission. As a result, those allegations are deemed admitted and conclusively established as facts for the purposes of this litigation. See Vardaman, 711 So.2d at 732-733. Because these facts are established, there are no genuine issues of material fact remaining. Therefore, the trial court properly granted Appellees' motion for summary judgment.

Assignment of Error # 2

In their second assignment of error, Appellants argue that the trial court erred in finding Mr. Jarreau to be liable in solido with Proride.

A corporation is a separate entity from its shareholders and a Louisiana limited liability company is a separate legal entity from its members. Fausse Riviere, L.L.C. v. Snyder, 2016-0633 (La. App. 1 Cir. 2/15/17), 211 So.3d 1188, 1192. See also La. Civ. Code art. 24. Corporations and limited liability companies are recognized juridical persons. Id. See also La. Civ. Code art. 24. In narrowly defined circumstances, when individual member(s) of a juridical entity, such as a limited liability company, mismanage the entity or otherwise thwart the public policies justifying treating the entity as a separate juridical person, the individual member(s) have been subjected to personal liability for obligations for which the limited liability company would otherwise be solely liable. Id. When individual member(s) are held liable under such circumstances, it is said that the court is piercing the corporate veil. Id. Only exceptional circumstances warrant disregarding the concept of a corporation or limited liability company as a separate entity. Id. Moreover, the same policy considerations relevant to a determination of piercing the veil of a corporation also apply to a limited liability company. Id. at 1192-93.

The court may pierce the corporate veil under two exceptional circumstances. Id. at 1193. First, where the shareholders, acting through the corporation, commit fraud or deceit on a third party, the court will look to the shareholders for justice. Id. Secondly, the court may disregard the corporate identity where shareholders fail to conduct the business on a corporate footing. Such a failure can occur if the shareholder disregarded the corporate formalities to such an extent that the shareholder and the corporation became indistinguishable, or such unity existed that separate individualities ceased and the corporation was operated as the "alter ego" of the shareholder. Id.

Because of Appellants' failure to deny all the relevant allegations in the petition and because Appellants failed to answer the requests for admission, it is conclusively established for the purposes of this litigation that Proride operated as the alter ego of Mr. Jarreau. Paragraph 4 of the petition states in relevant part that "[u]pon information and belief, Jarreau is the sole member of Proride." Paragraph 26 of the petition states "Moreover, Jarreau is not entitled to hide behind his now unregistered limited liability company because, on information and belief, as the sole member of a thinly capitalized entity that misdirected entity funds for his personal profit, Jarreau is the alter ego of Proride." In the "Defendants Response,"

Appellants did not deny the assertion that Mr. Jarreau was the only member of Proride, nor did Appellants deny that Mr. Jarreau had used Proride as his alter ego. Additionally, and as previously stated, Appellants did not answer the requests for admissions, which included a request that Mr. Jarreau and/or Proride "[a]dmit that the facts stated in Paragraph 26 in Plaintiffs' Petition are true and correct."

Because Appellants failed to deny that Proride is the alter ego of Mr. Jarreau, these facts are also deemed admitted and conclusively established as facts for the purposes of this litigation. See Vardaman, 711 So.2d at 732-733. As such, the trial court did not err in finding Mr. Jarreau to be liable in solido with Proride.

Assignment of Error # 3

In their third assignment of error, Appellants allege that the trial court erred in granting attorney's fees in this matter. Under Louisiana law, attorney fees are not allowed except where authorized by statute or contract. Whiddon v. Livingston Parish Council , 2004-1126 (La. App. 1 Cir. 5/6/05), 915 So.2d 863, 866. Unless mandated by statute, whether attorney fees should be imposed is a factual question that will not be disturbed upon review in the absence of manifest error. Id.

We must also consider whether the amount of attorney's fees awarded was reasonable. Factors to be taken into consideration in determining the reasonableness of attorney's fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) amount of money involved; (5) extent and character of the work performed; (6) legal knowledge, attainment, and skill of the attorneys; (7) number of appearances made; (8) intricacies of the facts involved; (9) diligence of counsel; and (10) the court's own knowledge. Anglin v. Anglin , 30 So.3d 746, 752 (La.App. 1 Cir. 2009). The trial court has much discretion in fixing an award of attorney's fees, and its award will not be modified on appeal absent a showing of an abuse of discretion. Id.

The only mention of the amount of attorney's fees in this case is the judgment, which was prepared by Appellees' counsel prior to the hearing on the motion for summary judgment. Further, the record is vague as to which factors, if any, the trial court considered in setting the amount of attorney's fees. Since we lack the necessary information to apply our standard of review, we must vacate the trial court's award of attorney's fees. The matter is remanded for a hearing to determine if attorney fees are warranted in this matter, and, if so, the amount of attorney fees.

DECREE

For the above and foregoing reasons, the judgment of the Eighteenth Judicial Court is affirmed insofar as it granted the motion for summary judgment filed by Danos Tree Service, LLC and Daniel LaHam and insofar as it decreed that Proride Trailers, LLC and Jason Jarreau, in his individual capacity, are solidarily liable to Danos Tree Service, LLC and Daniel LaHam in the amount of $30,000. The judgment is vacated insofar as it ordered Jason Jarreau to pay Danos Tree Service, LLC and Daniel LaHam $11,000 in attorney's fees. The matter is remanded for further proceedings consistent with this opinion. One-half of the costs of this appeal are assessed to Appellants, Proride Trailers, LLC and Jason Jarreau, and one-half of the costs of this appeal are assed to Appellees, Danos Tree Service, LLC and Daniel LaHam.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Welch J., concurs and assigns reasons.

McClendon J. concurs and assigns reasons.

A summary judgment may be rendered only as to those issues set forth in the motion under consideration by the court at that time. LSA-C.C.P. art. 966F. Because attorney's fees were not sought in appellees' motion for summary judgment, the trial court erred in awarding them in its judgment. Accordingly, I concur in vacating the attorney's fee award.

I respectfully concur with the opinion in this matter. I concur with affirming the trial court's grant of summary judgment in favor of Danos Tree Service, LLC and Daniel LaHam and against Proride Trailers, LLC and Jason Jarreau, as to the $30,000.00. However, I believe the provision in the trial court's May 3, 2017 judgment ordering Proride Trailers, LLC and Jason Jarreau to pay that amount within thirty days of judgment should be vacated.

I respectfully concur with vacating the trial court's award of attorney's fees on summary judgment to Danos Tree Service, LLC and Daniel LaHam and against Jason Jarreau in the amount of $11,000.00, and I additionally point out that as a matter of law, attorney's fees are not recoverable when a trial court grants a motion for summary judgment. La. C.C.P arts. 966 - 969 ; Lewis v. Busby, 2005-2242 (La. App. 1st Cir. 9/27/06), 946 So.2d 665, 670. Although attorney's fees may be awarded when a trial court finds that sanctions under La. C.C.P. art. 863 are appropriate, no request for Article 863 sanctions was made in this matter. Id. I also note that attorney's fees were not requested in the motion for summary judgment. La. C.C.P. art. 966(F) ; see also Williams Law Firm v. Bd. of Sup'rs of Louisiana State Univ., 2003-0079 (La. App. 1st Cir. 4/2/04), 878 So.2d 557, 573.

For these reasons, I respectfully concur.