text:
    Derry ISAAC, Jr. v. DEPARTMENT OF HEALTH AND HOSPITALS/OCDD - PINECREST SUPPORTS AND SERVICES CENTER
    NUMBER 2018 CA 0087
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: September 21, 2018
    Edward Larvadain, Jr., Alexandria, LA, Counsel for Plaintiff/Appellant Derry Isaac, Jr.
    Neal R. Elliott, Jr., Baton Rouge, LA, and William Frank Coco, Alexandria, LA, Counsel for Defendant/Appellee Louisiana Department of Health and Hospitals, Pinecrest Supports and Services Center
    Adrienne Bordelon, Baton Rouge, LA, Counsel for Byron P. Decoteau, Jr., Director, Louisiana Department of State Civil Service
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   GUIDRY, J.

A state employee serving with permanent status appeals a decision of the State Civil Service Commission ("Commission") upholding an agency's disciplinary action to terminate his employment. Based on our review, we affirm.

FACTS AND PROCEDURAL HISTORY

Derry Isaac, Jr. was employed by the Louisiana Department of Health and Hospitals at the Pinecrest Supports and Services Center (appointing authority ), in the Office for Citizens with Developmental Disabilities, as a Residential Services Specialist 5. He served with permanent status. By a certified letter dated March 24, 2017, Shannon H. Thom, the administrator of the Pinecrest Supports and Services Center, notified Mr. Isaac that he was being terminated, effective April 7, 2017, for insubordination and failing to fully cooperate with an investigation in violation of the rules 39 and 44 of the Pinecrest Rules of Conduct, because he failed to answer questions during a polygraph examination.

Mr. Isaac appealed his termination to the Commission. The referee assigned by the Commission to decide the matter found the evidence supported the charge and the disciplinary action imposed. The referee's decision became the final decision of the Commission when the Commission denied Mr. Isaac's application for review. See La. Const. art. X, § 12 (A) and Civil Service Rule 13.36(g). Mr. Isaac appeals that decision herein.

ASSIGNMENTS OF ERROR

In this appeal, Mr. Isaac contends that the referee erred in upholding the appointing authority's disciplinary action in the following respects:

1) The referee and the Civil Service Commission erred in finding that the appointing authority proved by [a] preponderance of the evidence that appellant, Derry [Isaac], Jr. refused to answer questions during the polygraph examination.
2) The referee and the Civil Service Commission erred in finding that the appellant, Derry [Isaac], Jr. was insubordinate and failed to fully cooperate with an investigation thus violating Pinecrest Rules of Conduct Nos. 39 & 44.
3) The referee and the Civil Service Commission erred in failing to find that the appointing authority acted arbitrarily and capriciously in terminating appellant, a loyal 15 year employee.

STANDARD OF REVIEW

Generally, decisions of Civil Service Commission referees are subject to the same standard of review as decisions of the Commission itself. Decisions of the Commission are subject to the same standard of review as a decision of a district court. Usun v. LSU Health Sciences Center Medical Center of Louisiana at New Orleans, 02-0295, p. 4 (La. App. 1st Cir. 2/14/03), 845 So.2d 491, 494. Factual determinations should not be reversed or modified unless clearly wrong or manifestly erroneous. Gorbaty v. Department of State Civil Service, 99-1389, p. 4 (La. App. 1st Cir. 6/23/00), 762 So.2d 1159, 1162, writ denied, 00-2534 (La. 11/13/00), 774 So.2d 147. However, in evaluating the determination as to whether the disciplinary action taken by the appointing authority is based on legal cause and commensurate with the infraction, the reviewing court should not modify or reverse the Commission's order unless it is arbitrary, capricious, or characterized by abuse of discretion. Usun, 02-0295 at p. 4, 845 So.2d at 494.

DISCUSSION

In his first two assignments of error, Mr. Isaac asserts that the referee erred in finding that the appointing authority proved by a preponderance of the evidence that he refused to answer questions during the polygraph examination and that his actions constituted insubordination.

The primary focus of Mr. Isaac's argument is that because he did not outright refuse or plainly state that he refused to answer any questions, the appointing authority did not have grounds for finding that he refused to submit to the polygraph examination. At the hearing before the referee, Mr. Isaac testified that he appeared for the polygraph test on the date scheduled, and the examiner informed him that he would be questioning him about a November 2016 complaint of abuse. Mr. Isaac said he explained to the examiner that he had been advised by his attorney that he did not have to answer questions about the incident because he had been cleared. In response, Mr. Isaac said the examiner concluded the meeting without asking him any questions.

Mr. Isaac acknowledged that he sought the advice of a pre-paid attorney after he was directed to report for the polygraph test, and consistent with the advice he received, he believed that he did not have to answer questions about the November 2016 incident. He testified that he indicated to the examiner that he did not have any objections to taking the polygraph test. As he explained, "I told [the examiner] that I was cleared. I said, any questions you ask me, I agree to answer. I agree to the test, but that incident, I've been cleared." This testimony prompted the following question from the referee: "So the point was, you couldn't answer any questions that related to that November incident; is that what you are saying?" Mr. Isaac responded, "[y]es, sir."

As a follow up to the referee's question, on cross examination, the following colloquy transpired:

Q. And was it clear to you that the - - that the polygraph was about that incident?
A. Yes. He told me that the polygraph was.
Q. Right. So that - - that's what happened based on your - - if it would have been about something else, you would have - - it would have gone forward?
A. Yes, sir.
Q. But because it was about an incident you felt you were cleared of, you told him on advice of counsel that you didn't have to answer; is that right?
A. Yes, sir.
Q. Okay. And at that point, he said, okay?
A. Yes.

While Mr. Isaac argues that the examiner took it upon himself not to administer the polygraph test, the examiner's actions were clearly induced by Mr. Isaac's statement, which resulted in Mr. Isaac not taking the polygraph test he had been ordered to take. An employee must follow an order unless it calls upon the employee to do something illegal, immoral, unethical, or in dereliction of duties. Paulin v. Department of Health and Hospitals. Office of Behavioral Health, 13-1916, p. 6 (La. App. 1st Cir. 6/6/14), 146 So.3d 264, 269. Refusing to obey orders constitutes insubordination and is an action which, by its very nature, impairs the efficient operation of public service, thereby justifying disciplinary action. Cole v. Division of Administration, 14-0936, p. 7 (La. App. 1st Cir. 1/26/15), 170 So.3d 180, 185, writ not considered, 15-0401 (La. 5/1/15), 169 So.3d 367. A passive refusal or a slowdown in doing the job can just as well amount to insubordination. Jones v. Dept. of Health & Human Resources, 430 So.2d 1203, 1205 (La. App. 1st Cir. 1983).

The order from Mr. Isaac's superior was for him to take the polygraph test. And contrary to Mr. Isaac's assertion, the failure of the examiner to administer the test was not an independent and separate act of the examiner, but was an act prompted and induced by Mr. Isaac. As Mr. Isaac's testimony reveals, he was amenable to answering questions about anything except the November 2016 incident, and as the polygraph test was solely about that incident, his actions amounted to a refusal to take the test. We therefore do not find any manifest error in the referee's determination that the appointing authority adequately proved that Mr. Isaac refused to take the polygraph test and that his refusal amounted to insubordination.

In his final assignment of error, Mr. Isaac argues that the appointing authority acted arbitrarily and capriciously in terminating his employment. Article X, Section 8(A) of the Louisiana Constitution provides that a classified employee may not be "subject to disciplinary action except for cause expressed in writing." Such "cause" is defined as "conduct that impairs the efficiency of the public service and bears a real and substantial relation to the efficient and orderly operation of the public service in which the employee is engaged." Dunlap v. Louisiana State University Health Sciences Center, 05-1605, pp. 4-5 (La. App. 1st Cir. 6/9/06), 938 So.2d 109, 112.

In reviewing whether a penalty is commensurate with the offense proven, an appellate court must apply the "abuse of discretion" or "arbitrary and capricious" standard of review. A conclusion of a public body is "capricious" when it does not have substantial evidence to support it or the conclusion is contrary to substantiated competent evidence. Likewise, the word "arbitrary" implies a disregard of evidence or of the proper weight thereof. Norbert v. LSU Health Sciences Center, 07-0161, p. 5 (La. App. 1st Cir. 11/2/07), 978 So.2d 947, 950, writ denied, 08-0218 (La. 4/18/08), 978 So.2d 348.

At the hearing before the referee, Amanda Pittman, the associate administrator at the Pinecrest Supports and Services Center, explained how Mr. Isaac's failure to take the polygraph test impaired the efficient operation of the appointing authority. Ms. Pittman testified that following the initial investigation of the November 2016 incident, the appointing authority received a deficiency rating from Health Standards, a surveying entity for the Centers for Medicaid and Medicare services, which found that the appointing authority had "returned Mr. Isaac to client care without a thorough and complete investigation into the allegation of abuse." She said the deficiency rating was based on the fact that without the polygraph test, the appointing authority did not have a record of Mr. Isaac's full testimony regarding the November 2016 incident.

Ms. Pittman explained that two separate, external investigations were conducted regarding the November 2016 incident, one by the Department of Children and Family Services ("DCFS") and the other by Adult Protective Services ("APS"). The letter Mr. Isaac received stating that the findings of the investigation were inconclusive came from the DCFS; however, Ms. Pittman said the investigation by APS was still pending. Ms. Pittman acknowledged that Mr. Isaac was returned to work based solely on the DCFS investigation and that the appointing authority was "found wrong for doing so by Health Standards." Ms. Pittman said that at one point, the appointing authority was in "immediate jeopardy," as they had only 14 days to remedy the problem or the appointing authority would be closed down.

One specific act of willful disobedience or insubordination may be sufficient legal cause for termination. Ben v. Housing Authority of New Orleans, 03-1664, p. 5 (La. App. 1st Cir. 5/14/04), 879 So.2d 803, 807. Moreover, Louisiana courts have long recognized that a civil service employee may be ordered to take a polygraph examination, and that the employee can be suspended or discharged for failing to do so. See Evans v. DeRidder Municipal Fire, 01-2466, p. 6 (La. 4/3/02), 815 So.2d 61, 66-67, cert. denied, 537 U.S. 1108, 123 S.Ct. 884, 154 L.Ed.2d 779 (2003) ; Jones v. Department of Public Safety and Corrections, 04-1766, pp. 2-3 (La. App. 1st Cir. 9/23/05), 923 So.2d 699, 700. Ms. Pittman's testimony established how the administration of the polygraph test regarding the November 2016 incident was critical to the efficient operation of the appointing authority. As Mr. Isaac's statement to the polygraph examiner caused the test not to be administered, her testimony establishes that Mr. Isaac's conduct substantially effected the efficient and orderly operation of appointing authority. Hence, we find the evidence sufficiently supports the disciplinary action imposed. Accordingly, we reject Mr. Isaac's final assignment of error, as the decision to terminate his employment was neither arbitrary nor capricious.

CONCLUSION

Therefore, considering the foregoing review of the evidence and the applicable law, we affirm the decision of the State Civil Service Commission. All costs of this appeal are assessed to the appellant, Derry Isaac, Jr.

AFFIRMED.

      Pursuant to 2016 La. Acts, No. 300, the Louisiana Legislature renamed and recreated the "Department of Health and Hospitals" as the "Louisiana Department of Health," effective June 2, 2016.

      Civil Service Rule 1.4 defines "appointing authority" as "the agency, department, board, or commission, and the officers and employees thereof authorized by statute or by lawfully delegated authority to make appointments to positions in the State Service."

      See Civil Service Rule 13.20.

      The attorney to which Mr. Isaac referred was a lawyer with a pre-paid legal service and not the counsel who represents him in this appeal and in the proceedings below.

      Mr. Isaac's characterization of the resolution of the complaint is not accurate. Following an investigation of the complaint against Mr. Isaac, the findings were deemed inconclusive because they neither refuted nor confirmed, by agency standards, the allegations of abuse.

      At another point in his testimony, Mr. Isaac stated that when the examiner informed him that he would be questioning him about the November 2016 incident, he told the examiner what his attorney had told him. Mr. Isaac then testified, "[a]nd [the examiner] asked me again, I guess for the record or whatever, ... and I told him again, that my attorney told me that I shouldn't have to answer any questions, that I was cleared."

      The letterhead, as well as the text, of the letter received by Mr. Isaac indicates that it was from the Office of Community Services in the Louisiana Department of Social Services. Pursuant to 2010 La. Acts, No. 877, § 3, the Louisiana Legislature directed the Louisiana Law Institute "to change all references to the 'Department of Social Services' to the 'Department of Children and Family Services' and all references to either the 'office of community services' or 'the office of family support' to the 'office of children and family services' throughout the Louisiana Revised Statutes of 1950." Thus, the letter and the investigation referred to therein, are properly attributable to DCFS.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Leroy CRUMPTON, Plaintiff-Appellant v. Edward SMITH and Monroe Iron and Metal Company dba Auto Shred of Louisiana, Defendant-Appellees
    No. 52,219-CA
    Court of Appeal of Louisiana, Second Circuit.
    September 26, 2018
    PLEASANT, WILLIAMS & BANKS-MILEY LAW GROUP, LLC, By: Kristen B. Pleasant, Monroe, Counsel for Appellant Leroy Crumpton
    SHEREBA L. DIAZ, Counsel for Appellee Edward Smith
    BOLEN, PARKER, BRENNER, LEE & ENGELSMAN, LTD., By: Madeline J. Lee, Alexandria, Counsel for Appellee-Defendant Monroe Iron & Metal Co. d/b/a Auto Shred of Louisiana
    LENNARD RUSSELL, In Proper Person
    Before MOORE, PITMAN, and STEPHENS, JJ.
   MOORE, J.

A scrap metal salvage company purchased and crushed a 1991 pickup "auto hulk" from a seller who represented that he was the owner of the vehicle. The alleged true owner sued the seller and scrap company for damages in Monroe City Court alleging that the scrap company failed to require proof of ownership from the seller. After the suit languished for several years, the scrap company filed a petition for concursus seeking dismissal from the suit by admitting liability for purchasing the truck, but asserting that its liability was limited to the amount it paid the seller for the vehicle plus interest from the date of judicial demand-a total of $142.78-and seeking leave of court to deposit that amount in the court registry. After a contradictory hearing, the court granted the concursus petition and ruled that the defendant was a good faith purchaser liable to the plaintiff for only $142.78 that it had deposited in the court registry. The court dismissed the scrap company from the suit. The plaintiff filed this appeal alleging several assignments of error, including claims that the court erred in allowing the concursus proceeding, finding that the scrap metal company was a good faith purchaser, and dismissing the defendant from the suit.

For the following reasons, we reverse and remand for further proceedings.

FACTS

Leroy Crumpton filed a petition for damages on May 6, 2010, against Edward Smith and the Monroe Iron and Metal Company d/b/a Auto Shred of La. ("Auto Shred") alleging that Smith took possession of his 1991 Ford pickup truck and sold it for scrap metal to Auto Shred on May 8, 2009. Auto Shred, the petition alleged, is liable for damages because it purchased the truck from Smith without requiring him to show any proof of ownership.

Although Auto Shred was timely served, service of process was not made on Smith within 90 days of filing as required by law. Pursuant to Smith's exception, Crumpton's claim against Smith was dismissed without prejudice for untimely service. Several years later, on May 8, 2015, Crumpton filed an amended petition, again naming Smith and Auto Shred as defendants, but now adding a third defendant identified as Leonard Polk, who Crumpton alleged took possession of the truck along with Smith, who sold the vehicle for scrap.

Smith answered, challenging Crumpton's account of the facts alleged in the amended petition. Smith argued that he had no intent to steal the vehicle, which had been abandoned for some time at Leonard Polk's residence, and had no intent to commit theft of the truck. He contends that Crumpton is largely responsible for the loss for his contributory negligence by abandoning the truck.

Lennard Russell filed a pro se answer identifying himself as the correct defendant incorrectly named Leonard Polk in the amended petition. Russell's answer to that petition provides a cogent factual account of this affair.

Russell stated that in late February 2009, Crumpton asked Russell if he could use his hoist to remove the motor from his truck and put another motor in it. He said Crumpton promised he would do the job within three days. Russell gave Crumpton permission to use the hoist and do the job at his house, but he said that he never agreed to allow him to store the truck on his property, and advised Crumpton to have the truck off his property within a week because the city was after him to clean up his property.

Russell stated that Crumpton never finished his work on the truck, and never came back to get it. Russell contacted him several times about removing the truck from his property. He said he did not know Crumpton personally, but he did not charge him to use the hoist, and denied ever agreeing to take possession or responsibility for the truck. In his final conversation with Crumpton, Russell told him that he was going to move the truck to the street if he did not come and get it by March 24. On March 23, Russell moved the truck to the street where he said it remained until April 14, 2009. On the latter date, he returned home from a doctor visit and saw that the truck was gone. He assumed that Crumpton had picked it up.

Crumpton alleged that he discovered his truck was gone from Russell's house on May 11, 2009. His account in the police report contradicts Russell's statement that the truck was moved from the street on April 14, 2009. Crumpton told Monroe Police Officer Donese Kitchen that the last time he saw the truck was on May 7, 2009, when it was parked in front of Russell's house at 2713 Jackson Street.

Crumpton described the truck to Officer Kitchen as a 1991 Ford F150 valued at $1,500. He said the reason the truck was at Russell's house was to put an engine in it and get it running, but when he returned to Russell's address on May 11, 2009, the vehicle was gone. He said he received a call from a friend at Auto Shred on the same day who told him that his truck was at Auto Shred. He went to Auto Shred and found that the truck had been crushed. He obtained a copy of the purchase receipt from Auto Shred with the signature of Edward Smith on it showing that Auto Shred purchased the truck from Smith on May 8, 2009. He gave the receipt to Officer Kitchen.

After Crumpton filed the amended petition, Auto Shred filed a petition for concursus, naming Crumpton, Smith, and Russell as defendants. It admitted or adopted Crumpton's allegations that Smith and Russell stole the truck, and Smith sold the truck to Auto Shred for scrap metal. Auto Shred admitted that it purchased for scrap an F-150 pickup truck from Smith, and alleged that the truck had no license plate, engine or gas tank. It alleged that Smith signed a document stating that he was the owner of the truck, attached as Exhibit A. It further admitted liability pursuant to La. C.C.P. art. 4652, and requested that the court grant leave for Auto Shred to deposit the amount it paid Smith, $132.00, plus legal interest from the date of judicial demand for a total of $142.78. Auto Shred averred that after such deposit, it was seeking a ruling from the court relieving it of any further liability.

Crumpton filed an answer denying the allegations by Auto Shred regarding a concursus proceeding. Neither Smith nor Russell filed an answer to the petition for concursus.

The trial court set a hearing date on a rule to show cause why the concursus petition should not be granted. The hearing was held on August 15, 2017, with counsel present for all represented parties, and Lennard Russell appearing pro se. No testimony was taken and only counsel for Auto Shred and Crumpton presented arguments. Counsel for Auto Shred submitted the sole item of evidence, the purchase receipt signed by Smith that Auto Shred had attached to its concursus petition as "Exhibit A," and is described by counsel as "the Affidavit that Edward Smith signed saying and attesting that he owned the car that he was selling for scrap metal."

Exhibit A is a multi-purpose printed form on 4 x 6 inch paper bearing at the top the company name "Auto Shred of Louisiana." Below is a printed column of short "check lines," with each line next to an item type being sold for scrap, e.g. appliances, tin, whole cars, mashed cars, motors, etc. Below this list is a date line, a signature line and additional space for comments. At the very bottom of the form is a printed declaration which reads:

I choose to be unloaded by Auto Shred of La. equipment and release them of any liability or damages to my equipment.
I also state that the said property has been paid for and is owned by me, free of any leins [sic] or encumbrances whatsoever and that I am duly authorized to sell same.

Exhibit A was dated "5-8-09" and (somewhat illegibly) signed but identified with a handwritten notation "Edward Smith," in the margin. A check mark was placed beside the blank for "whole cars." Additionally, a blank area of the form contained a handwritten description of the vehicle as "Maroon-white Ford-P.U. F-150 XLT Lariat." On the two "comment" lines a handwritten entry of two letters, possibly "H.A", and the following: "1FTdF15N5MNA15533," which is possibly the VIN. No testimony was taken regarding the document or its contents, nor was any other testimony or evidence submitted.

Auto Shred argued that it had complied with all the requirements for a concursus proceeding and it admitted its liability for the purchase, but contended that its liability was limited to the amount it paid as a good faith purchaser from Smith who claimed (by signing the form) that he owned the vehicle. Counsel further argued that Crumpton's petition had no allegations of intent or that Auto Shred knew the truck did not belong to Smith that would show it was a bad faith purchaser. Counsel argued that there is nothing in the law that entitles the plaintiff to recover from Auto Shred any more than the price it paid for the truck.

Crumpton argued that the instant case was not a proper situation for a concursus proceeding, which requires two or more competing claims for the same property or money or other pecuniary interests. The instant litigation involved a single plaintiff, Crumpton, who sued the three defendants for their involvement in the misappropriation of his truck.

Crumpton also argued that his petition for damages seeks more than the mere scrap metal price Auto Shred paid for the truck; he demanded the value of the lost truck, reimbursement for reasonable expenses and attorney fees. There was no evidence or argument presented regarding the value of the lost truck or any expenses Crumpton incurred.

Counsel for Edward Smith and Mr. Russell declined to participate in the argument, and the trial court took the case under advisement.

Subsequently, the trial court rendered judgment October 9, 2017, granting the concursus petition and ordering the clerk's office to tender $142.78 to Crumpton. It dismissed Auto Shred from the proceedings after the check was tendered. It also dismissed Auto Shred's exception of no cause of action.

In its reasons for judgment, the court concluded that "Auto Shred cannot be considered a bad faith purchaser since Edward Smith indicated that he owned the vehicle." Regarding Auto Shred's exception of no cause of action, the court denied the exception stating that the plaintiff had a cause of action against Auto Shred, but its damages would be limited to the purchase price Auto Shred paid for truck plus judicial interest, which it would receive as a result of the concursus judgment.

Crumpton filed this appeal.

DISCUSSION

Sale of Vehicles to Scrap Metal Purchasers

Louisiana has strict regulations governing the sale and disposal of motor vehicles for scrap which are found in Title 32 of the Revised Statutes. La. R.S. 32:717 concerns the sale of a "motor vehicle" as opposed to an "auto hulk" to a scrap metal processor. The statute requires, among other things, that any owner who sells a motor vehicle as scrap must assign a certificate of title to the purchaser and the purchaser must obtain a permit to dismantle or destroy the vehicle. On the other hand, La. R.S. 32:718governs the sale of an "auto hulk" as scrap to a scrap metal processor. While the sale of a motor vehicle to a scrap processor requires the seller to assign a title issued from this state or another state, the sale of an "auto hulk" does not require the seller to assign a state-issued certificate of title. Paragraph A of the statute in effect in 2009 reads, in pertinent part:

[I]n lieu of a title, any owner who sells an auto hulk as scrap to be dismantled or processed for recycling shall provide the secondary metal processor ... with a signed and dated affidavit stating that he is the owner of the vehicle ... or has the right to sell or transfer the vehicle or part.

Although Paragraph B has been amended twice since 2009, its substance has changed little. In 2009, the statute quoted below did not require the items that are italicized, but otherwise required that the

metal processor ... shall maintain the signed and dated affidavit, along with the name and address of the person delivering, selling, or transferring the auto hulk, photographic or electronic copy of the seller's valid driver's license or a valid identification card issued by the seller's current state of residence, the tag number and state of issue of the vehicle delivering the auto hulk, and the vehicle identification number of the auto hulk. This information shall be kept in a registry or book or in electronic format for a period of two years. (Emphasis added).

In this instance, the record does not definitively indicate whether the truck sold to Auto Shred was a motor vehicle or auto hulk. Auto Shred stated in argument that the truck had no motor; however, Lennard Russell stated in his answer to the amended petition that Crumpton wanted to use his hoist to remove the motor from the truck and replace it. Of course, there is no testimony in this regard, and the affidavit submitted with Auto Shred's petition does not indicate whether the vehicle was an auto hulk.

Consursus Proceedings

Louisiana C.C.P. art. 4651 defines a concursus proceeding as "one in which two or more persons having competing or conflicting claims to money, property, or mortgages or privileges on property are impleaded and required to assert their respective claims contradictorily against all other parties to the proceeding." A concursus proceeding, in most cases, is subject to the rules applicable to an ordinary proceeding. La. C.C.P. art. 4662. Likewise, the procedure governing service of citation and the delays for answering are the same as in an ordinary proceeding. La. C.C.P. art. 4655. A concursus proceeding is simply a vehicle whereby one who admits owing money to others may deposit that money into the registry of the court, thereby relieving himself of the liability for the money so deposited. La. C.C.P. art. 4658. Collins v. Universal Cas. Co., et al., 2010-844 (La. App. 3 Cir. 2/2/11), 54 So.3d 1284.

By his first assignment of error, Crumpton argues that the court erred when it granted the petition for concursus, as there were no conflicting or competing claims between any of the defendants as required by La. C.C.P. art. 4651. Auto Shred, Crumpton argues, was not exposed to multiple claims and therefore it had no cause of action in the form of a concursus against Crumpton, Smith and Russell. Only Crumpton was asserting a claim for damages as a result of Auto Shred's purchase of the stolen vehicle. Lastly, Crumpton argues that a concursus proceeding is not a summary proceeding or a substitute for trial on the merits; it cannot be used to adjudicate claims raised in the main demand, citing Collins v. Universal Cas. Co., supra .

For its part, Auto Shred insists that the "competing interests" element required for a concursus proceeding are present. The plaintiff claims he owned the truck sold by Smith to Auto Shred, and Smith "signed an affidavit averring that he was the owner of the truck" referring to Exhibit A. Auto Shred also argued that its liability was limited to the purchase price it paid Smith for the truck on grounds that it was a good faith purchaser under La. C.C. art. 487.

Based on these arguments alone and perhaps the unauthenticated "affidavit" signed by Smith, which would not meet the standards required for summary judgment under La. C.C.P. art. 967, the court adjudicated the merits of the petition for concursus on a summary basis. There was no testimony or evidence regarding the ownership of the truck, its value or any other damages.

In this instance, Auto Shred invoked a concursus proceeding based on the alleged competing claims of ownership of the truck, namely, Crumpton's allegation in his petition that he was the true owner of the truck and Smith's signature on Auto Shred's purchase affidavit that he was the owner of the truck. Presumably on these grounds, Auto Shred claims that Crumpton and Smith are each claiming the $142.78 that it deposited in the court registry.

In fact, Auto Shred's claim of competing parties for the deposited amount or of liability to multiple claimants in this case is a fiction. None of the parties in the main demand ever made a claim or cross claim against one another for the purchase price Auto Shred paid Smith for the truck. Smith's answer to the suit was a defense against liability on grounds that he did not intend to steal the truck and Crumpton negligently abandoned it. He alleged he thought the truck had been abandoned, took it to Auto Shred and sold it for its scrap metal value. His affirmative defense against any liability to Crumpton is that Crumpton's contributory negligence in abandoning the truck absolves him from liability. He makes no claim against Auto Shred or on money held in the court registry.

Crumpton, on the other hand, argues, as he did at the hearing, that he is not seeking the purchase amount Auto Shred paid Smith. He is seeking damages for the lost truck, which is presumably the actual value of the truck he lost. We conclude that Crumpton alone is making a claim against Auto Shred in this litigation for damages, and the court erred by allowing the concursus to be invoked.

We also conclude that the court erred by treating the petition for concursus as a summary proceeding by using the rule to show cause hearing as though it were a summary judgment proceeding.

Summary proceedings are those which are conducted with rapidity within the delays allowed by the court and without citation and the observance of all the formalities required in ordinary proceedings. La. C.C.P. art. 2591. Summary proceedings may be commenced by filing a contradictory motion or by a rule to show cause. La. C.C.P. art. 2593. First Federal Sav. & Loan Ass'n of New Iberia v. Stanley , 578 So.2d 220 (La. App. 3 Cir. 1991).

In Collins, supra, the court stated that the concursus statutes clearly indicate that a concursus proceeding is neither a summary proceeding nor a substitute for trial on the merits. It cannot be used for the adjudication of claims raised in the main demand. See also, Hollywood Casino Shreveport v. Shreveport Paddlewheels, LLC , 02-2134 (La. App. 4 Cir. 7/23/03), 853 So.2d 660, writ denied , 04-0098 (La. 3/19/04), 869 So.2d 857.

In this instance, the trial court signed an order (apparently supplied to the court with Auto Shred's petition for concursus) to grant Auto Shred leave of court to file the amount of $142.78 into the registry of the court and issue a rule to show cause ordering counsel for Crumpton and Smith, and Russell pro se, to appear on June 13, 2017, and show cause why the petition for concursus should not be granted and the amount deposited in the registry constitute complete satisfaction of any damages it may owe. This order began the summary proceedings in which the court decided Auto Shred's liability without taking the evidence necessary to adjudicate Crumpton's claim against Auto Shred.

We also note that a concursus proceeding does not serve to relieve the plaintiff in concursus of all further liability, but rather, it can relieve that party of liability only for the funds deposited. Clements v. Folse, 01-1970 (La. App. 1 Cir. 8/14/02), 830 So.2d 307, writ denied , 02-2328 (La. 11/15/02), 829 So.2d 437. Accordingly, the trial court erred when it released Auto Shred from liability and dismissed Auto Shred from the suit filed by Crumpton.

Crumpton argues in his second assignment of error that the trial court also erred by concluding that Auto Shred was not a bad faith purchaser, citing and also quoting part of La. C.C. art. 487, which reads:

For purposes of accession, a possessor is in good faith when he possesses by virtue of an act translative of ownership and does not know of any defects in his ownership. He ceases to be in good faith when these defects are made known to him or an action is instituted against him by the owner for recovery of the thing.

Crumpton maintains that since the court took no evidence, it could not make a determination whether Auto Shred was a good faith purchaser.

We have already determined that the trial court erred by granting the concursus proceeding and adjudicating Auto Shred's liability on a summary basis; however, we have some additional comments regarding the proceedings and Crumpton's other assignments.

The purchase affidavit attached as Exhibit A to Auto Shred's petition for concursus, if properly authenticated, appears to comply with the regulatory requirements in 2009 for sale of an auto hulk to a scrap processor. If the vehicle was indeed an auto hulk, Auto Shred was not required to check registration or request a title to the vehicle as Crumpton has argued. However, there is no testimony or evidence to indicate that the truck was definitively an auto hulk and not a motor vehicle, the latter requiring transfer of title.

Additionally, we make no determination whether the "good faith purchaser" doctrine applies to this case even if Auto Shred complied with the statutory scheme for the purchase of an auto hulk for scrap. The good faith purchaser doctrine is codified in La. C.C. arts. 517 through 534. Article 523 states that "[a]n acquirer of a corporeal movable is in good faith for purposes of this Chapter unless he knows, or should have known, that the transferor was not the owner." Comment (b) of the article is instructive, stating:

A transferee is in good faith when he ignores, without fault on his part, that the transferor is not the owner of the movable. If the acquirer has notice of facts that would put a reasonably prudent man on inquiry, he is under duty to investigate with the view of ascertaining the true situation. If he does not do so, he cannot claim that he is a purchaser in good faith.

La. C.C. art. 524 covers the remedy that our law provides to the true owner seeking to recover the movable from the purchaser in good faith:

The owner of a lost or stolen movable may recover it from a possessor who bought it in good faith at a public auction or from a merchant customarily selling similar things on reimbursing the purchase price.
The former owner of a lost, stolen, or abandoned movable that has been sold by authority of law may not recover it from the purchaser.

Because there were disputed facts and no trial evidence, we conclude that the trial court erred by making a determination that the good faith purchaser doctrine applied in this case.

We also note that the facts alleged in this case present a situation distinguishable from the traditional good faith doctrine case regarding damages because the movable has been destroyed and cannot be recovered by the true owner. We have found no jurisprudence or statute that states that the owner seeking damages for the destroyed movable is entitled only to the purchase price that the purchaser in good faith paid for the movable. In Muslow v. Louisiana Oil Refining Corp., 176 So. 686 (La. App. 2 Cir. 1937), however, the court stated that "[t]he owner of stolen property may recover its value from one who in good faith purchased it from the thief and thereafter destroyed, consumed, or disposed of it." Id. at 691. It may be that in most cases the value of the auto hulk is more or less the same as the scrap value; however, we can imagine that there are some cases involving highly sought after or vintage vehicle auto hulks that may have a greater market value than scrap. This simply underscores the necessity for a determination of damages based on evidence.

Finally, by his third assignment of error, Crumpton argues that the court erred by not having a hearing to determine damages. Citing C.C. art. 2315, he alleges that he is entitled to more damages than the $142.78 awarded in the concursus. Because we have previously determined that the trial court erred by not rendering a judgment based on a trial and evidence which would include evidence of damages, this assignment is moot.

CONCLUSION

For the foregoing reasons, we hold that the trial court erred by granting the petition for concursus filed by Auto Shred and deciding the merits of the case on a summary basis and without taking evidence by trial. Accordingly, we reverse the judgment of the trial court and remand this case for further proceedings in accordance with this opinion. Costs are to be paid by Auto Shred.

REVERSED AND REMANDED.

      This person's name is actually Lennard Russell.

      These alleged facts are important for determining whether the vehicle is an "auto hulk" as opposed to a "motor vehicle," for purposes of meeting state requirements regulating the sale of vehicles for scrap.

      Art. 4652. Claimants who may be impleaded
      Persons having competing or conflicting claims may be impleaded in a concursus proceeding even though the person against whom the claims are asserted denies liability in whole or in part to any or all of the claimants, and whether or not their claims, or the titles on which the claims depend, have a common origin, or are identical or independent of each other.
      No claimant may be impleaded in a concursus proceeding whose claim has been prosecuted to judgment. No person claiming damages for wrongful death or for physical injuries may be impleaded in a concursus proceeding, except by a casualty insurer which admits liability for the full amount of the insurance coverage, and has deposited this sum into the registry of the court.

      La. R.S. 32:717 read in 2009:
      A. Any owner who sells a motor vehicle as scrap to be dismantled or destroyed shall assign a certificate of title thereto to the purchaser, whether the certificate was issued by the vehicle commissioner of this state or any other state, and the purchaser shall deliver the certificate of title to the commissioner with an application for a permit to dismantle such vehicle. The commissioner shall thereupon issue to the purchaser a permit to dismantle the vehicle, which shall authorize the purchaser to possess or transport the motor vehicle or to transfer ownership thereto by an endorsement upon the permit. A certificate of title shall not again be issued for the motor vehicle in the event it is scrapped, dismantled, or destroyed.
      B. Notwithstanding Subsection A of this Section, the commissioner may issue, without the delivery of the certificate of title, a permit to dismantle any vehicle which is more than 10 years old and has not had its registration renewed in this state or any other state for a period of three years immediately prior to the application for a permit to dismantle the vehicle.

      An "auto hulk" is a motor vehicle that is not self-propelled or capable of carrying persons or property on a public highway. La. Atty. Gen. Op. No. 11-0112, 2012 WL 3306965. Formerly, "auto hulk" was similarly defined in § 751, a definition section repealed by Acts 2006, No. 440, § 2. A motor vehicle is defined in La. R.S. 32:401.

      La. R.S. 32:718, originally enacted by Acts 2008, No. 586, § 1, currently reads:
      A. Notwithstanding any law to the contrary, in lieu of a title, any owner who sells an auto hulk as scrap to be dismantled or processed for recycling shall provide the secondary metal processor or licensed automotive dismantler and parts recycler with a signed and dated affidavit stating that he is the owner of the vehicle or part or has the right to sell or transfer the vehicle or part.
      B. Every secondary metal processor or licensed automotive dismantler and parts recycler shall maintain the signed and dated affidavit, along with the name and address of the person delivering, selling, or transferring the auto hulk, photographic or electronic copy of the seller's valid driver's license or a valid identification card issued by the seller's current state of residence, the tag number and state of issue of the vehicle delivering the auto hulk, and the vehicle identification number of the auto hulk. This information shall be kept in a registry or book or in electronic format for a period of two years at the secondary metal processor's or the licensed automotive dismantler and parts recycler's place of business and shall be made available for inspection by any peace officer, law enforcement official, or office of motor vehicles official at any time during customary business hours.
      C. Every secondary metal processor or licensed automotive dismantler and parts recycler shall submit an electronic report to the office of motor vehicles of the vehicle identification number of each auto hulk received from a seller. The report shall be in a form approved by the office of motor vehicles and shall be submitted within seventy-two hours of the purchase of the auto hulk.
      D. The provisions of this Section are applicable to auto hulks in lieu of the provisions of R.S. 32:717 and 807.

      This code article concerns the Right of Accession. The correct code articles are articles 517-525.


author: Cox, J.

text:
    SUCCESSION OF Benjamin SANTIFER, Sr., et al.
    No. 52,369-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018 Rehearing Denied November 8, 2018
    STEPHEN A. GLASSELL, Shreveport, Counsel for Appellants, Clarice Moore Farris, Eloyce Moore Brown, Joyce Moore Peters
    JEFFREY M. LANDRY, Attorney General, Counsel, for Appellee, State of Louisiana
    JEFFREY M. WALE, Assistant Attorney General, THE LAW OFFICES OF LUKE D. MITCHELL, By: Luke D. Mitchell, Counsel for Appellee, Land Endeavors, LLC and Jay Rossi
    Before WILLIAMS, MOORE, and COX, JJ.
   Cox, J.

This appeal arises out of the 42nd Judicial District Court, DeSoto Parish, Louisiana.

Clarice Moore Farris, Eloyce Moore Brown, and Joyce Moore Peters (hereinafter referred to as "Petitioners") petitioned to be appointed co-administratrices of Benjamin Santifer, Sr.'s succession. Petitioners claimed to be the children of Mr. Santifer. Land Endeavors, LLC filed a peremptory exception of no right of action and prescription. The trial court granted the exception of prescription. Petitioners filed a motion for new trial, which was converted into a motion to reconsider. Petitioners' motion was denied by the trial court. Petitioners now appeal the trial court's rulings. For the following reasons, we affirm.

FACTS

Benjamin Santifer, Sr. ("Mr. Santifer") was born on April 9, 1890, and passed away on April 20, 1987. Mr. Santifer was married once, to Alice Colbert Santifer. Five sons were born of his marriage to Alice:

• Ben Santifer, Jr., who died in 1953;
• Mack Santifer, Sr., who died in 1997;
• Sam Santifer, who died in 1989;
• Jimmie Santifer, who died in 1990; and
• Cooper Santifer, who died in 1955.

Petitioners claim that they are the "natural" daughters of Mr. Santifer. According to Petitioners, their mother, who is now deceased, was Stella Moore Anderson. They have two sisters, Vernia Mae Moore and Bennie Moore Whitaker, who live in Texas. All five daughters were born in DeSoto Parish between 1951 and 1959. Under the Louisiana law in effect at that time, all five daughters were considered to be illegitimate children.

Mr. Santifer owned a 40-acre tract of land in DeSoto Parish with mineral income. Between 2008 and 2009, Land Endeavors, LLC ("Land Endeavors") filed multiple deeds in the conveyance records of DeSoto Parish purchasing the 40-acre tract from the heirs of Mr. Santifer. In 2008, an affidavit of death and heirship of Mr. Santifer was recorded in DeSoto Parish, alleging Mr. Santifer had five daughters. Jay Rossi, the manager of Land Endeavors, filed a petition for notice of application as administrator, executor, or other succession representative. Petitioners filed a petition to be appointed co-admistratrix. Land Endeavors then raised the issue of filiation and filed a peremptory exception of no right of action and prescription.

At a hearing held on November 16, 2017, the trial court granted Land Endeavors' peremptory exception. Counsel for Petitioners asked that the trial court allow them to make a proffer of evidence to show that they were the natural children of Mr. Santifer, which the court allowed. Petitioners filed a motion for new trial, which was subsequently set for March 13, 2018; the motion was later converted to a motion to reconsider. The trial court denied the motion, and the judgment was signed on March 22, 2018. The daughters now appeal.

DISCUSSION

Filiation Claim

Petitioners first argue the trial court erred in granting the peremptory exception of prescription. Petitioners argue that the time clock of one year for filing a petition for filiation under both former La. C.C. art. 209, enacted in 1981, and current La. C.C. art. 197, enacted in 2005, should not be applied to the facts of this case.

Former La. C.C. art. 209, the law in effect at the time of Mr. Santifer's death, stated in pertinent part:

A child not entitled to legitimation filiation nor filiated by the initiative of the parent by legitimation or by acknowledgement under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
The proceeding required by this Article must be brought within one year of the death of the alleged parent or within nineteen years of the child's birth, whichever occurs first. The time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish filiation[.]

Art. 209 was amended by Act 720 in 1981 to state, "any person against whom the time period provided in this Act would otherwise have accrued except for the provisions of this Section shall have one year from its effective date to bring a proceeding to establish filiation of a child[.]"

This Court, in Succession of Herndon , 45,146 (La. App. 2 Cir. 4/28/2010), 36 So.3d 434, stated:

The peremptive period in which to bring this action to prove filiation was either before the child reached the age of 19 or within 1 year of the death of the alleged parent, whichever occurred first. Taking into account the retroactive application of Succession of Brown , [388 So.2d 1151 (La. 1980) ], and the state's interest in the stability of land titles, the legislature created a grace period in which unacknowledged or informally acknowledged children born outside of marriage who had already attained the age of 19, or whose alleged parent was already deceased, could bring a civil proceeding to prove their filiation. Children who failed to bring their action during this time could not thereafter establish filiation. The grace period ended September 12, 1982.

Former Article 209 was the law in place at the time Mr. Santifer died. Petitioners were not formally acknowledged by Mr. Santifer. Petitioners argue that because they were all over the age of 19 at the time this article was enacted and Mr. Santifer was still alive, they did not have a legal right to file a petition for filiation upon his death. However, the legislature created a grace period in 1981 for those who, like Petitioners, had already attained the age of 19 to bring a filiation action. Petitioners had one year from the time the article was enacted to bring their claim.

Filiation claims may be brought while the alleged parent is still alive. Nothing in our law requires filiation claims to be held until the death of the alleged parent. Although Mr. Santifer was still alive during the grace period, Petitioners could have brought the filiation claim or requested Mr. Santifer initiate a filiation claim while he was alive.

Current La. C.C. art. 197, enacted in 2005, sets forth the following time period for filing a petition for filiation:

A child may institute an action to prove paternity even though he is presumed to be the child of another man. If the action is instituted after the death of the alleged father, a child shall prove paternity by clear and convincing evidence.
For purposes of succession only, this action is subject to a peremptive period of one year. This peremptive period commences to run from the date of death of the alleged father.

Under the current law, for the purposes of succession, filiation claims must be brought within one year of the death of the alleged father. Although not enacted at the time of Mr. Santifer's death, the current law also bars Petitioners' filiation claim. Had this article been enacted at the time of Mr. Santifer's death, Petitioners would have had to bring their claim for filiation by April 20, 1988.

An affidavit of death and heirship, alleging Mr. Santifer had five daughters, was filed in 2008, 21 years after Mr. Santifer's death. Petitioners had a reasonable period of time to bring their filiation action, but their action is now perempted. This assignment lacks merit.

Motion to Reconsider

Petitioners next argue that the trial court erred in denying their motion to reconsider. They argue they have a constitutional due process right to inherit their portion of Mr. Santifer's estate. Petitioners argue that when they all turned 19 years of age, the Louisiana Supreme Court had yet to recognize their right to inherit as illegitimate children. See Succession of Brown, supra.

The Louisiana First Circuit Court of Appeal specifically addressed the due process challenge to the one-year peremptive period of former Article 209. The First Circuit stated, "In the present case, we find the one year grace period provided by § 2 of Act 720 of 1981 to be a reasonable period of time to permit persons affected by LSA-C.C. art. 209 to assert their claims." In re Succession of Young , 98-1073 (La. App. 1 Cir. 5/14/99), 732 So.2d 833, writ denied , 99-1764 (La. 10/1/99), 748 So.2d 446. We agree.

The general rule is that a newly created statute of limitations or one which shortens existing periods of limitation will not violate the constitutional prohibition against divesting a vested right, provided it allows a reasonable time for those affected by the act to assert their rights. Cooper v. Lykes , 218 La. 251, 49 So.2d 3 (1950) ; In re Succession of Young, supra . It is recognized that the legislature is the judge of the reasonableness of the time and the courts will not interfere except where the time is so short as to amount to a denial of justice. Brown v. Reese , 532 So.2d 187 (La. App. 2 Cir. 1988).

After the promulgation of a law, each person is charged with knowledge of it. La. C.C. art. 5 ; In re Succession of Young, supra. In the instant case, the legislature provided the one-year grace period in which Petitioners could have brought the filiation claim.

Petitioners were charged with knowledge of the law when it was enacted and had one year to bring their claim for filiation. We will not interfere with the time limits set by the legislature. We find the one-year peremptive period was a reasonable time for Petitioners to assert their claim for filiation. This assignment lacks merit.

CONCLUSION

For the above reasons, the trial court's rulings are affirmed. Costs of this appeal are assessed to the petitioners, Clarice Moore Farris, Eloyce Moore Brown, and Joyce Moore Peters.

AFFIRMED.

APPLICATION FOR REHEARING

Before Felicia Toney Williams, Daniel Milton Moore III, Jeff Cox - Writing, James Mark Stephens, and E. Joseph Bleich, JJ.

Rehearing denied.


author: WILLIAMS, J.

text:
    Alcender WILLIAMS, Jr., Respondent v. USAGENCIES CASUALTY INSURANCE COMPANY, INC., Louisiana Insurance Guaranty Association, Applicant
    No. 52,071-CW
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018
    MILLING BENSON WOODWARD, LLP, By: Benjamin M. Chapman, J. Jacob Chapman, Stephanie B. Laborde, Baton Rouge, Counsel for Applicant
    NELSON, ZENTNER, SARTOR, & SNELLINGS, L.L.C., By: Thomas G. Zentner, Jr., ANTHONY J. BRUSCATO, Monroe, Counsel for Respondent
    Before WILLIAMS, COX, and McCALLUM, JJ.
   WILLIAMS, J.

This Court granted an application for supervisory writ filed by the defendant, Louisiana Insurance Guaranty Association ("LIGA"), to review the trial court's judgment denying the defendant's motion for summary judgment. For the following reasons, we conclude the trial court erred. Therefore, we make the writ peremptory and reverse the trial court's judgment.

FACTS

On July 20, 2013, the plaintiff, Alcender Williams, Jr., was walking across the intersection of Grayling Lane and Hawes Street in Monroe, Louisiana. He was injured when he was struck by a vehicle being driven by Eric Davis; the registered owner of the Davis vehicle was Sharon Davis. The plaintiff submitted a claim to Sharon Davis' automobile liability insurer, Progressive Security Insurance ("Progressive"). Thereafter, the plaintiff and Progressive reached a settlement for the $15,000 policy limit, plus interest, for a total of $15,161.49.

At the time of the accident, the plaintiff resided with his mother, Bernadene Hubbard, and he reserved his rights against her uninsured/underinsured motorist ("UM") insurer, USAgencies Casualty Insurance Company ("USAgencies"), which later became known as Affirmative Casualty Insurance Company ("Affirmative"). Subsequently, the plaintiff submitted a UM claim to USAgencies/Affirmative asserting that the limits of the Progressive policy were insufficient to compensate him for his damages. USAgencies/Affirmative rejected the claim, asserting that the plaintiff was an excluded driver under the policy.

On April 25, 2014, the plaintiff filed a lawsuit against USAgencies/Affirmative for damages and attorney fees on the following grounds: the insurer failed to pay his UM claim under La. R.S. 22:1892 ; the insurer breached its duty of good faith under La. R.S. 22:1973 ; and the insurer engaged in unfair methods of practice under La. R.S. 22:1963. Thereafter, both parties moved for summary judgment. The trial court granted summary judgment in favor of the plaintiff, finding that the plaintiff was entitled to coverage "under the medical payment provision of the policy (at defendant's cost) but not under the uninsured/underinsured provision." Subsequently, the trial court granted the plaintiff's motion for rehearing and granted the "plaintiff's motion for summary judgment as it relates to [the uninsured/underinsured provision] of the policy providing for coverage of plaintiff's damages." Following an appeal by USAgencies/Affirmative, this Court affirmed the trial court's ruling. Williams v. USAgencies Cas. Ins. Co. , 50,185 (La. App. 2 Cir. 9/30/15), 186 So.3d 96.

On April 11, 2016, USAgencies/Affirmative was declared insolvent. As a result of the liquidation of the insurer, LIGA began discharging its obligation with regard to other claims made against USAgencies/Affirmative, as provided in the Louisiana Insurance Guaranty Association Law. On January 31, 2017, the plaintiff filed a supplemental and amended petition adding LIGA as a defendant.

On June 9, 2017, LIGA filed a motion for summary judgment asserting that it was entitled to a statutory credit, pursuant to La. R.S. 22:2062, for the $15,161.49 that was paid to the plaintiff under the Progressive policy. LIGA also argued that its financial obligation to the plaintiff would be extinguished after that credit was applied to the $15,000 maximum that it would be obligated to pay under the UM policy. Accordingly, LIGA argued, there were no genuine issues of material fact and it was entitled to judgment as a matter of law.

Following a hearing, the trial court denied LIGA's motion for summary judgment, stating:

The motion for summary judgment in this matter is denied. Wilson v. Brown, 2005 WL 2204861 (La. Dist. Ct.)
LSA-R.S. 22:2058, Formerly cited as LA R.S. 22:1382
Blackwell vs. Williams , 618 So.2d 477.

This Court granted LIGA's application for supervisory review of that ruling.

DISCUSSION

LIGA contends the trial court erred in denying its motion for summary judgment. LIGA argues that it is entitled to a credit of the $15,000 paid by Progressive pursuant to La. R.S. 22:2062. According to LIGA, the application of that credit would extinguish its obligation to the plaintiff under the limits of the USAgencies/Affirmative policy. Further, LIGA acknowledges that La. R.S. 22:2062(A) was amended, effective August 1, 2017, to exclude UM policies from the exhaustion and credit requirements. However, LIGA contends the 2017 amendments are prospective only and do not apply to this accident that occurred in 2013.

At the time of the plaintiff's accident and the filing of this lawsuit, La. R.S. 22: 2062(A) provided, in pertinent part:

(1) Any person having a claim against an insurer shall be required first to exhaust all coverage provided by any other policy, including the right to a defense under the other policy, if the claim under the other policy arises from the same facts, injury or loss that gave rise to the covered claim against the association . The requirement to exhaust shall apply without regard to whether or not the other insurance policy is a policy written by a member insurer. However, no person shall be required to exhaust any right under the policy of an insolvent insurer or any right under a life insurance policy or annuity.
(2) Any amount payable on a covered claim under this Part shall be reduced by the full applicable limits stated in the other insurance policy, or by the amount of the recovery under the other insurance policy as provided herein. The association and the insured shall receive a full credit for the stated limits, unless the claimant demonstrates that the claimant used reasonable efforts to exhaust all coverage and limits applicable under the other insurance policy. If the claimant demonstrates that the claimant used reasonable efforts to exhaust all coverage and limits applicable under the other insurance policy, or if there are no applicable stated limits under the policy, the association and the insured shall receive a full credit for the total recovery.
(a) The credit shall be deducted from the lesser of the following:
(i) The association's covered claim limit.
(ii) The amount of the judgment or settlement of the claim.
(iii) The policy limits of the policy of the insolvent insurer.
(b) In no case, however, shall the obligation of the association exceed the covered claim limit of this Part.
* * *
(4) A claim under a policy providing liability coverage to a person who may be solidarily liable as a tortfeasor with the person covered under the policy of the insolvent insurer that gives rise to the covered claim shall be considered to be a claim arising from the same facts, injury or loss that gave rise to the covered claim against the association.
* * *[ ]

(Emphasis added).

The plaintiff argues that LIGA is not entitled to a credit because the covered UM claim arose from the same accident, but not from the same facts, injury or loss as the settled claim. According to the plaintiff, a claim against a tortfeasor's liability insurer and the plaintiff's own UM carrier are two distinct and different claims for two distinct and different losses. Further, the plaintiff maintains that LIGA and Progressive are not solidary obligors; therefore, La. R.S. 22:2062(A)(4) does not apply. Consequently, according to the plaintiff, he is entitled to recover from the tortfeasor's insurer (Progressive), as well as his own UM carrier (Affirmative/USAgencies/LIGA).

The interpretation of a statute starts with the language of the statute itself. Louisiana Municipal Assoc. v. State , 2004-0227 (La. 1/19/05), 893 So.2d 809 ; City of Minden v. McDaniel , 41,370 (La. App. 2 Cir. 12/20/06), 945 So.2d 955, writ denied , 2007-0369 (La. 4/5/07), 954 So.2d 141. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made for the intent of the legislature. La. C.C. art. 9 ; La. R.S. 1:4.

A plain reading of La. R.S. 22:2062(A)(1), as it existed at the time of this accident, clearly provides that the plaintiff was required to "first exhaust all coverage provided by any other policy." The plaintiff did so by seeking payment from Progressive, the tortfeasor's liability insurer, who paid its policy limits in the amount of $15,000, plus interest.

La. R.S. 22:2062(A)(2) provides that the amount payable on the plaintiff's claim "shall be reduced by the full applicable limits stated in the other insurance policy" and that LIGA "shall receive a full credit for the stated limits[.]" Under the version of the statute in existence at the time of the accident, the plaintiff's UM insurer was not exempt from the statutory credit. The legislature could have chosen to except UM coverage from the statute, as it did with life insurance coverage in paragraph (A)(1); however, it did not elect to do so until the 2017 amendment to the statute.

It is undisputed that a plaintiff's UM policy was not specifically excluded from the version of the statute that existed at the time of the accident herein. In Brown v. Norman-Fuegero , 2014-0826 (La. App. 4 Cir. 4/22/15), 165 So.3d 1059, the plaintiff sought payment from an insolvent insurer because his damages were not sufficiently covered by the payment through other coverage. After receiving over $20,000 in medical benefits from Medicaid, the plaintiff filed a lawsuit against the defendant driver and his insolvent liability insurer.

LIGA answered the lawsuit, asserting that it was not liable to the plaintiff because the plaintiff had received Medicaid payments in an amount that exceeded the per person limit of the insolvent insurer's policy ($15,000). LIGA also maintained that La. R.S. 22:2062(A) provided that all other applicable insurance must be exhausted before LIGA's coverage could be reached. Therefore, according to LIGA, any amount payable by it or by the party insured by the insolvent insurer, must be reduced by the full applicable limits stated in any other insurance policy from which the plaintiff is entitled to receive benefits as a result of the alleged accident.

The plaintiff moved for partial summary judgment, seeking, inter alia , a declaration that LIGA was not entitled to a dollar-for-dollar credit for the amounts paid by Medicaid. In response, LIGA filed a motion for summary judgment, arguing that it was entitled to a credit for the amounts paid by Medicaid. The district court denied the plaintiff's motion and granted the motion filed by LIGA, finding that LIGA and the insolvent insurer were entitled to a credit in the amount of the total recovery of the medical expenses paid for by Medicaid. The plaintiff appealed, arguing that LIGA was not entitled to a credit for the amounts paid by Medicaid. The court of appeal affirmed the district court's ruling, stating:

Further examining the credit provision, we note that the current version of La. R.S. 22:2062, unlike previous versions, includes a separate credit provision, A(2), which was added by the Louisiana Legislature in its 2010 amendment to this statute. Plaintiff argues that it is irrelevant whether LIGA is due a credit for plaintiff's Medicaid benefits because those benefits do not compensate plaintiff for his general damages. However, the cases cited by plaintiff in support of that argument, Blackwell v. Williams, 618 So.2d 477 (La. App. 4 Cir.1993), and Prejean v. Dixie Lloyds Ins. Co. , 602 So.2d 764 (La. App. 3 Cir.1992), are not applicable to the instant case because those cases were decided long before the current version of La. R.S. 22:2062 was enacted, and the current version is substantively different from the version in effect when those cases were decided.[ ]
* * *

Id. at 1063-1064.

In Dugas v. Derouen , 2001-1397 (La. App. 3 Cir. 7/3/02), 824 So.2d 475, writ denied , 2002-2131 (La. 11/15/02), 829 So.2d 426, the plaintiff filed a lawsuit against the defendant's employer and automobile insurer. The automobile insurer became insolvent and LIGA was named a party defendant.

Prior to trial, the plaintiff reached a settlement with her UM insurer for $10,000, plus $2,000 in medical benefits. Following a trial, the trial court found that the defendant was 50% at fault in causing the accident and awarded the plaintiff damages in the amount of $90,095.31. The trial court also ordered that the $10,000 the plaintiff had received from her UM carrier be deducted from the award of general damages and that the $2,000 medical benefits previously paid by the UM carrier be deducted from the award of medical expenses.

The defendants appealed, asserting that the trial court erred in subtracting the $10,000 from the general damage award before applying the apportionment of fault. They argued that the $10,000 should have been deducted after the award was reduced by the degree of fault assigned to the defendant. The court of appeal applied La. R.S. 22:1386 and affirmed the trial court's judgment. The Court stated, "This court, in Knowles v. Barnes , 1995-1536 (La. App. 3 Cir. 4/3/96), 671 So.2d 1123, held that payments made by other insurers, which includes uninsured motorist insurers, are to be applied, or credited, to the total damages of the claimant before LIGA's liability could be calculated." Id. at 481.

In the instant case, based on the version of La. R.S. 22:2062 in effect at the time of the accident and when the lawsuit was filed, we find that LIGA is entitled to the credit in the amount of $15,000. Accordingly, we find that the trial court erred in denying the motion for summary judgment filed by LIGA. The judgment of the trial court is hereby reversed and summary judgment is granted.

CONCLUSION

For the reasons set forth herein, the writ application filed by the defendant, Louisiana Insurance Guaranty Association, is hereby granted and made peremptory. The trial court's ruling denying summary judgment is hereby reversed. Costs are assessed to the plaintiff, Alcender Williams, Jr.

WRIT GRANTED AND MADE PEREMPTORY; REVERSED.

      No Section of the Revised Statutes is retroactive unless it is expressly so stated. La. R.S. 1:2.

      Acts 2017, No. 166, § 1 amended La. R.S 22:2062(A)(1) and enacted La. R.S. 22:2062(A)(2)(c) as follows:
      (1) Any person having a claim against an insurer shall be required first to exhaust all coverage provided by any other policy other than his own uninsured or underinsured motorist policy , including the right to a defense under the other policy, if the claim under the other policy arises from the same facts, injury or loss that gave rise to the covered claim against the association. The requirement to exhaust shall apply without regard to whether or not the other insurance policy is a policy written by a member insurer. However, no person shall be required to exhaust any right under the policy of an insolvent insurer or any right under a life insurance policy or annuity.
      (2) Any amount payable on a covered claim under this Part shall be reduced by the full applicable limits stated in the other insurance policy, or by the amount of the recovery under the other insurance policy as provided herein. The association and the insured shall receive a full credit for the stated limits, unless the claimant demonstrates that the claimant used reasonable efforts to exhaust all coverage and limits applicable under the other insurance policy. If the claimant demonstrates that the claimant used reasonable efforts to exhaust all coverage and limits applicable under the other insurance policy, or if there are no applicable stated limits under the policy, the association and the insured shall receive a full credit for the total recovery.
      * * *
      (c) The provisions of this Paragraph shall not apply to uninsured or underinsured motorist policies .
      (Emphasis added).

      The version of La. R.S. 22:1386, the predecessor article to La. R.S. 22:2062, which was in effect at the time of the accident in the Blackwell case, stated, in pertinent part:
      Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer, which is also a covered claim, shall be required first to exhaust his rights under such policy. Such other policies of insurance shall include but shall not be limited to liability coverage, uninsured or underinsured motorist liability coverage, or both, hospitalization, and other medical expense coverage. Any amounts payable by such other insurance shall act as a dollar-for-dollar credit against any liability of the association under this part.
      This version became effective after the accident in Prejean . The version in effect at the time of the accident in Prejean did not include the credit language. However, the Prejean court found that it did not need to determine which version applied because it found that under either version, the trial court correctly interpreted the statute in light of the legislatively stated purpose of the body of law that created LIGA.

      FN. 3 in this opinion appears as FN. 1 in Brown , supra .

      In Knowles v. Barnes , supra , the plaintiff was injured in an automobile accident. She settled her claims with some insurers and filed a lawsuit against the defendant's insurers. One of the defendant's liability insurers was placed in receivership and LIGA was added as a defendant. The plaintiff's medical insurer paid her medical expenses; the other driver's automobile insurer paid a settlement in the amount of $10,000; and one of the defendant's general liability insurers paid the plaintiff a settlement in the amount of $90,000. LIGA argued that it was entitled to a dollar-for-dollar offset for the amount the plaintiff had received from the other insurers. The court of appeal agreed and found that, pursuant to La. R.S. 22:1386, the "judgment in favor of [the plaintiff] must be reduced by $109,918.20, representing the settlements paid by [the other insurers]." Id. at 1127.


author: STONE, J.

text:
    Emma W. MCDONALD, Plaintiff-Appellant v. ORR MOTORS OF LITTLE ROCK, INC. d/b/a/ Sparks Nissan Kia Real Estate, L.L.C., Defendant-Appellees
    No. 52,225-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered September 26, 2018
    ANTHONY J. BRUSCATO, Monroe, CATHERINE LEARY, Counsel for Appellant
    MCNEW, KING, & LANDRY, LLP By: Brady Dean King, II, Monroe, By: April Martin Hammett, Counsel for Appellees
    Before WILLIAMS, PITMAN, and STONE, JJ.
   STONE, J.

The trial court granted a peremptory exception filed by Orr Motors of Little Rock, Inc. d/b/a Sparks Nissan Kia Real Estate, L.L.C., and found Emma W. McDonald failed to prove that the contract whereby she purchased a new car should be rescinded. For the reasons set forth herein, we affirm the judgment of the trial court.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On November 30, 2010, Emma W. McDonald ("McDonald") entered into a contract with Orr Motors of Little Rock, Inc. d/b/a Sparks Nissan Kia Real Estate, LLC ("Sparks Nissan"), wherein McDonald purchased a 2011 Kia Optima LX ("the Kia") from Sparks Nissan for $23,225 before tax ("the transaction").

On the date of the transaction, McDonald was in her late fifties and had previously been prescribed a number of medications, including medications for blood pressure and diabetes. She was not out of any of the medications; however, she had run out of the test strips for her glucometer which tests her glucose levels. She needed to test her glucose level to determine how much insulin she should take. She drove herself to Walgreens. Upon her arrival, she discovered the pharmacy did not have the brand of test strips she required. She chose not to purchase a new meter and left the pharmacy without any test strips.

After leaving Walgreens, McDonald drove around to "unwind," as her blood sugar level was high due to her inability to take her insulin. During her drive, she stopped at Sparks Nissan dealership where she was greeted by salesman Jesse Eldridge ("Eldridge"). Eldridge allowed McDonald to test drive the Kia while he rode with her. After all credits were applied and sales tax and other fees were charged, McDonald financed a total amount of $18,991.84. As part of the purchase, McDonald traded in her 1995 Ford Contour. Her trade-in allowance for the vehicle was $1,650. Additionally, McDonald issued two $2,500 checks to the dealership as down payment for the Kia, including one post-dated check. McDonald drove the Kia home that same day.

The next day, McDonald went back to Sparks Nissan, as well as Capital One Auto Finance ("Capital One"), the institution that financed the Kia, and asked to rescind the transaction. According to McDonald, when she purchased the Kia, she was mentally impaired due to her high blood sugar levels and had no recollection of the purchase. Sparks Nissan refused to rescind the sale. McDonald stopped payment on the two $2,500 checks and did not make any payments on the Kia. Capital One repossessed the Kia and, thereafter, sold it at an auction. The proceeds of the sale were applied to McDonald's loan, leaving a remaining balance of $198.

On January 28, 2011, McDonald filed suit against Sparks Nissan seeking rescission of the transaction alleging she was "so tired or lacking in her ability to understand since she had not taken all her medications during the day of the date of sale, and that consent by her was lacking to create a binding contract." McDonald also sought the return of her trade-in vehicle. Sparks Nissan filed an answer to McDonald's petition on February 10, 2011, seeking a judgment against McDonald in the amount of $5,000, the total sum for the down payment checks McDonald stopped payment on.

On July 22, 2014, McDonald filed a supplemental and amended petition asserting the transaction constituted fraudulent practices and was a violation of the Louisiana Unfair Trade Practice Act ("LUTPA"). McDonald alleged that Sparks Nissan, in an effort to get Capital One to agree to finance the Kia, represented that McDonald had paid a $5,000 down payment, when in fact one of the $2,500 checks was post-dated; and that Sparks had represented that her monthly income was $3,500, when in fact it was not.

On August 2, 2014, Sparks Nissan filed a dilatory exception of vagueness and/or ambiguity and peremptory exceptions of no right of action and/or no cause of action, both of which were denied by the trial court. Sparks Nissan filed an additional peremptory exception on December 9, 2012, seeking to dismiss all claims asserted by McDonald under LUTPA because she failed to bring the claims within the applicable one-year peremptive period. The trial court sustained Spark Nissan's exception of peremption, finding that McDonald's causes of action set forth in the supplemental and amending petition were perempted as they were not filed within one year of the date of the sale, and they did not relate back to McDonald's original petition. The trial court dismissed all the causes of action under LUTPA set forth in McDonald's supplemental and amended petition.

A trial on the claims stated in McDonald's original petition and on Spark Nissan's counterclaim was held on August 9, 2017. After all evidence had been adduced, the trial court entered judgment against McDonald, finding she failed to prove the sale of the Kia should be rescinded. The trial court also denied Spark Nissan's counterclaim against McDonald.

DISCUSSION

McDonald essentially raises two assignments of error on appeal. First, McDonald asserts the trial judge erred as a matter of law in sustaining Sparks Nissan's exception of peremption. McDonald asserts her supplemental and amended petition adding the LUTPA cause of action relates back to her original petition in accordance with La. C.C.P. art. 1153, and therefore, her claim did not prescribe. In her second assignment of error, McDonald contends the trial court erred in finding she did not prove her claim for rescission.

Peremptory Exception of Peremption

Peremption is defined in La. C.C. art. 3458 as a period of time during which a right can be exercised and provides that "[u]nless timely exercised, the right is extinguished upon the expiration of the peremptive period." In Cote' v. Hiller, 49,623 (La. App. 2 Cir. 02/27/15), 162 So.3d 608, it is explained that, although prescription prevents the enforcement of a right by legal action, it does not terminate the natural obligation; peremption, however, extinguishes or destroys the right.

La. R.S. 51:1409 establishes causes of action under the LUTPA and defines the time limits within which actions must be brought. It states in pertinent part as follows:

A. Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act, or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recover actual damages. If the court finds the unfair or deceptive method, act, or practice was knowingly used, after being put on notice by the attorney general, the court shall award three times the actual damages sustained. In the event that damages are awarded under this Section, the court shall award to the person bringing such action reasonable attorney fees and costs. Upon a finding by the court that an action under this Section was groundless and brought in bad faith or for purposes of harassment, the court may award to the defendant reasonable attorney fees and costs.
* * *
E. The action provided by this section shall be prescribed by one year running from the time of the transaction or act which gave rise to this right of action.

Although the LUTPA states the action provided by the section "shall be prescribed by one year running from the time of the transaction or act which gave rise to this right of action," the language has been interpreted as creating a peremptive, rather than a prescriptive period. See Glod v. Baker, 04-1483 (La. App. 3 Cir. 03/23/05), 899 So.2d 642, writ denied, 05-1574 (La. 01/13/06), 920 So.2d 238. The Glod court noted that the general rule is that peremption, as opposed to prescription, cannot be interrupted or suspended; and it, therefore, found that the time period was not tolled or suspended by the alleged continuing tort.

The party raising an exception of prescription or peremption ordinarily bears the burden of proof at the trial of a peremptory exception. McKinley v. Scott, 44,414 (La. App. 2 Cir. 07/15/09), 17 So.3d 81, 83. However, when prescription is evident from the face of the pleadings, the plaintiff bears the burden of showing the action has not prescribed. Id. When evidence is introduced at the hearing on the peremptory exception, the factual conclusions of the district court are reviewed under the manifest error-clearly wrong standard of review. McGuire v. Mosley Rogers Title Co. L.L.C., 43,554 (La. App. 2 Cir. 09/17/08), 997 So.2d 23, 28, writ denied, 08-2728 (La. 01/30/09), 999 So.2d 757. La. C.C.P. art. 1153 provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing of the original pleading.

Having reviewed this record, we find the trial court was not manifestly erroneous in its determination that McDonald did not file a timely LUTPA cause of action against Sparks Nissan. Any alleged unfair or deceptive acts or practices would have occurred on November 30, 2010, the day McDonald purchased the Kia. She was required to raise a claim under LUTPA by or before November 30, 2011. McDonald failed to do so. Even if we accept McDonald's argument that prescription was interrupted at the time she filed the original petition, a claim under LUTPA still had to be raised within one year of January 28, 2011, the date the original petition was filed. McDonald's supplemental and amended petition, wherein she asserts the LUTPA claim, was not filed until July 22, 2014 --- almost three and a half years after the filing of the original petition. Moreover, McDonald's original petition failed to state a cause of action, reference, or otherwise elude to a claim of fraud or unfair trade practices. Accordingly, McDonald's supplemental and amended petition cannot relate back to her original petition. This assignment of error is meritless.

Rescission of the sale of the Kia

McDonald next argues the trial court was manifestly erroneous when it determined she did not sufficiently prove the sale of the Kia should be rescinded because she lacked the mental capacity to enter into a contract. Under the manifest error standard of review, a court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Snider v. Louisiana Med. Mut. Ins. Co., 13-0579 (La. 12/10/13), 130 So.3d 922 ; Rosell v. ESCO, 549 So.2d 840 (La. 1989). Under this standard, determinations of fact are entitled to great deference on review. McGlothlin v. Christus St. Patrick Hosp., 10-2775 (La. 07/01/11), 65 So.3d 1218 ; Guillory v. Lee, 09-0075 (La. 06/26/09), 16 So.3d 1104.

The linchpin is whether the trial court's findings are reasonable; even if the appellate court feels its own evaluation of the evidence is more reasonable, the trial court's findings cannot be reversed if they are in fact reasonable. Lewis v. State, Through DOTD, 94-2370 (La. 04/21/95), 654 So.2d 311. In other words, the appellate court may not reverse simply because it is convinced that, had it been sitting as a trier of fact, it would have ruled differently. Id. If there are two permissible views of the evidence, the factfinder's choice between them can virtually never be manifestly erroneous or clearly wrong. Id.

A contract is formed by consent of the parties established through offer and acceptance, which may be made orally, in writing or by action or inaction that under the circumstances indicates consent. La. C.C. art. 1927. Under Louisiana law, formation of a valid and enforceable contract requires capacity, consent, a certain object, and a lawful cause. The court must find there was a meeting of the minds of the parties to constitute the requirement of consent. Crowe v. Homesplus Manufactured Housing, Inc., 38,382 (La. App. 2 Cir. 06/21/04), 877 So.2d 156. The existence or nonexistence of a contract is a question of fact. The determination of the existence of a contract is a finding of fact not to be disturbed unless clearly wrong. Dubois Const. Co. v. Moncla Const. Co., Inc., 39,794 (La. App. 2 Cir. 06/29/05), 907 So.2d 855.

All persons have capacity to contract, except unemancipated minors, interdicts, and persons deprived of reason at the time of contracting. La. C.C. art. 1918. The presumption is that all persons have capacity to contract; lack of capacity must be shown by clear and convincing evidence. Succession of Hollis, 43,315 (La. App. 2 Cir. 06/18/08), 987 So.2d 387, writ denied, 2008-1632 (La. 10/24/08), 992 So.2d 1035.

McDonald contends that on the day she purchased the Kia, she had not taken her insulin, and therefore, she was not capable of making reasonable decisions. The trial court determined that McDonald failed to prove this assertion. We agree. The only evidence presented by McDonald concerning her mental capacity on the day of the sale was her own testimony. She offered no medical evidence or other evidence to establish that her lack of insulin affected her mental capacity in a way that would vitiate her ability to consent to the transaction. McDonald test drove the Kia without incident and signed numerous documents as is customary to purchase a vehicle, all in the presence of a salesman and financial manager. Both testified McDonald never gave them any impression, in her words or actions, that she did not know and understand what she was doing in purchasing the Kia. We find that McDonald was fully cognizant when she made the purchase, and her subsequent buyer's remorse cannot undo the sale.

Spark Nissan's $5,000 Reconventional Demand

Finally, Sparks Nissan's claims McDonald owes it $5,000 for the stop payment she placed on the two down payment checks she wrote. In its Reasons for Judgment, the trial court made the following observation:

Based on the amount recovered at the subsequent sale and considering the fair dealings the parties had for one another including the amount credited to Ms. McDonald for the trade in and the amount the vehicle actually sold for, the Court finds the Defendant in Reconvention did not prove its case against the Plaintiff in Reconvention in proving Ms. McDonald liable for $5,000.

The trial court evidently weighed McDonald's loss against Sparks Nissan's and determined that they were equally balanced. We find no error in its reasons for judgment.

CONCLUSION

For the foregoing reasons, we find the trial did not err in granting Sparks Nissan's peremptory exception nor did the trial court err in its determination that McDonald did not prove the sale of the Kia should rescinded. Finally, the trial court did not err when it declined Sparks Nissan's demand for the $5,000 payment. Costs are to be equally split between the parties.

AFFIRMED .

      Sparks Nissan attempted to sell the Ford Contour for a listed price of $2,995; however, it was sold to a wholesaler for $1,000.

      Although demand for the $198 was made on McDonald, Capital One never instituted any action to recover this amount.