author: PARRO, J.

text:
    R & B FALCON DRILLING USA, INC. v. SECRETARY, DEPARTMENT OF REVENUE.
    No. 2009 CA 0256.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 11, 2010.

      Stephen H. Myers, Lafayette, LA, for Appellee R & B Falcon Drilling USA, Inc.
    Antonio Charles Ferachi, Frederick Mulhearn, Monica Doss Washington, Shone T. Pierre, Donald Bowman, Miranda Conner, Baton Rouge, LA, for Appellant Cynthia Bridges, Secretary, Louisiana Department of Revenue.
    Before: PARRO, KUHN, and McDonald, jj.
   PARRO, J.

12At issue in this appeal is whether the Louisiana Department of Revenue (Department) may impose sales taxes on certain meals provided by the owner of drilling barges for the benefit of its customers as well as use taxes on materials and supplies that were used in the reconstruction of the living quarters on one of its barges. After concluding that no taxes were due, the Board of Tax Appeals (Board) vacated the tax assessment against the owner. On judicial review, the district court upheld the Board’s decision with respect to those transactions. The Department appealed the applicable portions of the district court judgment. For the reasons that follow, we reverse and render.

Facts and Procedural History

R & B Falcon Drilling USA, Inc. (R & B) is in the commercial business of drilling oil and gas wells. R & B owns about 30 drilling barges, which it provides under contract to its customers in the oil and gas industry. Pursuant to these contracts, R & B’s various services include providing these barges with a crew, drilling equipment, sleeping quarters, and catering services. Generally, all services are performed by R & B personnel pursuant to a lump-sum daily rate contract.

Following a sales and use tax audit for the period of January 1, 1999, through June 30, 2001, the Department issued an assessment totaling $119,846.50 against R & B based on a finding that the following amounts were owed in taxes: $63,622.11 on meal sales (after a credit of $29,149.85 for taxes paid on the purchases of groceries for the meals), $33,764.82 on additional purchases of tangible personal property used in the reconstruction of the living quarters on a barge, and $22,459.57 on purchases of fixed assets/drill pipes. R & B filed a petition with the Board for a redetermination of |sthe sales and use tax assessment.

After considering LSA-R.S. 47:305.1(B) and Mallard Bay Drilling, Inc. v. John Neely Kennedy, Secretary, Department of Revenue and Taxation, 03-1495 (La.App. 3rd Cir.3/31/04), 869 So.2d 954, the Board found that no taxes were owed and vacated the assessment. The Department then filed a petition for judicial review of the Board’s decision with the district court. The district court upheld the Board’s decision that R & B did not owe taxes on the cafeteria services (meal sales) in question or on the materials and supplies used in R & B’s reconstruction of the living quarters on one of its barges. However, the district court reversed that portion of the Board’s decision which held that no taxes were owed on the materials and supplies purchased by R & B for drilling activities. From those portions of the district court judgment adverse to it, the Department appeals, contending that the district court erred in failing to find that the following were taxable under the state sales and use tax provisions: R & B’s sale of extra meals for the benefit of its customers’ personnel and the materials and supplies used in the reconstruction of the living quarters on one of its barges.

Standard of Review

With regard to the appropriate standard of review for those decisions issued by the Board, LSA-R.S. 47:1435 is instructive, as that statute provides that reviewing courts may reverse or modify decisions of the Board, with or without remanding the case, if those decisions are not in accordance with law. International Paper, Inc. v. Bridges, 07-1151 (La.1/16/08), 972 So.2d 1121, 1127. Judicial review of a decision of the Board is rendered on the record as made up before the Board and is limited to facts on the record and questions of law. Id.; see LSA-R.S. 47:1434. The Board’s findings of fact |,tshould be accepted where there is substantial evidence in the record to support them and should not be set aside unless they are manifestly erroneous in view of the evidence on the entire record. International Paper, Inc., 972 So.2d at 1127-28. Furthermore, if the Board has correctly applied the law and adhered to correct procedural standards, its judgment should be affirmed. Id. at 1128.

Extra Meals

A tax is levied on the sale at retail of each item or article of tangible personal property. LSA-R.S. 47:302(A). “Sale” means any transfer of title or possession, or both, of tangible personal property, for a consideration, and includes the furnishing, preparing, or serving, for a consideration, of any tangible personal property, consumed on the premises of the person furnishing, preparing, or serving such tangible personal property. LSA-R.S. 47:301(12). The term “sale at retail” does not include an isolated or occasional sale of tangible personal property by a person not engaged in such business. Former LSA-R.S. 47:301(10)(c)(ii). “Business” includes any activity engaged in by any person or caused to be engaged in by him with the object of gain, benefit, or advantage, either direct or indirect. The term “business” shall not be construed to include occasional and isolated sales by a person who does not hold himself out as engaged in business. LSA-R.S. 47:301(1). Absent this exclusion, the terms “sale at retail” and “business” would have included such activity. Notably, neither former LSA-R.S. 47:301(10)(c)(ii) nor LSA-R.S. 47:301(1) excludes from the definitions of “sale at retail” and “business” the frequent, regular, and repeated sales by a person, whether or not he holds himself out as engaged in business.

Drilling barges and personnel to operate the drilling rig equipment were |sprovided by R & B under contract to its customers, who are in charge of the drilling operations. When R & B contracted a drilling barge to a customer, R & B charged a daily rate for the barge and the services provided by its drilling personnel. R & B also contracted with its customers for a certain number of meals provided to its drilling personnel per job or contract. In R & B’s standard contract, R & B further provided meals free of charge for two customer personnel per day. So, in addition to the number of meals for R & B’s drilling personnel provided for in the contract, if more than two customer personnel or customer third-party personnel came on board in a day, there would be a meal charge for these extra personnel. The customer was charged a fee for each additional meal at a rate of $12 per meal or $48 per day for three meals and a snack. The charge was, in effect, a reimbursement of the additional costs incurred by R & B to provide the extra meals.

The evidence reveals that, during the tax period in question, R & B’s customers were charged the following for extra meals for more than two customer personnel or customer third-party personnel per barge per day:

1999 2000 2001
January $ 83,300.00 $ 57,462.50 $126,012.50
February $104,700.00 $ 42,000.00 $ 52,512.50
March $ 63,250.00 $ 61,725.00 $107,712.50
April $ 67,487.50 $ 63,562.50 $165,087.00
May $ 49,125.00 $ 71,175.00 $ 46,662.50
June $ 51,525.00 $ 76,512.50
July $ 31,550.00 $ 97,512.60
August $ 53,037.50 $ 104,325.00
September $ 56,650.00 $ 110,862.50
October $ 66,487.50 $ 160,112.50
leNovember $ 62,987.50 $ 118,800.00
December $ 69,462,00 $ 107,700.00
Total $769,562.00 1,071,750.00 $487,987.00

Therefore, over the course of 29 months or 882 days, R & B charged its customers a total of $2,319,299 (an average of $2,629.59 per day) for extra meals that were provided to customer personnel or customer third-party personnel. At a per day rate of $48, R & B would have provided extra meals on all of its barges for almost 55 people daily.

The schedule of advance tax credit due that was offered into evidence and that was prepared by the Department in connection with R & B’s purchases of food reveals that during the 29-month period in question, R & B’s total purchases of food was $5,128,254.81. The percentage of excess meals charged to customers to the total meals prepared ranged from 11.06 to 18.79 percent. The portion of R & B’s food purchases used only for preparation of excess meals was $822,464.61. At a rate of almost 55 persons per day for 882 days, the cost of the food used to prepare extra meals averaged approximately $16.95 per person a day, while extra meals were being sold for not more than a total of $48 per day, a difference of $81.05. Furthermore, the total of extra meals was sold for approximately $1,496,834 above the food costs.

The evidence establishes that R & B’s sales of extra meals for the benefit of customer personnel and customer third-party personnel were not isolated and occasional in that they were made frequently, routinely, and continuously. We recognize that R & B’s primary business is not the sale of meals. It is undisputed that the availability of the living quarters was integral to R & B’s commercial operations of the drilling barges. We find that the same holds true for its service of providing extra meals for the benefit of its customers. Because R & B engaged in the sale of extra meals frequently, routinely, and ^continuously as a part of its regular business, R & B should be construed to be engaged in that “business” for purposes of LSA-R.S. 47:301(1) and 301(10). See McNamara v. Oilfield Const. Co., Inc., 417 So.2d 1311, 1318 (La.App. 3rd Cir.), writ denied, 422 So.2d 157 (La.1982). We find the facts of this case to be distinguishable from those of Marmac Corp. v. McNamara, 546 So.2d 585 (La.App. 1st Cir.1989), involving the sale of non-serviceable barges by the lessor of a fleet of approximately 750 barges.

For these reasons, we find the record does not contain a reasonable basis to support the factual finding that the sales of extra meals were occasional or isolated sales of tangible personal property made by a person not engaged in such business and, therefore, this finding was an unreasonable one. See Stobart v. State, through the Dept. of Transp. and Dev., 617 So.2d 880, 882. Because the undisputed evidence demonstrates that during the subject tax period R & B continuously and repeatedly sold extra meals as part of its regular business, the district court’s affir-mance of the Board’s finding was manifestly erroneous. Accordingly, we conclude that R <& B’s sales of extra meals are taxable.

Materials and Supplies for Living Quarters

At issue in this case is also an exemption from sales and use taxes provided by LSA-R.S. 47:305.1. At the time of R <& B’s purchase of the materials |sand supplies in question, LSA-R.S. 47:305.1 provided in its entirety:

A. The tax imposed by R.S. 47:302(A)(1), 321(A)(1), and 331(A)(1) shall not apply to sales of materials, equipment, and machinery which enter into and become component parts of ships, vessels, or barges, including commercial fishing vessels, drilling ships, or drilling barges, of fifty tons load displacement and over, built in Louisiana nor to the gross proceeds from the sale of such ships, vessels, or barges when sold by the builder thereof.
B. The taxes imposed by R.S. 47:302 and R.S. 47:321 shall not apply to materials and supplies purchased by the owners or operators of ships or vessels operating exclusively in foreign or interstate coastwise commerce, where such materials and supplies are loaded upon the ship or vessel for use or consumption in the maintenance and operation thereof; nor to repair services performed upon ships or vessels operating exclusively in foreign or interstate coastwise commerce; nor to the materials and supplies used in such repairs where such materials and supplies enter into and become a component part of such ships or vessels; nor to laundry services performed for the owners or operators of such ships or vessels operating exclusively in foreign or interstate coastwise commerce, where the laundered articles are to be used in the course of the operation of such ships or vessels.
C. The exemption from the state sales tax provided in this Section shall be applicable to any sales tax levied by a local governmental subdivision or school board.
D. Repealed by Acts 1982, No. 56, § 4, eff. July 10,1982.

The exemption provided for in Subsection B applied only to “ships or vessels” and was inapplicable to the drilling barge at issue in this case. See Mallard Bay Drilling, Inc. v. John Neely Kennedy, Secretary, Department of Revenue and Taxation, 04-1089 (La.6/29/05), 914 So.2d 533, 548-49. Thus, the Board legally erred in utilizing LSA-R.S. 47:305.1(B) to determine the taxability of the materials and supplies used in the work performed on the barge’s living quarters.

On the other hand, the exemption provided for in Subsection A only ] ^applied to materials used in the original construction of the barge, not to those used in replacing barge components. See McNamara v. Central Marine Serv., Inc., 507 So.2d 207, 208 (La.1987). After examining the legislative intent relative to the scope of the exemption granted by LSA-R.S. 47:305.1(A), the supreme court in McNamara v. Central Marine Serv., Inc. observed that the exemption was created to relieve Louisiana shipyards of a competitive disadvantage with shipyards in neighboring states. Id. at 209-12.

The materials and supplies were used in the reconstruction of the barge’s living quarters, which became a permanent part of the barge. Since the materials and supplies were for the replacement of the living quarters, as opposed to the original construction, they do not qualify under McNamara v. Central Marine Serv., Inc. for the exemption set forth in Subsection A of LSA-R.S. 47:305.1. Furthermore, R & B is not a shipbuilding company and does not build ships in Louisiana.

Because the materials and supplies were used for more than a mere repair, R & B urges that this case is distinguishable from McNamara v. Central Marine Serv., Inc. and these materials and supplies qualify for the exemption. Department regulations seem to support R & B’s argument that materials and supplies that become a component part during a major refurbishing of an older vessel or hull is exempt under LSA-R.S. 47:305.1(A). See LAC 61:I.4403(A). To qualify for exemption under LSA-R.S. 47:305.1(A), materials, machinery, and equipment that become component parts of ships, vessels, or barges of 50 tons load displacement and over, built in Louisiana, must be added during construction or reconstruction. LAC 61:I.4403(A). Materials, machinery, and equipment that replace worn components are not exempt under LSA-R.S. 47:305.1(A). LAC 61:I.4403(A). However, reconstructions qualify for exemption under LSA-R.S. 47:305.1(A) if they modify the craft’s function, such | i0as conversion of a deck barge to a crane barge, or restore the craft to seaworthiness following its destruction by sinking, collision, or fire. LAC 61:I.4403(B). Under Department regulations, reconstructions qualify for the exemption but only in limited situations, none of which are present in the instant case.

Had the legislature intended the exemption at issue to apply to the repairs, where such materials and supplies enter into and become a component part of such a barge, it could have done so by using the specific language it employed in other provisions of LSA-R.S. 47:305.1. See LSA-R.S. 47:305.1(B). Accordingly, we conclude that the Board legally erred in finding that R & B was entitled to a sales tax exemption on the materials and supplies which replaced original components of the living quarters on its barge. See Canal Barge Co., Inc. v. McNamara, 511 So.2d 1196, 1198 (La.App. 4th Cir.1987).

Decree

For the foregoing reasons, we reverse those portions of the judgment of the district court which have been appealed, as well as the decision of the Board of Tax Appeals. Judgment is rendered reinstating the December 4, 2002 assessment by the Louisiana Department of Revenue against R & B Falcon Drilling USA, Inc. for the tax period of January 1, 1999, through June 30, 2001. All costs are assessed to R & B Falcon Drilling USA, Inc.

REVERSED AND RENDERED.

      . The Offshore Drilling Company is now the successor in name to R & B.

      . With interest calculated to February 2, 2003, the assessment totaled $170,248.77.

      .All of the transactions that were the subject of the audit occurred in Louisiana inland waters.

      . Mallard. Bay Drilling, Inc., 869 So.2d 954, was subsequently reversed by the supreme court. See Mallard Bay Drilling, Inc. v. John Neely Kennedy, Secretary, Department of Revenue and Taxation, 04-1089 (La.6/29/05), 914 So.2d 533, 548-49.

      . After the effective date of 2003 La. Acts, No. 73, § 1, this provision is now found at LSA-R.S. 47:301 (10)(c)(ii)(bb).

      .Any ambiguity in a taxing statute must be construed in favor of the taxpayer. United Gas Corporation v. Fontenot, 241 La. 564, 129 So.2d 776, 781 (1961); McNamara v. U.O.P., Inc., 389 So.2d 741, 750 (La.App. 2nd Cir. 1980); Marmac Corp. v. McNamara, 546 So.2d 585, 588 (La.App. 1st Cir.1989). However, tax exemptions are an exceptional privilege that must be expressly and clearly conferred in plain terms. Showboat Star P’ship v. Slaughter, 00-1227 (La.4/3/01), 789 So.2d 554, 560; McNamara v. Central Marine Serv., Inc., 507 So.2d 207, 208 (La.1987).

      . The meals prepared by R & B's staff are not for sale to the general public nor does R & B hold itself out to the public as being engaged in cafeteria-style service. This service is considered by R & B to be an adjunct of its primary business related to the drilling of oil and gas wells.

      . Groceries were purchased to prepare all the meals, and R & B paid sales taxes on these purchases.

      . 365 days in 1999 + 366 days in 2000 + 151 days in 2001 = 882 days.

      . $2,319,299-$822,464.61 = $1,496,834.39.

      . In McNamara v. Oilfield Const. Co., Inc., the court stated that although the sales of signs, cattle guards, lumber, nails, and aluminum gates made up only a small part of the defendant’s total revenues (less than 1% of its gross revenue), those sales were a part of the defendant's regular business and therefore taxable. McNamara v. Oilfield Const. Co., Inc., 417 So.2d at 1318.

      . Marmac Corporation (Marmac) was engaged in the leasing and servicing of a fleet of approximately 750 barges throughout the Gulf Coast and the Mississippi/Ohio River waterways. Marmac sold old barges for scrap or other use when they became no longer serviceable for Marmac’s leasing business. Marmac Corp. v. McNamara, 546 So.2d at 586. In any given month, Marmac sold no more than one-fourth of one percent of its fleet — hardly the amount of sales volume which would be characteristic of the business of selling barges. Id. at 587-88. The court agreed that the sales of barges were merely incidental to the main business of Marmac as a lessor of barges. Id. at 588.

      . The legislature amended Section 305.1 in 2002 (which is after the tax period in question) to define "foreign or interstate coastwise commerce.” See current LSA-R.S. 47:305.1(0; 2002 La. Acts, No. 40, § 1, effective June 25, 2002; 2002 La. Acts, No. 41, § 1, effective June 25, 2002. The supreme court has found that Subsection C is prospec-live only. Mallard Bay Drilling, Inc., 914 So.2d at 537. The legislature amended Section 305.1(B) in 2006 to include barges and drilling ships. See current LSA-R.S. 47:305.1(B); 2006 La. Acts, 1st Ex.Sess., No. 34, § 1.

      . The court in McNamara v. Central Marine Services, Inc. noted that if the legislature had intended to exempt repair parts, i1 could have done so as it had in LSA-R.S. 47:305.1(B), relating to ships and vessels operating exclusively in foreign or interstate coastwise commerce.

      . In so observing, we render no opinion as to the legal effect of LAC 61:1.4403(B).


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    ESTATE OF Bernice MAYEAUX and Bernice Quaintance Individually and On Behalf of the Estate of Bernice Mayeaux v. Karolina GLOVER, XYZ Homeowners Insurance and Goux Enterprises, Inc. d/b/a/ Pontchartrain Health Care Centre. Timothy Wayne Davis o/b/o His Minor Child, Benjamin Anthony Davis, and o/b/o The Estate of Bernice Mayeaux v. Karolina Glover, XYZ Insurance Company and Goux Enterprises, Inc. d/b/a/ Pontchartrain Health Care Centre. Ann Riles, Individually and On Behalf of the Estate of Bernice Mayeaux v. Karolina Glover, Pontchartrain Guest House, Inc. d/b/a Pontchartrain Health Care Centre and The Louisiana Health Care Association.
    Nos. 2008 CA 2031, 2008 CA 2032, 2008 CA 2033.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 2010.
    Writ Denied April 16, 2010.

      Robert J. Caluda, Metairie, Louisiana, William G. Cherbonnier, Jr., Gretna, Louisiana, for Plaintiffs-Appellants, Bernice Quaintance, Patricia Speirer, and Toni Horchoff.
    Fred L. Herman, Thomas J. Barbera, Daniel W. Nordurft, J. Van Robichaux, Jr., New Orleans, Louisiana, for Plaintiff-Appellant, Timothy Wayne Davis on behalf of his minor child, Benjamin Davis.
    Jeremy D. Goux, Vincent F. Wynne, Martha D. Bowden, Covington, Louisiana, for Defendant-Appellee, Goux Enterprises, Inc. d/b/a Pontchartrain Health Care Center.
    Before PARRO, KUHN, and McDonald, jj.
   KUHN, J.

| sPIaintiffs-appellants, Bernice Quain-tance, Patricia Speirer, and Toni Horchoff, as well as Timothy Wayne Davis on behalf of his minor child, Benjamin Davis, appeal the trial court’s sustaining of peremptory exceptions raising the objection of no right of action filed by defendant-appellee, Goux Enterprises, Inc., doing business as Pontchartrain Health Care Center (Pontchartrain Health Care Center), dismissing plaintiffs’ claims for statutory damages due to defendant’s alleged negligence, which resulted in the death of Bernice Mayeaux. We amend the judgment and, as amended, affirm. The matter is remanded.

factual and procedural BACKGROUND

Mayeaux had two daughters: Ann Riles and Evelyn Audler. Audler had four daughters: Quaintance, Speirer, Horchoff, and Kim Davis. Audler and Davis both died before Mayeaux. Quaintance, Speirer, and Horchoff are the surviving grandchildren of Mayeaux; and Benjamin Davis is the surviving child of Daws and the great-grandson of Mayeaux. At the time of her death, Mayeaux was a resident in the Pontchartrain Health Care Center, a nursing home located in Lacombe. The granddaughters filed a lawsuit against Ka-rolina Glover, who was Mayeaux’s roommate, her homeowner’s insurer, and Pontchartrain Health Care Center, averring entitlement to damages for the survival action of their grandmother, wrongful death damages for them losses, and damages as a result of breach of contract. Timothy Wayne Davis, in his capacity as tutor of his minor son, Benjamin (Benjamin) filed a lawsuit against the same defendants, claiming l,(the same damages. And Riles filed yet another lawsuit also seeking damages pursuant to the survival and wrongful death actions resulting from her mother’s death. The lawsuits were consolidated.

According to the allegations of the petitions, Glover, who suffered from Alzheimer’s disease, dementia, and other mental disorders, physically attacked and bludgeoned Mayeaux with a metal object while occupying the same room at the Pontchartrain Health Care Center facility, ultimately causing Mayeaux’s death. Plaintiffs averred Pontchartrain Health Care Center was negligent in failing to: properly assess Glover’s condition, segregate her from other residents, warn Mayeaux and plaintiffs of Glover’s aggressive characteristics and tendencies, and take other preventative tactics.

Pontchartrain Health Care Center filed, among other pleadings, peremptory exceptions objecting to the rights of the granddaughters and great-grandson to assert claims for damages under La. C.C. arts. 2315.1 and 2315.2. After a hearing at which evidence was adduced, the trial court sustained the exceptions and dismissed the lawsuits filed by Quaintance, Horchoff, and Benjamin in their entirety. The lawsuit filed by Speirer was maintained only to the extent that she claimed entitlement to damages for breach of contract. The trial court signed a judgment in conformity with its ruling and, after their new trial motions were denied, the granddaughters and the great-grandson appeal.

NO RIGHT OF ACTION

The peremptory exception pleading the objection of no right of action challenges whether plaintiff has an actual interest in bringing the action. See La. C.C.P. art. 927 A(6); Five N Company, L.L.C. v. Stewart, 2002-0181, p. 10 (La.App. 1st Cir.7/2/03), 850 So.2d 51, 58. Whether a person has a right of action depends on whether the particular plaintiff belongs to the class in whose favor the law extends a remedy. In other words, the exception questions whether the plaintiff has an interest in judicially enforcing the right asserted. Whether a plaintiff has a right of action is a question of law. Therefore, it is reviewed de novo on appeal. To prevail, the defendant must show that the plaintiff does not possess an interest in the subject matter of the suit. Id., 2002-0181 at pp. 10-11, 850 So.2d at 58.

CLAIMS FOR DAMAGES UNDER LA.

C.C. ARTS. 2315.1 and 2315.2

Appellants contend the trial court erred in sustaining the exceptions of no right of action for survival and wrongful death damages. The gist of their assertion is that La. C.C. art. 3506 provides a definition for “children” that should be applied to determine which beneficiaries are entitled to statutory damages. '

Both Articles 2315.1 A and 2315.2 A establish the exclusive categories of beneficiaries who may bring a survival action for injuries suffered by another before his or her death (Article 2315.1), as well as a wrongful death action for the damages they sustained as a result of their relative’s death (Article 2315.2). These exclusive categories of beneficiaries are as follows:

(1) The mrviving spouse and child or children of the deceased, or either the spouse or the child or children.
(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.
(3) The sttrviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving. (Emphasis added.)

|6La. C.C. arts. 2315.1 A and 2315.2 A.

In pertinent part, La. C.C. art. 3506, which provides general definitions of terms employed in the Louisiana Civil Code whenever they have not been particularly defined in the Code, states:

8. Children. Under this name are included those persons born of the marriage, those adopted, and those whose filiation to the parent has been established in the manner provided by law, as well as descendants of them in the direct line.
A child born of marriage is a child conceived or born during the marriage of his parents or adopted by them.
A child born outside of marriage is a child conceived and born outside of the marriage of his parents.

Appellants claim that as “descendants ... in the direct line,” as provided Article 3506(8), they have established their rights as “the children of the deceased” under Articles 2315.1 A and 2315.2 A, who are entitled to bring a survival action and wrongful death claims.

The jurisprudence has consistently excluded grandchildren from the first class of beneficiaries. See, e.g., Hunt v. New Orleans Ry. & Light Co., 140 La. 524, 73 So. 667 (1916); Day v. Day, 563 So.2d 441, 443 (La.App. 1st Cir.), writ denied, 567 So.2d 109 (La.1990); Austrum v. City of Baton Rouge, 267 So.2d 284, 290-91 (La.App. 1st Cir.1972), affirmed in part, reversed in part on other grounds, 282 So.2d 434 (La.1973); Mazoue v. Avondale Indus., Inc., 2002-1569, pp. 2-3 (La.App. 4th Cir.1/22/03), 839 So.2d 171, 172, unit denied, 2003-0542 (La.4/25/03), 842 So.2d 406; Rachal v. Peters, 28,655, pp. 5-6 (La.App.2d Cir.9/25/96), 680 So.2d 1280, 1283. And it follows that if grandchildren are excluded, great-grandchildren, who are descendants further down the direct line, 17are excluded as well. It is only when the codal beneficiary who survived the decedent later dies that the beneficiary’s heirs “inherit” the beneficiary’s right to bring either or both the wrongful death and survival actions. See La. C.C. arts. 2315.1 C and 2315.2 C; Radial, 28,655 at p. 4, 680 So.2d at 1283.

Accordingly, we find no error in the trial court’s sustaining the peremptory exceptions objecting to appellants’ rights to institute a survival action for damages on behalf of Mayeaux and wrongful death actions damages that they sustained as a result of the death.

CLAIMS FOR DAMAGES ARISING IN CONTRACT

Quaintance, Horchoff, and Benjamin claim that they also have a right of action for damages based on contract and, therefore, the trial court erred in dismissing all their claims. Alternatively, they assert that they are third-party beneficiaries to the contract between Speirer and Pontchartrain Health Care Center. Appellants also urge the trial court erred in failing to allow them an opportunity to amend their petitions to state rights of action in contract.

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La. C.C. art. 1906. Consent of the parties is necessary to form a valid contract. See La. C.C. art. 1927. Where there is no Ismeeting of the minds between the parties, a contract is void for lack of consent. Stockstill v. C.F. Indus., Inc., 94-2072, p. 25 (La.App. 1st Cir.12/15/95), 665 So.2d 802, 820, twit denied, 96-0149 (La.3/15/96), 669 So.2d 428. And no action for breach of contract may lie in the absence of privity of contract between the parties. Pearl River Basin Land and Dev. Co., L.L.C. v. State, ex rel. Governor’s Office of Homeland Sec. and Emergency Preparedness, 2009-0084, p. 2 (La.App. 1st Cir.10/27/09), 29 So.3d 589, 591. A party claiming the existence of a contract has the burden of proving that the contract was perfected between himself and his opponent. Casey v. Nat’l Info. Services, Inc., 2004-0207, p. 12 (La.App. 1st Cir.6/10/05), 906 So.2d 710, 719, writ denied, 2005-2210 (La.3/24/06), 925 So.2d 1235.

The sole allegations in these particular appellants’ respective petitions averring factual support for relief based on a breach of contract state that Pontchartrain Health Care Center “breached [its] contractual duty to provide a safe environment for decedent ... Mayeaux and [appellants’] claims against [the defendant] sound in tort and in contract.”

At the hearing, documentary evidence established that Speirer signed a “FACE SHEET ” stating the decedent’s name and general, medical, and billing information in which, under the section entitled “RESPONSIBLE PARTY,” “SPEIRER (Granddaughter)” was noted. Speirer’s signature was also on a form entitled “RESIDENT FAMILY CONSENT FOR CARDIOLPULMONARY RESUSCITATION.” Two requests for a medical eligibility determination and a | ¡¡level 1 screen for pre-admission or re-admission screening form were also admitted in which Speirer was indicated as the “Responsible Party/Curator.” And a “Statement of Account” sent to Speirer for decedent stated $4,550.00 was the amount “Now Due From Resident.” Testimony from Quaintance was also admitted. She identified her sister’s signature and explained that she and her sisters, including Kim Davis who died the day before Mayeaux, had an agreement regarding deficits existing after payments on Mayeaux’s account by insurance and Medicare. According to the agreement, they would collectively pay on behalf of their grandmother. Quaintance admitted she was not present when the documents were signed, did not have a power of attorney over her grandmother, and that decedent did not sign any of the documents upon admission because she was incapable of doing so and, therefore, someone had to sign on Mayeaux’s behalf. Solely for the purposes of the exception hearing, the parties stipulated that Speirer and Horchoff would have testified in conformity with Quaintance.

The trial court found that while there clearly was an agreement between Au-dler’s children regarding the care of their grandmother, “the nursing home was not privy to that agreement nor was it a party to [it].” Based on the allegations of the petitions and the evidence adduced at trial, the particular appellants failed to establish a meeting of the minds to support the consent necessary to find the existence of a valid contract between Quaintance, Hor-choff, and Davis and Pontchartrain Health Care Center. Thus, the trial court correctly dismissed the breach of contract claims asserted by Quaintance, Horchoff, and Benjamin.

We turn now to the particular appellants’ contention that they are entitled to assert contractual claims as third-party beneficiaries. A third-party beneficiary is a |inparty who has the right to demand performance from the promisor. See La. C.C. arts. 1978 and 1981. Under Louisiana law, a contract for the benefit of a third party was previously referred to as a stipulation pour autrui. A stipulation pom autnd is never presumed, and the intent of the contracting parties to stipulate a benefit in favor of a third party must be made manifestly clear. Moreover, the third-party relationship must form the consideration for a condition of the contract, and the benefit may not be merely incidental to the contract. Pearl River Basin Land and Dev. Co., L.L.C., 2009-0084 at p. 4, 29 So.3d at 592-93.

Based on the allegations stated in their petitions and the evidence adduced at the exception hearing, the particular appellants have failed to set forth facts to support a finding of a manifestly clear intent between Speirer and Pontchartrain Health Care Center to stipulate a benefit in favor of Quaintance, Horchoff, or Davis. The particular appellants can point to nothing in the documentary evidence that evinces a stipulation pour autrui in their favor; indeed, there is no documentary language that shows Pontchartrain Health Care Center had knowledge of the existence of these appellants. And nothing in the limited testimony suggests Pontchartrain Health Care Center was otherwise made aware that when Speirer signed the documents, a benefit was specified in favor of Quaintance, Horchoff, or Davis. Accordingly, the trial court correctly sustained the peremptory exception, dismissing the claims of Quaintance, Horchoff, and Benjamin on this basis.

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If hithe grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed. La. C.C.P. art. 934.

Nothing in the documentary or testimonial evidence adduced at the hearing of these exceptions indicated that Pontchartrain Health Care Center had a contract with Quaintance, Horchoff, or Davis, or that they were third-party beneficiaries of a stipulation pour autrui in their favor. Nonetheless, in light of the limited allegations of fact and testimony presented on the issue, we must allow these particular appellants an opportunity to amend their petitions.

DECREE

For these reasons, the trial court’s judgment is affirmed insofar as it sustained Pontchartrain Health Care Center’s peremptory exception raising the objection of no right of action against Quaintance, Hor-choff, Speirer, and Benjamin for survival and wrongful death damages. But the judgment is amended, and the matter is remanded to the trial court to allow Quain-tance, Horehoff, and Benjamin, an opportunity to amend their petitions to state, if they can, a right of action in contract within ten days from the date this opinion becomes final, in default of which their claims shall be dismissed. Costs of this appeal are assessed against appellants, Quaintance, Speirer, Horehoff and Benjamin.

AMENDED AND, AS AMENDED, AFFIRMED; REMANDED.

      . In amendments to their petitions, plaintiffs added Pontchartrain Guest House, Inc., doing business as Pontchartrain Health Care Center, as an additional defendant.

      . Speirer's claim for breach of contract was maintained by the trial court. Where a party pleads multiple theories of recovery based on a single occurrence or set of operative facts, the partial grant of an exception of no right of action which attacks only one theory of recovery and which does not dismiss the party is invalid as an impermissible partial judgment. See Talbot v. C & C Millworks, Inc., 97-1489, p. 4 (La.App. 1st Cir.6/29/98), 715 So.2d 153, 156; La. C.C.P. art. 1915 B(l) and (2)(subse-quent to its amendment by La. Acts 1999, No. 1263, § 1). Although Speirer’s cause of action for survival action/wrongful death damages and for breach of contract damages arise out of the death of Mayeaux, a partial grant of an exception of no right of action as to a cause of action that is factually distinct from the remaining cause or causes of action pled may be permissible. Under the facts of this case, the trial court correctly granted the partial exception of no right of action dismissing Speirer’s claims for damages under La. C.C. arts. 2315.1 and 2315.2.

      . That form stated, among other things, "If a resident is mentally or physically unable to make [the] decision [regarding her wishes in regard to the desire for cardiopulmonary resuscitation] and this is documented by the physician, then the spouse or family, as a class, can make this decision.”


author: SUSAN M. CHEHARDY, Judge.

text:
    Melissa F. GUILLORY v. Jimmy Lou Guidry HEBERT, et al.
    No. 08-CA-659.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 12, 2010.

      E. Jeffrey Perilloux, LaPlace, LA, for appellee, Melissa F. Guillory.

      Michael K. Heltz, Gramercy, LA, for appellants, Jimmy Lou Guidry Hebert, et al.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, FREDERICKA H. WICKER, and MARC J. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

|aOn appeal in this redhibition action, defendants seek review of the trial judge finding of a redhibitory defect and award of 25% reduction of the purchase price. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

Melissa Guillory filed an action in redhi-bition seeking rescission of the sale of a home that she had purchased from Jimmy Lou Guidry Hebert and her children. In her action, Ms. Guillory alleged that the home had a redhibitory defect because it was susceptible to flooding. After a bench trial, judgment was rendered in favor of defendants. Ms. Guillory filed a motion for new trial, which the trial judge granted for re-argument only on June 27, 2006. On December 4, 2006, the trial judge found, in contrast to her first ruling, that the evidence did reflect “a redhibitory defect” in the property, which did not, however, render it totally useless for its intended purpose, and awarded a reduction in the purchase price of 25%.

On December 14, 2006, defendants filed a motion for new trial on the basis that the verdict was contrary to the law and evidence because the record did not |3contain evidence to support the quantum of reduction. On January 10, 2007, defendants filed their first appeal.

On January 12, 2007, defendants’ counsel “submitted” his motion for new trial without argument. That same day, defendants’ Motion and Order for Appeal was granted. On December 27, 2007, this Court dismissed that appeal as premature and remanded for a ruling on defendants’ motion for new trial. Guillory v. Hebert, 07-614 (La.App. 5 Cir. 12/27/07), 975 So.2d 58.

On remand, on June 18, 2008, the trial judge denied defendants’ new trial based on “defendant’s [sic] admission that his Motion for New Trial was untimely.” On July 18, 2008, defendants filed an appeal, which was granted. Ms. Guillory answered.

On appeal, defendants allege that the trial judge erred in finding a redhibitory defect; erred in awarding a reduced purchase price; erred in awarding a 25% reduction because there is no evidence to support that amount; and erred in casting Mrs. Hebert’s children, who are co-owners of the home, in judgment. Defendants seek reversal of the trial court judgment or, alternatively, if this Court affirms the redhibition finding, remand for “further proceedings to determine the amount of any reduction to be awarded to plaintiff pursuant to the legal standard required by Louisiana law.” Guillory answered the appeal praying for “bad faith” damages and attorneys’ fees.

First, we will first address defendants’ first and last assignments of error. In their first assignment, defendants argue that the trial judge erred in finding that there was a redhibitory defect in this property. We disagree.

|,,In a redhibitory action, the plaintiff must prove that the thing sold contained a hidden defect that was not apparent upon ordinary inspection, which rendered the thing unfit for its intended use or so imperfect that the purchaser would not have bought it had he known of the defect. Brannon v. Boe, 569 So.2d 1086, 1087-1089 (La.App. 3 Cir.1990). The evidence adduced at trial reveals that the property around the house flooded numerous times during the 23 years that the defendants, who built the house, lived in the home.

Mrs. Hebert admitted at trial that, while her family had lived in the home, water intruded into the entire house at least once during a substantial rain event in 1995. Further, ten years before that incident, during Hurricane Juan in 1985, Mrs. Hebert and her family placed two sandbag levees around the house then, using three separate pumps for more than one day, pumped out water that breached the first levee to prevent water from breaching the second levee and entering the house. She admitted that her house would have flooded during the hurricane if they had not worked very hard to prevent water intrusion.

Mrs. Hebert also stated that she remembered that sandbags were used on at least five or six more occasions to prevent water from “seeping” under her front door during other rain events. Mrs. Hebert further admitted that water from rain or storms entered the garage that is attached to the home, at least four or five times during the time that she lived in the house.

Further, Mrs. Hebert admitted that she down-played the magnitude of the May 1995 flood event in her property disclosure to potential purchasers. In her disclosure, she stated that she changed the flooring in two rooms because water seeped into her kitchen and dining room in 1995. However, evidence at trial reflects that her insurance adjuster found that water had intruded into the entire house and damaged the utility room, hall, three bathrooms, four bedrooms, living |sroom, foyer, den, hall, closets, kitchen and dining room. Her adjuster estimated the damage totaled $18,723.47. Mrs. Hebert admitted that she received payment in that amount from her insurer for water damage to her home.

Finally, she admitted that she did not inform Ms. Guillory of any of the other high water events, including Hurricane Juan, or of their routine practice of sandbagging to prevent water intrusion. Mrs. Hebert stated that she thought she was only required to disclose flood events that she had reported to her insurance company.

At trial, Melissa Guillory also testified that, six weeks after she purchased the house in 2002, Tropical Storm Isidore struck South Louisiana, bringing substantial rain and storm surge. Although Guil-lory with help from others, including the Parish Councilman, sandbagged her property, her house flooded. Indeed, the 2002 flood damaged Ms. Guillory’s appliances, floors, carpets, furniture, clothes, and other living essentials. Because of the level of water that entered the house, the sheet-rock walls had to be removed up to four feet and replaced. The floors had to be removed down to bare concrete. As a result of the damage, her insurance company paid over $51,000.00 for repairs and materials. To make matters worse, since her savings went to begin renovation, her family spent months living in the home while it was repaired around them.

Ms. Guillory stated that, at the time of trial, she had sandbagged to prevent her property from flooding six times in three years. Further, during her three-year tenancy of the house, the garage routinely took on water during rain events, which caused it to be unfit for her intended use as an entertainment room for her family.

Further, Ms. Guillory testified that, based on her pre-purchase review of the property disclosure, she believed that the water intrusion in 1995 was an isolated event associated with a very significant rainstorm. Ms. Guillory admitted that she liiknew that flood insurance was required for her house because of its flood elevation. She further stated that as a precaution, she would have purchased flood insurance, even if it was not required. Finally, Ms. Guillory testified that the property’s susceptibility to flooding rendered the house so inconvenient that she would not have purchased it if she had known of the flooding defect.

Here, the trial judge found that the property’s propensity to flood, which was not apparent by ordinary inspection and did exist at the time of sale, rendered the use of the house inconvenient and imperfect but did not render the house useless. The trial court’s ultimate determination as to whether a defect is egregious enough to warrant rescission of the sale or merely inconvenient enough to warrant a reduction in the price is factual in nature. Brannon v. Boe, supra. As such, the trial court’s findings are entitled to great weight on appeal and should not be disturbed, absent a finding of manifest error or clear wrongness. Brannon, supra; Smith v. General Motors Acceptance Co., 542 So.2d 831 (La.App. 3d Cir.1989). Accordingly, we see no error in the trial court’s finding that the propensity to flood, which was not apparent by ordinary inspection and did exist at the time of sale, rendered the use of the house inconvenient and imperfect. See, La. C.C. art. 2520; Musemeche v. G & J Mobile Home Serv. & Supplies, 425 So.2d 791 (La.App. 3d Cir.1982). We will not disturb the trial court’s factual finding that the defect was redhibitory but rendered the use of the house merely inconvenient.

In their fourth assignment of error, defendants contend that the trial judge erred in holding Mrs. Hebert’s children in judgment. Here, the children were co-owners of this property with their mother after their father’s death and, as such, co-sellers, also. We find no error in and, thus, will not disturb the judgment against the co-selling children.

17However, upon review, we find merit in defendants’ second and third assignments of error: the trial judge erred in awarding a reduced purchase price and the trial judge erred in awarding a 25% reduction because there is no evidence to support that amount. In a successful action for quanti minoris, or reduction of the purchase price, the amount to be awarded is the difference, at the time of the sale, between the value of the thing sold in its defective condition and its value as warranted. Iberia Cypress Co., Limited, v. Von Schoeler, 121 La. 72, 46 So. 105.

With respect to the sale of real property, unless there has been an immediate resale, the difference is not readily and easily ascertainable. Consequently, the Louisiana Supreme Court has held that

in such a case, the allowable diminution is ‘the amount necessary to convert the unsound structure into a sound one,’ (McEachern v. Plauche Lumber & Construction Co., Inc., 220 La. 696, 57 So.2d 405, 408) or, ‘the cost of repairs necessary to make the thing whole’ (Wilfamco, Inc. v. Interstate Electric Co., 221 La. 142, 58 So.2d 833, 834).

Lemonier v. Coco, 237 La. 760, 765, 112 So.2d 436, 438 (La.1959).

In an action in quanti minoris, the purchaser entitled to a reduction in the price must prove with reasonable certainty the amount of the diminution in value; and when such amount has not been satisfactorily established, courts, in the interest of justice and in order that a proper may be rendered between the parties, have remanded the cause to the district court for the introduction of additional evidence. See, Lemonier v. Coco, 237 La. 760, 766, 112 So.2d 436, 439 (La.1959) (citing Bayou Rapides Lumber Co. v. Davies, 221 La. 1099, 61 So.2d 885).

Furthermore, as a reviewing court, our duty is to determine whether the trial court committed an error of law or made a factual finding that was manifestly erroneous or clearly wrong. Gibson v. State, 99-1730 (La.4/11/00), 758 So.2d 782, 788, cert denied, 531 U.S. 1052, 121 S.Ct. 656, 148 L.Ed.2d 559. We must review the record in its entirety to make this determination. Stobart v. State, DOTD, 617 So.2d 880, 882 (La.1993); Ponthier v. Manalla, 06-632 (La.App. 5 Cir. 1/30/07), 951 So.2d 1242, 1253.

If we find that the trial court’s decision is based on an erroneous interpretation or application of the law, that incorrect decision is not entitled to deference. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-1072 (La.1983); Ponthier, supra. On legal issues, the appellate court gives no special weight to the finding of the trial court, but exercises its constitutional duty to review questions of law and renders judgment based on the record. Clements v. Folse ex rel. Succession of Clements, 01-1970 (La.App. 1 Cir. 8/14/02), 830 So.2d 307, 312, writ denied, 02-2328 (La.11/15/02), 829 So.2d 437; Ponthier, supra.

We find that the record does not reflect that the amount of diminution in value was satisfactorily established by Ms. Guillory. Accordingly, the trial court’s decision to award a price reduction of 25% is not supported. Accordingly, we vacate the portion of the December 4, 2006 judgment that awarded the quantum of reduction.

On appeal, defendants seek, in the alternative to reversal, remand for further proceedings on the quantum issue. Here, we must call attention to the fact that, according to the original record, the defendants filed a Motion for New Trial of the December 4, 2006 judgment on the basis that the verdict was contrary to the evidence on the issue of price reduction. That motion was improperly denied as untimely.

Importantly, the final judgment at issue was rendered on December 4, 2006 after being taken under advisement. The record does not reflect that Notice of Judgment was mailed to the parties. Under La. C.C.P. art. 1913(A), notice of | ¡judgment is required in all cases. Furthermore, the clerk of court is required to file a certificate in the record noting such mailing. La. C.C.P. art. 1913(D). Under La. C.C.P. art 1974, the delay for filing a motion for new trial does not begin to run until the day after the clerk has mailed (or the sheriff has served) the notice of judgment. In this case, the record does not disclose that notice was mailed, and, therefore, the delay for filing the new trial motion did not begin to run. As such, it is impossible that defendants’ motion for new trial was untimely. When the trial judge denied defendants’ motion as untimely, it was an error of law.

If we find that the trial court’s decision is based on an erroneous interpretation or application of the law, that incorrect decision is not entitled to deference. Further, we have already found that the record does not reflect that the amount of diminution in value was satisfactorily established by Ms. Guillory. Moreover, this Court has the authority to render any judgment that is just, legal, and proper upon the record on appeal. La. C.C.P. art. 2164; Pecoraro v. The Napoleon Room, Inc., 95-511 (La. App. 5 Cir. 12/13/95), 666 So.2d 1151, 1152. Finding both errors of law and fact, we reverse the trial court’s denial of the motion for new trial on the issue of quantum.

For the reasons assigned, the judgment denying defendants’ motion for new trial is reversed and set aside and the cause is remanded to the district court for further proceedings on the issue of quanti minoris according to law and consistent with the views herein expressed. Each party is to pay their costs of this appeal. The assessment of other costs shall await the final determination of the litigation.

AFFIRMED IN PART: REVERSED IN PART; REMANDED.

McMANUS J., concurs in part and dissents in part with reasons.

| |I concur with that portion of the majority opinion that finds that the trial court did not err in finding that there was a redhibitory defect in the property. However, I must respectfully dissent from that portion of the appeal that finds that the trial court erred in denying defendant’s motion for new trial. Defendants neither raised nor briefed the issue in this court. Accordingly, the correctness of that decision is not properly before us. Uniform Rules of Court Courts of Appeal, Rule 2-12.4.

      . Although Ms. Guillory's brief extensively cited jurisprudence on rescission, it lacked argument in support of rescission. In fact, instead of arguing in support of alternative remedies of reduction and rescission, Ms. Guillory merely stated that the trial judge did not abuse her discretion in granting reduction. We are limited on appeal to review of those arguments that are briefed. U.R.C.A. 2-12.4.


author: JUDE G. GRAVOIS, Judge.

text:
    C’S DISCOUNT PHARMACY, INC. and Ciolino Pharmacy, Inc. v. PACIFIC INSURANCE COMPANY, LTD., Midwestern General Brokerage Inc. d/b/a Westrope & Associates, Powell Insurance Agency, Inc., and Westport Insurance Corp.
    No. 09-CA-217.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 26, 2010.

      R. Vaughn Cimini, Stephen J. Laborde, Karen G. Arena, Attorneys at Law, Mé-tame, LA, for Plaintiff/Appellant.
    Sidney W. Degan, III, Foster P. Nash, III, Julia A. Dietz, Jill A. Hrivnak, Jack M. Alltmont, April L. Watson, Attorneys at Law, New Orleans, LA, Robert E. Gould, Attorney at Law, Kansas City, MO, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

[■¡The plaintiffs have appealed the trial court’s grant of summary judgment in favor of the defendants. For the reasons that follow, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

C’s Discount Pharmacy, Inc. and Ciolino Pharmacy, Inc. (“plaintiffs”) purchased an insurance policy covering losses due to property damage and business interruption from Powell Insurance Agency (“Powell”). Powell obtained this policy from an intermediary broker, Midwestern General Brokerage, Inc. d/b/a Westrope & Associates (“Westrope”), and the policy was issued by Pacific Insurance Company, Ltd. (“Pacific”). Plaintiffs submitted a claim to recover for losses suffered due to business interruption following Hurricane Katrina. Pacific refused to pay the full value of the losses claimed by plaintiffs citing a coinsurance provision of the policy. This provision required plaintiffs to obtain 90% of coverage for the value of 12 months of business interruption in order to be fully compensated for losses.

^Plaintiffs filed suit against Powell, Westrope and Pacific alleging that the business interruption insurance policy in effect at the time plaintiffs suffered losses was not the coverage plaintiffs requested. The defendants denied liability and then separately filed motions for summary judgment. The trial court granted all motions for summary judgment. This appeal involves only the motions for summary judgment granted in favor of Powell and Westrope.

Powell filed a Motion for Summary Judgment on November 29, 2007 and a second Motion for Summary Judgment on October 21, 2008. In both motions, Powell argued that plaintiffs’ claims are perempt-ed under the one year peremptive period set out in LSA-R.S. 9:5606, which provides:

No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect. (Emphasis added.)

Powell argued that plaintiffs had a duty to read them policy and know its prolusions. Attached to Powell’s motion were excerpts from the deposition of plaintiffs’ representative, Steven Ciolino, who testified that although he received the policy sometime prior to Hurricane Katrina, which struck on August 29, 2005, he did not read the policy. Powell also attached an affidavit from the agent who obtained the policy, John O’Brien, attesting that a letter informing plaintiffs that the policy should be reviewed “to make sure the coverages have been issued in accordance with your instructions” was enclosed with the policy that was delivered to plaintiffs on May 9, 2005. Powell concludes that the peremp-tive period under pLSA-RS. 9:5606 began to run on May 9, 2005, when plaintiffs knew or should have known that Powell did not procure the insurance that plaintiffs allegedly requested. Powell argues that the suit filed by plaintiffs on August 28, 2006 was perempted, leaving no genuine issues of material fact and entitling Powell to summary judgment.

Westrope filed a Motion for Summary Judgment on September 20, 2008. Wes-trope explained that after being contacted by Powell for assistance in obtaining a quote for coverage for plaintiffs, it forwarded a quote from Pacific to Powell on October 21, 2004. The policy was then secured and covered the period from October 27, 2004 to October 27, 2005. Like Powell, Westrope argued the peremptive period under LSA-R.S. 9:5606 began to run on May 9, 2005 when plaintiff received the policy along with the letter from Powell instructing plaintiffs to review the policy. Westrope reasoned that the policy and accompanying letter gave plaintiffs constructive notice of the alleged defect in the policy, making plaintiffs’ suit untimely.

Plaintiffs filed a memorandum in opposition to the motions filed by Powell and Westrope. Plaintiffs contend that Mr. Ciolino and his company had been customers of Powell for several years prior to 2005. Once a year, Powell’s agent, Mr. O’Brien, contacted Mr. Ciolino to discuss insurance coverage for the coming year. After discussing the insurance needs, the policies were ordered by Mr. O’Brien. Plaintiffs argue that in prior years, plaintiffs’ business interruption policies contained a monthly limit of indemnity which meant that the losses would be paid one-third each month for three months of business interruption coverage. Plaintiffs contend that Mr. O’Brien requested insurance with this same provision for the October 2004-2005 policy. When plaintiffs sought to recover for losses from Hurricane Katrina, it became apparent to plaintiffs and O’Brien that | ¿‘something terrible had gone wrong with the process by which the policies of insurance had been ordered.” The effect of the 90% co-insurance provision was discussed by Mr. O’Brien and Mr. Ciolino on April 24, 2006. Plaintiffs contend that Mr. Ciolino had relied on O’Brien’s judgment in obtaining insurance and O’Brien failed to point out that the policy in question differed significantly from the policy obtained for the prior years. Plaintiffs contend that there are subjective motives and knowledge in this case and a material issue of fact remains subject to interpretation as to when Mr. Ciolino may have had knowledge, either actual or constructive, of the erroneously issued insurance policy. Plaintiffs conclude that the time period under LSA-R.S. 9:5606 began to run on April 24, 2006, the date Mr. Ciolino became aware of the coinsurance provision in the policy, making the suit filed on August 28, 2006 timely.

In granting the motions finding plaintiffs’ claims were perempted, the trial court found plaintiffs had knowledge of the policy in May 2005, noting that the letter stated Mr. Ciolino had to look through the policy and that the coinsurance provision was on the second page of the declaration sheet.

LAW AND ANALYSIS

Appellate courts review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Hines v. Garrett, 2004-0806 (La.6/25/04) 876 So.2d 764, 765. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. In ruling on a motion for summary judgment, the judge’s role is to determine |7whether there is a genuine issue of triable fact with all doubts being resolved in the non-moving party’s favor. Hines, 876 So.2d at 765.

A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 689 So.2d 730, 751. An issue is a genuine issue if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate as there is no need for trial on that issue. Id.

An insurance agent who undertakes to procure insurance for another owes an obligation to his client to use reasonable diligence in attempting to place the insurance requested and to notify the client promptly if he has failed to obtain the requested insurance. Karam v. St. Paul Fire & Marine Ins. Co., 281 So.2d 728, 730 (La.1973). The client may recover from the agent the loss he sustains as a result of the agent’s failure to procure the desired coverage if the actions of the agent warranted an assumption by the client that he was properly insured in the amount of the desired coverage. Id. “[E]xclusions or limitations on coverage in a policy should be clearly communicated to the insured at the time of the issuance of the binder.” Sims v. Ins. Unlimited of West Monroe, 28,234, p. 3 (La.App. 2 Cir. 2/28/96), 669 So.2d 709, 711, urrit denied, 96-785 (La.5/3/96), 672 So.2d 689. “[T]he insured will otherwise assume the desired coverage exists.” Id.

As aptly pointed out by Powell in its brief, in Roadhouse Bar-B-Que v. Certain Underwriters at Lloyds, 909 S.2d 619, at 623, (La.App. 3rd Cir.2005), the Third Circuit accurately sets forth the Louisiana Supreme Court’s interpretation of the commencement of the prescriptive time period imposed under LSA-R.S. 9:5606 as follows, to-wit:

| ^Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. A prescriptivfe period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription.

Because Mr. Ciolino has admitted that he did not read the policy in question when he received it from Powell under cover of letter dated May 9, 2005, it is undisputed that plaintiffs did not have actual knowledge of facts that they were victims of a tort when they received the policy in question from Powell on May 9, 2005. Accordingly, our inquiry in this case is limited to whether or not plaintiffs had constructive knowledge of facts that would indicate to a reasonable person that they were victims of a tort. As such, in accordance with Roadhouse, supra with respect to the particular facts and circumstances involved in this case, our inquiry is whether or not the letter Mr. Ciolino received from Powell dated May 9, 2005 is enough to excite attention in Mr. Ciolino and put him on guard and call for inquiry as to whether or not the policy received on May 9, 2005 provided for the business interruption coverage he expected to have.

In his deposition, Mr. Ciolino testified that he had been purchasing insurance for his stores from Mr. O’Brien at Powell since 1987. Sometime during this relationship, Mr. O’Brien suggested Mr. Ciolino obtain business interruption insurance. Mr. Ciolino testified that he and Mr. O’Brien discussed the amount of coverage he required. Mr. Ciolino testified that Mr. O’Brien explained the one-third monthly limit provision of the business interruption coverage that he purchased. Mr. Ciolino testified that under this provision, he purchased a certain dollar amount of insurance and if his business were closed for one month, he |9would recover up to one-third of the limit. If the business were closed for two months, he would recover two-thirds of the limit. If the business was closed for the full three months, he would recover the full amount of the limit. Mr. Ciolino explained that he and Mr. O’Brien discussed the amount of insurance but nothing was mentioned as far as the requirement of co-insurance was concerned. In his deposition, Mr. Ciolino also pointed out that the policy period for this particular policy was October 27, 2004 until October 27, 2005, but the letter from Mr. O’Brien to Mr. Ciolino that allegedly accompanied the policy was dated May 9, 2005. Mr. Ciolino’s deposition references a letter written by Mr. O’Brien to Wes-trope, wherein Mr. O’Brien stated the application signed by Mr. Ciolino requested a policy with one-third monthly limit as had been written for the past ten years. This letter states that there was no request to change the monthly limit to co-insurance.

Accordingly, the issue before us is whether the receipt of the policy nearly seven months after the policy was issued accompanied by a letter that does not point out there was a major change in the business interruption coverage but merely instructs the insured to review the policy, is sufficient to give the insured constructive knowledge that there has been a major change in the coverage he has obtained over the past several years. Thus, the question to be answered in this case is not whether plaintiffs could have discovered the change in the coverage, but rather whether plaintiffs should have discovered the change in coverage provision.

The evidence submitted clearly establishes that Mr. Ciolino had a long standing relationship with Powell through its agent Mr. O’Brien and for several years prior to the issuance of the policy at issue, the insurance provided by Powell to plaintiffs included a one-third monthly limitation. The 2004 policy was changed to include a co-insurance provision. Mr. Ciolino testified in his deposition that |innothing was ever mentioned to him by Mr. O’Brien about co-insurance. In fact, based on the evidence submitted, it appears that even Powell’s agent, Mr. O’Brien, was unaware of the co-insurance provision in the policy until after the claims were made on the policy in question following Hurricane Katrina. Although we are mindful of the line of cases imposing a duty upon the insured to read his policy and know its contents, after carefully reviewing the evidence before us, in light of the particular facts and circumstances involved in this case, we conclude that whether or not Mr. Ciolino should have reviewed the policy upon receipt of the cover letter from his agent enclosing his policy and thereupon explicitly discovered the co-insurance provision contained therein is an issue over which reasonable minds could differ. Accordingly, we find there is a genuine issue of material fact as to whether upon receiving the policy and letter, Mr. Ciolino should have discovered the error of Powell and Westrope. For these reasons, we find the trial court erred in granting summary judgment in favor of Powell and Westrope.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Powell and Westrope is reversed. This case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Plaintiffs did not appeal the summary judg-men! rendered in favor of Pacific.


author: MARC E. JOHNSON, Judge.

text:
    Glenda LAMBERT v. RAY BRANDT DODGE, INC. and Hibernia National Bank.
    No. 09-CA-739.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 26, 2010.

      Salvatore’ G. Lovecchio, Attorney at Law, Boutte, LA, for Plaintiff/Appellee.
    Brett M. Dupuy, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

laThis case arises from a contract of sale between PlaintiffAppellee, Glenda Lambert, and Defendant/Appellant, Ray Brandt Dodge, Inc. The trial court from the 24th Judicial District Court rendered a judgment and award in favor of Plaintiff, after a trial on the merits, and dismissed the other defendants, Joel Duran and Craig A. Pesses, from the case with prejudice. From this decision, Defendant filed the appeal before this Court. For the following reasons, we affirm in part and amend in part.

FACTS AND PROCEDURAL HISTORY

According to the pleadings, Plaintiff visited Ray Brandt Dodge, Inc. dealership on February 7, 2004 to purchase a new automobile. Joel F. Duran, a salesman for the dealership, assisted Plaintiff with the purchase. Plaintiff purchased a Dodge Du-rango (“Durango”) on that evening with the additional assistance of the sales manager, Craig A. Pesses, for $38,298.88. Plaintiff wrote a check for $4,000.00 as a down payment and traded in her Dodge Caravan, which had a trade-in value of $20,700.00. At the time of purchase, the odometer read that |3the Durango had been driven 1,448 miles. The Durango was sold and financed as a new automobile.

After returning home, Plaintiff noticed that the Durango had an inspection sticker on the windshield. Subsequently, Plaintiff researched the car history and discovered the car was registered to Roberto Gonzales (“Mr.Gonzales”). On February 9, 2004, Plaintiff attempted to return the Du-rango, have her Dodge Caravan returned to her, and cancel the sale. None of those things occurred. After further research, Plaintiff found that the Durango was sold to Mr. Gonzales on January 2, 2004 for over $5,000.00 less than her purchase price. The odometer on the Durango only read 11 miles when Mr. Gonzales purchased it. Additionally, the Durango was still subject to a hen by Capital One Auto Finance pursuant to Mr. Gonzales’s purchase.

Plaintiff, initially, stopped payment on the $4,000.00 check that she wrote to Defendant as part of her down payment. However, upon advice of counsel, she lifted the stop payment and notified Defendant that she had lifted the order. As of the date of trial, for unknown reasons, Defendant had not cashed the check from Plaintiff for the down payment.

Plaintiff filed suit on March 26, 2004. Kelly Picou, a title clerk for Defendant, and Mr. Gonzales signed a “Request for Backout” on May 3, 2004 for cancellation of the sale. The Louisiana Office of Motor Vehicles received the “Request for Backout”, on May 7, 2004 and formally acknowledged the cancellation of the sale between Defendant and Mr. Gonzales on May 20, 2004. |4 The trial on the merits was set for April 14, 2009. Joel F. Duran and Craig A. Pesses did not appear at trial. The trial court ruled in favor of Plaintiff and awarded her damages in the amount of $42,710.73 plus interest against Defendant only.

ASSIGNMENT OF ERRORS

On appeal, Defendant alleges the trial court committed the following errors: 1) the trial court erred in finding that Defendant did not own the vehicle at the time of Plaintiffs purchase and concluding that the sale to Plaintiff was null and void under LSA-C.C. art. 2452; 2) the trial court erred in concluding that Defendant suppressed the truth about the mileage and prior sale of the Durango; and, 3) the trial court erred in awarding Plaintiff damages in the amount of $42,710.73.

LAW AND ANALYSIS

Ownership

The appropriate standard for appellate review of factual determinations is the manifest error standard, which precludes the setting aside of a trial court’s factual findings unless they are clearly wrong. Lee v. Smith, 08-455 (La.App. 5 Cir. 12/16/08); 4 So.3d 100, 105 citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The reviewing court should affirm the trial court when the trial court judgment is not clearly wrong or manifestly erroneous. Lee v. Smith at 105, citing Aleman v. Allstate Ins. Co., 04-948 (La.App. 5 Cir. 1/11/05); 894 So.2d 382, 384. In order to reverse a fact finder’s determination on the basis of manifest error, a two-part test must be satisfied: 1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2) the appellate court must also determine that the record establishes that the finding is clearly wrong. Morris v. Zurich American Ins. Co., 05-109 (La.App. 5 Cir. 5/31/05); 905 So.2d 1139, 1141, citing Weatherford v. Commercial Union Ins., 94-1793 (La.2/20/95); 650 So.2d 763, 766.

Defendant argues that the trial court’s legal determination that the Duran-go was still owned by Mr. Gonzales at the time of the sale to Plaintiff was clearly wrong and contrary to the law. In concluding that Defendant did not own the Durango at the time of the sale to Plaintiff, Defendant further argues that the trial court ignored the general obligations and sales provisions of the Louisiana Civil Code and erroneously relied on the registration requirements of the Louisiana Vehicle Certificate of Title Law, LSA-R.S. 32:701, et seq., as evidence of ownership. We find that these arguments are merit-less.

A contract is an agreement by two or more parties whereby obligations are created, modified or extinguished. LSA-C.C. art. 1906. Contracts have the effect of law between the parties and may be dissolved only through the consent of the parties and on grounds provided by law. LSA-C.C. art. 1983. If the price or value is in excess of five hundred dollars, the contract must be proved by at least one witness and other corroborating circumstances. LSA-C.C. art. 1846. The sale of a thing belonging to another does not convey ownership. LSA-C.C. art. 2452.

A contract of sale of movables may be established by conduct of both parties that recognizes the existence of that contract even though the communications exchanged by them do not suffice to form a contract. LSA-C.C. art. 2602. In such a case, the contract consists of those terms on which the communications of the parties agree, together with any applicable provisions of the suppletive law. Id.

The sale of a motor vehicle is governed by the articles in the Louisiana Civil Code relating to the sale of movables. Biggs v. Prewitt, 95-0315 (La.App. 1 Cir. 10/6/95); 669 So.2d 441, 443, writ denied, 96-1035 (La.5/31/96); 674 So.2d 264. This state does not require that the certificate of title to a vehicle be transferred in | [¡order for the sale to be a valid one. Id. The certificate of title constitutes prima facie proof of ownership. Ford Motor Credit Company v. Soileau, 323 So.2d 221, 223 (La.App. 3 Cir.1975). However, the certificate of title is not conclusive proof of ownership, and that proof showing different ownership is admissible. Id.

In the instant case, the trial court was not clearly wrong in making the legal determination that Mr. Gonzales, not Defendant, was still the owner of the Durango at the time of the sale to Plaintiff. At trial, Plaintiff submitted evidence proving that the Durango was registered to Mr. Gonzales at the time she purchased it. The only evidence submitted by Defendant that the sale of the Durango to Mr. Gonzales was cancelled and Defendant owned it on February 9, 2004 was the “Request for Backout” that referenced the mutual agreement between Defendant and Mr. Gonzales on January 2, 2009. Although the certificate of title is not conclusive proof of ownership, the “Request for Back-out” was not sufficient proof showing different ownership.

Because Defendant did not submit any other proof of the mutual agreement to cancel the sale that would refute the theory that Defendant did not have ownership of the Durango, the trial court had no other evidence than the registration information to consider for ownership of the Durango on the date Plaintiff purchased it. It is' true that the Durango was in the physical possession of Defendant at the time of sale. There are varied conclusions that could be made as to why the Durango was on Defendant’s lot. However, there is insufficient proof presented by Defendant as to whether the cancellation of the sale between Mr. | -¡Gonzales and Defendant was made prior to Plaintiffs purchase of the Durango. Defendant could not convey ownership of the Durango to Plaintiff if it was owned by Mr. Gonzales, and the sale between Defendant and Plaintiff is null and void. Therefore, we find that the trial court was not clearly wrong in its factual determination that Mr. Gonzales was the owner of the Durango on the date Plaintiff purchased it, and we will not disturb its ruling.

Suppression of the Truth

Defendant argues that the trial court erroneously concluded that Defendant suppressed the truth about the mileage and prior sale of the Durango, but correctly held that Plaintiff could have easily ascertained the truth about the Duran-go prior to purchasing the vehicle. Defendant further contends that the evidence does not support that Defendant’s silence as to the cancelled sale to Mr. Gonzales and/or its statements as to the nature of the miles were a suppression of the truth. We find little merit to these arguments.

“New motor vehicle” means a motor vehicle whereby the legal title to which has never been transferred by a manufacturer, distributor, or dealer to an ultimate purchaser. LSA-R.S. 32:1252(27). “Ultimate purchaser” means, with respect to any new motor vehicle, the first person, other than a dealer purchasing in his capacity as a dealer, who in good faith purchases such new motor vehicles for purposes other than resale. LSA-R.S. 32:1252(34).

| ¡¿Defendant is claiming ignorance of its employees while also averring that Plaintiff could have easily ascertained the truth about the Durango. However, the same researched information that was available to Plaintiff was also available to Defendant’s employees at the time of the sale to Plaintiff. The inspection sticker on the windshield was open and obvious to all parties during the negotiation of the sale, which would have indicated that the car had been registered to an ultimate purchaser. Additionally, Plaintiff testified at trial that the salesman assured her that the Durango was “new,” and the mileage on the Durango was incurred through demonstration miles and transportation. Defendant did not present any evidence to contradict Plaintiffs testimony. The trial court had limited evidence to consider, and it was reasonable for the fact finder to determine that Defendant, through its employees, suppressed the truth about the Durango. Therefore, we find that the trial court was not clearly wrong in its determination, and we will not disturb its ruling. Damages

For the assessment of damages, much discretion is left to the judge or jury, and upon appellate review such awards will be disturbed only when there has been a clear abuse of that discretion. Williams v. Roberts, 05-852 (La.App. 5 Cir. 4/11/06); 930 So.2d 121, 122, citing Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340(La.1993). Appellate courts review the evidence in the light which most favorably supports the judgment to determine whether the trier of fact was clearly wrong in its conclusions. Williams at 122. The discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Id.

Defendant avers that the trial court erred in awarding Plaintiff improperly included non-pecuniary damages in the amount of $2,000.00 and costs and fees in |9the amounts of $926.95 and $235.00. Additionally, Defendant avers that the trial court used an incorrect amount of $38,298.88 as the total paid by Plaintiff, and assigned a value, $7,000.00, which was not placed in evidence, as to the current value of the Durango. Defendant further avers that the trial court also erred in failing to give Defendant a credit for Plaintiffs use of the vehicle and the $4,000.00 down payment owed by Plaintiff to Defendant. For these reasons, Defendant argues that the trial court’s damage award must be vacated and corrected.

The trial court awarded the following damages to Plaintiff in an attempt to restore the parties to their pre-contract position:

Total amount paid to Plaintiff for the Durango $38,298.88
Less current value of the Durango - $ 7,000.00
Plus total trade in value of the Caravan + $20,700.00
Less amount paid by Defendant on the Caravan - $12,450.00
Plus mental aguish and inconvenience + $ 2,000.00
Plus Department of Motor Vehicle fees incurred by Plaintiff to correct the title problem + $ 235.00
Deposition cost + $ 926.95
Amount due to Plaintiff $42,710.73

Plaintiff financed the Durango with Hibernia National Bank for $38,298.88. At the time of the trial court’s judgment, Plaintiff had not repaid the entire amount. However, Plaintiff is still responsible for repaying the entire amount of $38,298.88. As a result, it is inconsequential as to the actual amount paid by Plaintiff for the Durango at the time of the judgment. We find that the trial court was not clearly wrong in awarding the $38,298.88 to Plaintiff.

J^Beeause the trial court is given vast discretion in awarding general damages, we will not disturb the trial court’s award of $2,000.00 for mental anguish and inconvenience. In an effort to restore the parties to their pre-contract positions, the trial court awarded Plaintiff $235.00 for the fee incurred from the Department of Motor Vehicles to correct the title problems and $926.95 for the deposition cost. We do not find that the awards by the trial court for the deposition cost and the title correction fees to restore Plaintiff to her pre-contract position were clearly wrong.

In the award calculation, the trial court credited Defendant with $7,000.00 for the current value of the Durango. However, no evidence of the current value of the Durango was presented from either party to the trial court. The current value is not a general damage, whereby the fact finder has great deference in allocating. The current value of the Durango is a specific damage with a specified amount. Since no evidence was submitted to the trial court at any point prior to this appeal as to the current value of the Durango, we have no evidence to review as the validity of the amount credited. A party who fails to present proof of an element of damages is deemed to have abandoned the claim. Boyd v. Farmers-Merchants Bank & Trust Co., 493 So.2d 866, 868 (La.App. 3 Cir.1986), writ denied, 496 So.2d 1047 (La.1986). Therefore, we vacate the trial court’s credit of the $7,000.00 for the current value of the Durango.

The trial court omitted Defendant’s credit for Plaintiffs $4,000.00 down payment that was still owed to Defendant. In following the rationale of the trial court, if the parties are restored to them pre-contract position, then Plaintiff does not owe Defendant any payments or fees, which would include the $4,000.00 for |n the down payment. The credits that Defendant does receive are for payments made by Defendant on behalf of Plaintiff. Therefore, we do not find that this omission by the trial court of the credit of $4,000.00 to Defendant was clearly wrong.

Considering the foregoing findings by this Court, the new award calculation is as follows:

Total amount paid to Plaintiff for the Durango $38,298.88
Plus total trade in value of the Caravan + $20,700.00
Less amount paid by Defendant on the Caravan - $12,450.00
Plus mental aguish and inconvenience + $ 2,000.00
Plus Department of Motor Vehicle fees incurred by Plaintiff to correct the title problem + $ 235.00
Deposition cost + $ 926.95
Amount due to Plaintiff $49,710.83 plus interest

DECREE

For the foregoing reasons, we amend the judgment to vacate the $7,000.00 credited to Defendant for the current value of the Durango and affirm all other issues raised. All costs of the appeal are assessed against Defendant.

AFFIRMED IN PART AND AMENDED IN PART

      . Copies of the “Request for Backout” submitted into evidence as "Dl” by Defendant reference that the vehicle was canceled by mutual agreement on January 2, 2004. However, one copy submitted does not have the signature of a notary public.

      . The copy of the "Request for Backout” received by the Office of Motor Vehicles submitted by Defendant, also labeled as "Dl,” has the signature of a notary without a date. However, from the copy submitted, there is no visible notary number or bar roll number.

      .Of the items needed to cancel a sale, a notarized affidavit from the dealer and a notarized affidavit from the customer containing a complete description of the vehicle, stating what has happened and to whom the sales tax should be refunded is required, pursuant to Section IV of the Motor Vehicle Registration Requirements, Number 97.00 of the Louisiana Department of Public Safety, Office of Motor Vehicle’s policy.

      . The "Request for Backout” is not considered sufficient proof because the validity of the document is in question. During trial, Kelly Picou testified that she had no contact with Mr. Gonzales, and she did not witness the notarization of the "Request for Backout.” Additionally, Kelly Picou testified that she entered January 2, 2004 as the date of cancellation only because it was the procedure to use the date of purchase as the date of cancellation. It is unknown to this Court as to what the exacl date of the mutual agreement between Defendant and Mr. Gonzales to cancel the sale was made.

      . Assuming arguendo, even if it is true the mutual agreement was made prior to the sale to Plaintiff, it would be safe to assume that the agreement would eventually be reduced to writing. Written documentation of the agreement would be needed to transfer the title from Mr. Gonzales to Defendant, so the car could be resold by Defendant and cancel the lien held by Capital One Auto. Jurisprudence holds that the mutual agreement would not have been enforceable against Plaintiff until it was reduced to writing. In Breaux Bros. Const. Co. v. Associated Contractors, 77 So.2d 17, 20, 226 La. 720, 729 (La.1954), the Louisiana Supreme Court held,
      Therefore, even if all of the terms of the alleged contract between plaintiff and defendant had been verbally agreed upon, no valid contract would have existed between the parties because this case fall within the second class of cases discussed in Fredericks v. Fasnacht, 30 La.Ann. 117 (citation added), and therefore in this case the final consent of the parties was suspended until such time as the contract should be reduced to writing and signed by all the parties. See also LSA-C.C. art. 1947.

      . Mental anguish and distress are included in an award of general damages. Vicknair v. St. James Parish School Bd., 05-149 (La.App. 5 Cir. 6/28/05); 907 So.2d 820, 823.

      . This case is distinguished from Young v. Ford Motor Co., Inc., 595 So.2d 1123 (La.1992) and LSA-C.C. art. 1998, which deal with non-pecuniary awards arising from breach of contract cases. This case arises from an absolutely null sale, not a breach of contract.


text:
    STATE of Louisiana v. Wayne CHESTER.
    No. 09-KA-650.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 26, 2010.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Mary E. Roper, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2Pefendant was charged with distribution of cocaine. Defendant later pleaded guilty to the charge in the 24th Judicial District Court. Appellate counsel for Defendant filed the instant appeal for review of the record for errors patent on the face of the record and a motion to withdraw. For the following reasons, we affirm Defendant’s conviction and sentence and grant appellate counsel’s motion to withdraw.

STATEMENT OF THE CASE

Defendant, Wayne Chester, was charged by a bill of information with distribution of cocaine in violation of LSA-R.S. 40:967 A. Defendant pled not guilty at arraignment. Defendant filed a pro se motion to quash the bill of information. He later filed an amended motion to quash. The district coui't heard arguments on the motion to quash and denied it on January 29, 2009.

On April 21, 2009, Defendant withdrew his not guilty plea and pleaded guilty as charged. The district court sentenced Defendant that day to 10 years at hhard labor, the first two years to be served without benefit of parole, probation, or suspension of sentence. The court further ordered that the sentence run concurrently with any other sentence Defendant was serving.

This timely appeal follows.

FACTS

Since no trial or motion hearings were held in this case, the facts surrounding the instant offense are found in the bill of information and in the prosecutor’s note of evidence at the time of the guilty plea. The bill of information alleged that on September 13, 2006, Defendant violated LSA-R.S. 40:967(A) by knowingly and intentionally distributing cocaine, a controlled dangerous substance.

DISCUSSION

Anders Brief

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir. 1990), appointed appellant counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record. The State responds that appellate counsel has satisfied the requirements of Anders and Jyles, and should be allowed to withdraw. The State maintains that there are no non-frivolous issues that might |4be raised on appeal, and urges this Court to affirm defendant’s conviction and sentence.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by ‘ “a brief referring to anything in the record that might arguably support the appeal” ’ so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Supreme Court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

In evaluating an appeal for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

Defendant’s appellate counsel asserts in her brief that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel asserts that the facts recited by the prosecutor were sufficient to support the charge of distribution of cocaine, and that Defendant agreed to the accuracy of those facts on the record. She notes that the district court denied Defendant’s motion to quash the bill of information, and that Defendant did not preserve the ruling for appeal. Counsel further notes that Defendant did not preserve any other issues for appeal. She points out that Defendant received a negotiated sentence, and that LSA-C.Cr.P. art. 881.2 prohibits a defendant from appealing a sentence that resulted from a plea agreement.

Appellate counsel has filed a motion to withdraw as attorney of record that states she has mailed defendant a copy of her brief. Counsel informed Defendant, by way of the motion, that he may file a supplemental brief on his own behalf. Attached to counsel’s motion is a copy of her letter to Defendant, dated August 31, 2009, informing him that she filed an Anders brief on his behalf. Additionally, this Court sent Defendant a letter by certified mail informing him that an Anders brief |fihad been filed and that he had until September 30, 2009 to file a pro se supplemental brief. Defendant never filed a- supplemental brief.

An independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. When a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697, p. 5 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. The only pre-trial motion Defendant filed was a pro se motion to quash the bill of information. At the time of his guilty plea, Defendant did not preserve for appeal the district court’s denial of his motion under the holding in State v. Crosby, 338 So.2d 584 (La.1976).

The district court properly advised Defendant of the right to a jury trial, the right of confrontation, and the privilege against self-incrimination, as required by Boyldn. The judge also explained to Defendant the offense with which he was charged, the sentencing range for that offense, and the sentence he would receive in accordance with the plea agreement. Defendant acknowledged that he understood his rights, and that he wished to waive them and enter a guilty plea. Additionally, Defendant, his attorney, and the judge signed a guilty plea form that enumerated Defendant’s rights, detailed the sentencing range for the charged offense, and explained the sentence Defendant would receive under the plea agreement.

Defendant’s ten-year sentence presents no appealable errors. It was imposed pursuant to a plea agreement. LSA-C.Cr.P. art. 881.2 A(2) provides, in part, that 17“[t]he defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” Additionally, Defendant’s sentence is within the statutory sentencing range.

Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal, and an independent review of the record supports counsel’s assertion, appellate counsel’s motion to withdraw is granted.

Error Patent Review

The record was reviewed for errors patent. LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent in this case.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence are affirmed. The motion to withdraw as counsel for Defendant is hereby granted.

AFFIRMED.

      . At the time of the guilty plea, the prosecutor stated, "Your Honor, if Mr. Chester would have gone to trial the State of Louisiana would have proven beyond a reasonable doubt that on September 13, 2006 he did knowingly and intentionally distribute a controlled dangerous substance which was, in fact, cocaine and this event occurred in Jefferson Parish.”

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      .The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      .During the district court proceedings on January 29, 2009, defense counsel stated he had an open motion to suppress identification. The judge commented that he had not seen said motion, and that the court would deal with it on the day of trial. The record does not show that Defendant ever filed a motion to suppress identification, or that one was heard or ruled on prior to the guilty plea.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . At the time of the instant offense, the sentencing range for distribution of cocaine was two to 30 years, with the first two years being without benefit of parole, probation, or suspension of sentence. LSA-R.S. 40:967 B(4)(b).