author: GENOVESE, Judge.

text:
    Peter Norman BROUSSARD, Jr. and Patsy Compton Broussard v. Theta Charles COMPTON, Woodrow Mays Compton, and Elva Fay Compton.
    No. 09-1292.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 2010.

      William A. Repaske, Landry, Watkins, Repaske & Breaux, New Iberia, Louisiana, for Defendants/Appellants, Theta Charles Compton, Woodrow Mays Compton, and Elva Fay Compton.
    Burton E. Cestia, Jr., Burke and Cestia, New Iberia, Louisiana, for Plaintiffs/Ap-pellees, Peter Norman Broussard, Jr. and Patsy Compton Broussard.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GENOVESE, Judge.

Lin this contentious family feud over the ownership of a home and the property upon which it was built, the Defendants/Appellants, Theta Charles Compton, Woodrow Mays Compton, and Elva Fay Compton, appeal the trial court’s judgment in favor of the Plaintiffs/Appellees, Peter Norman Broussard, Jr. and Patsy Compton Broussard. For the following reasons, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Peter Norman Broussard, Jr. (Peter Broussard) and Patsy Compton Broussard (Patsy Broussard) filed a Petition for Breach of Contract and Revocation of Donation against Theta Charles Compton (Theta Compton), Woodrow Mays Compton (Woodrow Compton), and Elva Fay Compton (Elva Compton). The Plaintiffs sought to revoke Theta Compton’s donation to Woodrow Compton and Elva Compton of the property upon which the Plaintiffs built a home. The Plaintiffs asserted that they built the home on Theta Compton’s property with her permission and with the understanding that she would donate to them the property upon which they built the home upon its completion.

The record indicates that in the early 1990s, Theta Compton owned a home located on Cemetery Road in St. Martin Parish, Louisiana, which she acquired from her mother, Violetta Drake Charles (Vio-letta Charles). According to the Plaintiffs, they voluntarily assumed the responsibility of caring for Violetta Charles and maintaining her property. Theta Compton allegedly “offered to give the home and immovable property” to the Plaintiffs in consideration for the care and assistance | ..which they gave to her mother, Violetta Charles. Tragically, in May of 1993, the house burned down, and Violetta Charles perished in the fire. Thereafter, the Plaintiffs allege that even though the home they were to receive was destroyed by fire, Theta Compton proposed an alternative to them. According to their petition, Plaintiffs allege:

Theta Charles Compton offered to provide [money from the insurance proceeds] for the purchase of materials only for the construction of a house to be owned by [the Plaintiffs] in exchange for Peter Norman Broussard, Jr. clearing the immovable property owned by Theta Charles Compton of a burned out home previously occupied by Theta Charles Compton’s mother, as well as other dilapidated buildings, junk vehicles[,] and overgrown trees and shrubs[,] and providing all of the labor and additional materials needed for the construction of a home to be owned by [the Plaintiffs], the said home to include a bedroom for Theta Charles Compton to reside in for the remainder of her life should she so desire. Theta Charles Compton also provided the immovable property where the home was to be built. As part of the contract and prior to the construction of the home[,] Theta Charles Compton had promised that she would donate the immovable property on which the home was constructed to [the Plaintiffs] upon completion of the home.

The Plaintiffs began constructing a house on the property in 1993. Construction was completed in 1995, and the Plaintiffs have lived in the home since before its completion. The Plaintiffs assert that “the home was built on the immovable property with the full permission and knowledge of Theta Charles Compton.” However, the Plaintiffs contend that Theta Compton did not fulfill her promise to donate to them the property upon which the house was built. Specifically, the Plaintiffs assert that:

At the beginning of 2001[,] Theta Charles Compton refused to honor her part of the contract and execute a donation of the immovable property to [the Plaintiffs] but[,] instead[,] wanted to donate the home which she did not own and the immovable property to Patsy Compton Broussard, Elva Fay Compton Bourda and Woodrow Mays Compton. [The Plaintiffs] refused to accept a one[-]third interest and demanded |3that Theta Charles Compton fulfill her contractual agreement to donate the immovable property to [the Plaintiffs].

Nevertheless, Theta Compton did subsequently effectuate a donation of the property at issue herein to Patsy Broussard’s siblings, Woodrow Compton and Elva Compton, in February of 2001. The Plaintiffs claim that they “were unaware of the ... donation ... until March of 2007[,] when they received correspondence from Woodrow May[s] Compton.” It was this correspondence which the Plaintiffs assert prompted their filing of the instant action in December of 2007.

The Plaintiffs’ petition requests that the donation from Theta Compton to Woodrow Compton and Elva Compton be “revoked in so far as it includes the home and improvements made by [the Plaintiffs] and the immovable property for which they had contracted.” It further declares:

[The Plaintiffs] are entitled to ... enforcement of the contract between them and Theta Charles Compton declaring [the Plaintiffs] to be the owners of the immovable property on which the home stands and the home built by them to be theirs with the right of Theta Charles Compton to live in the private bedroom and bath for the rest of her life.
[]
Alternatively, in accordance with Louisiana Civil Code Article 496[] [the Plaintiffs] are entitled to the cost of the materials and workmanship, or current value or enhanced value of the immovable property.
[]
Alternatively, in accordance with Louisiana Civil Code Article |4529[] [the Plaintiffs] are entitled to remain in possession of their home until [they receive] reimbursements for the expenses and improvements to which they are entitled.

The Defendants countered with an Exception of No Cause of Action, Answer, and Reconventional Demand. In their answer and reconventional demand, the Defendants “admit that Theta Charles Compton permitted [the] Plaintiffs to reside on the property”; however, the Defendants denied ever acknowledging that the home was to belong to the Plaintiffs. The Defendants asserted their entitlement “to a reasonable credit for the value of [the] Plaintiffs’ use and occupancy of the property in question.” The Defendants also sought “an order ... recognizing their ownership of the subject property and ordering [the Plaintiffs] to immediately surrender possession of the subject property to [them].”

On June 27, 2008, the Plaintiffs filed a First Supplemental and Amending Petition on Petition for Breach of Contract and Revocation of a Donation. In it, the Plaintiffs supplemented their demand against the Defendants, asserting:

Alternativelyf, the Plaintiffs] are entitled to be reimbursed for the improvements made to the property in excess of the $82,000.00 expended by Theta Charles Compton on the grounds of unjust enrichment in an amount to be determined at the time of trial because the improvements were made based upon the promises made by Theta Charles Compton that the immovable property would be donated to petitioners in the future.

Trial in this matter was held on September 25, 2008, and November 12, 2008, after which, the trial court took the matter under advisement. The trial court wrote Reasons for Judgment, dated December 17, 2008, wherein it ruled, in pertinent part:

|fiIn this case, no act translative of ownership exists to the [Plaintiffs. Therefore, we must turn our attention to Article 497[] of the Louisiana Civil Code. This article provides for obligations from owner to possessor and possessor to owner when the possessor is a bad faith possessor. [Louisiana Civil Code Article] 497 provides that when construction, plantings, or works are made by bad faith possessors, the owner of the immovable may keep them or he may demand the demolition and removal at the expense of the possessor, and, in addition, damages for the injury that he may have sustained. If he does not demand demolition and removal, he is bound to pay at his option either the current value of the materials and of the workmanship of the separate improvements that he has kept or the enhanced value of the immovable. [La.Civ.Code art.] 497.
In the case before us, [Defendants, Elva Compton and Woodrow Compton, sent a letter to [the Plaintiffs], requesting that they be evicted from the property. At no time did they request the removal of the construction. Therefore, this is a tacit acceptance of the construction on the property indicating that the owners of the property do not want its removal but would be bound to pay either the current value of the materials and of the workmanship of the separate improvements or the enhanced value of the immovable.
This also comports with the argument being made by [the Plaintiffs] that they are entitled to unjust enrichment.
Therefore, in the instant action, all of the requirements of unjust enrichment have been met. There is an enrichment to Elva Compton and Woodrow Compton, that being the home built on the property; there is an impoverishment to the [Plaintiffs], that being the home they built and for which they have not been compensated. There is a connection between the enrichment and the impoverishment. The next requirement is that there must be an absence of justification of cause for the enrichment or impoverishment. In this case, the [Plaintiffs] had the verbal commitment from Ms. Theta Compton that they should build this home on the piece of property and it would be theirs. Therefore, although not a legal justification or cause, there was a moral justification |fiand cause for them to do so. Finally, there must be no other remedy available to the [Plaintiffs. In this case, there is no other remedy available to the [Plaintiffs] to compensate them for their impoverishment. That being said, unjust enrichment is applicable to this case.

Considering the trial testimony of the certified land appraiser, Robert Braquet, the trial court determined that the home was valued at $220,000.00. The trial court then deducted $32,000.00 from that amount as a credit for the amount initially paid by Theta Compton for the construction of the home, thereby determining that the value of the enrichment was $188,000.00. Additionally, the trial court addressed the Defendants’ request for a credit for the Plaintiffs’ use of the home. The trial court stated:

[N]ot only was there no evidence presented as to the rental value for all those years, even if there were, the evidence at trial strongly indicates that the family supported the fact that the [Plaintiffs] lived there, had a room for Theta [Compton] to stay in when she desired, and maintained the surrounding property. At no time from 1993 until 2007 was any mention made that the [Plaintiffs] would owe any type of rent to the owners. There is evidence in the record, however, that Elva Compton and Woodrow Compton decreed in a letter to Patsy Broussard that $250.00[] per month would be a fair sum for the maintenance of the home and the rental value of the home. Therefore, the Court will consider this as the rental value requested by Elva and Woodrow [Compton], Therefore, the [c]ourt will award rental value to the [Defendants from August 6, 2007, which was the date of the letter, until such time that the Broussards vacate the premises. The [c]ourt will grant a credit to the [Defendants for this amount of money against the $188,000.00 owed by the [Defendants to the [Plaintiffs.

On February 26, 2009, before the trial court’s ruling was signed into judgment, the Defendants filed a Motion and Order for Reconsideration or New Trial. The Defendants urged that the trial court misapplied the principle of unjust enrichment. |7 Specifically, the Defendants asserted:

The house constructed on the [Defendants’] property was constructed during the 1993 to 1995 time period. The [Plaintiffs] never obtained a deed for the house, despite their claim that one was promised to them if they would construct the house. It has been more than ten years since the completion of the home, and any claim that the [Plaintiffs] would have for unjust enrichment [has] prescribed.

The Defendants also asserted that the trial court erroneously applied La.Civ.Code art. 497 when “[u]nder the facts found by the [c]ourt, [La.Civ.Code] art. 493[] should have been utilized by the [c]ourt to determine the rights and obligations of the parties.” Finally, the Defendants disputed the trial court’s calculations relative to the value of the home and the amount of rent owed.

On April 7, 2009, the trial court signed a judgment concomitant with its written Reasons for Judgment issued on December 17, 2008. Thereafter, the Plaintiffs filed a Motion and Order for Reconsideration or New Trial on April 21, 2009. In their motion, the Plaintiffs urged that, pursuant to La. Civ. Code art. 529, they be allowed to remain in possession of the home until they are reimbursed for the expenses and improvements. Therefore, the Plaintiffs sought the reconsideration of that provision |sof the trial court’s judgment which ordered that they vacate the home. The Plaintiffs asserted that in accordance with their rights under La.Civ. Code art. 529, “the eviction is premature” and, therefore, the trial court should not have ordered them to vacate the home “until after [they] are reimbursed for the expenses and improvements.”

A hearing on the parties’ motions for reconsideration was held on May 6, 2009, after which, the trial court again took the matter under advisement. The trial court wrote Reasons for Judgment on the motions for reconsideration, dated June 5, 2009, wherein it ruled, in pertinent part:

Defendants argue that the [c]ourt should not have applied [La.Civ.Code art.] 497 and the principal [sic] of unjust enrichment but rather focused on [La. Civ.Code art.] 493. The [c]ourt has reviewed the memorandum submitted by the parties and the relevant law on this issue.
[Louisiana Civil Code Article] 493 states that when a building is built on the land of another with his consent, the structure belongs to the builder. When the owner of that structure no longer has a right to keep it on the land of another, he may remove it subject to his obligation to restore the property to its former condition; if it is not removed, the property owner has the right to demand by written notice that the house owner remove the house within 90 days. Kibbe v. Lege, 604 So.2d 1366 (La.App. 3 Cir.1992).
Application of this Civil Code Article actually bolsters [the Plaintiffs’] position. The house was built on the [Defendants’ property with the consent of the [Defendants; therefore, the house belongs to [Plaintiffs. Plaintiffs have a right to remove the home subject to an obligation to restore the property to its former condition. The [P]laintiffs have made no effort to exercise this right; therefore, [Defendants then had the right to demand by written notice that the [Plaintiffs] remove the house within 90 days. Defendants] never did send [Plaintiffs a request for removal of the home. For these reasons, the house built by the [Plaintiffs] belongs to them and under [La.Civ.Code art.] 493, the result remains the same as in the reasons rendered previously by this [c]ourt.

The trial court denied the Defendants’ Motion for Reconsideration or New Trial and granted the Plaintiffs’ Motion for Reconsideration or New Trial. A judgment was signed by the trial court on June 18, 2008, which amended its previous judgment |flsoleIy to grant the Plaintiffs “possession of the home until they are reimbursed for expenses and improvements in the amount of one hundred eighty[-]eight thousand ($188,000.00) dollars[ ]” in accordance with La.Civ.Code art. 529. The Defendants appeal.

ASSIGNMENTS OF ERROR

The Defendants assert the following assignments of error:

1. If Theta Compton granted to [the Plaintiffs] permission to construct their house on her property, as found by the [t]rial [c]ourt, only [La. Civ.Code] art. 493 is applicable, and the remedies available are limited to removal of the structure at [P]lain-tiffsf] cost or abandonment of the structure to the landowners, and the [t]rial [e]ourt erred in holding otherwise.
2. The doctrines of unjust enrichment and quantum meruit are not applicable to the claims made by the [P]laintiffs nor to the facts as found by the [t]rial [cjourt, and the [tjrial [c]ourt erred in holding that these doctrines are applicable and in granting reimbursement to the [Plaintiffs.
8. The [tjrial [cjourt erred in granting possession of the home to [the Plaintiffs] until they are reimbursed for expenses and improvements in the amount of $188,000[.00].
4. The evidence presented at trial did not establish that Theta Compton granted to [the Plaintiffs] permission for them to construct their house on Theta Compton’s property nor that she gifted the [Plaintiffs] with $32,000[.00] which they used to construct their home, and the [t]rial [c]ourt erred in holding otherwise.

LAW AND DISCUSSION

Our Louisiana Supreme Court has instructed us on the standard of review relative to our review of the trial court’s ruling in this matter as follows:

A court of appeal should not set aside the factual findings of a trial court absent manifest error or unless clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, if a court of appeal finds that the trial court committed a reversible error of law or manifest error of fact, the court of appeal must ascertain the facts de novo from the record and render a judgment on the merits. LeBlanc v. Stevenson, 00-0157 (La.10/17/00), 770 So.2d 766. Although appellate courts should accord deference to the factfinder, they nonetheless have a constitutional duty to review facts. Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099, p. 8 (La.7/5/94), 639 So.2d 216, 221. Because appellate courts must perform this constitutional function, they have every right to determine whether the trial court verdict was clearly wrong based on the evidence or clearly without evi-dentiary support. Ambrose at p. 8-9, 639 So.2d at 221. The reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Stobart v. State of Louisiana, through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was reasonable. Stobart, 617 So.2d at 882. We have previously emphasized the principle that “if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Stobart, 617 So.2d at 882-83 (citing Housley v. Cerise, 579 So.2d 973 (La.1991)(quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990))).

Siverd v. Permanent Gen. Ins. Co., 05-973, pp. 3-4 (La.2/22/06), 922 So.2d 497, 499-500.

The Defendants, in brief, contend that the issues before this court are: (1) which Louisiana Civil Code Article applies to the instant case, La.Civ.Code art. 497 or La. Civ.Code art. 493; (2) whether the doctrines of unjust enrichment and quantum meruit are applicable to the claims and facts of this case; (3) whether La.Civ.Code art. 592 applies in order to grant to the Plaintiffs the right to retain possession of the home until they are reimbursed; and (4) whether the evidence supports the trial court’s conclusion that Theta Compton gave the Plaintiffs her permission and $32,000.00 to build their home.

The trial court heard testimony from twenty-one witnesses throughout the course of a two-day trial. It concluded that based on the evidence presented, the Plaintiffs had proven their case. The trial court’s finding that the Plaintiffs built their 111home with Theta Compton’s consent was a factual determination based upon its evaluation of the evidence and assessment of the witnesses’ credibility. In the face of conflicting testimony on whether the Plaintiffs were building a home for themselves at Theta Compton’s suggestion or whether Peter Broussard was constructing a “family home” at Theta Compton’s direction, the trial court observed, firsthand, the demeanor of the witnesses and made an assessment as to their credibility.

Where a conflict exists in the testimony, the issue to be resolved by the reviewing court is not whether the trier was right or wrong, but whether the decision reached by the trier was reasonable. Stobart, 617 So.2d at 882-83.... Where two permissible views of the evidence exist, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.

Id. at 501. We find the trial court’s acceptance of the Plaintiffs’ rendition of how and why they built a home on the property at issue herein to be a reasonable determination.

According to the Defendants, La. Civ.Code art. 493 applies and “[t]he only remedies that are available under Article 493 are for the owner of the structure to remove the structure, or he may abandon the structure to the landowner (after the appropriate actions are taken).” Thus, they contend that the trial court’s ruling that the Defendants’ owe the Plaintiffs $188,000.00 pursuant to the provisions of La.Civ.Code 497 is erroneous. We disagree.

The trial court determined that the Plaintiffs were bad faith possessors of the immovable property because they did not possess an act translative of title. Because the Plaintiffs are bad faith possessors, La.Civ.Code art. 497 contains the remedy available to “the owner of the immovable[.]” The trial court further concluded that the Plaintiffs legitimately believed that upon the completion of the building of their | |2home, Theta Compton would donate the immovable property upon which it was built to them. Yet, when the Plaintiffs received a letter from the Defendants in 2007, they discovered that the immovable property had, instead, been donated to Woodrow Compton and Elva Compton, and not to them.

When correspondence, dated August 6, 2007, was received by the Plaintiffs, it contained the demand that the Plaintiffs contribute “$200.00 per month to be set aside as your contribution to the taxes and insurance beginning 1 September 2007.” Clearly, the Defendants chose not to demand demolition and removal of the home; therefore, they became “bound to pay” the Plaintiffs as per La.Civ.Code art. 497.

Finally, the trial court denied the Defendants’ Motion for Reconsideration or New Trial, wherein the Defendants argued that La.Civ.Code art. 493 was applicable in this matter, not La.Civ.Code art. 497. On appeal, the Defendants reiterate: “The facts of this case fit squarely within the four corners of [La.Civ.Code] art. 493. The only remedies that are available under Article 493 are for the owner of the structure to remove the structure, or he may abandon the structure to the landowner....” Though it applied La.Civ.Code art. 497, the trial court, in its June 5, 2009 reasons, opined that the application of La.Civ.Code art. 493 would yield the same result as the application of La.Civ.Code art. 497. We agree.

Pursuant to La.Civ.Code art. 493, the Defendants had the right to make a written demand that the Plaintiffs remove the home. Instead, the Defendants sought to reap the rewards of the Plaintiffs’ labor and evict them from the home they built on property which they legitimately believed would be donated to them. We find the trial court correctly determined that the same result would be reached if La. Civ.Code art. 493 were applied. The home, which belongs to the Plaintiffs, “remain[s] the | iaproperty of he who made [it] ...” as per La.Civ.Code art. 493.

Absent a finding that the trial court’s conclusions were unreasonable, we find no clear error in the trial court’s judgment and, therefore, affirm the trial court’s judgment in favor of the Plaintiffs/Appel-lees, Peter Norman Broussard, Jr. and Patsy Compton Broussard.

DECREE

For the foregoing reasons, the judgment of the trial eourt is affirmed. Costs of this appeal are assessed against the Defendants/Appellants, Theta Charles Compton, Woodrow Mays Compton, and Elva Fay Compton.

AFFIRMED.

      .Theta Compton is Patsy Broussard's mother.

      . Woodrow Compton is Patsy Broussard’s brother.

      . Elva Compton is Patsy Broussard’s sister.

      . Violetta Charles lived in the home until her death in May of 1993.

      . Peter Broussard is a carpenter/builder.

      .Louisiana Civil Code Article 496 provides:
      When constructions, plantings, or works are made by a possessor in good faith, the owner of the immovable may not demand their demolition and removal. He is bound to keep them and at his option to pay to the possessor either the cost of the materials and of the workmanship, or their current value, or the enhanced value of the immovable.

      . Louisiana Civil Code Article 529 provides: “The possessor, whether in good or in bad faith, may retain possession of the thing until he is reimbursed for expenses and improvements which he is entitled to claim.”

      .- The minutes of the trial court reflect that the Defendant’s Exception of No Cause of Action was heard and denied on August 14, 2008.

      . Louisiana Civil Code Article 497 provides:
      When constructions, plantings, or works are made by a bad faith possessor, the owner of the immovable may keep them or he may demand their demolition and removal at the expense of the possessor, and, in addition, damages for the injury that he may have sustained. If he does not demand demolition and removal, he is bound to pay at his option either the current value of the materials and of the workmanship of the separable improvements that he has kept or the enhanced value of the immovable.

      . Though the trial court declared that the letter from Elva Compton and Woodrow Compton requested $250.00 per month from the Plaintiffs, the record reflects that the amount requested was actually $200.00. However, because this discrepancy was not assigned as error by either party, it is not before this court for review.

      . Louisiana Civil Code Article 493 provides, in relevant part:
      Buildings, other constructions permanently attached to the ground, and plantings made on the land of another with his consent belong to him who made them. They belong to the owner of the ground when they are made without his consent.
      When the owner of buildings, other constructions permanently attached to the ground, or plantings no longer has the right to keep them on the land of another, he may remove them subject to his obligation to restore the property to its former condition. If he does not remove them within ninety days after written demand, the owner of the land may, after the ninetieth day from the date of mailing the written demand, appropriate ownership of the improvements by providing an additional written notice by certified mail, and upon receipt of the certified mail by the owner of the improvements, the owner of the land obtains ownership of the improvements and owes nothing to the owner of the improvements. Until such time as the owner of the land appropriates the improvements, the improvements shall remain the property of he who made them and he shall be solely responsible for any harm caused by the improvements.


source: Caselaw Access Project

author: DAVID E. CHATELAIN, Judge Pro Tem.

license: Public Domain

text:
    AGILUS HEALTH (Kenneth McKeithen) v. DRESSER, INC., et al.
    No. 10-313.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 2010.

      Keith J. Landry, D. Paul Gardner, Jr., Allen & Gooch, Lafayette, Louisiana, for Defendants/Appellants, Liberty Mutual Insurance Company Dresser, Inc.
    Edward R. Wicker, Jr., Barrasso, Usdin, Kupperman, Freeman and Sarver, New Orleans, Louisiana, for Defendants/Appellants, Liberty Mutual Insurance Company Dresser, Inc.
    Edward E. Roberts, III, Neblett, Beard & Arsenault, Alexandria, Louisiana, for Plaintiff/Appellee, Agilus Health.
    R. Bray Williams, Joseph Payne Williams, Sr., Williams Family Law Firm, L.L.C., Natchitoches, Louisiana, for Plaintiff/Appellee, Agilus Health.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and DAVID E. CHATELAIN, Judges.
   DAVID E. CHATELAIN, Judge Pro Tem.

hThe appellee, Agilus Health, Inc., moves to dismiss the suspensive appeal of the appellants, Dresser, Inc. and Liberty Mutual Insurance Company, and to convert their appeal to a devolutive appeal. The appellee contends that the appellants posted their suspensive appeal bond untimely. Finding that the posting of the bond was timely in accordance with La. R.S. 23:1310.5, we deny the motion to dismiss.

Following trial of this matter, the workers’ compensation judge (WCJ) rendered a money judgment against the appellants, finding that the appellee had been underpaid by the appellants in the sum of $23.40 for health care bills associated with a work-related injury to Kenneth McKeithen. The WCJ also cast the appellants with a $2,000.00 statutory penalty and with $3,000.00 in attorney fees.

The WCJ signed the written judgment on January 14, 2010. On this date, the trial court mailed notice of this judgment to all counsel of record. No motion for new trial was filed. The appellants filed their motion and order for appeal on February 4, 2010, and the order was granted by the WCJ on February 5, 2010. Also, on February 5, 2010, appellants filed a Motion and Order to Set Bond for Suspensive Appeal, which order was signed by the WCJ setting a hearing for February 8, 2010.

The hearing on the bond amount was conducted on February 8, 2010, at which time the WCJ set the bond amount. On February 10, 2010, the WCJ signed an order setting the bond amount at $5,352.00. The appellants posted the sus-pensive appeal bond on March 2, 2010. The record was subsequently lodged in this court.

The appellee filed a motion to convert the appeal from suspensive to devolutive, arguing that the appellants failed to post their suspensive appeal bond within thirty days of notice of the final judgment, as provided in La.Code Civ.P. art. |⅞2123. The appellants filed an opposition memorandum in this court, contending that the bond was timely posted within thirty days of the notice of the setting of the bond’s amount as provided in La. R.S. 23:1310.5(C).

Louisiana Code of Civil Procedure Article 2123(A) provides:

Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of any of the following:
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
(2) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.

However, the foregoing is further explained by La.Code Civ.P. art. 2124, which reads in pertinent part:

B. The security to be furnished for a suspensive appeal is determined in accordance with the following rules:
(1) When the judgment is for a sum of money, the amount of the security shall be equal to the amount of the judgment, including the interest allowed by the judgment to the date the security is furnished, exclusive of the costs.

Prior to the applicability of La. R.S. 23:1310.5, which became effective on January 1, 1990, the jurisprudence had held that, in an appeal of a judgment awarding weekly benefits in a workers’ compensation case, the appellants should have estimated the amount of the suspensive appeal bond to post, and the appellants having failed to do so, the suspensive appeal was dismissed as untimely pursuant to La.Code Civ.P. art. 2123. See Andras v. Acadia Dairy, Inc., 542 So.2d 1100 (La.App. 1 Cir.), writ denied, 544 So.2d 381 (La.1989).

IsHowever, in the present case, the appellants rely on La. R.S. 23:1310.5(C), which reads:

When there has been an award of benefits by the workers’ compensation judge, no appeal by an employer shall be entertained by the appellate court unless the employer secures a bond with one or more sureties to be approved by the workers’ compensation judge, guaranteeing that the employer will pay the amount of the award rendered therein together with interest thereon as otherwise provided by law, and all costs of the proceeding. The time limits for perfecting the bond shall be as provided in the Code of Civil Procedure, but shall not commence to run against the appellant until the appellant is notified by the workers’ compensation judge as to the amount of the bond fixed in accordance with law.

Thus, the appellants point out that the WCJ did not set the amount of the suspen-sive appeal bond in this matter until the date of the hearing on this issue, February 8, 2010. Since they posted the suspensive appeal bond on March 2, 2010, which was less than thirty days from the setting of the bond amount in open court with counsel present, the appellants contend that they posted the bond timely and that this court should deny the appellee’s motion to dismiss.

We find the appellants’ argument compelling. While in the present case, we recognize that the appellants could have easily computed the amount of the suspen-sive appeal bond to be posted based on La.Code CivJP. art. 2124(B)(1), the legislature, in La. R.S. 23:1310.5, did not distinguish between the types of money judgments for which court approval must be sought in workers’ compensation cases. Furthermore, we note that, in the present ease, the appellants filed their request for a hearing on the amount of the suspensive appeal bond well within thirty days of the notice of the final judgment. Accordingly, we hereby deny the motion to dismiss the appellants’ suspensive appeal.

MOTION TO DISMISS SUSPENSIVE APPEAL AND CONVERT TO DEVOL-UTIVE APPEAL DENIED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.


text:
    AGILUS HEALTH (James Wilbanks) v. DRESSER, INC., et al.
    No. 10-315.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 2010.
    Patrick A. Johnson, D. Paul Gardner, Jr., Allen & Gooch, Lafayette, Louisiana, Edward R. Wicker, Jr., Barrasso, Usdin, Kupperman, Freeman and Sarver, New Orleans, Louisiana, for Defendants/Appellants, Liberty Mutual Insurance Company, Dresser, Inc.
    Edward E. Roberts, III, Neblett, Beard & Arsenault, Alexandria, Louisiana, R. Bray Williams, Joseph Payne Williams, Sr., Williams Family Law Firm, L.L.C., Natchitoches, Louisiana, for Plaintiff/Ap-pellee Agilus Health.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and DAVID E. CHATELAIN, Judges.
   DAVID E. CHATELAIN, Judge Pro Tem.

|, The appellee, Agilus Health, Inc., moves to dismiss the suspensive appeal of the appellants, Dresser, Inc. and Liberty Mutual Insurance Company, and to convert their appeal to a devolutive appeal. The appellee contends that the appellants posted their suspensive appeal bond untimely. Finding that the posting of the bond was timely in accordance with La. R.S. 23:1310.5, we deny the motion to dismiss.

Following trial of this matter, the workers’ compensation judge (WCJ) rendered a money judgment against the appellants, finding that the appellee had been underpaid by the appellants in the sum of $23.40 for health care bills associated with a work-related injury to James Wilbanks. The WCJ also cast the appellants with a $2,000.00 statutory penalty and with $3,000.00 in attorney fees.

The WCJ signed the written judgment on January 14, 2010. On this date, the trial court mailed notice of this judgment to all counsel of record. No motion for new trial was filed. The appellants filed their motion and order for appeal on February 4, 2010, and the order was granted by the WCJ that same date. Appellants also filed on that date a Motion and Order to Set Bond for Suspensive Appeal, which order was signed by the WCJ setting a hearing for February 8, 2010.

The hearing on the bond amount was conducted on February 8, 2010, at which time the WCJ set the bond amount. On February 10, 2010, the WCJ signed an order setting the bond amount at $5,352.00. The appellants posted the sus-pensive appeal bond on March 2, 2010. The record was subsequently lodged in this court.

The appellee filed a motion to convert the appeal from suspensive to devolutive, arguing that the appellants failed to post their suspensive appeal bond within thirty days of notice of the final judgment, as provided in La.Code Civ.P. |⅞2123. The appellants filed an opposition memorandum in this court, contending that the suspensive appeal bond was timely posted within thirty days of the notice of the setting of the bond’s amount as provided in La. R.S. 23:1310.5(0.

In a case involving substantially similar facts, this court has issued an opinion on this date, finding that the posting of the suspensive appeal bond within thirty days of the notice of the setting of the bond amount was timely. Agilus Health (Kenneth McKeithen) v. Dresser, Inc., 10-313 (La.App. 3 Cir. 4/14/10), 36 So.3d 385, 2010 WL 1459837. For those same reasons, we hereby deny the motion to dismiss the appellants’ suspensive appeal.

MOTION TO DISMISS SUSPENSIVE APPEAL AND CONVERT TO DEVOL-UTIVE APPEAL DENIED.

         Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.


author: GENOVESE, Judge. CHATELAIN, Judge, COOKS, J.

text:
    James RIDER and Rider-LeJeune Investments v. PRIOLA CONSTRUCTION CORPORATION.
    No. 09-1294.
    Court of Appeal of Louisiana, Third Circuit.
    April 21, 2010.

      Thomas P. LeBlanc, Loftin, Cain & Le-Blanc, L.L.C., Lake Charles, Louisiana, for Defendant/Appellant, Priola Construction Corporation.
    Thomas Gayle, Gayle Law Firm, Lake Charles, Louisiana, for Plaintiffs/Appel-lees, James Rider and Rider-LeJeune Investments.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GENOVESE, Judge.

| j Defendant, Priola Construction Corporation (“Priola”), appeals the trial court’s grant of an order of dismissal for want of prosecution in favor of Plaintiff, James Rider and Rider-LeJeune Investments (collectively “Rider”), and the denial of its motion to set aside that judgment of dismissal. For the following reasons, we must dismiss the appeal.

FACTS

Rider, as owner, and Priola, as general contractor, entered into a contract for the construction of two nursing homes in Lake Charles, Louisiana. When a dispute arose between the parties, Priola filed a demand for arbitration with the American Arbitration Association (AAA), asserting claims against Rider. Subsequently, Rider filed a Petition for Declaratory Judgment and Other Relief in the Fourteenth Judicial District Court on January 19, 2001, naming Priola and the AAA as defendants.

On February 7, 2001, Priola filed a Motion to Stay the declaratory judgment action to allow the parties to proceed with arbitration. The trial court heard Priola’s Motion to Stay on March 6, 2001, and took the matter under advisement. The trial court issued a written opinion on April 11, 2001, and signed a Judgment on April 25, 2001, denying the Motion to Stay.

No answer having been filed by the AAA, Rider obtained a preliminary default against the AAA on March 1, 2001. On March 8, 2001, Rider sought confirmation of the default judgment. Following the hearing, the trial court took the matter under advisement and addressed the confirmation of the default judgment, along with the Motion to Stay, in its April 11, 2001 written opinion, which granted judgment in favor of Rider and against the AAA.

On July 3, 2002, Priola submitted a Motion to Set for Trial on the Merits. The |2trial court signed an Order on September 10, 2002, which, in lieu of providing a date for trial, stated that the matter was to “be fixed for trial when responsive pleadings are filed.”

After over six years of inactivity in the ease, Rider filed a Motion to Dismiss for Want of Prosecution on January 9, 2009, in accordance with La.Code Civ.P. art. 561(A)(1). On that same date, after consideration of the motion, the trial court “ordered that this action be dismissed, with prejudice, for want of prosecution.”

On May 12, 2009, pursuant to La.Code Civ.P. art. 561(A)(4), Priola filed a Motion to Set Aside Dismissal for Abandonment and for Sanctions which was heard by the trial court on July 24, 2009. On July 30, 2009, the trial court signed an order denying Priola’s motion to set aside the judgment and decreeing that the motion for sanctions was moot.

Priola filed a Motion for Devolutive Appeal, seeking a review by this court of the January 9, 2009 and July 30, 2009 judgments of the trial court.

| .¿ASSIGNMENT OF ERROR

On appeal, Priola presents the following assignment of error:

The trial court committed reversible error by concluding Appellant’s Motion to Set Aside Dismissal pursuant to Louisiana Code of Civil Procedure Article 561(A)(4) was untimely, in light of the fact that Appellee failed to obtain effective service of the order of dismissal for abandonment upon Appellant sufficient to trigger the thirty-day delay for filing such a motion.

LAW AND DISCUSSION

At the outset, we acknowledge that Prio-la’s Motion for Devolutive Appeal seeks an appeal of both the January 9, 2009 judgment of the trial court as well as the judgment of July 30, 2009. Although Prio-la asserts in its brief to this court that the January 9, 2009 order of dismissal “with prejudice” by the trial court “is contrary to law and was beyond the authority of the trial court[,]” it fails to identify same as an assignment of error on appeal. Given the failure of Priola to assign an error relative to the January 9, 2009 judgment, which dismissed the action “with prejudice[,]” this ruling of the trial court is not properly before this court.

Additionally, Priola’s efforts to appeal the January 9, 2009 judgment are untimely. “An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriffs service of the order of dismissal.” La.Code Civ.P. art. 561(A)(5). The record clearly indicates that personal service of the order of dismissal was made on January 28, 2009. Priola’s Motion for Devolutive Appeal was not filed |4until July 29, 2009, which is obviously more than sixty days from the date of service of the order of dismissal.

Priola does not dispute that personal service was made on its duly designated attorney of record, Mr. Paul McMahon. Priola argues that personal service on its attorney of record, Mr. McMahon, was not “effective service” and that it was denied due process of law as a result thereby. It contends that counsel for Rider, Mr. Thomas Gayle, had “full knowledge” that Priola had retained new counsel, Mr. Thomas LeBlanc, at the time Mr. Gayle requested and obtained the dismissal against Priola. Attorney Gayle admits that there had been communication by and between himself and Attorney LeBlanc and that he knew Attorney LeBlanc was now representing Priola in other litigation at the time he sought and obtained the dismissal for his client, Rider.

“The burden is upon the party attacking service to establish otherwise by ‘clear and convincing’ evidence.” Franklin v. Franklin, 470 So.2d 634, 637-38 (La.App. 1 Cir.1985) (quoting Samrow v. Samrow, 428 So.2d 547 (La.App. 4 Cir.1983)). There is no evidence in the record that demonstrates that Attorney Gayle knew the status of the relationship between Attorney McMahon and Priola, that Attorney McMahon was not properly representing his client, Priola, that Attorney Gayle knew or should have known that Attorney McMahon had severed his relationship with Priola and no longer represented them, or that Attorney McMahon was not an active member of the bar or was not in good standing. Attorney McMahon was personally and legally served at his law office. Certainly, there was no proof by clear and convincing evidence that the personal service of the dismissal on Attorney McMahon constituted ineffective or improper service. In fact, Attorney Gayle effectuated ^personal service on Priola’s duly designated counsel of record, Attorney McMahon in accordance with law. Had Attorney Gayle served Attorney Le-Blanc, as counsel for Priola, that would have constituted improper service on Prio-la since Attorney LeBlanc was not counsel of record for Priola in this litigation.

Counsel for Priola relies heavily on Rawley v. Rawley, 357 So.2d 286 (La.App. 1 Cir.), writ denied, 357 So.2d 1154 (La.1978), cert. denied, 439 U.S. 968, 99 S.Ct. 459, 58 L.Ed.2d 427 (1978); however, Raw-ley is clearly distinguishable from the instant case. In Rawley, the first circuit found that in order to meet due process requirements, “notice to counsel of record must be effected under circumstances from which it can at least be reasonably presumed that notice resulting from such service will be communicated to the litigant.” Id. at 289. In the case at bar, there is nothing in the record negating a reasonable presumption that notice of the order of dismissal in this litigation would be communicated to Priola by its attorney of record, Mr. McMahon. In Rawley, service of process was made on the attorney of record after, and even though, opposing counsel knew that said attorney had withdrawn from the case and had received a copy of the withdrawal letter. There is nothing in the record of the instant case indicating or establishing that counsel for Rider knew or should have known that service of the order of dismissal would not or could not be communicated to Priola by its counsel of record, Mr. McMahon. Hence, Rawley is clearly distinguishable.

The legal issues before this court on appeal are whether there was legal and effective service of process of the order of dismissal and whether the motion to set aside the judgment of dismissal was timely. Both of these issues have been fully addressed. Any implied ethical or malpractice claims are not issues before this court. In light of our findings that service of the order of dismissal was effectively made on January 28, 2009, we find that Priola’s efforts to appeal the January 9, 2009 judgment | ,¡are untimely.

As phrased by Priola, “[t]he issue on this appeal is whether effective service of the dismissal order was made on Appellant, such that Appellant’s motion to set aside that dismissal was untimely.” While the effectiveness of the service of the order of dismissal was also the crux of this issue, it was the ruling of the trial court that the motion was untimely. Because of the untimeliness of the motion, this court is without jurisdiction to consider the appeal; thus, we must dismiss the appeal. See Slaughter v. Edison Chouest Offshore, Inc., 02-583 (La.App. 1 Cir. 2/14/03), 845 So.2d 425.

In Slaughter, the trial court granted a motion to dismiss on the grounds of abandonment in favor of the defendant. The order of dismissal was signed by the trial court on August 31, 2001. On October 8, 2001, the plaintiff filed a motion to set aside the order of dismissal, urging that the matter had not been abandoned since it had provided certain discovery responses. In opposing the motion to set aside the order of dismissal, the defendant contended that the motion was without merit and that the motion was untimely. Following a hearing, “the trial court determined that the motion to dismiss was untimely because more than 30 days had lapsed between the service of the order of dismissal and the filing of the motion to dismiss.” Id. at 427. Thus, the trial court denied the motion to set aside the order of dismissal and signed a judgment consistent therewith on January 30, 2002, which the plaintiff appealed. Considering the very issue that is presently before this court, the court in Slaughter, 845 So.2d at 428 (footnote omitted), opined as follows:

In the absence of a timely motion to set aside the order of dismissal, the trial court did not have the authority to decide the merits of the motion. [Morrison v. Dillard Dep’t Stores, Inc., 99-2060, (La.App. 1 Cir. 9/22/00), 769 So.2d 742, writ denied, 00-3379 (La.2/2/01), 784 So.2d 646]. Because the [defendant’s] motion was untimely, any amendment of the order of dismissal would have been an absolute nullity. See Starnes v. Asplundh Tree Expert Co., 1994-1647 (La.App. 1st Cir.10/6/95), 670 So.2d 1242, 1246. Likewise, there was no authority for the trial court’s January 30, 2002 judgment denying the [defendant’s] motion, and there is no valid basis for an appeal of that judgment. Morrison v. Dillard Department Stores, Inc., 1999-2060 at p. 3, 769 So.2d at 744. A motion for appeal from an invalid judgment is considered untimely, and this court lacks jurisdiction to hear an untimely appeal. Avants v. Kennedy, 2002-0830, p. 9 (La.App. 1st Cir.12/20/02), 837 So.2d 647. Because this court lacks jurisdiction to review the January 30, 2002 judgment, we dismiss this appeal. La. C.C.P. art. 2162.[]

In the case at bar, an order of dismissal was entered on January 9, 2009, and the concomitant judgment was personally served on Priola’s attorney of record on January 28, 2009, as required by La.Code Civ.P. art. 561(A)(3) and in accordance with La.Code Civ.P. art. 1314(A)(2)(a). Priola’s Motion to Set Aside Dismissal for ^Abandonment and for Sanctions was not filed until May 12, 2009. Therefore, it was not filed within thirty days of the date of service of the order of dismissal as required by La.Code Civ.P. art. 561(A)(4). Consequently, as in Slaughter, the trial court did not have the authority to render the July 30, 2009 judgment denying Prio-la’s motion to set aside the dismissal, and there is no valid basis for Priola to appeal that judgment. Priola’s Motion for Devol-utive Appeal from the invalid judgment is untimely, and this court does not have jurisdiction to consider an untimely appeal. Given our lack of jurisdiction, we dismiss the appeal in accordance with La.Code Civ.P. art. 2162.

DECREE

For the foregoing reasons, the present appeal is dismissed. Costs of this appeal are assessed to Priola Construction Corporation.

APPEAL DISMISSED.

CHATELAIN, J., concurs and assigns written reasons.

COOKS, J., concurs and assigns written reasons.

CHATELAIN, Judge,

concurring.

| ,1 concur in the present case only to express my view on the necessity of assignments of error in cases before the appellate court that do not involve designated portions of the record. Even though there was no assignment of error in the present case involving this issue, there can be no question that this court has the right to address the propriety of the January 9, 2009 order of dismissal “with prejudice” by the trial court.

Louisiana Code of Civil Procedure Article 2129 and its Official Revision Comment read as follows:

Art. 2129. Assignment of errors unnecessary; exception
An assignment of errors is not necessary in any appeal. Where the appellant designates only portions of the record as the record on appeal, he must serve with his designation a concise statement of the points on which he intends to rely, and the appeal shall be limited to those points.
Official Revision Comment — 1960
The jurisprudence has construed Arts. 896 and 897, Code of Practice of 1870, to the effect that where the transcript is certified as containing all the testimony and the grounds for reversal are apparent from the face of the record, no assignment of errors is necessary. Bossier v. Carradine, 18 La.Ann. 261 (1866); In re Fazende, 35 La.Ann. 1145 (1883); Havana American Co. v. Board of Assessors, 105 La. 471, 29 So. 938 (1901).
_k- • • •
Source: Fed.Rule 75(d); cf. C.P. Arts. 896, 897.

As Judge Culpepper noted in his dissent in Mayo v. Nissan Motor Corp. in U.S.A., 93-852, p. 3 (La.App. 3 Cir. 6/22/94), 639 So.2d 773, 792:

Code of Practice of 1970, Article 896 provided that if the copy of the record from the trial court was not certified by the clerk of the lower court as containing all of the testimony adduced, the supreme court would only judge the case on a statement of facts. Article 897 provided that an appellant who did not rely wholly or in part on a statement of facts, an exception to the judge’s opinion, or a special verdict, but on an error of law appearing on the face of the record, would be allowed a period of ten days after the record was brought up to file a statement specifically alleging any errors. The Official Revision Comment under La. Code Civ.P. art. 2129 indicates the jurisprudence under the old Code of Practice Articles construed them to mean that where the transcript is certified as containing all of the testimony and the grounds for reversal are apparent from the face of the record, no assignment of errors was necessary.

As I review this history, it is apparent that La.Code Civ.P. art. 2129 simply codified this jurisprudence.

Moreover, La.Code Civ.P. art. 2164 and the Official Revision Comments thereunder state:

Art. 2164. Scope of appeal and action to be taken; costs
The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.
Official Revision Comments — 1960
(a) The purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below. This article insures that the “theory of a case” doctrine, which has served to introduce the worst features of the common law writ system into Louisiana is not applicable to appeals under this Code.
_k- • • •
Source: Former R.S. 13:4444; cf. C.P. Arts. 894-897, 902, 905-907.

Under La.Code Civ.P. arts. 2129 and 2164 quoted above, it is clear this court has the right to consider the January 9, 2009 order of dismissal “with prejudice” by the trial court at issue in the present case even though there was no assignment of error in that regard. The entire record in the present case was transcribed. Thus, the appellate court can consider any issue of fact or law presented by that record and, moreover, can render any judgment which is just, legal, and proper upon the record on appeal.

The -writing judge in the present case applies the Uniform Rules of Louisiana— Courts of Appeal, Rule 1-3 that reads as follows:

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.

In my view, any conflict between the Uniform Rules and the Code of Civil Procedure would have to be resolved in favor of application of the code.

Although I would reach the January 9, 2009 judgment of dismissal with prejudice issue in the present case, I find it of no moment. I agree that the jurisprudence has uniformly held that dismissals for abandonment under La.Code Civ.P. art. 561 are without prejudice. See., e.g., Richey v. Fetty, 96-2762 (La.App. 1 Cir. 4/8/98), 715 So.2d 1, writ denied, 98-2184 (La.11/13/98), 731 So.2d 257; St. Tammany Parish Sewerage Dist. No. 7 v. Monjure, 95-937 (La.App. 1 Cir. 12/15/95), 665 So.2d 801; Reed v. Peoples State Bank of Many, 36,531 (La.App. 2 Cir. 3/5/03), 839 So.2d 955; Morgan v. Hopkins, 36,506 (La.App. 2 Cir. 10/23/02), 830 So.2d 459, (writ denied, 02-2866 (La.1/31/03), 836 So.2d 71; Total Sulfide Servs., Inc. v. Secorp Indus., Inc., 96-589 (La.App. 3 Cir. 12/11/96), 685 So.2d 514. However, under the peculiar facts of the present case, where Priola made an appearance but never filed responsive pleadings and Rider dismissed its own suit, Rider obtained a judgment it would have received if it had sought to voluntarily dismiss its suit under La. Code Civ.P. art. 1671.

COOKS, J.

concurring.

|TI concur in the present case for the reasons stated by Judge Chatelain and additionally because the dismissal by Rider of its own proceeding with prejudice cannot form the basis of res judicata or judicial estoppel barring Priola from advancing its claims. Bishop Homes, Inc. v. Devall, 336 So.2d 313 (La.App. 1 Cir.), writ denied, 338 So.2d 1155 (1976), citing City of New Orleans v. Westwego Canal & Terminal Co., 206 La. 450, 19 So.2d 201 (1944). Further, the issues were not joined in this action — defendant did not file any responsive pleadings. The order of dismissal has no consequence in any subsequent proceedings by Priola. Thus, it is unnecessary to reach the constitutional due process question in this case.

      . Louisiana Code of Civil Procedure Article 561(A)(1) provides:
      An action, except as provided in Subpara-graph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
      (a) Which has been opened;
      (b) In which an administrator or executor has been appointed; or
      (c) In which a testament has been probated.

      . Louisiana Code of Civil Procedure Article 561(A)(4) provides:
      A motion to set aside a dismissal may be made only within thirty days of the date of the sheriff’s service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).

      .Uniform Rules — Courts of Appeal, Rule 1-3 provides as follows:
      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.

      . Louisiana Code of Civil Procedure Article 2162 provides, as follows:
      An appeal can be dismissed at any time by consent of all parties, or for lack of jurisdiction of the appellate court, or because there is no right to appeal, or if, under the rules of the appellate court, the appeal has been abandoned.
      If an appeal is taken to an appellate court which has no jurisdiction over it, the court may transfer the appeal to the proper court, upon such terms and conditions as it may prescribe. If an appeal is transferred to the supreme court in error, the supreme court may transfer or retransfer it to the proper court.

      . Louisiana Code of Civil Procedure Article 561(A)(3) provides:
      This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.

      . Louisiana Code of Civil Procedure Article 1314 provides, in pertinent part:
      A. A pleading which is required to be served, but which may not be served under Article 1313, shall be served by the sheriff by either of the following:
      (2)(a) Personal service on the counsel of record of the adverse party or delivery of a copy of the pleading to the clerk of court, if there is no counsel of record and the address of the adverse party is not known.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Geoffrey EASON, Appellant.
    No. 45,133-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 28, 2010.

      Peggy J. Sullivan, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorneys, for Ap-pellee.
    Before WILLIAMS, STEWART and MOORE, JJ.
   WILLIAMS, J.

_JjThe defendant, Geoffrey Eason, seeks review of the sentences imposed for his convictions on two counts of armed robbery with a firearm, violations of LSA-R.S. 14:64 and LSA-R.S. 14:64.3. The trial court imposed sentences of 45 years at hard labor without the benefit of probation, parole or suspension of sentence on each count, with both sentences to be served concurrent to each other, and an additional two terms of 5 years in the parish jail under the firearm enhancement provision to be served concurrent to each other but consecutive to the hard labor terms. We affirm.

On the evening of January 31, 2006, the defendant, armed with a firearm, and two other assailants entered the home of Dr. Wayne McMahen shortly after Dr. McMahen and his teenage daughter had returned to their home from attending a ball game. While his teenage daughter, M.M., was in her room, Dr. McMahen went into the kitchen to let the dog out through a sliding glass door. As he opened the door, a masked man armed with a gun rushed toward the door. When Dr. McMahen tried to slam the door shut, the man put his hand between the door and the doorframe to hold the door open. The resulting injury caused by the sliding glass door led the armed man to drip blood inside the home; blood which was subsequently determined through DNA testing to have come from the defendant.

Once inside, the armed men forced Dr. McMahen to the ground and demanded money. Dr. McMahen gave the men his wallet, but was forced to remain on the floor by the defendant at gunpoint while the other two men ^searched the house. One of the men entered Dr. McMaheris daughter’s room where he forced her to surrender several hundred dollars. When she tried to look down the hall after he left her room, another masked man armed with a gun slammed her door shut. The defendant and his accomplices then left the home in Dr. McMahen’s truck. They abandoned the truck and were arrested several days later.

After a trial by jury, the defendant was found guilty of two counts of armed robbery with a firearm in violation of LSA-R.S. 14:64 and LSA-R.S. 14:64.3. The defendant was subsequently sentenced to two concurrent sentences of 50 years at hard labor without the benefit of probation, parole or suspension of sentence. In imposing these sentences the trial court reviewed a presentence investigation report which indicated that the defendant was a second felony offender who was on probation at the time of the present offense. Having presided over the prior case, the trial judge was familiar with the circumstances of defendant’s first felony offense, a purse snatching. The court noted that the earlier offense, like the present one, was a crime of violence and recounted that the defendant and two co-assailants had grabbed the purse of a lady in the parking lot of a grocery store and dragged her across the concrete until she let go. In what the trial judge described as an attempt to give him a second chance, the defendant ultimately received a suspended 10-year sentence, subject to 8 years of supervised probation. It was during this period of probation that the present offense was committed.

The trial court also reviewed the circumstances of the present offense, | sincluding the fact that the defendant and his co-assailants had entered the victims’ home by force and held Dr. McMahen at gunpoint, a sight which Dr. McMahen’s daughter witnessed. In reviewing the aggravating circumstances surrounding the defendant’s present offense of conviction, the trial court noted that the defendant’s conduct manifested deliberate cruelty to his victim, knowingly created a risk of death or great bodily harm, involved multiple victims, involved the use of a firearm and resulted in a significant economic loss to his victims. Also, the court noted as aggravating factors the defendant’s use of threats of bodily harm during the commission of the offense by placing the firearm to the back of Dr. McMahen’s head while he lay on the ground and the fact that the offense was committed inside the victims’ home.

The court noted as mitigating circumstances the defendant’s youth, the fact that he had a young son, and his expressions of remorse during the presentence investigation. Also, the court indicated that it had reviewed letters written on the defendant’s behalf by family members and fellow inmates attesting to a “spiritual renewal” in the defendant. Taking all this into account, the court concluded that the defendant was in need of correctional treatment most effectively provided by the commitment to an institution since there was an undue risk that during a suspended or probated sentence the defendant would commit another crime. Accordingly, the court found that a lesser sentence would deprecate the seriousness of the defendant’s crime.

The defendant appealed and in State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La.12/11/09), 23 So.3d 913, this court affirmed his convictions, but vacated his sentences of 50 years at hard labor without the benefit of parole due to the trial court’s failure to specify any additional terms of imprisonment under LSA-R.S. 14:64.3, the firearm enhancement provision. On remand, the trial court re-sentenced the defendant to two terms of 45 years at hard labor without the benefit of probation, parole or suspension of sentence, to be served concurrently to each other, and two additional terms of 5 years in the parish jail under the firearm enhancement provision, to be served concurrently to each other but consecutively to the hard labor terms. In doing so, the trial court indicated that the sentences being imposed were “for all the reasons that I went over in great detail at the time that [the defendant was] originally sentenced.” The court also commended defendant during the resen-tencing hearing for the defendant’s achievements during his incarceration, which according to the defendant’s letter to the court include receiving his GED, and his enrollment in A.A., anger management and a transactional analysis course. The letter also reiterated the defendant’s expressions of remorse. Defendant now appeals, assigning error only with regard to the sentences imposed.

LSA-R.S. 14:64, the armed robbery statute, provides for a sentence of imprisonment at hard labor for not less than 10 and not more than 99 years without benefits. The statute was supplemented in 1999 by LSA-R.S. 14:64.3. This provision requires an additional imposition of a 5-year term when the weapon used in the commission of the armed robbery is a firearm. | ¿The additional 5 years are to be served consecutively and “shall be” imposed. While the statute now provides that the 5 years are to be “at hard labor,” at the time the offense was committed in this case, LSA-R.S. 14:64.3 did not have the words “hard labor” in the sentencing clause. The law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer. State v. Sugasti, 2001-3407 (La.6/21/02), 820 So.2d 518.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 2008-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates LSA-Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

Here, the defendant argues that the trial court failed to give his efforts at rehabilitation, his remorse and his son’s need for a father the proper consideration as mitigating factors in imposing his sentences. This argument is without merit. As previously noted, both the original and re-sentencing transcripts indicate that the court took cognizance of all the mitigating factors relied on by the defendant, but found that defendant’s conduct nevertheless warranted the sentences imposed.

The trial judge stated for the record the considerations taken into account and the factual basis when imposing the sentences, thus complying with LSA-C.Cr.P. art. 894.1. He was made aware of mitigating factors and considered them prior to imposing defendant’s sentence. However, he was not required to give them any particular weight. State v. Shumaker, supra. Given the nature of the crimes involved, the defendant’s criminal history, the fact that his conduct took place during a period of probation which had been intended to give the defendant a “second chance,” and the harm done to the victims, the mid-range sentences imposed by the trial court are neither grossly disproportionate to the seriousness of the offenses nor a purposeless and needless infliction of pain and suffering.

CONCLUSION

For the foregoing reasons, the defendant’s sentences are affirmed.

AFFIRMED.

      . The minor’s initials are used in lieu of her name pursuant to LSA-R.S. 46:1844(W).


text:
    RED RIVER WATERWAY COMMISSION, Plaintiff-Appellant v. SUCCESSION OF Elizabeth Robinson FRY, et al., Defendant-Appellant Cynthia F. Peironnet, et al., Plaintiff-Appellee v. The Red River Waterway Commission, Defendant-Appellee.
    Nos. 45,103-CA, 45,104-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 28, 2010.

      Tutt, Stroud <& McKay, LLC by Charles G. Tutt, for Appellants.
    The Harper Law Firm by Jerald R. Harper, for Appellees.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   WILLIAMS, J.

|TThe petitioners, Cynthia Peironnet, Elizabeth Franklin, Eleanor de St. Mar-ceaux and Pamela Comegys, appeal a judgment in favor of the Red River Waterway Commission (“the Commission”). The district court sustained the Commission’s exception of res judicata, finding that the petitioners’ claims were barred by the pri- or settlement of the Commission’s 1993 expropriation action. For the following reasons, we affirm.

FACTS

The succession of Elizabeth Fry, who died in March 1991, was opened in May 1991. In September 1993, the Commission filed a petition for expropriation against the Succession of Fry (“the succession”), Rex Young and Sandra Young, seeking to expropriate 440.7 acres of land owned by the succession and subject to a lease held by the Youngs. On September 10,1993, in accordance with the district court’s expropriation order, the Commission deposited $123,882 into the registry of the court, full ownership of the 440.7 acres was expropriated and taken as of the time of such deposit, and the succession was ordered to vacate the property. In September 1993, the succession filed an answer denying the necessity of the taking, and alternatively alleging that the amount of compensation was not sufficient. The succession did not file a motion to dismiss the expropriation petition to contest the validity of the taking.

In January 1994, the Commission and the executor of the succession, Commercial National Bank (“the bank”), agreed to settle the 1993 expropriation lawsuit and a prior expropriation action filed against Elizabeth Fry in 1990 involving another tract of land, which is not at issue | Jn this appeal. The parties agreed to execute reciprocal releases to resolve both lawsuits and the Commission agreed to pay the Fry Succession the amounts of $249,041.10 previously deposited into the court registry in connection with the 1990 petition, $123,882 deposited for the 1993 expropriation petition, and an additional $35,000 toward the 1990 action.

In March 1994, the district court rendered judgment authorizing the bank to compromise all claims existing between the succession and the Commission, as set forth in the 1998 lawsuit with docket # 392,702. On March 14, 1994, the bank, as executor of the succession, signed the settlement agreement and release of claims as to the 1993 expropriation of 440.7 acres of land in return for the amount of $123,882. In June 1994, the .Commission signed the settlement agreement regarding the 1993 expropriation and signed a joint motion authorizing the succession to withdraw the $123,882 from the court registry. For some reason, the settlement agreements were not filed in the record of lawsuit #392,702. However, in conformance with the settlement agreement, the August 1994 judgment of possession excluded the expropriated 440.7 acre tract from the succession property transferred to Fry’s surviving children.

In 2000, in response to public requests, the Commission began to build a boat ramp on a 2-acre tract of land that was part of the property acquired through the 1993 expropriation. The tract was identified as the “Bishop Point Recreation Area.”

In February 2004, Cynthia Peironnet, Elizabeth Franklin, Eleanor de St. Mar-ceaux and Pamela Comegys, the heirs of Elizabeth Fry, filed a | ^petition seeking the return of the 440.7 acres expropriated in 1993, alleging that the property should not have been taken in fee title and that the Commission was improperly using the land for recreational purposes. The heirs’ lawsuit and the 1993 expropriation lawsuit .were consolidated for trial and the heirs filed a reconventional demand in the lawsuit # 392,702. The Commission filed an exception of res judicata, on the basis that the heirs’ lawsuit was barred by the succession’s execution of the settlement agreement releasing the Commission from all future claims and causes of action with respect to the expropriation of the 440.7 acre tract of land. The Commission also filed an exception of no cause of action or peremption.

After a hearing on the exceptions, the district court issued oral reasons for judgment, finding that the succession had previously released the Commission from all future claims or causes of action arising from the 1993 expropriation with the intent to terminate the litigation. The court rendered judgment sustaining the Commission’s exception of res judicata, and denying the exceptions of no cause of action and peremption. The heirs appeal the judgment.

DISCUSSION

The heirs contend the district court erred in sustaining the Commissions’s exception of res judicata. The heirs argue that the compromise was ineffective and unenforceable because the Youngs did not sign the settlement agreement.

Initially, we note that the Civil Code articles regarding compromise were amended in Acts 2007, No. 138, effective August 15, 2007. However, |4since the Commission’s expropriation action and the heirs’ petition were filed prior to the amendment date, the pre-revision language will apply in this case. A compromise is an agreement between parties who adjust their differences by mutual consent for the benefit of terminating a lawsuit. The compromise must be reduced to writing or recited in open court. LSA-C.C. art. 3071; Ortego v. State DOTD, 96-1322 (La.2/25/97), 689 So.2d 1358.

In the present case, the Commission and the executor of the succession each signed a written compromise agreement. Contrary to the heirs’ argument, there was no showing that any additional signatures were necessary for the execution of a valid compromise between the succession and the Commission. The district court’s order of expropriation directed Rex and Sandra Young to assert any claims they may have possessed regarding their lease. The record does not contain any such claims asserted by the Youngs, who did not even file an answer to the 1993 expropriation petition. Based on the evidence presented, the record supports a finding that the parties executed a valid compromise whereby the succession released all future claims and causes of action arising from the expropriation of the 440.7 acres in return for the compensation paid by the Commission. The heirs’ argument lacks merit.

Mistake

In several assignments of error, the heirs contend the district court erred in finding that the compromise precluded their subsequent lawsuit. The heirs assert that the compromise cannot be enforced due to the parties’ mutual mistake about the subject matter in dispute.

IrA compromise has the legal efficacy of a judgment, possessing a force equal to the authority of things adjudged, and a compromise cannot be attacked on account of any error in law. LSA-C.C. art. 3078; Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741. An error as to the subject matter in dispute is a ground to rescind a compromise. LSA-C.C. art. 3079; Brown, supra.

In the present case, the compromise agreement provides that the Commission and the succession grant mutual releases and discharge the other from “any and all future claims, demands, compensation, rights, damages or causes of action whatsoever, concerning the expropriation of the 440.7 acre tract of land....” In his deposition, the succession’s attorney testified that his client understood that as a result of the settlement the Commission would have title ownership of the 440.7 acres.

The evidence presented shows that the parties were not mistaken about the property at issue or the nature of the rights being released in the compromise instrument. The succession was aware that the Commission was acquiring ownership of the expropriated property in return for the compensation paid. Based upon this record, there was no showing of a mistake that would negate the compromise between the parties. Thus, the heirs’ argument lacks merit.

Purpose of Expropriation

In the alternative, the heirs argue that even if there was a valid compromise, the settlement did not extend to the claim of improper taking for recreational use. In their appellate brief, the heirs’ argument shifts back Rand forth from asserting that the Commission improperly expropriated the land for recreation to asserting that even though the land was taken for flooding, the Commission later improperly changed the use to recreation by building a boat ramp. Neither assertion is supported by the record.

The purpose of the Red River Waterway District, under the authority of the Red River Waterway Commission, is to establish, operate and maintain a navigable waterway system in cooperation with the federal and state governments. LSA-R.S. 34:2302. The Commission is authorized to acquire by purchase, donation, lease or otherwise and to hold and use any property necessary or desirable for carrying out the purposes of the Commission. LSA-R.S. 34:2309(3). The Commission has authority to acquire by purchase or donation, but not by expropriation, and then convey to the United States any lands required by the Corps of Engineers for the construction of public recreation sites along the waterway. LSA-R.S. 34:2309(13).

In the present case, Kenneth Guidry, the executive director of the Commission, testified by deposition that the Corps of Engineers asked the Commission to obtain permanent rights for the inundation of land resulting from the increased water level in Pool 5 after completion of Lock and Dam No. 5. Guidry stated that the Commission acquired title ownership of the 440.7 acres through expropriation for the purposes of lock and dam construction and inundation. He explained that a reason for acquiring ownership of the land for flooding, rather than a servitude, was to avoid potential conflicts that could occur when the increased water level allowed 17fishermen and hunters access to privately owned land. He testified that some time later, the Commission received several requests from the public for boat access to the west side of the Red River. According to Guidry, the Bishop Point area was chosen from several alternatives as the site for a boat ramp.

Henry Bruser, general counsel for the Commission, testified that the Commission acquired ownership of the 440.7 acre tract following the Corps of Engineers’ request for inundation rights necessary for completion of the navigation project. Bruser stated that the Commission obtained ownership of the property because of the potential problem of needing to acquire multiple servitudes for different uses that arose over time, resulting in increased costs to the public. He further testified that recreation was an after-the-fact use incidental to the completion of the locks and dams, which created lakes or ponds accessible to the public for boating and fishing.

The evidence presented demonstrates that the Commission expropriated the 440.7 acres in 1993 for the purpose of inundation related to the operation of Lock and Dam No. 5, as stated in the Commission’s petition and in the order of expropriation. The land expropriated was part of the Red River navigation system subject to inundation, and was not the land “required by the ... Corps of Engineers for the construction of public recreation sites” referenced in Section 2309(13).

In addition, the record does not support the heirs’ assertion that the subsequent construction of a boat ramp was inconsistent with the Commission’s expropriation of the land for the purpose of inundation 18pursuant to Sections 2302 and 2309(3). The ramp is apparently located on that portion of the expropriated property described in the Commission’s petition as the area between 145 and 148 feet above sea level subject to occasional inundation. The expropriated land continues to be subject to inundation and any recreational use by the public is incidental to that primary purpose. Thus, the heirs’ argument that the Commission’s taking of the property was for an improper recreational purpose lacks merit.

Intent

The heirs contend the succession and the Commission never intended to compromise any issue concerning recreation at the time they executed the settlement agreement. The heirs assert that the Commission exceeded its authority.

A compromise agreement extends only to those matters that the parties expressly intended to settle and does not extend to differences which the parties did not intend to include. LSA-C.C. art. 3073; Brown, supra; Hudson v. Progressive Security Insurance Co., 43,857 (La.App.2d Cir.12/10/08), 1 So.3d 627. In applying the rule of construction set forth in Article 3073, courts are guided by the general principle that the contract must be construed in light of attending events and circumstances. Thus, the intent expressed by the language of the compromise instrument, considering the circumstances existing at the time of the agreement, is controlling. Brawn, swpra; Hudson, supra.

A valid compromise can form the basis for a plea of res judicata. Brown, supra. The compromise instrument is the law between the parties, 19must be interpreted according to the parties’ intent and is governed by the same general rules of construction applicable to contracts. Brown, supra. Public policy favors compromise agreements and the finality of settlements. A compromise that releases all claims is not ambiguous simply because it is broad. Hudson, supra.

In the present case, the succession’s attorney, William Comegys, testified that the compromise agreement settled the 1993 expropriation lawsuit for the amount deposited in the court registry. Comegys stated that the intent of the succession was reflected in the compromise language, which provided that the parties discharged each other from any and all future claims, demands or causes of action whatsoever as to the expropriation of the 440.7 acre tract of land. Comegys testified that as a result of the compromise, the succession released any claims against the Commission’s title ownership of the expropriated land.

The record shows that the language of the compromise agreement was not ambiguous and the succession’s attorney, who drafted the compromise, acknowledged that the language releasing the Commission from all future claims or causes of action concerning the 440.7 acre tract demonstrated the intent of the parties. The circumstances existing at the time of the compromise included the district court’s Order of Expropriation, which conveyed ownership of the land to the Commission and was recorded in the parish conveyance records in June 1994.

Based upon the evidence presented, there was no showing that in signing the compromise, the succession intended anything other than to |insettle and dismiss all claims related to the validity of the expropriation. Consequently, we cannot say the district court erred in sustaining the exception of res judicata on the basis of the compromise agreement. The assignments of error lack merit.

CONCLUSION

For the forgoing reasons, the district court’s judgment is affirmed. Costs of this appeal are assessed to the appellants, Cynthia Peironnet, Elizabeth Franklin, Eleanor de St. Marceaux and Pamela Comegys.

AFFIRMED.