author: JUDE G. GRAVOIS, Judge.

text:
    In re SUCCESSION OF Charles John SPITZFADEN, III.
    No. 09-CA-212.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 8, 2009.

      Richard J. Tomeny, Jr., Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    A. Remy Fransen, Jr., Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

This appeal concerns the validity of a last will and testament executed on August 2, 2007 by decedent, Charles J. Spitzfaden, III. Appellant, Digna (Dee) Hunter Spitz-faden, Mr. Spitzfaden’s widow, appeals the trial court judgment herein that refused to invalidate Mr. Spitzfaden’s will on the basis that he lacked testamentary capacity and was subject to undue influence. On appeal, Mrs. Spitzfaden argues that the trial court erred relative to the parties’ burdens of proof. She also argues that the will is invalid because all the requirements of LSA-C.C. art. 1577 were not met, in particular, that the testator could not read. Finally, she argues that the will was a product of the undue influence of Mr. John Stassi, Mr. Spitzfaden’s cousin and the proponent of the will.

After thoroughly and carefully considering the law and the evidence, we affirm the trial court’s judgment.

[¿FACTS AND PROCEDURAL BACKGROUND

Charles J. Spitzfaden III died on September 25, 2007. He was survived by his widow, Dee. Dee had two adult children from a prior marriage, Russell Hunter and Lori Mabile. Mr. Spitzfaden was an only child and had no children of his own.

At the time of his death, Mr. Spitzfaden had been in hospice care for several months. He suffered from chronic ob-struetive pulmonary disease, emphysema, diabetes, and other serious chronic ailments. He did not suffer from dementia. Mr. Spitzfaden was in pain and had very limited physical mobility. He received many medications on a daily basis, including extended release morphine for pain that was supplemented as needed with other narcotic pain medication.

The evidence and testimony at the trial show that Mr. Spitzfaden executed a will in 2005 and several wills during the last months of his life. He executed a will on February 26, 2005 with attorney Charles Nunez serving as notary. He executed a will on April 11, 2007 while in the hospital before Mr. Stassi as notary. Another will was executed by Mr. Spitzfaden on May 4, 2007 with Blair Bright, Mr. Stassi’s son-in-law, acting as notary. On June 29, 2007, he executed a will with Patricia Dean serving as notary. Lastly, on August 2, 2007, Mr. Spitzfaden executed the will that is the subject of this appeal. When he died, Mr. Stassi was in the process of drafting yet another will for Mr. Spitzfaden that remained unfinished at the time of his death.

The will at issue here named Mr. Stassi as independent executor without bond. In this will, Mr. Spitzfaden left a special legacy to his wife of their residence in full ownership, with her having the option of alternatively selecting one of his rental houses instead, provided she renounce her interest in their residence in favor |4of the trust established by the will. He also left her the contents of their residence in full ownership and the sum of $50,000 outright. Her children, Lori and Russell, were also left special legacies of $50,000 each. Russell also received decedent’s truck. Dee, Lori, and Russell were also each left the special legacy of a choice of one of decedent’s guns, the rest of which went to Mr. Stassi as a special legacy. The Louisiana Society for the Prevention of Cruelty to Animals was given a special legacy in the amount of $25,000.

The residue of Mr. Spitzfaden’s estate went into a trust from which the income would be accumulated. Mr. Stassi was named trustee. Dee was to receive a lifetime monthly allowance of $4,000, and Russell was to receive a monthly allowance of $2,000 following Dee’s death until termination of the trust as to his interest therein. Subject to those monthly allowances, Russell and Lori were to be the principal and income beneficiaries of the trust in proportion of which $500,000 bore to the initial corpus. The decedent’s second cousins (Mr. Stassi’s five children and his brother’s two children), the seven of whom are listed by name, were to be the principal and income beneficiaries of the trust in proportion of which the initial corpus minus $500,000 bore to the initial corpus. The will provided for termination of the trust as to all beneficiaries’ interests on Dee’s death, with the exception of Russell’s interest, which would terminate on Lori’s death.

On October 3, 2007, Mrs. Spitzfaden filed a Petition for Notice of Application for Appointment of Administrator. On the same day, she also filed an Opposition to Probate of Testament, alleging that, on information and belief, John Stassi would try to probate a purported statutory testament of Mr. Spitzfaden dated [,-August 2, 2007. In her Opposition, Mrs. Spitzfaden further alleged that Mr. Spitzfaden was terminally ill and heavily medicated prior to and at the time of the execution of the document, was in hospice care, and therefore was not of sound mind and lacked capacity under Louisiana law to execute a last will and testament.

On October 9, 2007, Mr. Stassi filed a Petition requesting the filing and execution of Mr. Spitzfaden’s August 2, 2007 will, and for appointment as independent testamentary executor, attaching the will, as well as affidavits of death, domicile and heirship.

Mrs. Spitzfaden filed an opposition to Mr. Stassi’s petition, again alleging that Mr. Spitzfaden lacked testamentary capacity due to being heavily medicated prior to and on the date of the will’s execution. Additionally, she alleged that the testament was null and void due to the undue influence of Mr. Stassi upon the decedent, as per LSA-C.C. art. 1479. Mrs. Spitzfa-den later filed a supplemental and amended opposition, arguing that the testament was also invalid because it was not executed before the notary or all the witnesses who signed the document.

Following a two-day hearing, the trial court allowed the parties to file post-trial memoranda. On July 23, 2008, the trial court rendered judgment, finding that Mrs. Spitzfaden failed to prove that Mr. Spitzfaden was mentally incompetent, and therefore the testament was valid. The judgment was silent regarding the issue of undue influence. Mrs. Spitzfaden thereupon timely filed this appeal.

ANALYSIS

LSA-C.C. art. 1482 provides that a person who challenges the capacity of a donor must prove by clear and convincing evidence that the donor lacked capacity at the time the donor made the donation inter vivos or executed the testament. The jurisprudence is clear that “testamentary capacity is always presumed and the | (¡burden is on the party attacking the validity of the will to prove a lack of capacity at the time the will was executed.” Succession of Dorand, 596 So.2d 411, 412 (La.App. 4 Cir.1992).

The factual findings of the trial court, in will contest cases, are afforded great weight and will not be set aside on appeal absent manifest error. Succession of Nette, 04-437 (La.App. 5 Cir. 11/16/04), 890 So.2d 16.

Burden of Proof

Initially, we note that Mrs. Spitzfaden argues that the trial court incorrectly placed the burden on her to prove the will’s validity, not upon the proponent, Mr. Stassi.

At the contradictory trial to probate a testament, its proponent bears the burden of proving the authenticity of the testament, and its compliance with all of the formal requirements of law. LSA-C.C.P. art. 2908. We note that at trial, Mrs. Spitzfaden specifically did not contest the authenticity of the signatures of the testator, witnesses, or notary. Thus, Mr. Stassi has met his burden of proving the authenticity of the testament. Also, based on the evidence presented, it is clear that the testament in question was executed in compliance with all of the formal requirements of law. As such, we find that the trial court correctly found that Mrs. Spitz-faden bore the burden of proving testamentary incapacity.

Testamentary Capacity

To have capacity to make a donation inter vivos or mortis causa, a person must be able to comprehend generally the nature and consequences of the disposition that he is making. LSA-C.C. art. 1477. Furthermore, under LSA-C.C. |7art. 1471, the capacity to donate mortis causa must exist at the time the testator executes the testament.

Mrs. Spitzfaden argues that she presented proof through the testimony of .Elaine Floyd, the hospice nurse who cared for her husband, that he needed a magnifying glass to read. The testimonies of the notary and the witnesses to the execution of the August 2, 2007 will, she points out, make no reference to Mr. Spitzfaden using a magnifying glass to read the document. Therefore, she argues, the proponent’s (Mr. Stassi) evidence of the testator’s ability to read, and that he did read the testament prior to signing it, falls far short of his burden of proof. It should be noted at this point, however, that the evidence is uncontradicted that Ms. Floyd did not care for Mr. Spitzfaden on the day he executed the August 2, 2007 will.

Mr. Stassi argues in brief, however, that Mrs. Spitzfaden failed to present this issue to the trial court, and therefore this court is precluded from considering it under Uniform Rules, Courts of Appeal, Rule 1-3. He further argues on the merits that there was sufficient evidence that Mr. Spitzfaden could read and did read the will at issue, and thus Mrs. Spitzfaden has failed in her burden of proof.

Uniform Rules, Courts of Appeal, Rule 1-3 states:

The scope of review in all cases within the appellate and supervisory jurisdiction of the Courts of Appeal shall be as provided by LSA-Const. Art. 5, § 10(B), and as otherwise provided by law. The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.

Mrs. Spitzfaden’s pleadings specifically argued that Mr. Spitzfaden lacked testamentary capacity at the time the will was executed because he was terminally ill and heavily medicated with narcotic pain medication. LSA-C.C.P. art. 2902 requires that the “opposition to the petition for the probate of a testament shall | ^comply with Article 2972, shall allege the grounds of invalidity of the testament relied on by the opponent, and shall be served upon the petitioner for the probate of the testament.” Mrs. Spitzfaden’s pleadings never raised the issue that her husband needed a magnifying glass to read, nor was that issue argued at the contradictory hearing. After Mr. Stassi and the witnesses to the August 2, 2007 testament established compliance with all the formalities required by law by testifying that they saw Mr. Spitz-faden read the will in their presence, the matter was not further explored. Accordingly, the trial court never considered the issue of whether Mr. Spitzfaden needed a magnifying glass to read.

Mrs. Spitzfaden does not show that the interests of justice require this court to consider this issue on appeal. Accordingly, because the issue was not raised first in the trial court, this court will not consider it on appeal.

Undue Influence

The judgment of the trial court is silent as to Mrs. Spitzfaden’s claim that her husband was unduly influenced by Mr. Stassi. As a general rule, where a judgment is silent with respect to any demand which was at issue in the case under the pleadings such silence constitutes a rejection of that demand. Southern Marine Sales, Inc. v. Matherne, 05-181 (La.App. 5 Cir. 11/29/05), 915 So.2d 1042.

A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor. LSA-C.C. art. 1479.

laConcerning the type of influence that would result in the invalidity of a donation, Comment (b) to Article 1479 (emphasis added) provides in pertinent part:

[Ejveryone is more or less swayed by associations with other persons, so this Article attempts to describe the kind of influence that would cause the invalidity of a gift or disposition. Physical coercion and duress clearly fall within the proscription of the previous Article. The more subtle influences, such as creating resentment toward a natural object of a testator’s bounty by false statements, may constitute the kind of influence that is reprobated by this Article, but will still call for evaluation by the trier of fact. Since the ways of influencing another person are infinite, the definition given in this Article is used in an attempt to place a limit on the kind of influence that is deemed offensive. Mere advice, or persuasion, or kindness and, assistance, should not constitute influence that would destroy the free agency of a donor and substitute someone else’s volition for his own.

When seeking to annul a donation on the basis of undue influence, it is not sufficient to merely show that the donee exercised some degree of influence over the donor; instead, the challenger must show that the donee’s influence was so substantial that the donee substituted his or her volition for that of the donor. In re Succession of Berman, 05-0641 (La.App. 4 Cir. 7/26/06), 937 So.2d 437.

The burden of proof for one challenging a donation based on “undue influence” is found in LSA-C.C. art. 1483:

A person who challenges a donation because of fraud, duress, or undue influence, must prove it by clear and convincing evidence. However, if, at the time the donation was made or the testament executed, a relationship of confidence existed between the donor and the wrongdoer and the wrongdoer was not then related to the donor by affinity, consanguinity or adoption, the person who challenges the donation need only prove the fraud, duress, or undue influence by a preponderance of the evidence.

The record shows that Mr. Stassi was Mr. Spitzfaden’s first cousin. Because he is a relative of the decedent, LSA-C.C. art. 1483 requires that Mrs. Spitzfaden show undue influence by clear and convincing evidence, rather than by a mere preponderance of the evidence.

InAs proof that Mr. Stassi had undue influence over her husband in the execution of the last will and testament in question, Mrs. Spitzfaden argues: 1) that each successive version of the will gave Mr. Stassi greater control over the estate as executor and greater control over the trust estate as trustee; 2) that the provisions in the August 2, 2007 will are inconsistent with what the decedent told Lori, her daughter, she and her brother would be inheriting from him; 3) that the proponent’s case largely rests on the testimony of only one witness, Mr. Stassi; 4) that the will was the product of misrepresentation of its contents to a man who was, because of his dragged condition, overly susceptible to suggestion and was unable to read the will for himself; 5) that the contents of the will were misrepresented to the decedent because there was no testimony that the wills were read or explained to him; and 6) there was no testimony by anyone that shows that she or her children ever did anything that might cause Mr. Spitzfaden to diminish their participation in his estate, and would thus cause Mr. Spitzfaden to enrich Mr. Stassi’s children at her children’s expense.

Essentially, Mrs. Spitzfaden contends that Mr. Stassi exerted undue influence over Mr. Spitzfaden because he was weakened by his poor physical condition and his medication, and thus easily influenced, and because the final will did not reflect what she and decedent had talked over during the years.

The testimonies of all the witnesses, however, paint a different picture of a man who, though weakened by several debilitating conditions, had a firm grasp of what he owned and what he wished to do with it.

Mr. Stassi had known Mr. Spitzfaden “all his living memory” and the two enjoyed a close relationship. According to Mrs. Spitzfaden, Mr. Stassi was the only family member who showed an interest in her husband. She would call him to visit when Mr. Spitzfaden was feeling down.

| nAs a lawyer, Mr. Stassi’s practice concentrated on wills and estate matters. After Mr. Spitzfaden became ill and after he learned that his former attorney had died, he asked Mr. Stassi’s help in drafting his will and setting up the trust(s) that the various wills contained.

Mr. Stassi communicated regularly with Mr. Spitzfaden during the time period between February and his death in September. Mr. Spitzfaden had clear ideas of how he wanted to leave his property. Mr. Spitzfaden would tell Mr. Stassi what he wanted, and Mr. Stassi would draft the wills expressing Mr. Spitzfaden’s requests in legal terms that would accomplish his wishes. Despite Mr. Spitzfaden’s lack of post-high school education, he was a smart man who had a good grasp of exactly what he owned and how he wanted to dispose of it, as evidenced by the notes that Mr. Spitzfaden dictated to Mr. Stassi regarding his assets.

As indicated by his various notes, Mr. Stassi and Mr. Spitzfaden began drafting wills around February of 2007. Mr. Stassi stated that during all of his discussions with Mr. Spitzfaden, as well as the three times they executed wills (April, May, and August 2, 2007), Mr. Spitzfaden was “fíne” and in control of his faculties, though he was a little depressed by his physical condition and did complain about being sick.

Mr. Stassi told Mr. Spitzfaden that he did not want him to leave anything to him, as he had done in at least one prior will, but suggested he leave it to the next generation, which would be his children and his brother’s children.

At the time of Mr. Spitzfaden’s death, Mr. Stassi was in the process of drafting another will that would have rendered the August 2, 2007 will invalid had 11git been properly executed. The provisions of that draft will made changes to the August 2, 2007 will, such as reducing the portion of the trust that would benefit Lori and Russell to $300,000 from $500,000. Mr. Stassi agreed that the change would have benefited the Stassi legatees, but he did not rush the preparation of that will, and in fact never completed it.

According to Mr. Stassi, Mr. Spitzfaden did not want his wife to know he was drafting these wills for him. Her children’s testimony was consistent with this. The wills Mr. Stassi drafted were all executed at times when Mrs. Spitzfaden would specifically be absent.

The evidence shows that in certain ways, the will in question did reflect terms that Mrs. Spitzfaden had discussed with her husband. For instance, she testified that she knew the will would set up a trust to provide for her because of certain judgments recorded against her.

Mr. Spitzfaden supplied no reasons to Mr. Stassi initially for how he disposed of his property in the wills, only that he had been “thinking about it.” Mr. Stassi did not ask Mr. Spitzfaden why he made the particular provisions he did, nor did he ask him why he later changed specific bequests in the subsequent wills. He did not believe it was his business to question a client about their reasons. Later, during the drafting of the August 2, 2007, Mr. Spitzfaden told Mr. Stassi that he was upset with Lori because she had caused the “Patricia Dean” will to be drafted, and because that will lowered Dee’s allowance against his wishes. As a result, she was not named a trustee in the August 2, 2007 will, although she was still the manager of the rental houses in LaPlace that decedent owned.

11sMr. Stassi’s testimony was firm and clear that Mr. Spitzfaden made all of the decisions regarding how to dispose of his property, and that he, Mr. Stassi, never influenced him or asked his reasons for the provisions in his will. Mr. Stassi was sure Mr. Spitzfaden understood how a trust worked.

The witnesses to the May 4, 2007 and the August 2, 2007 wills related, by live testimony and deposition, their impressions of Mr. Spitzfaden’s mental condition as observed by them on the various days they were in his presence to witness his signatures on the wills. Each felt that Mr. Spitzfaden, while physically weak, was “normal” and completely cognizant of his surroundings, as evidenced by his conversations with them as the will was signed. In particular, Mr. Robert Peyton and his son, who witnessed the August 2, 2007 will and were cousins of Mr. Spitzfaden, clearly testified that Mr. Spitzfaden knew what was going on and why they were there. While this evidence would also go to testamentary capacity, which, as set forth above, is not at issue here, it is also evidence that contradicts Mrs. Spitzfaden’s picture of a man who was too medicated to know what he was doing and therefore was susceptible to influence.

Mrs. Spitzfaden offers no countervailing evidence of undue influence other than conclusory statements about Mr. Spitzfa-den’s generally poor medical condition and the will’s actual terms being different than what she expected.

This court, in In re Succession of Linder, 02-106 (La.App. 5 Cir. 7/30/02), 824 So.2d 523, affirmed a trial court judgment that rejected a plaintiffs similarly result-oriented challenge to a testament based on undue influence.

We find in this case that the evidence failed to show that Mr. Stassi exerted undue influence over Mr. Spitzfaden in the execution of his will. The evidence is clear and convincing instead that Mr. Spitzfaden had his own ideas and gave clear and detailed instructions to Mr. Stassi as to how he wanted to dispose of his estate. | u Mr. Spitzfaden chose his cousin, Mr. Stas-si, to draft his will, a choice that was very logical and understandable given the lifelong close family and personal relationship that existed between Mr. Stassi and Mr. Spitzfaden, and Mr. Stassi’s professional expertise in wills and estate matters.

CONCLUSION

For the above reasons, we affirm the trial court’s judgment in this case upholding the validity of Mr. Spitzfaden’s last will and testament executed on August 2, 2007.

AFFIRMED.

      . Mr. Stassi testified that though it appeared that Mr. Spitzfaden owned their matrimonial residence separately, Mrs. Spitzfaden had a counter letter establishing her half ownership interest in the property. This detail, remembered by Mr. Spitzfaden after the execution of the April 11, 2007 will, led to a codicil to that will.

      . Similarly, in In re Succession of Abdalla, 99-0979 (La.App. 3 Cir. 6/28/00), 764 So.2d 362, the granddaughter of the testator opposed on various specific grounds the tableau of distribution regarding several disbursements and the amounts of executor fees. In her first assignment of error, she opposed the executors' fees on the new grounds that the co-executors failed to establish a prima facie showing that they had complied with the notice requirements of LSA-C.C.P. art. 3304. The Court of Appeal refused to consider the assignment of error, citing Rule 1-3, because she did not raise that issue on the trial court level.

      . It is noted that in at least one previous will executed by Mr. Spitzfaden, he had bequeathed Mr. Stassi and his brother each 25% of his estate in outright ownership. This was a will that was drawn up by Mr. Spitzfaden’s previous attorney, not Mr. Stassi.

      . Lori, who was responsible for the will before Patricia Dean as notary, also had the decedent sign it at a time when her mother was not present.

      . Mr. Spitzfaden’s May 4, 2007 will provided Dee with an income of $4,000 per month. The June 29, 2007 will drafted by Ms. Dean lowered Dee’s allowance to $3,500 per month. Lori testified that this was Mr. Spitz-faden's wishes. In the probated will, Dee's allowance of $4,000 per month was restored.


source: Caselaw Access Project

author: PARRO, J. KUHN, J.,

license: Public Domain

text:
    Misty SOLET v. Tayaneka S. BROOKS.
    No. 2009 CA 0568.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 16, 2009.

      Misty Solet Houma, LA, In Proper Person Plaintiff-Appellee.
    Patricia H. Oster, Southeast Louisiana Legal Services, Hammond, LA, for Defendant-Appellant, Tayaneka S. Brooks.
    Before PARRO, KUHN, and McDonald, jj.
   PARRO, J.

12Tayaneka S. Brooks appeals a judgment of eviction, ordering her to vacate the property she is occupying, which is owned by David and Misty Solet. For the following reasons, we reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

After being displaced by Hurricane Katrina in 2005, Ms. Brooks and her three children lived several years in Kansas City, Missouri, before she decided to return to Louisiana. Working through a real estate agent, on July 17, 2008, she entered into a “Lease to Purchase Option Agreement” (the Agreement) concerning a house owned by the Solets in Denham Springs. The Agreement granted Ms. Brooks “an exclusive option to purchase” the property, called for her to pay an initial “non-refundable fee” of $35,500 “toward the purchase of the property,” noted that she was required to make monthly payments in the amount of $1650 during the “option to purchase period,” and required her to pay property taxes and insure the property for $239,000. The Agreement further stated that at the expiration of the option period, the purchase price for the property was $239,000, but if the “Buyer/Tenant” exercised the option and was “not in default of the Lease Agreement,” the purchase price would be the “actual mortgage(s) payoff amount.” The Agreement did not include a legal description of the property, and the Solets did not record the Agreement in the conveyance or mortgage records of the parish.

Ms. Brooks paid the $35,500 “non-refundable fee” and the August and September payments to the Solets’ real estate agent. The following month, the agent told her to make the October payment directly to the holders of the first and second mortgages. Because the monthly payments had included a $100 monthly property management fee for the agent, Ms. Solet told Ms. Brooks the remaining payments would be only $1550 per month. This reduction in the amount of monthly payments was not put in writing.

Both mortgage holders told Ms. Brooks that unless they had something |sin writing from the Solets, they could not discuss the mortgage accounts directly with her. During a three-way telephone conversation among Ms. Brooks, Ms. Solet, and Countrywide Mortgage Company (Countrywide) concerning the first mortgage, Countrywide informed them that the amount paid on the mortgage by the agent was only $34,800 and that the August payment had not been paid to Countrywide. Despite these difficulties, Ms. Brooks paid the October payment to the two mortgage holders. She also tried to purchase insurance on the house, but was told that she could not insure it, because she was not the owner and there was no recorded document showing her interest in the property. She could only obtain renter’s insurance on the contents of the house. Ms. Solet then renewed the insurance, and she and Ms. Brooks verbally agreed that the insurance premium would be paid as part of the monthly payment for an additional $40 per month. This agreement was also not put in writing. Ms. Brooks went to the courthouse in Livingston Parish to get the information needed to pay the property taxes and was told something would be mailed to her. However, because the property was not in her name, she never received that information; apparently it was sent to the Solets’ forwarding address.

Hurricane Gustav had passed through the area, causing fallen trees, branches, and other damage to the property, which ultimately cost Ms. Brooks $1200. Because of this and other financial difficulties, she did not pay the November and December payments, and on December 29, 2008, the Solets sent her a letter and a ten-day notice to vacate. Ms. Brooks did not move out, and on January 20, 2009, Ms. Solet filed a petition for eviction in the City Court of Denham Springs. Neither party was represented by counsel at the January 28, 2009 hearing. Ms. Solet and Ms. Brooks testified, and Mr. Solet interjected unsworn commentary. Although Ms. Brooks offered to bring all the payments current and make the remaining payments by automatic withdrawals from her account, Mr. Solet insisted on a judgment of eviction, because he was tired of ^dealing with her. Finding the monthly payments had not been made as agreed, ¿he court rendered a judgment of eviction, ordering Ms. Brooks to vacate the premises by February 12, 2009. The judgment was signed January 28, 2009, and Ms. Brooks filed a motion for appeal on February 9, 2009.

In this appeal, Ms. Brooks assigns as error the court’s conclusion that the Solets were legally entitled to evict her under the Agreement. She further contends the court erred in granting the judgment of eviction in the absence of the statutory notice required by LSA-R.S. 9:2945, and in allowing the Solets to proceed via summary proceeding.

DISCUSSION

The Agreement that is the source of this conflict has many irregularities. First, the “Seller/Landlord” of the property is shown as Dave Solet. However, the Agreement is signed only by Misty Solet as the Seller/Landlord, and at the hearing, the Solets claimed they both owned the property. Second, the Agreement states that the “Seller/Landlord and Buyer/Tenant have together executed a prior lease agreement, the subject of which is the aforementioned Property (the ‘Lease Agreement’).” The separate “Lease Agreement” is also referenced in paragraphs 4, 9, and 15 of the Agreement. However, no such “Lease Agreement” is in evidence, and from both parties’ testimony, it appears there was no such document. Third, the Agreement states that the “Seller/Landlord will allow Buyer/Tenant the option to record this Option to Purchase Agreement in Public Records.” However, Ms. Brooks stated she was not given an original of the Agreement, so she could not record it. Fourth, the Agreement states that no modifications or amendments will be effective unless in writing, but both parties testified that the payment amount and the insurance requirement were verbally modified.

| ¡-.Despite these problems and many other typographical errors, word omissions, and other deficiencies in the Agreement, the parties testified that they intended this contract to reflect their mutual obligations concerning the property at issue. Therefore, in order to resolve the issues raised on appeal, we must determine the nature and effect of the Agreement, if any. The proper interpretation of a contract is a question of law subject to de novo review on appeal. Montz v. Theard, 01-0768 (La.App. 1st Cir.2/27/02), 818 So.2d 181, 185. When considering legal issues, the reviewing court accords no special weight to the trial court, but conducts a de novo review of questions of law and renders judgment on the record. Id.

Ms. Brooks argues that the court erred in failing to recognize that the contract at issue is actually a bond for deed contract, rather than a lease with an option to purchase. A bond for deed is a contract to sell real property, in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller agrees to deliver title to the buyer after payment of a stipulated sum. See LSA-R.S. 9:2941; Seals v. Sumrall, 03-0873 (La.App. 1st Cir.9/17/04), 887 So.2d 91, 94. An option to sell or buy is a contract whereby a party gives to another the right to accept an offer to sell or buy a thing within a stipulated time. An option must set forth the thing and the price, and must meet the formal requirements of the sale it contemplates. LSA-C.C. art. 2620.

We conclude that the Agreement is not a bond for deed contract. Had it provided that after all of the installments were received, an act of sale conveying title to Ms. Brooks would be passed, the Agreement could be characterized as a bond for deed contract. See LSA-R.S. 9:2941; H.J. Bergeron, Inc. v. Parker, 06-1855 (La.App. 1st Cir.6/8/07), 964 So.2d 1075, 1076. In a true bond for deed contract, upon payment of the stipulated sum, Ms. Brooks would become the owner of the property. See Tabor v. Wolinski, 99-1732 (La.App. 1st Cir.9/22/00), 767 So.2d 972, 974. The Agreement does Rnot meet this definition, and thus, is not a bond for deed contract.

Additionally, because the document was not executed properly under Louisiana law, any provisions concerning an option to purchase this immovable property are null. According to LSA-C.C. art. 2347, the concurrence of both spouses is required for the alienation, encumbrance, or lease of community immovable property. The alienation, encumbrance, or lease of community property by a spouse is relatively null unless the other spouse has renounced the right to concur. LSA-C.C. art. 2353. Furthermore, a transfer of immovable property or an option to purchase or sell immovable property must be made by authentic act or by act under private signature. See LSA-C.C. arts. 1839 and 2620. In this case, the Agreement shows Dave Solet as the “Seller/Landlord,” but he did not sign the Agreement. It was signed only by Misty Solet. At the eviction hearing, Misty Solet stated that the house was owned by her and her husband. Since it was community property, both spouses had to sign the Agreement. Additionally, because the Agreement was not executed before a notary public in the presence of two witnesses, it does not constitute an authentic act. See LSA-C.C. art. 1833. And, although it could be considered an act under private signature that was duly acknowledged before the court by Misty So-let as her signature, it could not operate as a transfer or option to transfer immovable community property without Dave So-let’s signature. Therefore, the Agreement is not a valid option to purchase or sell the immovable property at issue, and all of the option to purchase provisions, including the $35,500 “non-refundable fee,” are unenforceable.

17Having concluded that the Agreement is not a valid bond for deed contract or a valid option to purchase contract, we are left with considering whether there is a valid lease between the parties. There is no mention of a lease in the eviction petition. Also, although the Agreement expressly states that the parties “have together executed a prior lease agreement,” there is no separate “Lease Agreement” in evidence and, based on the testimony of the parties, none was actually executed. In her testimony, Ms. Solet referred to the Agreement as “the lease,” and made no mention of a separate written lease document. However, by its own terms, the Agreement is not the lease between the parties.

As previously noted, LSA-C.C. art. 2347 requires the concurrence of both spouses to lease community property. But a lease agreement is not required to be in writing, and both Mr. and Ms. Solet indicated in open court that they had leased the property to Ms. Brooks. At the hearing, both Ms. Solet and Ms. Brooks testified that the initial rental payment was $1650 per month and that it was verbally modified in October to $1550 per month. They also told the court about their verbal agreement that property insurance payments of $40 per month would be added to the monthly rent. Their testimony did not establish a term for the lease. Therefore, we conclude that although the Agreement was not a written lease, the parties did have a valid verbal residential lease agreement with an indefinite term. See LSA-C.C. arts. 2668, 2671, and 2678. According to LSA-C.C. art. 2680(2), the duration of such a lease is from month to month.

If the lessee fails to pay the rent when due, the lessor may, in accordance with the provisions of the Title “Conventional Obligations or Contracts,” dissolve the lease and may regain possession in the manner provided by law. LSA-C.C. art. 2704. The 2004 Revision Comments to this article clarify that this is a two-step process: first, the lessor is entitled to cause Ra dissolution of the lease, as provided in LSA-C.C. arts. 2013-2024; and second, the lessor is entitled to regain possession of the thing in the manner provided by LSA-C.C.P. arts. 4701-4705 and 4731-4735. Dissolution of the lease is not automatic upon non-payment of rent, unless a written agreement with an express dissolution clause so provides. See LSA-C.C. art. 2017. Since, in this case, there is no written lease agreement in evidence, there is no express dissolution clause providing for dissolution upon non-payment of rent. Therefore, the lessor is required to serve on the lessee a notice to perform within a certain time, with a warning that, unless performance is rendered within that time, the contract shall be deemed dissolved. See LSA-C.C. art. 2015. A lease with an indeterminate term terminates by notice to that effect given to the other party by the party desiring to terminate the lease. See LSA-C.C. art. 2727. In a month-to-month lease, that notice of termination must be given ten calendar days before the end of that month. See LSA-C.C. art. 2728(2). And if the lease concerns immovable property, the termination notice must be in writing. See LSA-C.C. art. 2729.

In this case, the evidence shows that Ms. Brooks failed to make the monthly payments due November 1st and December 1st. The Solets sent her a letter on December 29, 2008, accompanied by a ten-day notice to vacate. Although that letter advised her that she was in default of the lease agreement in excess of 60 days and requested her to vacate the property within ten days, it was not sent ten days before the end of that calendar month, as required for a month-to-month lease of residential immovable property. Therefore, that letter did not suffice to give notice of termination sufficient to terminate or dissolve the lease, and Ms. Brooks’ right of occupancy did not cease.

Louisiana Code of Civil Procedure article 4701 states that if the lease had no definite term, the notice required by law for its termination shall be considered as a notice to vacate, entitling the lessor, upon termination of the lessee’s right of occupancy, to utilize summary proceedings to obtain |9possession of the premises. But the Solets did not provide the notice required by law for the termination of this lease, and for that reason, could not proceed via summary proceeding. For this reason, we find merit in Ms. Brooks’ third assignment of error, that the court erred in allowing the Solets to use a summary proceeding to regain possession of the property. Therefore, the judgment of eviction must be reversed.

CONCLUSION

Based on the foregoing, we reverse the January 28, 2009 eviction judgment ordering Ms. Brooks to deliver the leased property to the Solets. All costs of this appeal are assessed to the Solets.

REVERSED.

KUHN, J., concurs and assign reasons.

KUHN, J.,

concurring.

| ]Although I agree with the result I do not believe it is necessary to hold that the agreement is not a bond for deed. Whether the arrangement between the parties is characterized as a bond for deed or an oral residential lease agreement with an indefinite term, the requisite notice was not given. Because notice was not timely, I agree with the reversal of the judgment of eviction and find it unnecessary to characterize the parties’ arrangement. The rights of the parties — whether they exist under the written agreement or as a result of an oral arrangement — must be adjudicated in an ordinary proceeding and not in a summary eviction proceeding, which is the specific relief requested in the pleadings, see Carriere v. Bank of Louisiana, 95-3058 (La.12/13/96), 702 So.2d 648, 665. Accordingly, I concur in the result.

      . The record also includes a temporary restraining order signed February 12, 2009, by the Twenty-First Judicial District Court, enjoining the Solets from evicting Ms. Brooks or disposing of the property at issue during the pendency of a lawsuit filed there by Ms. Brooks. Her brief to this court indicates that in that suit, Ms. Brooks seeks specific performance of the Agreement, which she characterizes as a bond for deed contract. This court has no other information concerning the progress of that litigation.

      . Because we conclude that the contract at issue is not a bond for deed contract, the statutory provisions concerning bond for deed contracts do not apply to the Agreement. Therefore, the forty-five day notice required by LSA-R.S. 9:2945 was not required, and Ms. Brooks' second assignment of error is without merit.

      . See LSA-C.C. art. 1836.

      . We note also that enforcement of the purchase option could not have been litigated in the Cily Court of Denham Springs, because its subject matter jurisdiction is limited to cases where the amount in dispute or the value of the property involved does not exceed fifteen thousand dollars, and it has no jurisdiction in a case involving title to immovable property. See LSA-C.C.P. arts. 4843(A) and 4847. However, the court does have jurisdiction over eviction proceedings, pursuant to LSA-C.C.P. art. 4844.

      . See LSA-C.C. art. 2681.


author: GUIDRY, J.

text:
    FLEETCOR TECHNOLOGIES OPERATING COMPANY, LLC v. STATE of Louisiana, through the DIVISION OF ADMINISTRATION, OFFICE OF STATE PURCHASING.
    No. 2009 CA 0976.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.

      H. Alston Johnson, III, S. Dennis Blunt, Susan W. Furr, Betty Burke Uzee, Baton Rouge, LA, for Plaintiff/Appellant Fleet-Cor Technologies Operating Company, LLC.
    Pamela Miller Perkins, Paul Holmes, Carlos Romanach, Baton Rouge, LA, for Defendant/Appellee State of Louisiana, Division of Administration, Office of State Purchasing.
    David L. Guerry, J. Wendell Clark, Jamie Hurst Watts, Mark L. Barbre, Baton Rouge, LA, for Intervenor/Appellee FuelTrac, Inc.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

12FleetCor Technologies Operating Company, LLC (FleetCor), a rejected proposer on a state contract for fuel and maintenance services, appeals a judgment of the district court affirming the decision of the State of Louisiana, Division of Administration, Office of State Purchasing (State Purchasing) to award a state contract to an opposing proposer.

FACTS AND PROCEDURAL HISTORY

On August 24, 2007, the Division of Administration, Louisiana Property Assistance Agency mailed out copies of a “Request for Proposal for Statewide Fleet Fuel and Repair/Maintenance Service” (RFP) to solicit competitive proposals to provide fleet fuel and repair and maintenance services for state-owned and/or leased vehicles. The deadline for submission of proposals and for the opening of proposals was November 1, 2007.

According to the RFP, all proposals were to be received by State Purchasing and evaluated by a committee “whose members have expertise in various areas.” The Evaluation Committee was ultimately comprised of the State Fleet Manager and the Assistant Director for the Louisiana Property Assistance Agency, the Purchasing Director for the Department of Natural Resources, an Account Tech and an Administrative Coordinator from the Department of Public Safety and Corrections, and the Business Services Manager from the Department of Social Services. Based on the committee’s evaluation of the proposals, the committee recommended the proposal submitted by FuelTrac as being most advantageous to the State, and a contract was awarded to FuelTrac in accordance with the recommendation.

|3FleetCor filed a written protest of the award with the director of State Purchasing, as chief procurement officer, in accordance with La. R.S. 39:1671(A). The director of State Purchasing denied Fleet-Cor’s protest, and FleetCor timely appealed the director’s decision to the Commissioner of Administration in accordance with La. R.S. 39:1683. The Commissioner upheld the director's decision to deny the protest and FleetCor filed a petition for judicial review with the Nineteenth Judicial District Court in accordance with La. R.S. 39:1691(A). On judicial review, the district court upheld the decisions of the agency officials, and it is from that judgment that FleetCor appeals to this court. See La. R.S. 39:1691(E).

ASSIGNMENTS OF ERROR

On appeal, FleetCor asserts the following errors were committed by State Purchasing in reviewing and ultimately rejecting its proposal:

1. The State Purchasing Director erred when she arbitrarily disqualified FleetCor and failed to afford Fleet-Cor’s appeal the required review.
2. [State Purchasing] erred in its selection process because the RFP did not comply with the law mandating that appropriate weight be given to price as compared to technical factors.
3. [State Purchasing] erred in its evaluation of the technical category because the evaluation was unsupported by a preponderance of the evidence and was arbitrary and capricious.
4. [State Purchasing] erred and failed to comply with the law when it awarded the contract for diesel without accepting competitive bids.

| .STANDARD OF REVIEW

The standard applicable to our review of a decision of an administrative agency is governed by Section 964 of the Louisiana Administrative Procedures Act contained in Title 49 of the Louisiana Revised Statutes. GC Services Limited Partnership v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 93-1948, p. 1 (La.App. 1st Cir.12/22/94), 648 So.2d 1045, 1046, writ denied, 95-0211 (La.4/7/95), 652 So.2d 1345. Paragraph G of that section provides:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

DISCUSSION

In its first assignment of error, FleetCor contends that the director of State Purchasing, Denise Lea, did not afford its protest proper review based on her alleged error in concluding that its proposal should have been rejected and not evaluated because it was non-responsive to the RFP. We find no merit in this argument for two reasons. First, while the director did state in her written response |Bto FleetCor’s protest that she found Fleet-Cor’s proposal non-responsive and that it should not have been evaluated at all, she went on to state that “[i]n my review of [how the Evaluation Committee scored the technical aspects of FleetCor’s proposal in comparison with the proposal from FuelT-rac], I do not find any arbitrariness on the part of the evaluators. Absent clearly arbitrary or unreasonable scoring, I will not substitute my opinion for that of the multi-agency committee used in this procurement.” Thus, while the director may not have reached the conclusion FleetCor would have desired, she nevertheless summarily addressed the specific contentions raised by FleetCor in its written protest.

Second, we find that although the director may not have addressed the issues FleetCor raised in its protest as thoroughly as it may have desired, the review provided by the director as well as the subsequent procedures accorded to FleetCor for further review, sufficiently provided Fleet-Cor with all the process it was due under the law. See Alexander & Alexander, Inc. v. State, 596 So.2d 822, 827-828 (La.App. 1st Cir.1991), writ denied, 600 So.2d 641 (La.1992). Therefore, we reject Fleet-Cor’s first assignment of error as lacking merit.

In its second assignment of error, FleetCor essentially argues that the evaluation of the proposals submitted was unlawful for failing to give appropriate weight to the price and technical factors as provided by statute, regulation, and the RFP. It is not alleged that the Evaluation Committee used any requirement or criteria that was not disclosed in the RFP; rather, the main contention is that the Evaluation Committee did not disclose the specific weight by which it would be evaluating the price and technical factors of the RFP, and more importantly, that it did not disclose that greater weight would be given to the individual technical factors than to the price factors listed in the RFP.

The Evaluation Committee used full point values in assessing the technical factors presented in the proposals submitted, but used tenths of a point in assessing | fithe price factors. It is FleetCor’s contention that use of the aforementioned method of assessment was improper because it failed to give proposers sufficient notice of “the relative importance of price and other evaluation factors” in violation of La. R.S. 39:1593(C)(2)(b). FleetCor alleges that the equal allocation of 50 points to both the price and technical portions of the proposal was misleading because a proposer could reasonably believe, as it did, that equal weight would be used in evaluating the price and technical factors. FleetCor argues that by using different point values or weights to assess the price factors, as compared to the technical factors, results in the technical factors being given greater importance than price, which it claims was not advantageous to the State. See La. R.S. 39:1593(C)(2)(d)(i) and RFP § 1.25. We reject these assertions.

Louisiana Revised Statutes 39:1593(C)(2)(b) states that the RFP “shall indicate the relative importance of price and other evaluation factors.” (Emphasis added.) Notably, the statute does not state that the RFP must indicate the relative importance of price to other evaluation factors. Instead, a proper construction of the statute is that it states that the RFP must indicate the relative importance of all the evaluation factors to be used in the RFP, which should include price. This was done in the RFP, which stated that price factors would be allocated a total of 50 points and the technical factors would be allocated a total of 50 points, for an overall score of 100 points to be allocated in the evaluation of the proposals.

As the specific formula by which the pricing portion of the proposals would be evaluated was provided in the RFP, Fleet-Cor cannot validly claim surprise about the resulting scores for the price proposals, since clearly the formula and current market conditions should have revealed to FleetCor, a seasoned and experienced participant of the fuel industry, that the prices to be proposed were |7likely to be quite close. FleetCor should have been fully aware of the possibility that mere tenths of a point could separate the proposers’ scores based on the prices quoted and it was definitely aware that equal weight would be given to scoring the pricing of the onsite and offsite fuel factors.

Furthermore, although for the overall price proposal, FleetCor’s proposal was scored higher than FuelTrac’s, for the individual price factors for onsite (alternately referred to as consignment fuel in the RFP) and offsite fuel, FuelTrac scored higher (which meant its price per gallon was lower) than FleetCor for onsite fuel. So the amount of savings that would be realized by the State based on FleetCor’s price proposal would mainly be realized for offsite fuel. State Purchasing indicated that it wanted to move to providing more onsite fueling and therefore were looking for the overall savings in that area. See RFP § 2.3.1.

In its third assignment of error, FleetCor complains about the Evaluation Committee’s scoring of the technical portions of the proposals. The RFP delineated a specific formula by which the price factors would be evaluated, but notably, the same or a similar formula was not provided for evaluation of the technical factors. Instead, for the technical factors, the RFP simply stated that 18“[t]he following criteria are of importance and relevance to the evaluation of this RFP and will be used by the Evaluation Committee in the evaluation of the technical proposal.” (Emphasis added.)

FleetCor requested that the Evaluation Committee specify the weight or point value to be given to the technical factors listed in the RFP during the inquiry period, but was told “[t]he values are unknown at this time, but will be established prior to evaluation.” Nevertheless, under the purchasing rules and regulations contained in the Louisiana Administrative Code, it is stated:

The purpose of a specification is to serve as a basis for obtaining a supply, service, or major repair item adequate and suitable for the state’s needs in a cost effective manner, taking into account, to the extent practicable, the costs of ownership and operation as well as initial acquisition costs. It is the policy of the state that specifications permit maximum practicable competition consistent with this purpose. Specifications shall be drafted with the objective of clearly describing the state’s requirements.

LAC 34:I.301(A)(2) (emphasis added). Considering the applicable statutory, administrative, and RFP provisions, we cannot say that the failure to give prior notice of the weight or point value for the technical factors was improper. All of the proposers were provided the exact same information and advised that the purpose of the RFP was “to obtain competitive proposals” as allowed by La. R.S. 39:1593(C). See RFP § 1.1.1. Thus, despite its lack of knowledge of the specific weight or point value to be given to the individual technical factors, FleetCor was nonetheless aware that its proposal must be competitive in respect to all of the requirements of the RFP. This knowledge was sufficient to put FleetCor on notice of the importance of the technical factors. Additionally, as we explained about a similarly worded statute in Executone of Central Louisiana, Inc. v. Hospital Service District No. 1 of Tangipahoa Parish, 99-2819, p. 4 (La.App. 1st Cir. 5/11/01), 798 So.2d 987, 991, writ denied, 01-1737 (La.9/28/01), 798 So.2d 116, La. R.S. 39:1593(C)(2)(b) “does not require the use of a formula, percentage chart, or specific form. Nor is it necessary for an outsider to be able to correctly choose the winner of the contract merely by reading the proposals.”

Moreover, FleetCor was not precluded from making a subsequent inquiry regarding the weight or point value to be given the technical factors, as long as it was presented during the established inquiry period. So if it felt truly disadvantaged by this lack of knowledge, it could have asserted its rights pursuant to La. R.S. 39:1671 A to protest the failure to advise proposers of the weight or point value to be accorded the individual technical factors.

We further find no merit in Fleet-Cor’s assertions that FuelTrac’s proposal did not comply with the terms of the RFP. As for its assertion that the Evaluation Committee arbitrarily and erroneously evaluated its proposal in regard to the technical factors, we also must reject this argument. The Evaluation Committee grouped the technical factors into four major categories and allocated points for each category as follows: “Company Background and Experience” (5 points); “Service and Support Requirements” (16 points); “Approach and Methodology” (20 points); “Implementation/Orientation Plan” (9 points). FuelTrac received a perfect score for all the categories except for “Service and Support Requirements,” for which it lost one point because of the noted weakness of providing a gallon per 110month minimum for added consignment (onsite) fuel sites. FleetCor received a deduction of three points for the same criteria group because of the cost it attributed for added consignment (onsite) fuel sites, for charging for non-generic reports, and for providing very limited ad-hoc reporting.

The Commissioner of Administration, Angele Davis, found that FuelTrac was given too many points in this category because its score “was enhanced by factors which were not listed” in the RFP. Nevertheless, FleetCor asserts that the Evaluation Committee’s deduction of points for charging for “non-generic reports” was arbitrary and capricious because the fee it proposed was “solely for a side product.” FleetCor fails to appreciate that the side product it refers to relates to one of the specific technical services sought in the RFP. Section 2.1, titled “Scope of Work/Services,” paragraph I, states that “Preventative Maintenance (PM) and Repair Service data shall be provided electronically to DOA LPAA and to appropriate state agency/account.” (Emphasis added.) Yet in its proposal, FleetCor offers a “Preventative Maintenance Tracking and Reporting System” as an optional “Innovative Concept” that “will be made available to customers for a nominal monthly charge of $29.95 per bill group per month,” but for which it “agrees to cap the fee at $84.95 per month for the agency/participant.” Thus, there appears to be a sound and non-arbitrary basis for the Evaluation Committee’s deduction of points for Fleet-Cor’s charging of fees for non-generic reports.

There were no noted weaknesses indicated for FuelTrac for any of the remaining categories, but FleetCor had noted weaknesses indicated for the areas of “Approach and Methodology” and “Implementation/Orientation Plan.” For “Approach and Methodology,” three points were deducted because FleetCor’s “web-based reporting tool is not the enterprise level management tool desired per RFP.” Fleet-Cor complains that the RFP did not explain what features would constitute “an enterprise level management tool.” This argument is not persuasive.

InSection 1.7.2 of the RFP expressly provides that “[a]n initial inquiry period is hereby firmly set for all interested proposers to perform a detailed review of the [RFP] documents and to submit any written questions relative thereto.” That section further provides that “[t]he state reasonably expects and requires responsible and interested proposers to conduct their in-depth proposal review and submit inquiries in a timely manner.” Hence, if Fleet-Cor was unsure of what was meant by the term “an enterprise level management tool,” the proper remedy would have been to ask for clarification during the inquiry period and not wait until later to complain that it was “arbitrary and contrary to law to weigh competing [proposals] on an issue not accurately identified by the RFP.”

Moreover, in reviewing FleetCor’s and FuelTrac’s proposal relative to this requirement, we observe a distinct difference in their proposals that could support the Evaluation Committee’s difference in scoring the two proposals. The RFP expressly states that “[o]nline solutions are desired, with account information available at several levels of hierarchy.” In reviewing the two proposals, FuelTrac’s online system could be characterized as “web based,” whereas the online system proposed by FleetCor could be better characterized as “web accessed.” The FuelTrac system provides for account maintenance, reporting, and billing to be performed online, with the option of saving and delivering reports generated by the system in PDF, Excel, CSV, and Tab-Delimited file formats. So all transaction information is accessible and viewable directly online, and information is only downloaded if desired or necessary.

At first glance, FleetCor’s system appears to provide only pre-programmed transaction files that the State could access via the web that must then be downloaded or imported into the State agency’s computer system to view using software applications that are present on the accessing computer. The proposal outlines how the FleetCor system provides for transaction information to be [^downloaded via “numerous reports and data into Microsoft Excel format or Microsoft Access where [the transaction file] can easily be used for further analysis and tracking.” Even the “Executive Level Snapshot Reporting” offered by FleetCor only provides for preparing and sending of “executive level overview reporting via Email, in Microsoft Excel format.” Eventually, the proposal discusses the availability of the Report-Builder function of its online system, which appears to provide some (but it is not clear if all) of the functions provided in the FuelTrac system.

FleetCor’s less than clear and concise presentation of its online system could have served as the basis for the company’s proposal not scoring as high or equal to that of FuelTrac’s. The fact that FuelT-rac’s presentation of its system may have been perceived by the evaluators as much simpler and more readily adaptable to the State’s purpose, as opposed to that of FleetCor, whose presentation may have given the opposite impression, could have formed a reasonable basis for the difference in scoring between the two proposals relative to their online systems. As such, we will not substitute our judgment for the good-faith judgment of the administrative agency based on its reasonable perceptions. See Haughton Elevator Division v. State, Through Division of Administration, 367 So.2d 1161, 1165 (La.1979).

As for the weakness noted for the “Implementation/Orientation Plan” category of having “[n)o clearly defined responsibilities indicated in the implementation plan submitted,” from reviewing the RFP and the FleetCor and FuelTrac proposals, the Evaluation Committee’s comment could be addressed to FleetCor’s failure to clearly delineate the responsibilities relative to Fuel Control Terminals as requested in Section 2.1.2 of the RFP. That section provides that “[a]ll proposers should offer a Fuel Control Terminal for each State agency owned onsite fueling station upon request by any State agency under the umbrella of this | ^contract.” The section further provides that “[e]aeh proposal should include a concise list that clarifies what required conditions, equipment or services (i.e. telephone, electrical) must be present at each site a Fuel Control Terminal is to be installed prior to installation.”

FuelTrac’s proposal clearly outlines these requirements, whereas FleetCor’s proposal does not. Despite being the existing fuel supply contractor, FleetCor stated that it “must gather the exact equipment configuration for each site needing fuel control terminal replacement,” that it would “confirm the number of hoses (meters) being automated at each site,” and that it still needed to determine what equipment needed to be ordered and the associated costs. Hence, we find a non-arbitrary basis for the higher scoring of FuelTrac’s proposal for this category.

Ultimately, we conclude that the Evaluation Committee’s assessment of the proposals was not arbitrary or capricious and thus its decision should stand. It is within the Evaluation Committee’s discretion to choose the responsible offerer whose proposal is “most advantageous to the state, taking into consideration review of price and the evaluation factors set forth” in the RFP. La. R.S. 39:1593(C)(2)(d)(i). It was a part of the Evaluation Committee’s discretion to decide which of the offered features best met the factors listed in the RFP, and we observe, as we did in Executone of Central Louisiana, Inc., 99-2819 at 5, 798 So.2d at 991, the fact that any “offered feature, cluster of features, or specific attributes might outweigh any differences in a quoted price” could not be known until proposals were submitted and reviewed. We therefore reject this assignment of error.

Finally, FleetCor contends that State Purchasing unlawfully included the supply of diesel fuel in the contract issued pursuant to the subject RFP, alleging that no competitive bids were accepted to supply diesel fuel and that the Evaluation Committee did not consider or use the prices quoted for diesel fuel in evaluating 114the respective proposals. State Purchasing explained that the decision was made not to include consideration of the diesel fuel quotes in the actual evaluation process because the supply of diesel fuel would be considered a “small purchase” and that it could not determine or project the quantities of diesel fuel that would be needed to justify making it a determinative factor of the bid. As the RFP clearly stated the outcomes desired from the procurement, the evaluation factors, their relative importance, and the criteria to be used in evaluating the proposals, we do not find State Purchasing’s handling of the diesel price quotes as precluding the execution of the contract that included the supply of diesel fuel under the circumstances provided. See La. R.S. 39:1593(C)(2)(b).

CONCLUSION

Accordingly, having thoroughly reviewed the administrative record in the matter before us and considering the arguments raised, we reject FleetCor’s appeal and affirm the judgment of the district court on judicial review of this administrative matter. All costs of this appeal are cast to the appellant, FleetCor Technologies Operating Company, LLC.

AFFIRMED.

      . The original deadline for submission of the proposals was October 2, 2007, but because of addenda issued for the RFP, the deadline was extended to November 1, 2007.

      . In Willows v. State, Department of Health & Hospitals, 08-2357, p. 9 (La.5/5/09), 15 So.3d 56, 62, the Louisiana Supreme Court held that the legislature did not intend that the Procurement Code provide a right of appeal to this court relative to any claims or controversies arising out of any contract or agreement executed prior to August I, 2008. Because of FleetCor’s protest. State Purchasing stayed the "intent to award" issued to FuelT-rac dated April 18, 2008. Following the Commissioner of Administration’s ruling on FleetCor's protest on August 12, 2008, the stay was lifted and FuelTrac was authorized to proceed with contract negotiations by the director of State Purchasing pursuant to a letter dated August 18, 2008. FleetCor filed a petition for judicial review and for a stay of the award and implementation of contract on August 25, 2008, with the Nineteenth Judicial District Court. Since the contract in this matter was not executed prior to August 1, 2008, jurisdiction lies for us to consider Fleet-Cor’s appeal.

      . The RFP advised proposers that they could submit price proposals as either a "mark-up,” “rebate,” or both price structures. The proposers chose to submit their proposals with both mark up and rebate pricing. For markup pricing, proposers were advised in the RFP that the pricing "should reference a recognized 'benchmark' information table such as the Oil Price Information Service (OPIS) Gross Average Rack Price” and that "[a]ny benchmark table used must reflect the fuel index pricing for the Baton Rouge metropolitan area.” For rebate pricing, proposers were instructed to “indicate pricing as retail less tax.”

      . Additionally, in a written inquiry made by FleetCor prior to submission of its proposal, it suggested that greater, instead of equal, weight should be given to the price factor for offsite fuel relative to onsite fuel. The Evaluation Committee rejected this suggestion and maintained that it would use the formula as outlined in the RFP.

      .Throughout its brief, FleetCor presents the additional speculative argument that FuelTrac could have quoted a grossly uncompetitive price in its proposal and still have been awarded the contract. There is no merit in this argument for two reasons. First, it is mere fallacy, since that did not occur. Second, purchasing regulations and the RFP would prohibit the awarding of a contract under such circumstances. See La. R.S. 39:1593(C)(2)(d)(ii); LAC 34:I.1303 and 1307(A); RFP §§ 1.15 and 1.25 (wherein authority is given to reject any and all proposals that are deemed not to be in the best interest of the State, including when all otherwise acceptable bids received are at unreasonable prices).

      . Section 1.45 of the RFP states that "[a]ll proposals and contracts submitted are subject to provisions of the laws of the State of Louisiana including but not limited to [La. R.S.] 39:1551-1736; purchasing rules and regulations; executive orders; standard terms and conditions; special terms and conditions; and specifications listed in this RFP.”

      . As pertaining to the solicitation in this matter, La. R.S. 39:1671(A) provides that "[p]ro-tests with respect to a solicitation shall be submitted in writing at least two days prior to the opening of bids.”

      . For example, FleetCor argues that FuelT-rac’s proposal should have been deemed "nonresponsive,” because it quoted a monthly monitoring fee of $24.95 for the installation of wireless fuel level monitors to onsite fuel dispensers owned by the State. This service was clearly optional and not a definite service that had to be provided. Section 2.1.2 of the RFP states that ”[i]t is not expected that the contractor will be responsible for installation, maintenance and/or repair of existing fuel dispensers, nor is the contractor expected to install electronic pulsars.” Similarly, FuelT-rac's proposal that it be paid in 25 days of the State's receipt of an invoice was not clearly violative of the Section 1.34 of the RFP that provides that "[pjayments will be made by the Agency within approximately thirty (30) days after receipt of a properly executed invoice.” (Emphasis added.)

      . Section 3.1 of the RFP states "[a]ll Financial Proposal evaluations shall be based on the Proposers' cost structure applied to the cost of regular unleaded gasoline.”


author: HUGHES, J. WHIPPLE, J.,

text:
    Jonathan DRUMMOND, Rodney Drummond and Norma Lynne Drummond v. Elias Jacob FAKOURI, Jerry Fakouri, Adam Fakouri, and Safeco National Insurance Company.
    No. 2009 CA 1069.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.
    Rehearing Denied Feb. 17, 2010.

      Steve C. Thompson, S. Layne Lee, Baton Rouge, LA, for Plaintiffs/lst Appellants, Jonathan Drummond, Rodney Drummond, and Norma Lynne Drum-mond.
    Sidney W. Degan, III, Richard C. Ba-deaux, Travis L. Bourgeois, New Orleans, LA, for Defendant/2nd Appellant, Elias Jacob Fakouri, Jerry Fakouri, Adam Fak-ouri, and Safeco Ins. Co. of America.
    Janice M. Reeves, Alfred B. Shapiro, Baton Rouge, LA, for Defendant/2nd Appellant, Elias Jacob Fakouri.

      Richard J. Petre Jr., Lafayette, LA, for Defendant/Appellee, Clarendon America Ins. Co.
    Brent P. Frederick, Michael T. Beckers, Baton Rouge, LA, for Defendant/Appellee, E. Jacob Construction, Inc. d/b/a Fakouri Construction, Inc., and J.C.D.A. Family, LLC.
    Before WHIPPLE, HUGHES, and WELCH, JJ.
   HUGHES, J.

| sIn this appeal, the plaintiffs and a defendant/homeowner’s insurer appeal from the trial court’s grant of summary judgment in favor of a corporate defendant, sued for the allegedly tortious actions of an employee; the summary judgment dismissed with prejudice all claims against the corporate defendant. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 19, 2006, while Jonathan Drum-mond was visiting Adam Fakouri, both of whom were seventeen years old, Adam accidentally shot Jonathan in the chest and stomach with a Colt .38 caliber handgun. As a result of the gunshot, Jonathan sustained severe and disabling injuries, including paralysis below the chest.

On May 16, 2007, Jonathan Drummond, Rodney Drummond, and Norma Lynne Drummond filed a petition for damages against: Adam Fakouri; Adam’s parents, Elias Jacob Fakouri and Jerry Fakouri; and the Fakouris’ homeowner’s insurer, Safeco Insurance Company of America (Safeco). Thereafter, plaintiffs filed a first supplemental and amended petition, naming as additional defendants: E. Jacob Construction, Inc. d/b/a Fakouri Construction, Inc. (E. Jacob Construction) and J.J.C.D.A. Family, LLC (J.J.C.D.A. Family), companies owned by the Fakouris; and Clarendon America Insurance Company (Clarendon), the commercial general liability insurer of E. Jacob Construction and J.J.C.D.A. Family. In the supplemental and amended petition, plaintiffs alleged that the gun at issue was used “as a tool of business by Mr. Elias Jacob Fakouri for protection when traveling to [4and from his rental properties, offices, and/or warehouse.” Mr. Fakouri is a building contractor, and E. Jacob Construction is his construction business. J.J.C.D.A. Family is another family business, which owns rental property.

According to the petition, the gun was normally kept in Mr. Fakouri’s work truck, which was used for his work with E. Jacob Construction and for J.J.C.D.A. Family. Plaintiffs further alleged that, because Mr. Fakouri was having work performed on the truck, he had removed the gun from his work truck and brought it into his home, where he sometimes performed business activities for E. Jacob Construction and J.J.C.D.A. Family. Thus, plaintiffs contended that Mr. Fak-ouri was acting in the course and scope of his employment with E. Jacob Construction and J.J.C.D.A. Family, when he removed the loaded gun from his work truck and negligently left the gun in an unsafe place, where it was accessible to minors, thereby rendering defendants E. Jacob Construction, J.J.C.D.A. Family, and Clarendon liable for Jonathan Drummond’s injuries.

E. Jacob Construction then filed a motion for summary judgment, contending that it was entitled to judgment in its favor, as a matter of law, because Mr. Fakouri, who was shopping at Wal-Mart at the time of the shooting, was not conducting any business for E. Jacob Construction at the time Jonathan was shot. Moreover, with regard to plaintiffs’ contention that the gun was used as a tool of business by Mr. Fakouri, for his protection while traveling to various work sites, E. Jacob Construction asserted that, regardless of the veracity of that allegation, Mr. Fakouri’s protection was not at issue at the time that Jonathan was shot, nor was Mr. Fakouri traveling to or from those work sites when the accident happened. Thus, E. Jacob Construction argued that because the gun was not being used for any purpose related to or benefitting the business at the time of Jonathan’s | «injury, E. Jacob Construction was entitled to judgment in its favor, dismissing it from the suit with prejudice.

Following a hearing on the motion, the trial court granted the motion and rendered judgment dated January 15, 2009, dismissing with prejudice plaintiffs’ claims against E. Jacob Construction. From this judgment, plaintiffs and Safeco appeal. Plaintiffs assign the following as error: (1) the trial court erred in its apparent decision to grant summary judgment to E. Jacob Construction by deciding a highly disputed, inherently factual question in E. Jacob Construction’s favor as movant, namely by deciding that certain acts committed by Mr. Fakouri were not committed while in the course and scope of his employment with E. Jacob Construction; (2) the trial judge erred in substituting his own judgment based on his own experiences in carrying a gun, for that of a jury after a full trial, and by crediting an inap-posite and irrelevant hypothetical based on his own beliefs and feelings regarding his own gun-carrying activities; and (3) to the extent the trial court’s decision was based upon a determination that the acts and omissions of Mr. Fakouri were not negligent, the trial court erred because there are clear issues of disputed material fact as to whether the acts and omissions in question constituted negligence.

In its single assignment of error, Safeco avers that the trial court erred in granting summary judgment in favor of E. Jacob Construction.

1 «DISCUSSION

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by LSA-C.C.P. art. 969; the procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). Summary judgment shall be rendered in favor of the mover if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Samaha v. Rau, 2007-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882; Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Authority, 2002-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377; Boudreaux v. Vankerkhove, 2007-2555, p. 5 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 729-30.

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor. Hines v. Garrett, 2004-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

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. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial 17on that issue and summary judgment is appropriate. Id., 2004-0806 at p. 1, 876 So.2d at 765-66.

On motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. LSA-C.C.P. art. 966(C)(2).

When a motion for summary judgment is made and supported as provided in LSA-C.C.P. art. 967, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in LSA-C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B). See also Board of Supervisors of Louisiana State University v. Louisiana Agricultural Finance Authority, 2007-0107, p. 9 (La.App. 1 Cir. 2/8/08), 984 So.2d 72, 79-80; Cressionnie v. Intrepid, Inc., 2003-1714, p. 3 (La.App. 1 Cir. 5/14/04), 879 So.2d 736, 738.

The record before us establishes that Mr. Fakouri was the construction supervisor for E. Jacob Construction, his family-owned construction business. His duties as construction supervisor included traveling to existing job sites, supervising all E. Jacob Construction jobs, and bidding on | sconstruction jobs. According to Mr. Fak-ouri, because of his job duties, he would spend about ninety percent of his work day traveling in his truck, which, at the time of the shooting accident, was a 2003 Chevrolet C 1500 owned by E. Jacob Construction. He considered his truck to be his “mobile office,” where he kept files on all E. Jacob Construction jobs.

In his deposition, offered by E. Jacob Construction in support of its motion for summary judgment, Mr. Fakouri testified that all his life, he had carried a gun with him any time he was driving, for personal protection, including when he was with his kids or on vacation. With regard to the particular gun at issue in this case, Mr. Fakouri testified that he personally owned the gun and that he normally kept it in his work truck, carrying the gun with him for protection when he visited the company warehouse, which he described to be in a “less desirable” or “rougher” area of town.

Mr. Fakouri further testified that he “liked” guns and collected them, though he was not “an avid shooter.” Mr. Fakouri enumerated guns that he had in his collection, as including: a Ruger .22 automatic handgun, a Beretta .40 caliber pistol, a Browning 9 millimeter handgun, a 12-gauge automatic shotgun, a 12-gauge double-barrel shotgun, an AR .15 rifle, a Glen-field .22 bolt action rifle, a .223 Mini 14 rifle, and about five Winchester 30/30 lever action “cowboy version” rifles. Mr. Fak-ouri stated that he keeps his gun collection in a locked bedroom closet, though he thought Adam knew where the key to the closet was kept.

Mr. Fakouri further testified that he did not have a home office in his residence (located on Goodwood Boulevard), but rather, E. Jacob Construction had a separate office (located on Richcroft Avenue). Mr. Fakouri stated that he did not like to do work at home, but would sometimes look over paperwork after his family went to bed.

| ¡)Prior to the accidental shooting at issue, Mr. Fakouri had removed all of his work papers and the gun from his company truck in order to have the truck serviced. When Mr. Fakouri took the gun out of his work truck, he placed the loaded gun on the counter portion of a china cabinet in the breakfast area of his home. The china cabinet was a “catch all place” for him, where he would put his keys, coins, and work papers. About two days after Mr. Fakouri placed the loaded gun on the china cabinet in his home, his son Adam accidentally shot Jonathan Drum-mond when he tripped over a threshold while carrying the gun after having taken it from the china cabinet to show it to Jonathan.

Thus, the question presented herein is whether the actions of Mr. Fakouri, as owner of and construction supervisor for E. Jacob Construction, in placing a loaded gun on a china cabinet in his home while his work truck was being serviced, were in the course and scope of his employment with E. Jacob Construction and, thus, could result in E. Jacob Construction being vicariously liable for those actions.

Regarding liability of E. Jacob Construction as Mr. Fakouri’s employer, the principle of vicarious liability is derived from LSA-C.C. art. 2320, which provides in part, “[m]asters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” (Emphasis added.) Pursuant to LSA-C.C. art. 2320, an employer can be held liable for an employee’s tortious conduct only if the injuring employee is acting within the course and scope of his employment. Ellender v. Neff Rental, Inc., 2006-2005, p. 5 (La.App. 1 Cir. 6/15/07), 965 So.2d 898, 901.

Generally, courts consider four factors when assessing vicarious liability, including whether the tortious act: (1) was primarily employment [inrooted; (2) was reasonably incidental to performance of employment duties; (3) occurred during working hours; and (4) occurred on the employer’s premises. LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974); Ellender, 965 So.2d at 901. See also Dickerson v. Piccadilly Restaurants, Inc., 99-2633, p. 4 (La.App. 1 Cir. 12/22/00), 785 So.2d 842, 845.

Under the LeBrane test, the determinative question is whether the employee’s tortious conduct was so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interest. Ellender, 965 So.2d at 901 (quoting LeBrane v. Lewis, 292 So.2d at 218); Dickerson v. Piccadilly Restaurants, Inc., 785 So.2d at 844.

After due consideration of this case on de novo review, we find the factors enunciated in the above-cited cases of LeBrane, Ellender, and Dickerson, when applied to the specific facts and circumstances presented herein, do not result in a conclusion that the negligent storage of Mr. Fakouri’s personal handgun, in his residence, is imputable to his employer, E. Jacob Construction.

Firstly, we note that the negligent storage of the handgun did not occur within normal working hours, nor did it occur on E. Jacob Construction’s premises. While it is arguable that unloading a work vehicle in preparation to have it serviced was “reasonably incidental to performance of employment duties,” we do not find that the subsequent storage of Mr. Fakouri’s personally owned handgun was “primarily employment rooted.” While it could be more convincingly argued that the act of removing the handgun from the E. Jacob Construction-owned work truck was in furtherance of E. Jacob Construction’s interest in obtaining mechanical |n service for the truck, the continued allegedly negligent storage of the weapon several days afterward, in the employee’s personal residence, was too far removed from the original arguably work-related activity to be considered employment rooted. We conclude that as a personally owned item of property, contained within the employee’s personal residence for several days, any negligence in the storage of the gun was likewise personal at that point in time. LeBrane''⅛ determinative test simply cannot be answered in the affirmative under the facts of this case; it cannot reasonably be said that Mr. Fakouri’s allegedly tor-tious conduct was so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interest. We conclude that storage of one’s personal property in one’s home several days after cessation of any work-related activities involving that property is clearly unconnected to the employer’s interest.

Consequently, we find the trial court correctly determined that E. Jacob Construction was entitled to summary judgment dismissing the claims against it.

CONCLUSION

For the reasons stated herein, the January 15, 2009 judgment dismissing with prejudice the claims against E. Jacob Construction, Inc. d/b/a Fakouri Construction, Inc. is affirmed; each party is to bear his own costs of this appeal.

AFFIRMED.

WHIPPLE, J.,

dissenting.

Li respectfully dissent from the majority’s conclusion that E. Jacob Construction, Inc. was entitled to summary judgment in its favor, dismissing plaintiffs’ claims against it. I believe that a question of fact remains as to whether the actions of Mr. Fakouri, as owner of and construction supervisor for E. Jacob Construction, in placing a loaded gun on a china cabinet in his home while his work truck was being serviced, were in the course and scope of his employment with E. Jacob Construction and, thus, could result in E. Jacob Construction being vicariously liable for those actions.

Regarding liability of E. Jacob Construction as Mr. Fakouri’s employer, the principle of vicarious liability is derived from LSA-C.C. art. 2320, which provides in part, “[m]asters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” Pursuant to LSA-C.C. art. 2320, an employer can be held liable for an employee’s tortious conduct only if the injuring employee is acting within the course and scope of his employment. Ellender v. Neff Rental, Inc., 2006-2005 (La.App. 1st Cir.6/15/07), 965 So.2d 898, 901.

Generally, courts consider four factors when assessing vicarious liability, including whether the tortious act: (1) was primarily employment rooted; (2) was reasonably incidental to performance of employment duties; |2(3) occurred during working hours; and (4) occurred on the employer’s premises. LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974). Under the LeBrane test, the determinative question is whether the employee’s tortious conduct was so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interest. Ellender, 965 So.2d at 901.

Specific conduct may be considered within the scope of employment even though it is done in part to serve the purposes of the servant or a third person. Indeed, the fact that the predominant motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment. Ermert v. Hartford Insurance, 559 So.2d 467, 476-477 (La.1990). If the purpose of serving the master’s business actuates, or motivates, the servant to any appreciable extent, the master is subject to liability if the act is otherwise within the service. The focus is on the servant and whether he was motivated, at least in part, to serve the master’s business. Richard v. Hall, 2003-1488 (La.4/23/04), 874 So.2d 131, 138, 152.

In Ermert, the Louisiana Supreme Court addressed the determination of the scope of executive employment in a negligence case. The court noted that while the rules for determining liability of the employer for the conduct of both superior servants and the humblest employees are the same, the application of these rules may differ due to the dissimilarity of their duties and responsibilities. Ermert, 559 So.2d at 476. Additionally, while considerations such as whether the tort occurred on employer premises and during working hours are relevant in assessing conduct of a relatively ^subordinate employee, they are largely irrelevant in assessing conduct of a company’s chief executive officer. See Ermert, 559 So.2d at 477. In a negligence case, the court need only determine whether the servant’s general activities at the time of the tortious conduct were within the scope of his employment. See Ermert, 559 So.2d at 478.

Moreover, the scope of risks attributable to an employer increases with the amount of authority and freedom of action granted to the servant in performing his assigned tasks. Ermert, 559 So.2d at 477; see also Richard, 874 So.2d at 138. As noted by the Court in Ermert:

This is the logical extrapolation of a rule that fixes liability based upon the course of employment: The greater potential course of employment expands the servant’s potential opportunities to commit torts. These opportunities are maximized where the servant effectively determines the course of his own employment, as is the case when the servant is actually the owner of the enterprise.... [BJecause of both the business owner’s inherent incentives to pursue company interests whenever possible and the fact that the “servant” often controls the “master” rather than vice-versa, the line between “business” and “personal” activity is often a hazy one.

Ermert, 559 So.2d at 477.

In Ermert, the president and majority stockholder of a fence company accidentally shot a guest at a hunting camp. Ermert, 559 So.2d at 469-470. As chief executive and majority stockholder, the company president had established the practice of using the camp and his relationship with his hunting friends for the purpose of furthering the business interests of his employer, the fence company. Ermert, 559 So.2d at 469-170. Specifically, he sold fences to most of the other members of the camp, he derived other business through references from regular members of the hunting group, and he entertained customers and employees at the camp. Ermert, 559 So.2d at 470. On the weekend of the accident, the company president had gone to the [4camp to prepare the hunting blinds for the upcoming season and to fraternize with his hunting companions. Ermert, 559 So.2d at 478.

In concluding that the trial court’s finding of vicarious liability on the part of the fence company was not manifestly erroneous, the Court noted that while the corporate president of the fence company used the camp partially for his own personal enjoyment and recreation, he also repeatedly and consistently used it for business purposes. Ermert, 559 So.2d at 478. Thus, the Court concluded that because the corporate president had repeatedly and consistently used the hunting camp for business purposes, the company had made the risks associated with waterfowling (which are not normally characteristic of the activities of fence companies) a part of its business. Ermert, 559 So.2d at 478.

Moreover, the Court found that while the company president was presumably motivated predominately to benefit himself recreationally, the trial court was not manifestly erroneous in finding that “the purpose of his business actuated him to an appreciable extent.” Particularly, he had to join in preparing the duck blinds to reap the potential benefits of entertaining his company’s customers, referrers, and employees at the camp during the coming duck season. Ermert, 559 So.2d at 478-479.

Similarly, in the instant case, while Mr. Fakouri at times used the gun at issue for personal protection on personal trips, the evidence presented in support of the motion for summary judgment, at a minimum, demonstrates that he also repeatedly and consistently used it for business purposes for protection in traveling to business sites in risky or unsafe areas for E. Jacob Construction. Moreover, the evidence suggests that the purpose of serving his business may have actuated or motivated him to an appreciable extent to Rremove the gun, and his other work-related items, from his company truck so that the company truck could be serviced.

Thus, based on de novo review, I would find that E. Jacob Construction failed to establish that it was entitled to judgment in its favor as a matter of law. Specifically, E. Jacob Construction did not make the requisite showing that there is an absence of factual support for an element of plaintiffs’ claims that Mr. Fakouri’s allegedly negligent act of improperly storing the gun after removing it from the company truck in connection with having the truck serviced was not an act in furtherance of E. Jacob Construction’s business. Accordingly, in my opinion, the burden never shifted to plaintiffs to demonstrate that they could cany their burden of proof at trial. See LSA-C.C.P. art. 966(C)(2); Nu-Lite Electrical Wholesalers, LLC v. Alfred Palma, Inc., 2003-1167 (La.App. 1st Cir. 4/2/04), 878 So.2d 660, 663.

Because I would conclude that genuine issues of material fact remain as to whether E. Jacob Construction is vicariously liable for Mr. Fakouri’s actions in removing from his company truck and thereafter negligently failing to properly secure or store the loaded gun he used for protection both personally and while performing the duties of his job as construction supervisor for E. Jacob Construction, I likewise would conclude that the trial court erred in granting summary judgment herein.

For these reasons, I respectfully dissent.

      . Safeco was originally named in the plaintiffs’ petition as "Safeco National Insurance Company;" however, in its answer Safeco named itself "Safeco Insurance Company of America” and stated that it had been erroneously named in the petition.

      . Clarendon also filed a motion for summary judgment, averring that it had no liability because: (1) Mr. Fakouri was not acting in the course and scope of his employment with E. Jacob Construction or J.J.C.D.A. Family at the time of the accident; (2) Mr. Fakouri was not an insured person under the Clarendon policy; and (3) Mr. Fakouri, E. Jacob Construction, and J.J.C.D.A. Family at no time acted negligently or breached any duty owed to plaintiffs. The trial court also granted Clarendon’s motion for summary judgment, and that judgment is the subject of the related appeal in Drummond v. Fakouri, 2009 CA 1062, 25 So.3d 249, 2009 WL 5554589, also decided by this court on this date.

      . While defendants Elias Jacob Fakouri, Jerry Fakouri, and Adam Fakouri were listed along with Safeco in the motion and order for appeal as appellants, the appellate briefs filed with this court list only defendant Safeco as appellant.

      . Although Mr. Fakouri in his deposition also stated that he was the "owner” of E. Jacob Construction, no testimony or other evidence was introduced into the record to establish the corporate structure of the company.

      . In support of its motion for summary judgment, E. Jacob Construction argued that it was entitled to summary judgment in its favor because, at the time of the accidental shooting, Mr. Fakouri was not engaged in any work-related activities and was not even at home, where the shooting occurred. However, I find no merit to E. Jacob Construction's attempt to so narrowly construe the principles of employer vicarious liability. Plaintiffs do not contend that the shooting itself was tortious conduct committed by Mr. Fakouri or that the tortious conduct of Mr. Fakouri occurred at the actual time of the shooting. Rather, they contend that his work-related actions in removing the gun from his work truck and thereafter negligently placing it where it was accessible to minors constituted tortious conduct which was a cause of the accidental shooting.

      . Nonetheless, I note that Mr. Fakouri's answers to interrogatories, which were offered by plaintiffs in opposition to the motion for summary judgment, further support the result I would reach herein. Specifically, in his answers to interrogatories, Mr. Fakouri stated as follows:
      I would always cany a firearm at dark (9:00 p.m. or later) at Woodale Court (near Airline and Tom) which is where the warehouses are where extra building materials are stored for E. Jacob Construction, or construction materials I use to repair rental properties. I had left the gun at my house on May 19, 2006 because I had unloaded the E. Jacob Construction truck of everything I use in my business, so that service could be done on it. Since I was taking my vehicle in for work, I unloaded the vehicle of all my commercial papers, plans and specifications and the gun that I carry out at the warehouses loaded with E. Jacob Construction building materials. If I had not been taking the E. Jacob Construction truck for service, I would not have taken the commercial papers and gun out of the truck because I use the truck like another office. I believe I had last carried the gun late on the evening of May 17, 2006 at the warehouses before I unloaded the truck.