author: GREMILLION, Judge.

text:
    Douglas W. BARTON v. WAL-MART STORES, INC.
    18-146
    Court of Appeal of Louisiana, Third Circuit.
    September 26, 2018 Rehearing Denied November 14, 2018
    Thomas Benjamin Moyse Wahlder, Attorney at Law, P. O. Box 543, Alexandria, LA 71309, (318) 442-9417, COUNSEL FOR PLAINTIFF/APPELLANT: Douglas W. Barton
    Andrew Parker Texada, Stafford, Stewart & Potter, P. O. Box 1711, Alexandria, LA 71309, (318) 487-4910, COUNSEL FOR PLAINTIFF/APPELLANT: Douglas W. Barton
    Gregory B. Odom, II, Chadwick & Odom, LLC, P. O. Box 12114, Alexandria, LA 71315, (318) 445-9899, COUNSEL FOR DEFENDANT/APPELLEE: Wal-Mart Louisiana, LLC
    Court composed of Billy Howard Ezell, Shannon J. Gremillion, and D. Kent Savoie, Judges.
   GREMILLION, Judge.

Before the court comes the appeal of Mr. Douglas W. Barton, who protests the summary judgment granted in favor of Appellee, Wal-Mart Louisiana, LLC, which dismissed Mr. Barton's merchant liability claim under La.R.S. 9:2800.6 for injuries he allegedly sustained when he fell in the automotive maintenance section of Appellee's store in Alexandria, Louisiana, on July 29, 2016. For the reasons that follow, we reverse.

PROCEDURAL POSTURE

Mr. Barton's action was commenced by the filing of a petition on August 12, 2016, in Alexandria City Court. Six days later, Wal-Mart answered the suit. On March 29, 2017, Mr. Barton moved to transfer the matter to the Ninth Judicial District Court claiming his damages exceeded the $50,000.00 jurisdictional limit of Alexandria City Court. On September 7, 2017, Wal-Mart filed the motion for summary judgment that resulted in this appeal. That motion was granted on December 14, 2017.

APPELLATE REVIEW OF SUMMARY JUDGMENTS

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

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

MERCHANT LIABILITY

Claims against a merchant for allegedly hazardous conditions on its premises are governed by La.R.S. 9:2800.6, which reads:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) "Constructive notice" means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
(2) "Merchant" means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

This statute tasks a merchant with the duty to maintain its premises in a reasonably safe condition. This duty includes the obligation to refrain from creating hazardous conditions, to discover unreasonably dangerous conditions in a timely manner, and to reasonably ameliorate hazardous conditions when discovered. The law also imposes liability on a merchant who fails to discover an unreasonably dangerous condition that has existed for such a time that it would have discovered it had the merchant exercised reasonable care, which duty is known as "constructive notice." The statute also explicitly places the burden of proving these elements, including proof of the merchant's actual or constructive notice of a hazardous condition, on the claimant.

APPLICATION OF THESE PRINCIPLES TO THIS CASE

The initial burden is on Wal-Mart to demonstrate that it is entitled to summary judgment; therefore, we will first examine Wal-Mart's motion and submissions to determine whether it carried its burden of proof. In support of its motion, Wal-Mart supplied excerpts of the depositions of Mr. Barton and its employee, Mr. Javathan Bullions, the affidavit of Mr. Tyler Montpelier, and surveillance video that captured the accident.

The excerpt of Mr. Barton's deposition reveals that on the day of the accident, it was raining as he drove to Wal-Mart to purchase a part neeeded to repair a lawn mower. He parked his vehicle outside the Tire and Lube Center of the store and waited ten to fifteen minutes for the rain to slacken. Mr. Barton denied that his shoes got wet when walking from his vehicle to the store. He also denied seeing any puddles on the ground from the short distance between his vehicle and the entrance. As he entered the store, Mr. Barton fell. He opined that he fell in condensation, which, he testified, surrounded the area.

Mr. Bullions testified that it had been raining about thirty minutes before Mr. Barton fell. There were caution signs at the scene, and Mr. Bullions was proceeding to put them out just before Mr. Barton entered, but he was checking another customer out when the accident happened. The door opening into the lube center is a sliding door that is activated by a button behind the counter; accordingly, customers entering or leaving must be granted access by an associate who activates the door. Prior to Mr. Barton's entrance, Mr. Bullions testified, the floor was not wet. He opined that the wind blew rain into the building as Mr. Barton entered.

Mr. Montpelier's affidavit attested to the existence, custody, and authenticity of surveillance video of the area before and after Mr. Barton's fall. The video quality is rather poor; however, the following observations can be made from it. That portion of the video introduced begins approximately one hour before Mr. Barton's fall. One can see that it is daylight outside the entrance. There is a sheen on the floor throughout the video, but it is difficult, due to the pixelated nature of the video, to discern whether that is from moisture or the floor's finish. During the one hour before Mr. Barton's fall, thirty-five customers enter or leave through that door. Employees of Wal-Mart traverse the area six times. At no time during these traverses of the area does there appear any disturbance of the floor's surface, and no customer or employee slipped or had any other difficulty. Ten minutes before Mr. Barton enters, an elderly woman ambulating with the assistance of a walker appears to easily traverse the area, as did a man who appeared equally elderly but not requiring the assistance of any device. Five minutes before the fall, another older gentleman entered the store and encountered no difficulty.

At 12:35 p.m., Mr. Barton entered the store. His right foot is seen to slip, and he fell forward onto his hands and knees. He remained in that position until a Wal-Mart employee came to his assistance. Only after Mr. Barton moved from his hands-and-knees position were impressions left on the floor such as one might expect if the floor were wet. The employee immediately placed yellow cones. Well after Mr. Barton moved, the impressions remained visible on the floor.

The trial court entered judgment in favor of Wal-Mart, holding that it had no constructive notice of the moisture before Mr. Barton fell. Mr. Barton appeals, arguing the trial court erred in finding for Wal-Mart.

As noted above, " 'Constructive notice' means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care." La.R.S. 9:2800.6(C)(1). In the present matter, while the plaintiff is charged with the burden of proof of constructive notice, it is Wal-Mart's burden, as the mover for summary judgment, to demonstrate an absence of factual support for Mr. Barton's claim of constructive notice. La.Code Civ.P. art 966(D)(1). We find that Wal-Mart failed to carry this burden.

Mr. Barton stated that he thought the moisture in which he fell was condensation. Mr. Bullions, on the other hand, denied the presence of moisture before Mr. Barton entered. The video quality is rather poor, and it is difficult to discern at what point the floor became wet. No customer is seen disturbing moisture on the floor before Mr. Barton. This tends to corroborate Mr. Bullions' account. Even were the quality better, though, we are faced with two contradictory versions of the incident and are not allowed to weigh the credibility of the two witnesses. Mouton v. Sears Roebuck and Co. , 99-669 (La.App. 3 Cir. 11/3/99), 748 So.2d 61, writ denied , 99-3386 (La. 2/4/00), 754 So.2d 232.

DECREE

The judgment of the trial court in favor of Wal-Mart Louisiana, LLC is reversed. All costs of this appeal are taxed to Appellee, Wal-Mart Louisiana, LLC.

REVERSED.


source: Caselaw Access Project

author: HOLDRIDGE, J.

license: Public Domain

text:
    Jeffrey Mikal BERTHELOT v. Heather Leigh BERTHELOT
    2017 CA 1055
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: July 18, 2018
    Nicole R. Dillon, April Ford Jackson, Hammond, LA, Attorneys for Plaintiff/Appellee, Jeffrey Mikal Berthelot
    Mary E. Heck Barrios, Denham Springs, LA, Attorney for Defendant/Appellant, Heather Leigh Berthelot
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HOLDRIDGE, J.

This appeal arises from a trial court judgment partitioning the community property formerly existing between Heather Leigh Berthelot and Jeffrey Mikal Berthelot. For the reasons that follow, we affirm in part and reverse in part the trial court judgment.

FACTS AND PROCEDURAL HISTORY

Heather Leigh Berthelot and Jeffrey Mikal Berthelot were married on July 10, 1999. On July 14, 2010, Jeffrey filed a petition for divorce. The parties' divorce became final on January 23, 2012. However, the parties resumed cohabitating until October 2014 at a home in Autumn Run Subdivision (Autumn Run Subdivision home) in Tangipahoa Parish. Heather filed a petition for partition of community property on November 3, 2014. Heather also filed a detailed descriptive list evidencing the parties' community assets, listing movable and immovable properties and several reimbursement claims. Particularly, the detailed descriptive list revealed that the parties owned immovable property consisting of three tracts of rental properties in Ponchatoula, Louisiana. Those rental properties consisted of a mobile home on .5 acres located at 20296 Sisters Road, a mobile home located on 1.6 acres located at 20302 Sisters Road, and a mobile home located on .5 acres at 20308 Sisters Road. All three properties were subject to one single mortgage. The tenant living at 20296 Sisters Road had been behind on his rent for two years as of the time of trial.

On April 17, 2015, the parties entered into a stipulated judgment, granting Jeffrey use of the 2007 Ford F-250 Super Duty King Ranch truck until the community property partition and he had to provide monthly accounting of any sums received and expenses paid associated with the community rentals by the 15th of each month.

On August 12, 2015, the parties submitted a joint detailed descriptive list of all their community property to the trial court. The joint detailed descriptive list revealed numerous reimbursement claims Heather made against Jeffrey including: (1) use of community funds from the sale of their previous home in Weinberger Trace for the purchase of the Autumn Run Subdivision home which became Jeffrey's separate property; (2) use of the remaining community funds from the sale of the Weinberger Trace home for the Autumn Run Subdivision home; (3) use of Heather's separate funds for the improvements to the Autumn Run Subdivision home; and (4) profits from the rental properties received by Jeffrey after July 14, 2010.

A trial was held on November 3, 2016 on the parties' partition of community property and reimbursement claims. Following testimonial and documentary evidence presented, the matter was taken under advisement. The trial court signed its reasons for judgment on December 8, 2016. On January 31, 2017, the trial court signed a judgment, awarding Heather .5 acres and mobile home located on 20296 Sisters Road valued at $45,000.00 and .5 acres and mobile home located on 20308 Sisters Road valued at $62,000.00. Jeffrey was awarded 1.6 acres and mobile home located at 20302 Sisters Road valued at $65,000.00. The trial court ordered that each party was responsible for their proportionate share of the mortgage on the immovable properties awarded, and the mortgage had to be refinanced within 90 days from when the judgment was rendered. The trial court further awarded Heather the accounts receivable owed by the tenant at the 20296 Sisters Road property in the amount of $3,615.39. Jeffrey was awarded the 2007 Ford F-250 Super Duty King Ranch truck valued at $9,000.00. The trial court denied Heather's reimbursement claim for the Autumn Run Subdivision home, stating in its reasons for judgment "[b]y prior agreement between the parties ... Jeffrey bought Heather out of the Autumn Run Subdivision home for $45,000.00.... Therefore no reimbursement [was] warranted." The trial court awarded Jeffrey reimbursement in the sum of $12,875.00 for Heather's use of the funds from his separate account for her own personal needs. The trial court further ordered Jeffrey to reimburse Heather for the net rental income from the rental properties owned by the community from the time of the final separation of the parties in October 2014 through the date of the trial in the sum of $6,006.35, reimbursable at one-half, totaling $3,003.18.

Heather filed a motion for new trial and it was denied by the trial court. A written judgment was signed on April 4, 2017. Heather subsequently appealed the January 31, 2017 judgment and the April 4, 2017 judgment denying her motion for new trial. On July 31, 2017, this court ex proprio motu issued a rule to show cause order, observing that it appeared the appeal is untimely. On December 7, 2017, another panel of this court maintained the appeal.

APPLICABLE LAW

When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a community property partition. La. R.S. 9:2801(A).

The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties. La. R.S. 9:2801(A)(4)(a). The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value. La. R.S. 9:2801(A)(4)(b). The court shall allocate or assign to the respective spouses all of the community assets and liabilities. La. R.S. 9:2801(A)(4)(c). In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. La. R.S. 9:2801(A)(4)(d).

A trial court's factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. McDaniel v. McDaniel, 35,833 (La. App. 2 Cir. 04/03/02), 813 So.2d 1232, 1235. An appellate court may not set aside a trial court's finding of fact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact, the determination of the trial court should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id.

Under Louisiana law, property of married persons is generally characterized as either community or separate. La. C.C. art. 2335. Property in the possession of a spouse during the existence of the community property regime is presumed to be community, but either spouse may rebut the presumption. See La. C.C. art. 2340. The spouse seeking to rebut the presumption bears the burden of proving the property is separate in nature. Corkern v. Corkern, 2005-2297 (La. App. 1 Cir. 11/3/06), 950 So.2d 780, 785, writ denied, 2006-2844 (La. 2/2/07), 948 So.2d 1083. A trial court's findings regarding the nature of property as community or separate is a factual determination subject to manifest error review. Moise v. Moise, 2006-876 (La. App. 5 Cir. 3/13/07), 956 So.2d 9, 12.

In the instant matter, Heather asserts that the trial court committed legal errors which interdicts the fact-finding process, and therefore, the de novo standard of review applies. Where one or more legal errors by the trial court interdict the fact-finding process, the manifest error standard is no longer applicable. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Pruitt v. Brinker, Inc., 2004-0152 (La. App. 1 Cir. 2/11/05), 899 So.2d 46, 49, writ denied, 2005-1261 (La. 12/12/05), 917 So.2d 1084. For the reasons that follow, we do not find that the trial court applied incorrect principles of law, and therefore, we review this matter under the manifest error standard of review. See Caballero v. Caballero, 2015-1119 (La. App. 1 Cir. 4/27/16), 2016 WL 2840572, at *4 (unpublished), writ denied, 208 So.3d 376 (La. 2016).

DISCUSSION

Rental Property Reimbursement

When a spouse uses separate funds to pay a community obligation, that spouse is entitled upon termination of the community to reimbursement for one-half of the amount paid. La. C.C. art. 2365. The burden of proof is on the party claiming reimbursement. Corkern, 950 So.2d at 787. A trial court's findings as to whether reimbursement claims have been sufficiently established are reviewable under the manifest error standard. Id.

In her first assignment of error, Heather argues that the uncollected rent from the rental property located at 20296 Sisters Road accumulated to the sum of $3,615.39 as a result of Jeffrey's mismanagement following the termination of the community. Heather argues that the unpaid rent resulted from Jeffrey failing to evict the tenant. However, after reviewing the record we have found that no petition for mismanagement, bad faith, or fraud was ever filed in the record. "In pleading fraud or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity." La. C.C.P. art. 856. It appears from the record that Heather did not make a claim of mismanagement until she filed her post-trial memorandum, violating La. C.C.P. art. 856 and La. C.C. art. 2354. Therefore, Heather's mismanagement claim was not before the trial court.

The trial court only handled the parties' partition and reimbursement claims and did not address Heather's claim that Jeffrey mismanaged the community property. See Cooper v. Cooper, 619 So.2d 1210 (La. App. 1 Cir. 1993), writ denied, 625 So.2d 1042 (La. 1993).

Because Heather did not allege her mismanagement claim until the filing of her post-trial memorandum, and thus failed to plead the issue with specificity or particularity as required by La. C.C.P. art. 856 and La. C.C. art. 2354, we find that the trial court properly disregarded the claim and similarly, we will only consider Heather's partition of community property and reimbursement claims. See Carrier Corp. v. Cousins, 2015-24 (La. App. 5 Cir. 5/14/15), 170 So.3d 1168, 1176 ; Goines v. Goines, 2009-994 (La. App. 5 Cir. 3/9/11), 62 So.3d 193, 199, writ denied, 2011-0721 (La. 5/20/11), 63 So.3d 984 ; Monje v. Monje, 94-622 (La. App. 5 Cir. 12/28/94), 648 So.2d 1086, 1090. This assignment of error has no merit.

In her second assignment of error, Heather argues that the trial court erred in awarding her as an asset the uncollected rent from the property located at 20296 Sisters Road in the sum of $3,615.39. Heather argues that the trial court should have awarded the uncollected rent to Jeffrey because he was "responsible for it" and in turn, increase her equalizing payment.

In deciding to whom an asset or liability shall be allocated, the court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances the court deems relevant. La. R.S. 9:2801(A)(4)(c). The trial court's allocation or assigning of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. Legaux-Barrow v. Barrow, 2008-530 (La. App. 5 Cir. 1/27/09), 8 So.3d 87, 90, writ not considered, 2009-0447 (La. 4/13/09), 5 So.3d 152.

It is evident from the record that both parties were aware of the tenant's past due rent that was accumulating while they resided together after their divorce. In allocating community assets, the trial court has great discretion to divide a particular asset equally or unequally or to allocate it in its entirety to one of the spouses. Gay v. Gay, 31,974 (La. App. 2 Cir. 6/16/99), 741 So.2d 149, 151. The record reveals that the majority of the past due rent from the tenant accumulated during the time that the parties cohabitated together after their divorce when they managed the rental property together. As of October 2014, when the parties stopped cohabitating together, the tenant had an unpaid balance of $2,835.06 and the trial court valued the asset at $3,615.39. Thus, it appears the trial court fairly allocated the community asset. Therefore, we cannot say that the trial court abused its discretion in allocating the uncollected rent owed by the tenant to Heather as the trial court's valuation of the community asset is reasonably supported by the record and allocated in accordance with the applicable law.

Furthermore, in her seventh assignment of error, Heather argues that the trial court erred in only awarding her reimbursement for the rental proceeds from the rental properties that accrued after the parties' final separation in October of 2014. Heather argues that the trial court denied her more than two years of reimbursement because she cohabited with Jeffrey following their divorce until October 2014. Heather argues that the record lacks evidence that Jeffrey used the rental proceeds for the mutual benefit of both parties. Jeffrey counters that Heather is not entitled to reimbursement for the rental proceeds for the years 2012-2014 because she did not introduce evidence to show that the rental proceeds were not used for the mutual benefit of the parties during that time.

Our review of the testimony reveals that both parties were involved in the management of the rental properties while living together during the pendency of their divorce and thereafter. The documentary and testamentary evidence indicate that Heather and Jeffrey maintained separate bank accounts, in addition to one joint checking account. Jeffrey testified that Heather routinely handled their finances, even after their divorce was granted while they continued cohabitating together. Jeffrey further testified that Heather handled the rental properties records, including paying bills, until their final separation in October 2014. Heather's testimony revealed that although she managed the parties' finances after their divorce until their final separation in October 2014, Jeffrey deposited money weekly into a joint bank account so that bills could be paid. Jeffrey covered the majority of expenses for the family from his personal bank account until October 2014.

After reviewing the evidence, the trial court determined that Heather was only entitled to reimbursement for the rental proceeds for the time period after the parties' final separation in October 2014 through the date of the trial. In its reasons for judgment, the trial court stated, in pertinent part:

By the parties['] testimony, they attempted reconciliation post-divorce by residing together. During this time period, the parties continued to receive monies from their rental propert[ies] which they testified that Jeffrey collected. Jeffrey testified that until their final separation in October 2014, the monies received were used for both of their enjoyment. During this time the parties were together, Heather was aware of Jeffrey's actions and did not request that the monies be handled in any other manner. Accordingly, the court hereby finds that the total net income from the rental properties to be $6,006.35 of which Heather is entitled to a reimbursement of $3,003.18.

From our review of the record, the trial court was presented with an abundance of evidence from which it could determine that Heather was only entitled to reimbursement for the rental proceeds after the parties' final separation in October 2014 until the date of trial. Although Heather introduced into evidence rental check ledgers of the three rental properties that showed a record of the rental properties payments, she testified that the rental check ledgers were not an accurate reflection of the amounts received for the rental proceeds from 2010 until 2014. Thus, the record is devoid of any evidence or testimony establishing that the rental properties proceeds were used for Jeffrey's sole benefit from 2012-2014. Therefore, we find no error in the trial court's judgment, which determined from the testimonies of the parties, that Heather did not meet her burden of proving that she was entitled to reimbursement for the rental properties proceeds from 2012-2014. A trier of fact is free to believe in whole or part the testimony of any witness. Pennison v. Carrol, 2014-1098 (La. App. 1 Cir. 4/24/15), 167 So.3d 1065, 1076, writ denied, 2015-1214 (La. 9/25/15), 178 So.3d 568. The trial court was free to believe the testimonies of the parties that the rental properties proceeds were used for the parties' mutual benefit for the years 2012-2014. For these reasons, the trial court did not err in only awarding Heather reimbursement for the rental proceeds from the time of the parties' final separation in October 2014 until the date of trial. This assignment of error has no merit.

Autumn Run Subdivision home Reimbursement

On January 22, 2007, Heather sold her undivided community interest in the Autumn Run Subdivision home to Jeffrey for $45,000.00 in a cash deed sale. In her third and fourth assignments of error, Heather argues that the trial court erred in finding that Jeffrey used his separate funds to purchase Heather's interest in the Autumn Run Subdivision home because no evidence showed that such separate funds existed at the time of the sale. Heather argues that Jeffrey purchased her interest in the home using funds from the sale of their prior home in Weinberger Trace. Therefore, Heather argues that she should be reimbursed $22,500.00, which is one-half of the community funds Jeffrey used to purchase Heather's interest in the Autumn Run Subdivision home. Heather further argues that the only evidence Jeffrey introduced to prove that the funds were his separate property was his own "wholly equivocal, contradictory, and self[-]serving testimony[.]" Thus, Heather argues that "the presumption that the funds used to pay [her] were community funds prevails."

Jeffrey counters that he used the funds from a construction loan he obtained for the Autumn Run Subdivision home to purchase Heather's interest in the property. Jeffrey argues that the trial court correctly denied Heather's reimbursement claim because his testimony at trial provided evidence of the source of the funds used to purchase Heather's interest in the Autumn Run Subdivision home. Therefore, Jeffrey urges because Heather did not provide any evidence that the funds used to purchase her interest were community property, the presumption of community does not apply.

Property possessed by a spouse during the existence of the community property regime is presumed community, although either spouse may prove it to be separate property. La. C.C. art. 2340. The natural and civil fruits of separate property are community property; however, a spouse may reserve them as separate property by a declaration made in authentic form effective from the date the declaration is filed in the public records. La. C.C. art. 2339 ; Dupree v. Dupree, 41,572 (La. App. 2 Cir. 12/20/06), 948 So.2d 254, 256.

The burden of proof is on Heather making the reimbursement claim. Heather relies upon the presumption contained in La. C.C. art. 2340, which provides that "[t]hings in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property." (Emphasis added.) "A 'presumption' is an inference created by the legislature that the trier of fact must draw if it finds the existence of the predicate fact unless the trier of fact is persuaded by evidence of the nonexistence of the fact to be inferred." (Emphasis added). La. Code Evid. art. 302(3) ; Talbot v. Talbot, 2003-814 (La. 12/12/03), 864 So.2d 590, 598. In other words, in order for a presumption to apply, the evidence presented must first establish the predicate fact. A plain reading of La. C.C. art. 2340 indicates that the predicate fact that the evidence must establish in order for the presumption of community to apply, is that the "things," the characterization of which is in dispute, must have been in "the possession of a spouse during the existence of a regime of community of acquets and gains." Vedros v. Vedros, 2016-735 (La. App. 5 Cir. 10/25/17), 229 So.3d 677, 685, writ denied, 2017-02119 (La. 2/23/18), 237 So.3d 1185, and writ denied, 2018-0004 (La. 2/23/18), 237 So.3d 520. The community presumption contained in article 2340 is rebuttable by either spouse upon a showing by a preponderance of the evidence the separate nature of property brought into the community. Talbot, 864 So.2d at 600.

We now must determine from the record whether Jeffrey proved by a preponderance of the evidence the separate nature of the funds used to purchase Heather's interest in the Autumn Run Subdivision home. See Ross v. Ross, 2002-2984 (La. 10/21/03), 857 So.2d 384, 390. At trial, Jeffrey testified that the cash deed sale was executed on January 22, 2007, and he executed the construction loan that secured the Autumn Run Subdivision home on January 25, 2007. On January 26, 2007, both the cash deed sale and the construction loan were recorded in the clerk of court's office in Tangipahoa Parish. Jeffrey further testified that his only bank account having $45,000.00 in in it at that time of the sale was his construction loan.

Heather testified that she received $45,000.00 from Jeffrey at the time of the execution of the cash deed sale and she deposited the money into a checking account with Florida Parishes Bank. However, Heather could not recall taking a check and depositing it into a bank account on January 22, 2007. The record reveals that Heather opened a bank account on January 31, 2007, and transferred $45,000.00 into an opened bank account from another bank account.

It appears from the record that both parties could not recall the specific details as to the distribution of funds to Heather after the cash deed sale was executed on January 22, 2007. Jeffrey has no recollection of what account Heather deposited the $45,000.00 into from the cash deed sale. Heather testified that the $45,000.00 went into a checking account; however, she could not recall receiving the $45,000.00 from Jeffrey on January 22, 2007. Throughout Heather's testimony, she was unable to provide the trial court with any definite statements regarding if she received the $45,000.00 payment on the day the cash deed sale was executed or introduce any evidence showing that she received those funds on January 22, 2007.

Jeffrey testified that in order to make the property his separate property, the bank required him to pay Heather for her interest in the Autumn Run Subdivision home with his separate funds. This was evidenced by the cash deed's terms stating that Jeffrey was purchasing Heather's interest in the Autumn Run Subdivision home and "[b]y virtue of this transfer, th[e] property [became] the separate property of Jeffrey ... and no longer ... community property." Jeffrey further testified that it would be illogical for Heather to allow him to purchase her interest in the home with funds that were half hers, essentially giving her money back to her.

After our review of the record, we have determined that the trial court did not error in finding that Jeffrey established by a preponderance of the evidence that Jeffrey used his separate funds to purchase Heather's interest in the Autumn Run Subdivision home. Because Heather's testimony was not definitive as to the source of the funds, we find no error in the trial court's findings that Jeffrey proved by a preponderance of the evidence that he used his separate funds to purchase Heather's interest in the Autumn Run Subdivision home. Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, establishes that the fact or causation sought to be proved is more probable than not. Talbot, 864 So.2d at 600. Given the great deference to the trial court's factual findings based on credibility determinations, we cannot say that the trial court was manifestly erroneous in finding that Jeffrey overcame the community presumption by a preponderance of the evidence in proving that he acquired Heather's interest in the Autumn Run Subdivision home using his separate funds, thereby denying Heather's reimbursement claim. See La. C.C. art. 2340 ; Vedros, 229 So.3d at 687. Therefore, we find the trial court did not err in determining that Heather was not entitled to reimbursement. This assignment of error has no merit.

Furthermore, Heather argues that the trial court erred in considering Jeffrey's testimony to negate the terms of the cash deed sale, violating the parol evidence rule. Specifically, Heather argues that Jeffrey's testimony was inadmissible to determine the timing of the distribution of the funds from the cash deed sale, which stated that "$45,000.00 ... cash in hand [was] paid[.]" (Ex. D#l) Heather relies on La. C.C. arts. 1835 and 1848, which set forth Louisiana's rule on parol evidence, to argue that because the cash deed sale between the parties was an authentic act, Jeffrey's testimony is not admissible to vary its terms. Jeffrey counters that an exception to the parol evidence rule applies to the instant matter, stating "in the interest of justice ... evidence may be admitted to prove ... that the written act was modified by a subsequent and valid oral agreement." La. C.C. art. 1848.

Under Louisiana law, there are some judicially carved exceptions to the above rule that permit courts to admit parol evidence when a written contract is at issue. In the interest of justice, parol evidence is admissible to show fraud, mistake, illegality, want or failure of consideration, and to explain an ambiguity when such explanation is not inconsistent with the written terms. See M.G. Mayer Yacht Services. Inc. v. Ryder, 2003-2225 (La. App. 1 Cir. 10/29/04), 897 So.2d 72, 74. The trial court is granted broad discretion in determining the admissibility of parol evidence. Talbot, 864 So.2d at 602.

It is evident from the record that due to the conflicting nature of the parties' testimonies regarding how and when Heather received the $45,000.00 from the cash deed sale, the trial court allowed Jeffrey's limited testimony to assist it in determining the source of the funds in order to determine if a subsequent oral agreement between the parties varied the terms of the authentic act. Under the circumstances of this case, we find the trial court did not abuse its discretion in allowing Jeffrey's limited testimony in order to determine the classification of those funds. Accordingly, the trial court did not violate the parol evidence rule in allowing the testimony of Jeffrey for the purposes of determining the classification of the funds. This assignment of error has no merit.

Other Reimbursement Claims

Additionally, in her sixth assignment of error, Heather argues that the trial court erred in awarding Jeffrey reimbursement in the sum of $12,875.00 for three checks that were written, payable to cash, and endorsed by Heather from Jeffrey's separate bank account. Heather argues that Jeffrey should not have been reimbursed the full sum of $12,875.00 because all three checks were written during the community and were not proven to have been used for her separate needs. Therefore, Heather argues that the trial court should have only awarded Jeffrey reimbursement for one-half of the sum of the three checks, totaling $6,437.50.

Jeffrey had the burden of proving his entitlement to reimbursement by showing that the funds were taken from his separate account that was controlled and managed exclusively by him and used for Heather's separate obligations. An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation. La. C.C. art. 2360. A separate obligation of a spouse is one incurred by that spouse prior to the establishment of a community property regime, or one incurred during the existence of a community property regime though not for the common interest of the spouses or for the interest of the other spouse. La. C.C. art. 2363. If a spouse uses separate property during the existence of the community property regime to satisfy the separate obligation of the other spouse, the spouse whose property was used is entitled to reimbursement for the amount or value the property had at the time it was used. La. C.C. art. 2367.3.

After reviewing the record, we have found that Jeffrey failed to introduce evidence that traced how and when Heather spent the funds. Besides Heather's equivocal testimony, in which she acknowledged that she wrote and endorsed all three checks, no other evidence was introduced to prove how the funds were used. Although Heather lacked knowledge as to what specific transactions the funds were used for, it was Jeffrey's burden to prove the source of the funds. All three checks had no indication on them for what type of obligation the funds were used for and Jeffrey offered no receipts into evidence to provide the trial court with evidence that the funds were used for Heather's separate obligations. Therefore, we find that Jeffrey failed to meet his burden of proving that he was entitled to the full reimbursement for the sums of the three checks that Heather cashed from his separate bank account that were allegedly used to satisfy her separate obligations as opposed to community obligations. Accordingly, we find that Jeffrey should only be awarded reimbursement for one-half of the sum of the three checks, totaling $6,437.50. We reverse that portion of the trial court judgment which ordered that Jeffrey was entitled to reimbursement for the full sum of $12,875.00.

Heather argues in her eighth assignment of error that that the trial court erred in failing to award her reimbursement for Jeffrey's use of her separate funds for the construction of the Autumn Run Subdivision home following the termination of the community. Heather argues that the parties stipulated that Heather was entitled to reimbursement in regard to item No. 28A at trial, totaling $3,630.13, representing one-half of her separate funds that were transferred into the parties' joint bank account during their marriage. She further argues that this was evidenced in the parties' joint detailed descriptive list submitted by the parties that claimed reimbursement for "Separate Funds of Heather's transferred to Joint Account[.]" Heather argues that because the parties submitted into evidence a joint detailed descriptive list, each stipulation had the effect of a judicial admission or confession.

In opposition, Jeffrey argues that Heather is not entitled to additional reimbursement for Item No. 28A because her claim is duplicative of two other reimbursement claims that the trial court granted to her for the use of her separate funds for improvements made on the Autumn Run Subdivision home. Specifically, Jeffrey argues that Heather was awarded reimbursement for Item Nos. 26 and 27 on the parties' joint detailed descriptive list, which claimed reimbursement for use of Heather's separate funds for Jeffrey's separate property. Therefore, Jeffrey argues that "the stipulation ... should not be treated as a judicial confession and [it] was properly revoked by the trial court on the ground of error fact."

In its reasons for judgment, the trial court denied Heather's request for reimbursement for Item No. 28A stating that "[t]he court finds that this request is duplicative of the request for reimbursement already awarded in Item No. 26 and No. 27. Accordingly, this request is denied." Thus, the trial court found it was factual error to reimburse Heather duplicative funds and denied her claim.

After reviewing the record as a whole, we find that there does not appear to be any testimony relating to Item Nos. 26 and 27 of the parties' joint detailed descriptive list, as those items were stipulated to prior to trial. However, regarding Item No. 28A, Jeffrey acknowledged during trial that the parties stipulated that Heather would be awarded reimbursement in the amount of $3,630.13. A stipulation acts as a judicial admission or confession which is binding on all parties by the court. Cordon v. Parish Glass of St. Tammany, Inc., 2015-1078 (La. App. 1 Cir. 4/15/16), 195 So.3d 109, 112, writ denied, 2016-0896 (La. 9/6/16), 205 So.3d 918. A judicial confession is indivisible and may be revoked only on the ground of error of fact. La. C.C. art. 1853. We find no evidence in the record to support that there was an error of fact with regard to the parties' stipulation. Thus, it appears the trial court erred in finding that Heather's reimbursement claim for No. 28A was duplicative of Nos. 26 and 27. Therefore, we find that Heather should be reimbursed in the sum of $3,630.13.

Non-Reimbursement Claims

In her fifth assignment of error, Heather argues that the trial court abused its broad discretion in awarding her two tracts of the immovable property and one tract to Jeffrey that were subject to a single mortgage. Jeffrey counters that trial court acted within its broad discretion in dividing the tracts of immovable property so that each party would receive an equal net distribution of property.

It is well settled that a trial court has broad discretion in adjudicating issues raised by divorce and partition of the community regime. Kambur v. Kambur, 94-775 (La. App. 5 Cir. 3/1/95), 652 So.2d 99, 101-02. The trial judge is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. Kambur, 652 So.2d at 102. Louisiana Revised Statutes 9:2801 provides the procedure for judicial partitions of community property and settlement of claims after dissolution of the marriage. Louisiana Revised Statutes 9:2801(A)(4) provides, in pertinent part:

* * * *
(b) The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.
(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability.

In accordance with La. R.S. 9:2801(A)(4), the trial court shall divide the assets and liabilities of the parties as equal as possible, and in order to do this the trial court may divide an asset equally or unequally or may allocate it in its entirety to only one of the spouses. Here, the trial court determined that in order for the parties to receive an equal net value, the immovable property needed to be divided and not allocated solely to one party. In dividing the tracts of immovable property, the trial court followed the procedure mandated by La. R.S. 9:2801. Therefore, we find no abuse of the trial court's discretion in awarding Heather two tracts of the immovable property and one tract to Jeffrey subject to the same mortgage. This assignment of error has no merit.

Additionally, Heather argues that the trial court failed to consider her economic condition when dividing the immovable property between the parties in accordance with La. R.S. 9:2801(A)(4). Heather asserts that the trial court failed to consider that she has not been employed for many years resulting in her inability to satisfy her portion of the mortgage on the tracts of land awarded to her by the trial court.

We have reviewed the testimony and evidence and cannot say that the trial court abused its discretion in dividing the tracts of immovable property between the parties in accordance with La. R.S. 9:2801(A)(4)(c) so that each party received an equal net value. Pursuant to La. R.S. 9:2801(A)(4)(c), the trial court has the authority to allocate an asset equally or unequally. Considering the allocation as a whole, we will not disturb the trial court's allocation of the tracts of immovable property, as it conforms to La. R.S. 9:2801(A)(4)(c). Moreover, we note that the rental properties have the potential to generate income for Heather and can be used to cover the mortgage. This assignment of error has no merit.

Furthermore, in her ninth assignment of error, Heather argues that the trial court erred in failing to reimburse her for one-half of the expert witness fees. Specifically, Heather argues that she is entitled to reimbursement for one-half of the fees she paid in hiring an appraiser to appraise the three tracts of immovable property.

The record reveals that Tommie McMorris was hired by Heather as an expert to perform real estate valuation appraisals on the three tracts of immovable property owned by the community. Tommie's reports were introduced into evidence and the trial court adopted his opinion as to the value of the property as its factual finding. Jeffrey also hired an appraiser to appraise the three tracts of immovable property and the appraisal reports were introduced into evidence. Like Heather, Jeffrey paid appraisal fees. Neither parties' expert testified at trial.

The trial court is charged with fixing expert witness fees under La. R.S. 13:3666. The expert fees to be awarded are largely within the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of that discretion. Board. of Sup'rs of La. State University v. Boudreaux's Tire & Auto Repair, L.L.C., 2013-0444 (La. App. 4 Cir. 3/5/14), 133 So.3d 1262, 1273, writ denied, 2014-0942 (La. 8/25/14), 147 So.3d 1118. This award may include fees for preparatory, non-testifying expenses. Id. (Emphasis added.) As to expert witness fees in particular, La. R.S. 13:3666(B) provides:

The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
(1) From the testimony of the expert relative to his time rendered and the cost of his services adduced upon the trial of the cause, outside the presence of the jury, the court shall determine the amount thereof and include same.
(2) By rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause.

In the instant matter, both parties obtained appraisals of the three tracts of immovable property at their own cost and the appraisals were entered into evidence. Heather's own testimony reveals that the parties never stipulated that Jeffrey would pay one-half of the cost for her expert's appraisals. We find that the trial court did not abuse its discretion in denying Heather's reimbursement claim for one-half of the expert witness fees, as each party was responsible for their own expert witness fees. See Trahan v. Trahan, 2010-0109 (La. App. 1 Cir. 6/11/10), 43 So.3d 218, 234, writ denied, 2010-2014 (La. 11/12/10), 49 So.3d 889. This assignment of error has no merit.

Lastly, in her tenth assignment of error, Heather argues the trial court abused its discretion in using Jeffrey's testimony to value the 2007 Ford F-250 Super Duty King Ranch truck. As a result, she argues that the trial court valued the truck "significantly less than the independent valuations of the vehicle[.]" Heather argues that the truck "should have been assigned the higher value attributed to it by [her] independent evidence[.]" In support of her argument, Heather introduced into evidence the valuations of the truck through the National Automobile Dealer's Association (NADA) and Kelley Blue Book. Kelley Blue Book valued the truck at $11,525.00 and NADA valued the truck at $15,875.00 for an average trade-in and $17,100.00 for a clean trade-in.

Jeffrey argues that the trial court did not abuse its discretion in its valuation of the truck. To support his position, Jeffrey offered into evidence the purchase agreement he had obtained from one of the automotive dealerships stating that the trade-in value of the truck was $9,000.00. Jeffrey testified that he received an estimate from two automotive dealerships for the trade-in value of his truck for the sum of $7,000.00 and $9,000.00. Jeffrey further testified that as of the date of the trial, the truck had not been traded in.

In valuing assets, the trial court is not required to accept, at face value, the valuation placed on assets by either spouse. If the trial court's valuations are reasonably supported by the record and do not constitute an abuse of discretion, its determinations should be affirmed. Sherrod v. Sherrod, 97-907 (La. App. 5 Cir. 3/25/98), 709 So.2d 352, 355, writ denied, 98-1121 (La. 6/5/98), 720 So.2d 687. After reviewing the evidence, the trial court valued the truck based upon the purchase agreement admitted into evidence valuing the truck at $9,000.00. The trial court did not limit itself to the NADA or Kelley Blue Book valuations, but instead valued the truck based upon its own assessment of the testimonies and evidence presented. See Clark v. McNabb, 2004-0005 (La. App. 3 Cir. 5/19/04), 878 So.2d 677, 681. A trier of fact is free to believe in whole or part the testimony of any witness. Pennison, 167 So.3d at 1076. Thus, we find that the trial court's valuation assigned to the truck in the sum of $9,000.00 is supported by the record and does not constitute an abuse of its discretion. This assignment of error has no merit.

CONCLUSION

For the foregoing reasons, we reverse the portion of the trial court judgment allowing reimbursement to Jeffrey Mikal Berthelot for the full sum of $12,875.00. We find that Jeffrey Mikal Berthelot should only be reimbursed one-half of that amount, totaling $6,437.50. Additionally, we reverse the portion of the trial court judgment denying Heather Leigh Berthelot reimbursement in the sum of $3,630.13. The trial court judgment is affirmed in all other respects. Costs of the appeal are assessed evenly between the parties.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

Penzato, J. concurs

      We use the spelling set forth in the parties' petition, but note that during these proceedings the parties have also used the spelling "Jeffery."

      Jeffrey moved out of the family home for one year after their divorce, but moved back in the Autumn Run Subdivision home at the end of 2012.

      The detailed descriptive list valued the rental properties as follows: 20302 Sisters Road $67,000.00; 20308 Sisters Road $62,000.00; 20296 Sisters Road $56,000.00.

      We note that the parties listed additional claims for reimbursement that are not appealed in the instant matter.

      We note that the trial court awarded additional reimbursements to the parties that are not appealed in the instant matter.

      Louisiana Civil Code article 2354 provides "[a] spouse is liable for any loss or damage caused by fraud or bad faith in the management of the community property."

      We note Heather's objection to Jeffrey's testimony and that the trial court overruled her objection to allow Jeffrey's limited testimony for the purposes of explaining the classification of the funds.

      The three checks from Jeffrey's construction account written and endorsed by Heather were check # 2074 written May 25, 2007 for $5,000.00; check # 3000 written June 20, 2007 for $7,075.00; and check # 2096 written June 13, 2007 for $800.00.

      We note that no objection was made by Heather's counsel when the purchase agreement was admitted into evidence.


author: KOVACH, PRO TEMPORE, J.

text:
    Rosa Lopez CRUZ v. Martha CREECY and USAA Casualty Insurance Company
    NO. 18-CA-127
    Court of Appeal of Louisiana, Fifth Circuit.
    August 29, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, ROSA LOPEZ CRUZ, Miguel A. Elias, Paula J. Ferreira, Rolando A. Padilla, Jahida L. Lewis-Crawford, Robert W. Goeke, Pablo C. Perez Luna, Adam M. Klock, Kenner, Mario D. Zavala, Jr., Laclaire Matthews, Graham Brian, Alexandria, Loan H. Do
    COUNSEL FOR DEFENDANT/APPELLEE, MARTHA CREECY AND USAA CASUALTY INSURANCE COMPANY, Laurent J. Demosthenidy, New Orleans, William H. Dunckelman, Jr., Houma
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Ellen Shirer Kovach, Pro Tempore
   KOVACH, PRO TEMPORE, J.

This is a personal injury case arising out of a motor vehicle accident in which appellant/plaintiff, Rosa Lopez Cruz, appeals a trial court ruling allocating fault to appellee/defendant, Martha Creecy, but declining to award damages as a result of the accident. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 5, 2015, Ms. Cruz was driving her car eastbound in the 1900 block of Veterans Boulevard approaching the intersection of Veterans Boulevard and Williams Boulevard in Kenner when she was struck by a vehicle driven by Martha Creecy. Ms. Creecy was traveling westbound in the 2100 block of Veterans Boulevard approaching the intersection of Veterans Boulevard and Williams Boulevard. Both vehicles were attempting to turn onto Williams Boulevard from Veterans Boulevard at the time of the accident. Ms. Cruz testified that the impact was strong, but that the air bags did not deploy. After the incident both parties pulled their vehicles into a gas station parking lot at the intersection.

Ms. Cruz testified that she immediately vomited, then called police and requested an ambulance which responded within minutes. Ms. Cruz stated that she told the EMT that she was not feeling well, but was told to sit in her car until police arrived. A police officer, who came later, generated an accident report which did not assess fault. However, Ms. Cruz was arrested for driving without a license. She was handcuffed and taken to the police station where she remained for about 3 hours before a friend came to her aid and took her home. Ms. Cruz stated that having her hands handcuffed behind her back added to the neck, back and shoulder pain she was experiencing as a result of the accident. The pain was exacerbated by the fact that she had to lay on a concrete bench during her three hour jail confinement.

Ms. Cruz testified that she had no pain before the accident, but experienced bodily pain, stomach pain and vomiting after the accident. About a week later she went to the West Jefferson Medical Center complaining of stomach pain and vomiting, symptoms she attributed to the automobile accident. Subsequently she sought treatment at Jefferson Community Health Care Center. The health care center conducted diagnostic tests on the bowel, urine and blood. Ms. Cruz testified that she can no longer work as a housekeeper because the pain she experienced since the accident prevented her from stooping down or lifting anything heavy.

In her testimony, Ms. Creecy acknowledged that her vehicle hit Ms. Cruz's vehicle when they both attempted to turn onto Williams Boulevard from Veterans Boulevard. Ms. Creecy stated that she did not see Ms. Cruz's vehicle until the impact. After the incident, both vehicles pulled into the parking lot of a gas station on the corner, and both women got out of their vehicles. Ms. Creecy stated that she saw Ms. Cruz get out of the car, and subsequently speak to police officers. Ms. Creecy testified that Ms. Cruz did not vomit at any time after the accident.

The trial court also heard testimony from Officer Casey Smith of the Kenner Police Department who investigated the accident. During his investigation he asked both drivers if they needed medical attention. Neither driver indicated that they were injured or needed medical attention or an ambulance. However, Officer Smith stated there was an ambulance on the scene, presumably summoned by one of the drivers. Since there were no injuries and neither driver received medical attention, the fact that an ambulance was at the scene is not noted in his accident report. Officer Smith did not assess fault in the accident, but did arrest Ms. Cruz for driving without a license. He stated that if Ms. Cruz had mentioned that she vomited after the accident, he would have ensured that she received medical treatment.

Medical records introduced into evidence show that Ms. Cruz went to West Jefferson Medical Center emergency department on June 12, 2015 complaining of chest wall pain from a seat belt, as well as, abdominal pain, headaches and nausea. She attributed her symptoms to an automobile accident a week before. Doctors conducted a CT scan of her head, pelvis and abdomen which resulted in normal findings. She was given a prescription for Compazine and released the same day.

The record also contains medical records from the Jefferson Community Health Care Center. Those records show that she went there on June 17, 2015, complaining of stomach inflammation, acid reflux and headaches. The treatment plan included additional testing, particularly for diabetes, and medication therapy that included ibuprofen and ranitidine HC.

Medical records from Van Wormer Pain Relief Clinic show that Ms. Cruz sought treatment on June 17, 2015 for "injuries she attributed to a motor vehicle accident." Ms. Cruz complained of severe muscle spasms and tenderness bilaterally in the cervical, thoracic, trapezius, and lumbar musculature. Dr. George Van Wormer, a chiropractor, found that Ms. Cruz's, "cervical range of motion was restricted and painful in all directions, and lumbar range of motion was restricted and painful in flexion and extension." X-rays showed that Ms. Cruz had congenital fusion of L1, L2 and L3. She was placed "on a conservative treatment program consisting of manual therapy and passive physical therapy, in the form of cryotherapy, and soft tissue stimulation, with an attempt to restore normal muscle tone, reduce muscle spasms and promote healing."

Dr. Van Wormer opined that, "(f)rom the evaluation of Ms. Lopez's (Ms. Cruz) history, subjective complaints and objective findings from the examination, it is evident from a medical viewpoint that the types of injuries to her neck, back, and extremities were caused from the type of incident the patient experienced on 06/05/15." Conservative, chiropractic treatment continued until November 5, 2015 when she was discharged.

At the close of the bench trial, the trial judge requested post-trial memoranda from both parties. On December 19, 2017, the trial judge ruled from the bench and gave reasons for judgment. The judge stated that he considered the testimony, photographic evidence, and location of damage to the vehicles, and ultimately found the "yield" sign at the intersection to be controlling in his determination that Ms. Creecy was at fault in the incident. However, the trial judge stated that Ms. Cruz was "an extremely poor historian" and found that she did not carry her burden of proving causation and/or damages. Based on these findings, the trial court rendered judgment in favor of defendants and dismissed Ms. Cruz's suit with prejudice without awarding damages. Ms. Cruz filed a timely appeal from that judgment.

LAW AND ANALYSIS

Fault and liability in this motor vehicle accident are not issues in this appeal. The only issues presented for review relate to damages. The trial court found that Ms. Cruz did not prove that she incurred any injuries which were causally related to the accident. Ms. Cruz asserts she suffered injuries that were caused by the accident, and argues the trial court erred in failing to award damages after a finding that Ms. Creecy was at fault in the motor vehicle accident.

A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Ferrell v. Fireman's Fund Insurance Co., 94-1252 (La. 2/20/95), 650 So.2d 742 ; Russell v. Jones , 17-585 (La. App. 5 Cir. 3/12/18), 239 So.3d 1083, 1087. In order to reverse a factual determination by the trier of fact, the appellate court must review the record in its entirety and apply a two-part test. First, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court. Second, the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). On review, this Court must do more than simply review a record for some evidence which supports the trial court's finding; we must determine that the record, as a whole, establishes the trial court was justified in its conclusion. Royal Oldsmobile Co. v. Heisler Properties, L.L.C. , 12-608 (La. App. 5 Cir. 5/16/13), 119 So.3d 84, 94.

On appeal the issue to be resolved is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart, supra, 617 So.2d 880, 882. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Troxclair v. Liberty Pers. Ins. Co. , 17-520 (La. App. 5 Cir. 2/21/18), 239 So.3d 1067, 1069. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id.

In brief to this Court, Ms. Cruz assigns six errors in which she asserts that her credible testimony and the medical records were sufficient to prove causation and injury. Ms. Cruz argues the medical evidence presented from her treating physicians, proved the injury and causation, and that the treatment was medically necessary. She asserts that those showings were uncontroverted. She further asserts that she was healthy before the accident and should have been afforded the presumption in Housley, and that there was no intervening accident to cause the injury.

To be entitled to recover damages, Ms. Cruz must prove by a preponderance of the evidence that (1) she sustained injuries and (2) her injuries were caused by the accident. Myers v. Broussard , 96-1634 (La. App. 3 Cir. 5/21/97), 696 So.2d 88, 95. In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La. 2/20/95), 650 So.2d 757, 759. Plaintiff must prove causation by a preponderance of the evidence. Id. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Id.

In order to prevail, Ms. Cruz must first prove that she sustained an injury as a result of the accident. Myers. supra 696 So.2d at 95. The evidence offered by Ms. Cruz to prove her injury consisted of her testimony and medical records. It is clear from the trial court's reasons for judgment that it questioned Ms. Cruz's credibility in light of conflicting testimony of the events surrounding the aftermath of the accident. Ms. Cruz testified that she vomited after the accident. She also testified that she told professional medical first responders that she had just been in an automobile accident, had suffered head injuries and vomited immediately after, yet they did not treat her. Rather, they told her to sit in her car and wait for police.

Specifically, the trial court noted that, although Ms. Cruz testified that she hit her head and vomited immediately after the accident, other testimony contradicted that assertion. Ms. Creecy testified that she was at the scene the entire time and did not see Ms. Cruz vomit. While there is evidence that an ambulance was on the scene, there is no testimony or evidence to corroborate Ms. Cruz's testimony that she declared or was treated for any injury. Further, there is no mention in the police report of any injuries, or of the presence of emergency medical professionals.

Ms. Creecy stated that she saw Ms. Cruz speak to paramedics, but did not hear the conversation. Officer Smith testified that he specifically asked both drivers if they were injured. Both drivers told him they were not injured. Officer Smith further testified that if Ms. Cruz told him she hit her head and vomited, he would have made certain that she received medical attention.

The medical evidence presented consisted of medical records of treatment from July 12, 2015 through November 5, 2015. Ms. Cruz's initial visit to the emergency room of West Jefferson Medical Center, about one week after the incident, shows that she complained of headaches, vomiting and abdominal pain. The only reference to causation is in the history given by Ms. Cruz, not in the diagnosis. Tests showed no objective findings, and she was sent home with medication for vomiting and/or headaches as need. The CT scan of the pelvis showed:

1. No sign of abdominal or pelvic injury.
2. Lumbosacral deformity most likely developmental. Correlation for prior surgery however would be helpful.
3. Mild cardiomegaly.
4. Moderate distention of the bladder.

The CT scan of the head showed, "(c)erebral parenchyma is normal without sign of acute infarction, hemorrhage, edema, or mass effect." The discharge instructions state, "Epigastric pain (uncertain cause) Headache, Unspecified."

Records from the Jefferson Community Health Care Center indicate that Ms. Cruz was referred to that facility by West Jefferson Medical Center with the initial complaints of headache and stomach inflammation. These records also indicate Ms. Cruz requested a test for diabetes. The diagnosis is "gastric ulcer", and an increased risk for diabetes.

The final medical records are from the Van Wormer Pain Relief Clinic. Ms. Cruz first went to this clinic on June 17, 2015 and presented with new complaints including neck, back, arm, wrist, hand, finger, facial and hip pain, as well as vision and hearing problems, irritability, fatigue, dizziness, anxiety, confusion and depression. Those records indicate Ms. Cruz received chiropractic treatment consisting of manual therapy and passive physical therapy for about five months. In his report, Dr. Van Wormer stated that:

From the evaluation of Ms. Lopez's (Ms. Cruz) history, subjective complaints and objective findings from the examination, it is evident from a medical viewpoint that the types of injuries to her neck, back, and extremities were caused from the type of incident the patient experienced on 06/05/15. Ms. Lopez was discharged from our office on 11/05/15, and may still need future care if symptoms return.

None of Ms. Cruz's treating physicians testified at trial.

In his reasons for judgment, the trial judge called Ms. Cruz a "poor historian", and found her not to be a credible witness. He cited inconsistencies in the testimony and noted that in the first two hospital visits she only complained of headaches and stomach problems. However, a week later when she consulted a chiropractor, she had "a whole litany of new injuries that never existed at the time."

Upon review, we find a reasonable factual basis exists for the finding of the trial court. Further, we do not find that the trial court's factual finding is clearly wrong or manifestly erroneous. We do not find the trial court erred in its finding that Ms. Cruz's testimony was not credible and that she did not prove that she suffered an injury in the accident. We agree with the trial judge that Ms. Cruz's testimony, that she told EMTs she vomited and had a head injury and they did not treat her, is incredible and uncorroborated. We also find no abuse of discretion regarding the trial court's finding that the medical evidence did not support a finding that Ms. Cruz suffered an injury in the accident. Accordingly we find no abuse in the trial court's ruling that Ms. Cruz failed to meet her burden of proof that she suffered an injury in the accident.

The trial court also found Ms. Cruz did not meet her burden of proof of causation. Ms. Cruz argues that she was in good health before the incident and, therefore, is entitled to the presumption that the accident was the cause of her injury. In Housley v. Cerise , 579 So.2d 973, 980 (La. 1991), the Louisiana Supreme Court set forth a presumption of causation that aids a plaintiff in a personal injury case: the presumption is that the plaintiff's injury resulted from the accident. In order for a plaintiff to be entitled to the presumption of causation, he must prove three things: (1) that he was in good health prior to the accident at issue; (2) that subsequent to the accident, symptoms of the alleged injury appeared and continuously manifested themselves afterward; and (3) a reasonable possibility of causation between the accident and the claimed injury. Housley, supra ; Gober v. Walgreen La. Co. , 46,730 (La.App. 2 Cir. 11/2/11), 80 So.3d 9, 13, writ denied , 2011-2837 (La. 3/2/12), 84 So.3d 531. This presumption, known as the Housley presumption, is rebuttable. A defendant may defeat it by showing that an alleged injury could have been caused by some other particular incident rather than by the accident that the plaintiff claims was the cause of the injury. Maranto , 650 So.2d at 761.

Clearly, Housley relates to causation. Thus it is only applicable when it has first been established that there was an injury. When as here, the trial court found the plaintiff did not suffer any injury, there is no need nor an inquiry into causation. See Kelly v. Lugo , 01-542 (La. App. 5 Cir. 11/27/01), 802 So.2d 952, 955. Thus, the Housley presumption, or any lack of an intervening cause, is inapplicable in the instant case.

For the reasons set forth herein, we find no merit in appellant's assignments of error and we affirm the trial court's judgment. Costs of this appeal are assessed to appellant.

AFFIRMED

I, respectfully, concur with the majority opinion in this matter in the result only. After review of the entire record, contrary to the majority opinion, I find the trial court was manifestly erroneous in finding Plaintiff/Appellant, Rosa Lopez Cruz, did not meet her burden of proving she sustained any injuries. However, I find that Ms. Cruz failed to prove her injuries were caused by the motor vehicle accident she had with Defendant/Appellee, Martha Creecy.

At trial, the parties stipulated to the admission of Ms. Cruz's medical records, documenting Ms. Cruz's treatments. That documentation included medical records from West Jefferson Medical Center and Van Wormer Healthcare Clinic. During Ms. Cruz's June 12, 2015 visit to West Jefferson Medical Center's Emergency Room, the doctor reported,

Associated injuries: The patient sustained injury to the head, epigastric area, right upper quadrant and left upper quadrant. The patient has not experienced similar symptoms in the past.

Subsequently, during her June 17, 2015 visit to Van Wormer Healthcare Clinic, the doctor reported that Ms. Cruz's chief complaints were headache, neck pain, bilateral shoulder pain, lower back pain, bilateral hip pain, left lower quadrant abdominal pain, chest wall pain, and left jaw pain. In Ms. Cruz's initial assessment by the doctor, the following injuries were listed: cervical spine strain; bilateral trapezius muscle spasm (left more than the right); lumbar spine strain; bilateral hip pain; left lower quadrant abdominal pain; chest wall contusion ; left ear tinnitus; left TMJ pain; and bilateral frontal headache. In the November 15, 2015 medical report from Van Wormer Healthcare Clinic, lordotic curvature was evident and congenital fusion was noted in the radiology impression. In the "Clinical Impression" of the report, the following injuries were listed: cervical radiculitis, lumbar radiculitis, cervical arthralgia, thoracic pain, lumbar arthralgia, cervical myalgia, thoracic myalgia, lumber myalgia, headaches, shoulder pain, left arm pain, left wrist pain, left hand pain, left finger pain, right hip pain, pelvic pain, chest pain, abdominal pain, vision problems, irritability, fatigue, dizziness, anxiety, depression, nausea, hearing problems, confusion, and facial pain. At the conclusion of the report, the doctor opined the following:

From the evaluation of [Ms. Cruz's] history, subjective complaints and objective findings from the examination, it is evident from a medical viewpoint that the types of injuries to her neck, back, and extremities were caused from the type of incident the patient experienced on 06/05/15. (Emphasis added).

In his oral reasons for judgment concerning Ms. Cruz's injuries, the trial judge found Ms. Cruz was not a credible witness due to inconsistencies in her testimony and a determination that she only complained of head and stomach problems at her first two visits. The trial judge then stated that Ms. Cruz reported "a whole litany of new injuries that never existed" to the chiropractor a week later. As a result, the trial court found that Ms. Cruz failed to carry her burden of proving she sustained any injuries by a preponderance of the evidence.

In a suit for personal injury, the plaintiff bears the burden of proving, by a preponderance of the evidence, a causal relationship between the injury sustained and the accident which caused the injury. Clement v. Carbon , 13-827 (La. App. 5 Cir. 4/9/14), 153 So.3d 460, 464. As cited by the majority opinion, a plaintiff must first prove that she sustained injuries by a preponderance of the evidence in order to recover damages. Myers v. Broussard , 96-1634 (La. App. 3 Cir. 5/21/97), 696 So.2d 88, 95.

In this matter, I find that Ms. Cruz met her burden of proving by a preponderance of the evidence that she sustained injuries. The documentation from West Jefferson Medical Center's Emergency Room and Van Wormer Healthcare Center both reported similar injuries sustained by Ms. Cruz, even though the visits were a week a part; thus, the trial court erroneously found that Ms. Cruz only complained of head and stomach problems in the emergency room and had a new injuries at the time she visited the chiropractor. Additionally, although the trial court made a credibility determination regarding Ms. Cruz's testimony and decided not to accept her descriptions of her injuries, the record does not provide a basis for the trial court's disregard of the medical documentation accepted into evidence. The report from Van Wormer Healthcare Clinic specifically noted that objective findings from Ms. Cruz's examination were made in addition to Ms. Cruz's subjective complaints, which means that a doctor made an independent evaluation of Ms. Cruz's injuries. This medical documentation was uncontroverted at trial, and there was no other permissible view of the evidence for the trial court to consider. Therefore, I find the trial court was manifestly erroneous in determining Ms. Cruz failed to meet her burden of proving she sustained injuries.

However, I find that Ms. Cruz failed to meet her burden of proving a causal relationship between her injuries and the accident with Ms. Creecy. The test for determining the causal relationship between the injuries sustained and the accident is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Clement , supra . Even though Ms. Cruz presented medical documentation, she failed to present any medical testimony to prove that her injuries were caused by the accident. Thus, she failed to meet her burden of proof for causation and could not prove her damages.

For the foregoing reasons, I concur in the result of this appeal.

      The original petition was filed in the First Parish Court for the Parish of Jefferson. The action was subsequently transferred to the Twenty-Fourth District Court for the Parish of Jefferson.

      Housley v. Cerise , 579 So.2d 973 (La. 1991).


text:
    Lauren HOLMES v. Mintu and Aparna PAUL
    NO. 18-CA-140
    Court of Appeal of Louisiana, Fifth Circuit.
    August 29, 2018
   COUNSEL FOR PLAINTIFF/APPELLANT, LAUREN HOLMES, Matthew A. Moeller

COUNSEL FOR DEFENDANT/APPELLEE, MINTU AND APARNA PAUL, Scott M. Galante, Salvador I. Bivalacqua, Kenner, Lauren B. Griffin

COUNSEL FOR DEFENDANT/APPELLEE, KARA BREITHAUPT, Gus A. Fritchie, III, New Orleans

COUNSEL FOR DEFENDANT/APPELLEE, JAMES ADAMS, Gary J. Giepert, New Orleans, Jonathan S. Giepert

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Robert A. Chaisson

WICKER, J.

Plaintiff, Lauren Holmes, appeals the trial court's judgment, granting summary judgment in favor of defendants, Mintu and Aparna Paul ("the Pauls"). For the following reasons, we find that the judgment at issue is not a final, appealable judgment and we lack jurisdiction to consider the merits of the appeal. We therefore dismiss the appeal and remand this matter to the trial court for further proceedings.

PROCEDURAL AND FACTUAL BACKGROUND

This litigation arises out of a "Louisiana Residential Agreement to Buy or Sell" Ms. Holmes' property in Metairie, Louisiana. On June 23, 2016, Ms. Holmes filed suit against the Pauls, asserting breach of contract and detrimental reliance claims for damages arising out of the Pauls' cancellation of the contract. Ms. Holmes alleged that, after multiple amendments to the terms or conditions of the contract, including one amendment to extend the act of sale date, the Pauls unilaterally and improperly cancelled the contract. She further alleged that the Pauls' assertions and representations through their real estate agent concerning extending the act of sale date a second time, lulled Ms. Holmes into a failure to act and amend the contract to extend the act of sale date.

On March 17, 2017, the Pauls filed an Answer to Ms. Holmes' petition, contending that the conditions of the contract, including the appraisal price and the act of sale date, were not met and, thus, cancellation of the contract was proper. The Pauls further filed a reconventional demand against Ms. Holmes, seeking return of the $1,000.00 deposit submitted pursuant to the contract. The Pauls further filed a third-party demand against the two real estate agents involved in the negotiation of the contract, Mr. Adams and Ms. Breithaupt, for breach of their fiduciary duties and negligent misrepresentation relating to negotiation of the terms of the contract.

On November 6, 2017, the Pauls filed a motion for summary judgment seeking dismissal of Ms. Holmes' claims against them. Third-party defendants, Ms. Breithaupt and Mr. Adams, each also filed a motion for summary judgment, contending first that Ms. Holmes' claims should fail because no written extension of the act of sale date occurred, as required under the contract, and, thus, the sale is unenforceable. Second, the third-party defendants claimed that no genuine issue of material facts existed and that neither of the agents breached any fiduciary duty in their representation of their clients, Ms. Holmes and the Pauls.

On December 13, 2017, following a hearing, the trial judge issued a judgment, granting the summary judgments filed by third-party defendants, Ms. Breithaupt and Mr. Adams, as well as the summary judgment filed by defendants, the Pauls. The December 13, 2017 judgment did not consider or determine the merits of the Pauls' reconventional demand against Ms. Holmes.

Ms. Holmes filed a Motion and Order for Devolutive Appeal, seeking review of "the final judgment rendered in favor of defendants, Mintu and Aparna Pauls[sic]." On January 4, 2018, the trial court, on Ms. Holmes' motion, stayed the trial of the reconventional demand pending determination of this appeal.

DISCUSSION

Before considering the merits in any appeal, appellate courts have the duty to determine sua sponte whether subject matter jurisdiction exists, even when the parties do not raise the issue. Jefferson Par. Sch. Bd. v. TimBrian, LLC , 17-668 (La. App. 5 Cir. 03/28/18), 243 So.3d 749, 751, citing Input/Output Marine Sys. v. Wilson Greatbatch Techs., Inc. , 10-477 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 910 (quotations omitted). This Court cannot determine the merits of an appeal unless our appellate court jurisdiction is properly invoked by a valid, final judgment. Id.

A partial judgment may be a final judgment even if it does not grant the successful party or parties all of the relief prayed for or adjudicate all of the issues in the case. La. C.C.P. art. 1915(A) ; Matherne v. Lemoine Indus. Grp., LLC , 14-572 (La. App. 5 Cir. 10/15/14), 182 So.3d 979, 981. La. C.C.P. art. 1915(A) provides that certain partial judgments may be considered final. Specifically, La. C.C.P. art. 1915(A) provides that a trial court's grant of "a motion for summary judgment, as provided by [Louisiana Code of Civil Procedure] Articles 966 through 969, but not including a summary judgment granted pursuant to [Louisiana Code of Civil Procedure] Article 966(E)" is considered a final, appealable judgment. La. C.C.P. art. 1915(A)(3). La. C.C.P. art. 966(E) provides for the grant of summary judgments in favor of any one or more of the parties to the litigation that are "dispositive of a particular issue, theory of recovery, cause of action, or defense" even if the grant of "the summary judgment does not dispose of the entire case." See Matherne, supra .

Nevertheless, even if a partial summary judgment does not qualify as a final judgment under La. C.C.P. art. 1915(A)(3), it may still constitute a final judgment for the purpose of an immediate appeal if it is designated as a final judgment by the trial court after an express determination that there is no just reason for delay. La. C.C.P. art. 1915(B)(1). However, in the absence of such a designation, such a judgment "shall not constitute a final judgment for the purpose of an immediate appeal." La. C.C.P. art. 1915(B)(2) ; see also Pontchartrain Tavern, Inc. v. Johnson , 07-115 (La. App. 5 Cir. 8/28/07), 966 So.2d 1062, 1063-64.

In this case, the judgment at issue as to appellant, Ms. Holmes, is not a final, appealable judgment. Although the judgment at issue considered and dismissed all claims asserted by Ms. Holmes' petition in the main demand, the judgment does not consider nor make any determination on the merits of the Pauls' reconventional demand. This Court has consistently held that a judgment on the determination of a principal demand between parties that does not consider or dispose of a reconventional demand between the same parties is not a final, appealable judgment under La. C.C.P. art. 1915(A) and must be designated as final pursuant to La. C.C.P. art. 1915(B). See Jefferson Parish Sch. Bd. v. TimBrian, L.L.C. , 17-668 (La. App. 5 Cir. 3/28/18), 243 So.3d 749 ; Jackson v. Sumlin , 16-96 (La. App. 7/7/16), 196 So.3d 902 ; Hancock Bank of La. v. 3429 H, L.L.C., 15-355 (La. App. 5 Cir. 1/13/16), 184 So.3d 274 ; Vince v. Koontz , 15-301 (La. App. 5 Cir. 12/9/15), 182 So.3d 333 ; Carlo Ditta, Inc. v. J. Caldarera & Co. , 14-116 (La. App. 5 Cir. 4/9/14), 140 So.3d 173. Because the summary judgment in favor of the Pauls was never designated as a final judgment by the trial court after an express determination that there is no just reason for delay pursuant to La. C.C.P. art. 1915(B), we find that the judgment is not a final, appealable judgment and, thus, we lack appellate jurisdiction to consider the merits of the appeal. Accordingly, we dismiss the appeal and remand the matter to the trial court for further proceedings.

APPEAL DISMISSED; REMANDED

      Although the judgment at issue is final and appealable as to the third-party defendants, Mr. Adams and Ms. Breithaupt, who were dismissed from the litigation, Ms. Holmes did not appeal that portion of the judgment. Ms. Holmes motion for appeal specifically states that she sought to appeal only "the final judgment rendered in favor of defendants, Mintu and Aparna Pauls[sic]."

      We recognize a potential conflict between the Circuit Courts of Appeal on this issue. The First Circuit, in dicta , has opined that a judgment dismissing a reconventional demand or a principal demand alone is a final, appealable judgment under La. C.C.P. art. 1915(A) and that designation of the judgment under La. C.C.P. art. 1915(B) is unnecessary. In so holding, the First Circuit reasoned that a reconventional demand is a separate "action" or suit as contemplated under La. C.C.P. art. 421 and, thus, dismissal of either the principal demand or reconventional demand is dismissal of the entire case as contemplated under La. C.C.P. art. 1915. See Jalou II, Inc. v. Liner , 10-0048 (La. App. 1 Cir. 6/16/10), 43 So.3d 1023, 1031, n. 5.