text:
    Linda SHUBERT, Rose McNair, Tome’ Frazier, Derrick Chocklin, and Robert Ybarzabal v. TONTI DEVELOPMENT CORPORATION d/b/a Tonti Management.
    No. 09-CA-348.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Robert L. Raymond, Attorney at Law, Destrehan, LA, Thomas J. Capella, Christian J. Rhodes, Rodel, Parsons, Koch, Blache, Balhoff & MeCollister, New Orleans, LA, for Plaintiffs/Appellees.
    Sam A. LeBlanc, III, Gary J. Rouse, Jonathan P. Lemann, Jason Cavignac, Couhig Partners, LLC, New Orleans, LA, for Defendants/Appellants.
    Panel composed of MARION F. EDWARDS, SUSAN M. CHEHARDY, and MARC E. JOHNSON, Judges.
   MARION F. EDWARDS, Judge.

| gDefendants/appellants, APMT, Inc. and Five Properties, Inc. (“APMT”), appeal a judgment of the Twenty-Fourth Judicial District Court in favor of plaintiffs/appel-lees, Thomas and Jennifer Middleman, Linda Shubert, Robert McNair, Tome’ Frazier, Derrick Chocklin, and Robert Ybarzabal (collectively, “tenants”), awarding them damages suffered as the result of a fire that occurred at defendants/appellants’ apartment complex.

On June 3, 2005, a fire damaged the twenty-four unit apartment building known as Windsong Apartments in Ken-ner, Louisiana. It was alleged that the fire originated in a part of the building inaccessible to residents and caused the loss of the tenants’ home contents, as well as physical injuries and mental and emotional distress. Following a trial, the court found that the fire was not the fault of one of pthe tenants but, rather, was the result of an electrical failure in the building’s wiring. Damages were awarded as follows:

Jennifer Middleman $25,630.00
Thomas Middleman $25,330.00
Linda Shubert $57,573.55
Derrick Chocklin $34,337.00
Tome’ Frazier $30,462.00
Rose McNair $32,177.00
Robert Ybarzabal $18,830.00

The awards included general as well as pecuniary damages. Pursuant to a Motion for New Trial, the court awarded damages to the Middlemans as administrators of the estate of their minor child, Emma.

On appeal, APMT alleges that the trial court erred in imposing liability because the tenants failed to prove the existence of a defect in the premises and that the defect caused their damages; in refusing to enforce the tenants’ contractual assumptions of liability and waiver of warranty set forth in them respective leases; and in awarding excessive and unsupported damages.

At trial, Melvin Stringer (“Mr. Stringer”) testified as an expert witness in the field of fire cause and origin. Mr. Stringer was contacted by State Farm Insurance Company (“State Farm”), which insured some of the tenants, to investigate the fire. Mr. Stringer did not visit the scene until some seventeen days after the fire, as there were two other investigators representing other parties and protocol demanded all go at the same time. On examining the property, Mr. Stringer found there were no fire partitions (which inhibit the spread of fires) in the building’s attic and no interior firewalls within the building. In his opinion, the fire originated on the third floor, in or above the HVAC (heat, ventilation, and air-conditioning) enclosure of Apartment U, or in the immediate attic vicinity. The wiring was aluminum and melted, so the specific location of the short in the wiring could not be determined. Nothing had been stored in the HVAC enclosure, which is taken up virtually |,, entirely by the HVAC unit, and there was no evidence the fire had been caused by the tenant. An examination of the HVAC unit revealed no evidence that it had failed, and Mr. Stringer concluded it was not involved in the ignition of the fire. The only reasonable explanation for the fire was an unspecified electrical failure in the building’s electrical system. Mr. Stringer’s report was admitted into evidence, wherein he concluded that the cause of the fire was the ignition of combustibles from an unspecified electrical failure in the building’s wiring. Mr. Stringer testified that an “unspecified electrical failure” did not mean that he could not figure anything else out but that he had eliminated all other reasonable causes.

Linda Shubert (“Ms. Shubert”) testified that, at the time of the fire, her two godchildren lived with her. On that day, she saw smoke in the living room and took the children outside. After watching her home burn, she was devastated and experienced emotional distress. She had previously been treated for emotional problems as the result of a back injury at work, but the fire worsened her symptoms. Prior to the fire, she was able to continue her job at the post office, but, afterwards, missed several weeks of work. Ms. Shubert described certain emotional traumas that she had experienced prior to the fire, as well as surgeries due to injuries received in accidents. She had experienced stress as a result of her employment injury and became depressed. She had also experienced other physical problems requiring medication. Following the fire, she experienced increased insomnia and nervousness, and her previous pain worsened, causing more depression. Her back pain increased as a result of having to get the children out during the fire and having to move things around in the apartment af-terwards. Subsequently, she left the post office on disability. When she was allowed to see her apartment, she became ill from the smoke and soot odors. Ms. Shubert testified that her bedroom furniture appeared fine except for the mattress and, | ¿following Hurricane Katrina, she was told by a maintenance worker that her bedroom furniture had been salvaged after the fire. She lost many items of sentimental value. Of her belongings, she was only able to rescue two tables.

Rose McNair (“Ms. McNair”) testified that the first indication of a problem on the morning of the fire was a policeman knocking on her door; although she had a smoke detector, she did not hear it that day. She missed two days of work. She returned to the apartment a couple of weeks after the fire but could only salvage a few clothes, which she could not use again because the odor could not be removed.

After the fire, she was very depressed, as it added to problems she was having with her mother’s health. She was already having financial difficulties because she was helping her parents financially. She still suffers nervousness and insomnia, although she testified that she has had a history of insomnia because of her work stress and long hours. However, after the fire, she would actually jump in her sleep. Ms. McNair received $6,163 from her renters’ insurance policy that had a deductible of $250.

Derrick Chocklin (“Mr. Chocklin”) testified that, at the time of the fire, he had work uniforms, steel toe boots, and some tools that were lost. He lost one week of work. His cousin, Tome’ Frazier, with whom he lived, woke him up that morning. Smoke was coming out of the vents in the bedroom, bathroom, and kitchen. Fire began rolling out of the bathroom vent. After attempting to put out the fire with an extinguisher, Mr. Chocklin and Tome’ Frazier left the apartment. The smoke alarm did not go off. He was not able to recover anything, although the fire was mostly contained in the bedroom. About one week after the fire, he returned and the place was empty. Mr. Chocklin told someone in the office that he had seen things from his apartment, which had not burned, on some workers’ trucks. The management let the workers come through the building unsupervised. |i;Mr. Chocklin lost irreplaceable family mementoes, including jewelry. He felt “hollow” and “bad” about losing his things, and had a weak stomach for about six months.

Jennifer Middleman (“Ms. Middleman”) testified that, at the time of the fire, she had gone to work. She had two children ages six and sixteen months. Her husband phoned and told her about the fire, saying that he did not think their apartment would burn. By the time she returned home, the fire had spread to their apartment. Once she ascertained that her family was safe, they gathered in the family car and began to cry. Ms. Middleman had many items of sentimental value that were lost, as well as a bag of jewelry. One of the workers took her camcorder. She missed one week of work. The family had to borrow furniture, which they have not been able to replace. Ms. Middleman received a Red Cross voucher in the sum of $150 for the family, and they received $35,266.51 from their rental insurer; however, they returned $8,500 that had been an overpayment. She remains fearful and still has sleepless nights, with some anxiety and depression. Her daughter also became fearful, especially of the smell of smoke or other unusual odors, and worries about her belongings, all of which were lost in the fire. She would pile her toys up near the door in case she had to run out again.

Thomas Middleman (“Mr. Middleman”) testified that he was home with the children when the fire broke out. He could not find the source of the smell of smoke, but someone knocked on his door telling him of the fire. His daughter, Emma, ran out of the building. Mr. Middleman got dressed and took his son out. Watching the fire he was shocked, then saddened. He has episodes of crying and depression, and missed two or three days of work. Emma is very worried and anxious.

17Robert Ybarzabal, Jr. (“Mr. Ybarza-bal”) testified that, at the time of the fire, he lived in another building in the complex while his father was a tenant in the unit that caught fire. His father, who has since passed away, was 85 years old and was sitting in his unit when his son came to get him. There was smoke in the apartment, but he didn’t realize he was in danger. After the fire, when he saw what was left of his home, the elder Mr. Ybarzabal began to cry. The contents were a total loss. Mr. Ybarzabal became nervous and jittery and was unable to sleep, which was unusual for him. He became irritable and seldom left his home, which was also uncommon for him. On one occasion, the elder Mr. Ybarzabal heard sirens and called his son, telling him there was a fire in his apartment. There was no fire.

Tome’ Frazier (“Ms. Frazier”) lived with her cousin, Mr. Chocklin. On the morning of the fire, she heard crackling coming from one of the vents in the bathroom, and, though there was smoke in the apartment, the smoke alarm did not go off. She lost family heirloom furniture and plaques belonging to her late father, as well as letters and jewelry. She was not able to salvage anything. Neither she nor her cousin smoked cigarettes, and there was nothing stored in the HVAC closet. It has been a constant struggle to rebuild her life and is an overwhelming process. She saw some of the workers stealing things from the apartments. She has not sought counseling for any emotional symptoms and missed two to three weeks of work. She received $11,113 from State Farm for personal property insurance.

In each claim, State Farm pursued its subrogation rights in its own consolidated action.

George Hero (“Mr. Hero”) investigated the fire for APMT, owner of Windsong. He determined that the area of origin was the HVAC closet in Apartment U, at floor level. There is no low electrical wiring. It is not unusual for Rpeople to store things there, so Mr. Hero opined that the cause of the fire was due to some material stored there or there was some other accidental cause by the occupant. However, there was no evidence of any stored material. The possibilities are tenant action, mechanical problems with the ah* conditioning unit, or electrical defects. He did not find any defects or sources of ignition in the electrical system or the appliances.

Sam Smith (“Mr. Smith”), a carpenter and roofer for APMT, worked after the fire at Windsong to board up windows and doors. When allowed, the workers would escort people to their apartments to get their belongings. Ms. Shubert collected her television set, baby clothes, and some photos. She gave him her bed. The bed remained in storage at Windsong for sixty days. It is company policy to have a written document when a tenant gives them some things, but Mr. Smith did not see such a paper.

Suzanne Tonti (“Ms. Tonti”) is a manager at APMT (referred to as “Tonti”) Properties. When a tenant signs a lease, the agents answer any specific questions posed by the lessees. The leases are initialed on each page. After the fire, the management helped the tenants determine their housing options. All but one, the Middle-mans, relocated to a Tonti property. The company could only release a burned unit for inspection and retrieval by the former tenants once it was determined to be safe and released by the insurance company. Tonti employees are not allowed to accept property from tenants and any such transaction must be run through management. There is no written document for this. However, Tonti does have documentation, from statements of two employees, that Ms. Shubert gave permission to take her bed. In the leases, there is a clause that if there is any problem in the premises, meaning the apartment unit, it is the obligation of the tenant to inform management.

IflDr. Harminder Mallik (“Dr. Mallik”) did a psychiatric evaluation of Ms. Shubert for APMT regarding her claim of post-traumatic stress disorder (“PTSD”). After examining her medical records, he found that Ms. Shubert had a history of depression and anxiety disorders, as well as of insomnia, both before and after the fire. There was no documentation in her prior history that she ever related any of her symptoms to the fire. Dr. Mallik’s interview took place fifteen months after the fire, and he opined that incidents in Ms. Shubert’s personal history, as well as her work history, greatly impacted her before the fire. She did not relate information that indicated PTSD. Rather, according to Dr. Mallik, she described “mental anguish” as anger toward the management because she was not allowed back into her apartment to determine her losses and that employees had taken her property, and that she had been singled out by the management. According to Dr. Mallik, the fire did not significantly change her mental state, although he had no documentation or information about her around the time of the incident — she had not had treatment from 2003 until 2006. Dr. Mallik stated that Ms. Shubert had suffered a trauma but that it did not rise to the level of PTSD.

In its Reasons for Judgment finding liability on the part of APMT, the trial court stated it had previously denied summary judgment based on Mr. Hero’s report that no defects or sources of ignition could be found in the electrical system, and he could not exclude “some actions by a tenant” as a source of ignition. The court went on to note that at trial. Mr. Hero admitted there was no actual evidence that any material was stored in the HVAC closet by a tenant. The court then considered the testimony of Mr. Chocklin and Ms. Frazier that they did not store anything in the closet, and the testimony and report of Mr. Stringer that the fire was caused by ignition of combustible building materials from an electrical failure in the building’s wiring.

1 mThe court also found that the liability waivers contained in the leases concerned only the “leased premises” and that the defect was not found within the actual apartment of any plaintiff but, rather, “in the service compartment leading to the attic space of the building.”

Former La. C.C. art. 2695 was revised and its principles codified in La. C.C. arts. 2696 and 2697. La. C.C. art. 2696 states that the lessor warrants the lessee that the thing is suitable for the purpose for which it was leased and that it is free of vices or defects that prevent its use for that purpose. This warranty also extends to vices or defects that arise after the delivery of the thing and are not attributable to the fault of the lessee. Under La. C.C. art. 2697, this warranty encompasses vices or defects that are not known to the lessor. Of the burden of proof in these cases, we have stated:

To recover under [former] Art. 2695, it is not necessary to prove the cause of the defect. - A lessee must prove only the existence of the defect. In order for a lessee to recover damages from the lessor under this article due to an alleged vice or defect in the leased premises, the lessee must prove by a preponderance of the evidence that a defect existed in the premises and that the defect caused the damages. Proof by direct or circumstantial evidence is sufficient to constitute a preponderance if, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not. Causation may be proved by circumstantial evidence, and that evidence need not negate all possible other causes, but it must exclude other reasonable hypotheses with a fair amount of certainty.

The effect and weight to be given to expert testimony is within the broad discretion of the trial judge. In the present case, the trial court gave a great deal of weight to the testimony of Mr. Stringer and determined that his testimony, along |uwith that of Mr. Chocklin and Ms. Frazier, was sufficient to show a defect in the building’s wiring was the cause of the fire. Mr. Hero testified that he found no defect in either the air conditioning unit or the wiring, leaving him to conclude “tenant activity” as the cause of the fire. Mr. Stringer agreed the problem was not in the air conditioning unit but found that, due to the condition of the building, while the location of the particular failure remained unspecified, it was in the building’s electrical system. Granting credence to the testimony of Mr. Chocklin and Ms. Frazier that nothing was stored in the closet, the court concluded a defect existed in the wiring. Based on the evidence presented, we cannot find that that this determination was clearly wrong.

APMT directs us to cases which hold that the occurrence of an accident or fire on leased premises does not give rise to a presumption that a defect in the premises caused the accident or fire. The principle remains true, but those cases are inapplicable on their facts. In Latham, the case was submitted on a stipulation of facts. The Louisiana Supreme Court found that the stipulation did not justify a finding of a defect in the electrical system, because there was no evidence as to the cause of the fire. In that case, the only reference to a possible cause was the alarm report of the fire department, which said, “ ‘Where fire started and cause is unknown for sure. It appears cause may have been an electrical failure of some kind in the area of apartment ... 201 or 203 or attic over one or the other, (see statement of tenant 201 on back of report.)’ ” The court noted that the plaintiff was the tenant in 201 and the statement to which the alarm report referred related only what plaintiff saw as set forth in the stipulation. There was no definitive finding of cause. Similarly, in Long, the expert testified that he “was not certain as 112to the cause, but if he had to make a decision, he would say the origin was electrical but he could not be positive on this score.” In the present case, the fire was investigated by two experts who testified and filed written reports. Mr. Stringer’s investigation and findings provided a basis for a finding of a defect in the electrical wiring as the cause of the fire.

APMT also urges that, in the leases, the tenants assumed liability via the following clause in their leases:

Lessor will not be responsible for damage caused by leaks in the roof, by bursting of pipes resulting from a freeze or otherwise, fire, theft, flooding, smoke damage, vandalism, water escape from toilets or water heaters or otherwise, or any vices or defects of the leased property or the consequences thereof, except in the case of positive neglect or failure to take action toward the remedying of such defects and the damage caused thereby....
In accordance with the provisions of Louisiana Revised Statute 9:3221, Lessee does hereby agree and stipulate that he will assume responsibility for defects of the leased premises which include, but are not limited by, the apartment interior, balconies, porches, stairways, common areas, common accessories, adjacent premises, the roof and ceiling and other such areas. By this proviso, Lessee agrees and stipulates that Lessor and its agents shall not be liable for any injury caused by any defect on the leased premises as described herein-above, to Lessee, his employees, patrons, invitees, and visitors.

APMT argues that the trial court erred in refusing to enforce each tenant’s individual assumption of liability and waiver of warranties as set forth in the lease. Under La. C.C. art. 2699, the warranties owed by a lessor for vices or defects, as defined in C.C. arts. 2696-2698, may be waived, but only by clear and unambiguous language that is brought to the attention of the lessee. Nevertheless, the article states that such waiver is ineffective to the extent it pertains to vices or defects of which the lessee did not know and the lessor knew or should have 113known; to the extent it is contrary to the provisions of Article 2004; or in a residential or consumer lease, to the extent it purports to waive the warranty for vices or defects that seriously affect health or safety. To be effective, a waiver must meet the conditions specified in the first paragraph of the article and must not fall within any one of the three exceptions or prohibitions. To the extent that a waiver purports to encompass those vices or defects that seriously affect health or safety, the waiver is ineffective. We think it obvious that a waiver of a defect in the building’s electrical system that results in a fire clearly affects health and safety and is, thus, not enforceable.

APMT also refers us to La. R.S. 9:3221, which states:

Notwithstanding the provisions of Louisiana Civil Code Article 2699, the owner of premises leased under a contract whereby the lessee assumes responsibility for them condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

We note initially that, insofar as the clause purports to waive liability for defects in common areas or common accessories, it is inapplicable. Landlords are not entitled to claim the exculpatory benefits of La. R.S. 9:3221 for such areas. The rationale for this conclusion is that no single, individual tenant normally assumes exclusive responsibility for the care and maintenance of common areas. Nevertheless, APMT avers that the HVAC closet and, by implication, the building wiring, was part of the leased premises (of Mr. Chocklin and Ms. Frazier) because it was in the air conditioning closet of Apartment U.

In this situation, the only area which a tenant may conceivably have some control is the HVAC unit itself, and there was no evidence that it failed. Further, 1H there is no evidence that any action of any tenant caused the wiring to fail. It is unreasonable to conclude that any single, individual tenant assumes exclusive responsibility for the care and maintenance of the main electrical wiring that services a building of twenty-four apartments. We hold that, in such cases, the wiring is not included in the “leased premises” for purposes of La. R.S. 9:3221. On this issue, the tenants in the present case did not waive the lessor’s warranties expressed in La. C.C. art. 2696.

We now turn to the damages awarded by the trial court. Each tenant submitted a list of estimated property damage losses. The court awarded these losses, as well as damages for mental anguish and, in some cases, lost income. The awards for Mr. Frazier, Ms. McNair, and the Middlemans were reduced by the amount of the insurance payments received.

APMT avers that the tenants did not prove mental anguish sufficient to support an award of general damages, i.e., mental anguish, and that these damages were excessive. APMT urges that the tenants were in no immediate danger as they exited their units at the time of the fire and, although they stood across the street, none actually witnessed their possessions engulfed in flames.

In analyzing and awarding damages, the trial court relied on Broome v. Gauthier to determine that the tenants were entitled to damages.

An award for mental anguish allegedly resulting from property damage is permissible only when the property is damaged by (1) an intentional or illegal act; (2) by an act for which the tortfeasor will be strictly or absolutely liable; (3) by acts constituting nuisance; or (4) when the owner is present or nearby and suffers 1ir,psychic trauma as a result. APMT is liable to the tenants under La. C.C. art. 2696, which retains the concept of strict liability. Since we have found that the evidence supports a finding that the tenants suffered property damage and that APMT is strictly liable for that damage, general damages, which includes mental anguish, may be awarded. Mental anguish” or “emotional distress” is defined as “a highly unpleasant mental reaction (such as anguish, grief, fright, humiliation, or fury) that results from another person’s conduct; emotional pain and suffering.” Psychic trauma is in the nature of or similar to a physical injury. To be compen-sable in the present situation, mental anguish need not rise to the level of psychic trauma.

General damages are those which may not be fixed with pecuniary exactitude; instead, they “involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms.” ... Vast discretion is accorded the trier of fact in fixing general damage awards.... This vast discretion is such that an appellate court should rarely disturb an award of general damages.... Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact....
Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award....
The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages.... Only after a determination that the trier of fact has abused its “much 11fidiscretion” is a resort to prior awards appropriate and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion....

With these principles in mind, we now review the general damage awards granted by the trial court.

The court awarded Ms. Shubert $25,000 for mental anguish. Dr. Mallik agreed that she did suffer a trauma from the fire. After our review, detailed above, of her testimony as to her losses, experiences, and emotional suffering, including apparent aggravation of her emotional symptoms, we find no abuse of discretion.

Jennifer and Thomas Middleman were each awarded $25,000 for mental anguish. Considering their testimony regarding their fear, loss of family items, including possible theft by APMT employees, worry for their children, and lingering anxiety and depression, we do not find these awards to be excessive. Emma Middleman was awarded $5,000. We find the evidence supports such an award, especially considering her lingering fears and worries, as well as her tender age.

Ms. Frazier was awarded $20,000 for mental anguish. She also lost family heirloom, furniture, memorabilia of her late father, and family jewelry. Further, it was in her apartment that the fire had the initial impact, with smoke and flames coming from the air vents. She found rebuilding her life to be overwhelming. We find this award is not excessive.

Mr. Chocklin received an award of $15,000. He lived with Ms. Frazier, and also witnessed possible theft of his things, as well as irreplaceable family mementoes, including jewelry. He suffered lingering physical symptoms. This item of damages is not excessive.

117Mr. Ybarzabal experienced loss of enjoyment of life, insomnia, fear and anxiety, and a change in personality. An award of $15,000 was reasonably within the trial court’s discretion.

The court awarded Ms. McNair $20,000 for mental anguish. The evidence in this case is somewhat less compelling. Ms. McNair described an increase in depression, and there is some evidence that the fire exacerbated her emotional problems and her insomnia. While the award is rather high, we feel that the trial court was in a better position to assess the effects of the particular injury to this particular plaintiff under the particular circumstances and cannot say that it is so unreasonable so as to constitute an abuse of the trial court’s vast discretion.

APMT also urges the court erred in awarding damages for lost wages to the Middlemans, Mr. Frazier, and Mr. Chocklin. The only evidence on this issue was the testimony of the witnesses themselves.

Under Louisiana jurisprudence, wage losses may be established by any proof which reasonably establishes the claim, including the plaintiffs own reasonable testimony.... While claims for past lost wages must be established with some degree of certainty, ... they need not be proven with mathematical certainty, but only by such proof as reasonably establishes the plaintiffs claim.... This award may be supported by the plaintiffs detailed and uncorroborated testimony. ...

The plaintiffs uncorroborated, self-serving testimony will not be sufficient to support an award if it is shown that corroborative evidence was available and was not produced. In the case before us, the tenants testified as to their lost income, by stating their hourly or weekly wages and the amount of time lost due to the fire. There was no showing that any corroborative evidence was available and 11sthat the tenants failed to produce it. Therefore, we find the court properly awarded damages for lost wages to those tenants.

For the foregoing reasons, the judgment of the trial court is affirmed. APMT is assessed all costs of appeal.

AFFIRMED.

      . Montecino v. Bunge Carp., Inc., 04-875 (La.App. 5 Cir. 2/15/05), 895 So.2d 603, 607, writ denied, 05-0962 (La.6/17/05) 904 So.2d 704 (footnotes omitted).

      . State v. St. Charles Airline Lands, Inc., 03-1292 (La.App. 5 Cir. 4/27/04), 871 So.2d 674, writ denied, 04-1552 (La.10/1/04) 883 So.2d 992.

        .Latham v. Aetna Cas. & Sur. Co., 377 So.2d 350 (La.1979); See also, Long v. McMichael, 219 So.2d 810 (La.App. 1 Cir. 1968).

      . Latham, supra.

      . Id. at 352.

        .Long, supra, at 813.

      . Dorion v. Eleven Eleven Bldg., 98-3018 (La.App. 4 Cir. 5/12/99), 737 So.2d 878.

      . Id.

      . 443 So.2d 1127 (La.App. 4 Cir.1983), writ denied, 445 So.2d 449 (La.1984).

      . Williams v. City of Baton Rouge, 98-1981 (La.4/13/99), 731 So.2d 240; 1900 Partnership v. Bubber, Inc., 27,475 (La.App. 2 Cir. 11/1/95), 662 So.2d 808, writ denied, 96-0037 (La.2/28/96), 668 So.2d 369; Freyou v. Iberia Parish Sch. Bd., 94-1371 (La.App. 3 Cir. 5/3/95), 657 So.2d 161; Blache v. Jones, 521 So.2d 530 (La.App. 4 Cir. 1988).

      . See, Montecino v. Bunge, supra; See also, Barnes v. Riverwood Apartments P'ship, 38,-331 (La.App. 2 Cir. 4/7/04), 870 So.2d 490, writ denied, 04-1145 (La.6/25/04) 876 So.2d 845.

      . Black’s Law Dictionary (8th ed.2004).

      . See, e.g., State Farm Fire & Cas. Co. v. Torregano, 00-141 (La.App. 5 Cir. 9/26/00), 769 So.2d 754.

      . Bellard v. Am. Cent. Ins. Co., 07-1335 (La.4/18/08), 980 So.2d 654, 674 (citations omitted).

      . Daniels v. Burridge, 00-1089 (La.App. 4 Cir. 3/21/01), 785 So.2d 906, 911, writ denied, 01-1110 (La.6/1/01), 793 So.2d 201 (citations omitted).

      . Wehbe v. Waguespack, 98-475 (La.App. 5 Cir. 10/28/98), 720 So.2d 1267, 1275, 1276, writ denied, 98-2907, 98-2970 (La. 1/15/99), 736 So.2d 211, 213.


source: Caselaw Access Project

author: McDonald, j.

license: Public Domain

text:
    Krystal DILLON v. Sharon FREEMAN, Louisiana Used Motor Vehicle and Parts, State of Louisiana and Office of Risk Management.
    No. 2009 CA 0606.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 2010.

      George R. Tucker, Hammond, LA, for Plaintiff/Appellee, Krystal Dillon.
    James D. “Buddy” Caldwell, Attorney General, and Sharry R. Scott, Assistant Attorney General, New Orleans, LA, for Defendants/Appellants, Sharon Freeman, Louisiana Used Motor Vehicle and Parts, State of Louisiana, and Office of Risk Management.
    Before: PARRO, KUHN, and McDonald, jj.

      . The petition incorrectly named "Louisiana Used Motor Vehicle and Parts” instead of the Louisiana Recreational and Used Motor Vehicle Commission. In order to facilitate tracking of the opinion, we do not correct the name on the title of the case.

   McDonald, j.

|aThe facts of this case are not at issue. Krystal Dillon was driving a vehicle westbound on the Interstate 12 off-ramp and came to a stop, when she was struck in the rear by Sharon Freeman, who was driving a vehicle owned by the Louisiana Recreational and Used Motor Vehicle and Parts Commission (the Commission). Thereafter, Ms. Dillon filed a suit for damages against Ms. Freeman, the State of Louisiana, the Commission, and the Louisiana Office of Risk Management. The Louisiana Office of Risk Management was dismissed prior to trial, leaving Ms. Freeman, the State of Louisiana, and the Commission as defendants.

After a jury trial on the merits, the jury found in favor of Ms. Dillon and against Ms. Freeman, the State of Louisiana, and the Commission. In accord with the jury findings, the trial court rendered a judgment in favor of Ms. Dillon, awarding her $266,416.02 in damages, interest from the date of judicial demand in the amount of $55,012.75, and costs. The defendants appealed that judgment and make the following assignments of error: 1) that the trial court committed manifest error in denying defendants’ Batson challenges; 2) that the trial court committed legal error in calculating the judicial interest to be assessed against the State of Louisiana; and 3) that the trial court committed legal error or abused its discretion in denying defendants’ motions to continue the trial.

ASSIGNMENT OF ERROR NO. 1

Regarding the denial of defendants’ Batson challenges, we note that it is not possible to determine the race of the jurors from the record. Defendants aver that they established a prima facie case of racial discrimination by plaintiffs counsel. However, there is no such information in the record. The arguments of counsel contained in appellate briefs and references to facts and issues that are not currently before the court are not considered record evidence. This court has no ^authority to consider on appeal facts referred to in appellate briefs if those facts are not in the record on appeal. In Re Succession ofBadeaux, 2008-1085, pp. 5-6 (La.App. 1st Cir.3/27/09), 12 So.3d 348, 352, writ denied, 2009-0822, (La.5/29/09), 9 So.3d 166.

Defendants filed a motion to supplement the record with this court, which denied the motion, as requests for supplementation of the record are more properly directed to the trial court. Dillon v. Freeman, 2009-0606 (La.App. 1st Cir.6/22/09) (unpublished). The defendants then filed a motion to supplement the record with the trial court, which granted the motion in part and denied the motion in part. The defendants then filed a third motion to supplement the record with this court, which granted the motion on July 24, 2009. Despite the supplementation of the record, the record still does not contain evidence of the race of the jurors, only the defendants’ attorneys’ argument about the race of the jurors. Thus, this assignment of error has no merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, the defendants assert that the trial court improperly calculated interest on the judgment. Louisiana Revised Statute 13:5112 provides in part:

C. Legal interest on any claim for personal injury or wrongful death shall accrue at six percent per annum from the date service is requested following judicial demand until the judgment thereon is signed by the trial judge in accordance with Code of Civil Procedure Article 1911. Legal interest accruing subsequent to the signing of the judgment shall be at the rate fixed by R.S. 9:3500.

Although the statute provides for legal interest to accrue from the date service is requested following judicial demand, the judgment appealed herein ordered the defendants to pay accrued interest from the date of judicial demand in the amount of $55,012.75. The suit was filed on August 26, 2005.

14The judgment awarded Ms. Dillon $266,416.02. Service of the petition was requested on October 18, 2005, and the judgment was signed on March 12, 2008. Judicial interest ran for the last 75 days left in 2005, the full 365 days in 2006, the full 365 days in 2007, and the first 72 days of 2008, for a total of 877 days. The judgment amount of $266,416.02 multiplied by .06 equals interest of $15,984.96 per year. Divided by 365 days, it equals $43.79 per day interest. Multiplying the daily interest of $43.79 times 877 days equals $38,403.83.

Thus, the trial court legally erred in awarding $55,012.75 in interest on the judgment. We amend the judicial interest award to $38,403.83.

ASSIGNMENT OF ERROR NO. 3

The defendants assert that the trial court abused its discretion in denying their motions to continue the trial. Louisiana Code of Civil Procedure article 1601 provides that “[a] continuance may be granted in any case if there is good ground therefor.” The trial court has great discretion in granting or denying a continuance under Article 1601, and its ruling should not be disturbed on appeal in the absence of a clear abuse of discretion. St Tammany Parish Hospital v. Bums, 2000-2639, p. 4 (La.App. 1st Cir.12/28/01), 804 So.2d 960, 963.

The suit was filed on August 26, 2005. At a status conference on October 10, 2007, in which attorneys for both sides participated, the case was set for trial the week of February 11, 2008, with a final pre-trial conference set for the afternoon of February 11, 2008.

On December 10, 2007, defendants filed a motion to continue the trial due to a scheduling conflict. This motion was denied by the trial court on December 12, 2007, noting in its reasons that the local rules required that all counsel must agree to a trial continuance.

Thereafter, on February 1, 2008, defendants filed another motion to continue the trial, which was heard and denied on February 11, 2008. The trial court | .^determined that a delay in the trial was not warranted. The trial court found that defendants had ample time between the filing of the suit and start of the trial to depose the witnesses. There is no support in the record for their argument that some witnesses were unavailable, nor is there any evidence that the plaintiff hindered the defendants from taking depositions during discovery. The court weighed the matter and determined that a lengthy delay, due to the heavy court docket, would be unfair to the plaintiff and contrary to the orderly and prompt administration of justice. We find no abuse of discretion by the trial court in denying the defendants’ motions for continuance.

Thus, for the foregoing reasons, the trial court judgment is amended to reduce the judicial interest award to $38,403.83; in all other respects, the judgment is affirmed. Costs in the amount of $6,937.50 are assessed against the defendants.

JUDICIAL INTEREST AWARD AMENDED; JUDGMENT AFFIRMED IN ALL OTHER RESPECTS.

      . See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    BARKLEY ESTATE COMMUNITY ASSOCIATION, INC. v. Gregory HUSKEY.
    No. 09-CA-268.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 12, 2010.

      C.A. Fleming, III, Attorney at Law, Me-tairie, LA, for Plaintiff/Appellant.
    Elaine Appleberry, Attorney at Law, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

|2This is an action by plaintiff/appellant Barkley Estates Community Association, Inc. against defendant/appellee Gregory Huskey seeking damages and an injunction. Barkley Estates-appeals the December 12, 2008 judgment granting Mr. Hus-key’s exception of no cause of action. Mr. Huskey filed an exception of no cause of action asserting that an agreement between the parties (hereinafter referred to as the “Agreement”) contained a binding arbitration clause and the allegations contained in the petition fell within the scope of the arbitration clause. Mr. Huskey argued, and the trial judge agreed, that Barkley Estates’ claims must be arbitrated pursuant to the Agreement. For the following reasons, we affirm.

Procedural History

On January 24, 2008, Barkley Estates filed its petition for damages and an injunction along with annexed documents. In essence, the petition alleges the following: (1) Mr. Huskey, a property owner in the Barkley Estates Subdivision, is subject to the building and construction guidelines of the Barkley Estate Community Association. (2) Mr. Huskey submitted an informal building plan to build a fence. (3) Berkeley Estates denied the request but approved a modification subject to various conditions. (4) Mr. Huskey agreed to the modified conditions. |3(5) Barkley Estates discovered Mr. Huskey was violating the conditional variance and notified Mr. Hus-key to discontinue. (5) Mr. Huskey refused to comply.

Mr. Huskey admitted that he is the owner of the property in question but otherwise denied the allegations in the petition.

Barkley Estates alleged that this private gated subdivision in Jefferson Parish is governed by its own building restrictions. Barkley Estates attached to its petition a purported letter from its president to Mr. Huskey stating the proposed modification conditions relative to Mr. Huskey’s request to build a fence failed to comply with the Association’s building conditions. The letter referenced Article XV Section 15.7 of the Barkley Estates’ rules, which states that every owner and occupant of any lot shall comply with section 15.7, “any applicable Supplemental Declaration, the ByLaws, and the Use Restrictions and Rules promulgated pursuant to Article X.” The rule also states that the failure to comply “shall be grounds for an action by the Association or, in a proper case, by any aggrieved lot owner(s) to recover sums due, for damages or injunctive relief, or for any other remedy available at law or in equity, in addition to those enforcement powers granted to the Association in Section 4.3.”

Barkley Estates alleged that Mr. Hus-key submitted an informal building plan to build a 7 foot high solid brick fence with 30 foot wide wrought iron gates, set back 10 feet from the front property line on his two adjoining lots. According to Barkley Estates, the request was denied because solid privacy fences are not permitted within 40 feet of the front property line. Barkley Estates alleged that Mr. Huskey was approved in October 2007 to build a fence consisting of an 18 inch chain wall, 23 foot wide wrought iron gates, set back 25 feet from the front property line (even with the front of the home). However, that approval was conditioned on Mr. Hus-key’s replacing the trees that Mr. Huskey would remove, |4and Mr. Huskey’s obtaining written approval of the variance from his neighbors. Barkley Estates further alleged that on October 10, 2007, Mr. Hus-key acknowledged receiving the conditional approval and specifically agreed to the conditions. Barkley Estates contends that despite agreeing to the conditional modifications, Mr. Huskey has poured a slab/concrete foundation without prior written request, notice or approval. Moreover, Barkley Estates alleges that Mr. Huskey plans to pour a driveway on the vacant lots without prior requests, notice, or approval. Barkley Estates contends that Mr. Huskey has built a non-compliant fence, failed to replace the removed trees, and failed to obtain the written approval of the variance from his neighbors. Furthermore, Barkley Estates alleges that Mr. Huskey removed his existing driveway without prior request, notice, or approval, all in violation of the Barkley Estate building restrictions or in direct violation of the conditional variance.

Barkley Estates sought the following orders from the trial court: (1) An order requiring Mr. Huskey to comply with the conditional variance, the building restrictions, and construction guidelines of Barkley Estates. (2) Enjoinment. (3) An order from the court of termination and removal of the offending fence, slab and driveway. (4) Replacement of the removed trees. (5) A written approval of Mr. Huskey’s neighbors. Barkley Estates further sought reasonable damages that are not limited to all costs incurred, including attorney’s fees, pursuant to the By-Laws of Barkley Estates.

Barkley Estates filed a motion for summary judgment in which it requested a declaratory judgment and permanent injunction ordering compliance with the building restrictions and the other matters mentioned in the petition. It also asked for attorney fees.

|BMr. Huskey filed peremptory exceptions of no right of action, no cause of action, and prescription. With respect to the exception of no cause of action, he argued that pursuant to the “Declaration of Covenants, Conditions and Restrictions for Barkley Estates,” which has the force of law in this case, Barkley Estates cannot ask the court to provide a remedy that is unavailable to it. Mr. Huskey asserted that Barkley Estates’ claims must be arbitrated pursuant to the Agreement. Therefore, according to Mr. Huskey, since Barkley Estates is not afforded a remedy of permanent injunction or damages as requested in the petition, Barkley Estates has stated no cause of action.

The exceptions and the motion for summary judgment were heard on the same date. At the hearing, the parties argued the exceptions separately from the motion for summary judgment. On December 12, 2008, the trial judge denied the motion for summary judgment. He also granted the exception of no cause of action. He did not rule on the merits of the other exceptions because he deemed that these were moot. The only judgment before this court is the granting of the exception of no cause of action.

The Exception

Mr. Huskey filed an exception of no cause of action based on an arbitration agreement. In Matthews-McCracken Rutland Corp. v. City of Plaquemine, 414 So.2d 756, 758, n. 4 (La.1982), the Louisiana Supreme Court noted that the objection to proceeding to trial, rather than to arbitration, may be raised by an exception of prematurity, which must be pleaded pri- or to answer. “However, the objection may also be raised by an exception of no cause of action (a peremptory exception which can be pleaded at any time), because the party has no cause of action at law when the contract expressly required settlement of contractual controversies and claims by arbitration.” Id. The Court noted: “R.S. 9:4201 and |fi4202 [the Louisiana Arbitration Law] mandate that an arbitration provision in a written contract shall be valid and enforceable. Once the court finds an agreement to arbitrate and a failure to comply therewith, the court shall order arbitration.” Id., 414 So.2d at 757 (Citation omitted).

In Ackel v. Ackel, 97-70, p. 5 (La.App. 5 Cir. 5/28/97), 696 So.2d 140, 143, writ denied, 97-2139 (La.11/21/97), 703 So.2d 1310, this court considered a judgment granting an exception of no cause of action based on an arbitration provision in an agreement. In that case, the petition did not mention the arbitration provision. The court held: “A proper vehicle to raise this issue would have been the Exception of Lack of Subject Matter Jurisdiction or a Motion for Summary Judgment, since the introduction of evidence is permissible with those pleadings, whereas the court may only consider the four corners of the petition when ruling on the Exception of No Cause of Action.”

An exception is treated as it actually is, not what it is titled. Standtlander v. Ryan’s Family Steakhouses, Inc., 34,384 (La.App. 2 Cir. 4/4/01), 794 So.2d 881, 886, 886, n. 6, writ denied, 01-1327 (La.6/22/01), 794 So.2d 790, questioned on other grounds as stated in Arkel Constructors, Inc. v. Duplantier & Meric, Architects, L.L.C., 06-1950 (La.App. 1 Cir. 7/25/07), 965 So.2d 455.

We first consider the nature of the exception that is actually before this court. With regard to an exception of no cause of action, no evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993), questioned on other grounds as stated in In re Succession of Grimmett, 31,975 (La.App. 2 Cir. 3/5/99), 738 So.2d 27 {citing La. C.C.P. art. 931.). This is not the case, however, with the declinatory exception of lack of subject matter jurisdiction. La.C.C.P. arts. 925(6), 929(A), 930.

17AppeIIant argues that the trial judge erred by granting the exception of no cause of action because the trial judge improperly considered evidence beyond the petition.

At the hearing, defendant’s counsel introduced into evidence, in connection with the exceptions, a portion of the contract, and the petition for damages without objection from appellant. Appellant alternatively argues that even considering that evidence, the plaintiff still has maintained a cause of action, relying on additional contract portions that were not formally introduced into evidence. Rather, those portions were attached to appellant’s memorandum in opposition to the exceptions. Appellant’s counsel referred to those portions at the hearing on the exceptions and the trial judge considered those portions without objection from defense counsel.

In Lemieux v. Prudential Ins. Co., 416 So.2d 1347, 1348 (La.App. 1 Cir.1982), writ denied, 420 So.2d 454 (La.1982), the First Circuit in determining an exception of no cause of action considered the pleadings enlarged where the insurance policy was submitted to the trial court at or prior to the hearing on the exception, and it appeared from the judgment on the exception that the policy was considered by the trial court as an exhibit.

In Abshire v. Belmont Homes, Inc., 04-1200, p. 2 (La-App. 3 Cir. 3/2/05), 896 So.2d 277, 280, twit denied, 05-862 (La.6/3/05), 903 So.2d 458, the court considered the exception of prematurity based on failure to arbitrate. The pertinent documents were not introduced into evidence at the hearing on the dilatory exception but were “attached to the pre-hearing memoranda filed by the litigants.” However, the Third Circuit court reviewed those documents because the litigants in that case “treated the documents as if they were introduced; therefore, [the appellate court treated] them acknowledgment as a judicial confession of the existence of the documents as evidence.” Id.

|sIn Stadtlander, supra, the Second Circuit found that the petition was expanded to include the arbitration agreement and testimony offered at the hearing on the exception. However, the court also found that if the pleadings were not deemed expanded, the court “would likely treat [the exception of no cause of action] as one of subject matter jurisdiction.”

In this case, both parties relied on contract portions without objection from the other party and the trial judge considered the contract in determining whether there was a cause of action. Thus, arguably the pleadings were enlarged by the evidence introduced at the hearing as well as the exhibits submitted in connection with the exception. However, we conclude that if the pleadings were not deemed expanded, we will treat the exception of no cause of action as an exception of subject matter jurisdiction. Therefore, the contract portions, which were either admitted or submitted without objection may therefore be considered in determining whether the court has subject matter jurisdiction.

Ordinarily, the threshold inquiry is whether the parties have agreed to arbitrate the dispute in question. Long v. Jeb Breithaupt Design Build Inc., 44,002, p. 8-9 (La-App. 2 Cir. 2/25/09), 4 So.3d 930, 936 (Citation omitted). This determination involves two considerations: (1) whether there is a valid agreement to arbitrate between the parties; and (2) whether the dispute in question falls within the scope of that arbitration agreement. Id.

In the present case, the parties do not dispute the validity of the agreement. Thus, the issue here is whether the dispute in question falls within the scope of that arbitration agreement.

Appellant argues as it did below that even considering the evidence, appellant is authorized to seek injunctive relief to enforce its building restrictions and it is not required to submit to mediation or arbitration.

liiLa. R.S 9:1141.8 provides:

The community documents of residential planned communities shall have the force of law between the homeowners association and the individual lot owners and as between individual lot owners. The remedies for breach of any obligation imposed on lot owners or the association shall include damages, injunctions, or such other remedies as are provided by law.

Appellant relies on Article IV, Sections 4.3 and 4.4 and Article III, Section 3-1. Article IV is entitled “Rights and Obligations of the Association.” Article III is entitled “Membership and Voting Rights.” In particular, appellant relies on the following provisions: (1) “All remedies set forth in this Declaration and the By-Laws shall be cumulative of any remedies available at law or in equity.” (2) “The Association shall be the primary entity responsible for enforcement of this Declaration and such reasonable rules regulating use of the Properties as the Board or its membership may adopt.” (3) “The Association may exercise any right or privilege given to it expressly by this Declaration or the By-Laws, or reasonably implied from or reasonably necessary to effectuate any such right or privilege.”

|inThe above sections are general provisions, which authorize the Association to seek various actions regarding the Agree-merit. Such actions would include as appellant asserts, the authorization to seek injunctive relief to enforce its building restrictions.

Appellee argues that appellant fails, however, to consider that Article XIV, “Dispute Resolution and Limitation on Litigation,” is the law between the people who live in Barkley Estates and the Barkley Estates Community Association. According to appellee, Article XIV sets forth mandatory dispute resolution procedures for handling all non-exempt claims between the Barkley Estates and the homeowners. Article XIV, Section 14.1 provides:

Agreement to Avoid Costs of Litigation and to Limit Right to Litigate Disputes. The Association, Declarant, all Persons subject to this Declaration, and any Person not otherwise subject to this Declaration who agrees to submit to this Article (collectively, “Bound Parties”) agreed to encourage the applicable resolution of disputes involving the Properties, in order to avoid the emotional and financial costs of litigation. Accordingly, each Bound Party covenants and agrees that all claims, grievances or disputes between such Bound Party and any other Bound Party involving the Properties, including, without limitation, claims, grievances or disputes arising out of or relating to the interpretation, application or enforcement of his Declaration, the By-Laws, the Association rules, or the Articles (collectively “Claim”), except for those Claims authorized in Section 14.2, shall be resolved using the procedures set forth in Section 14.3 in lieu of filing suit in any court or initiating proceedings before any administrative tribunal seeking redress or resolution of such Claim.

In the interpretation of contracts, the specific conti’ols the general. Corbello v. Iowa Production, 02-826, p. 24 (La.2/25/03), 850 So.2d 686, 704, clarified on rehearing on, other grounds, 02-826 (La.6/20/03), 850 So.2d 686 (per curiam). Therefore, we conclude that the mandatory dispute resolution provision, the more specific portion of the agreement governs over the more general portions.

Appellant responds that Article XIV, 14.2 provides that certain claims are exempt from the mandatory alternative dispute procedures of mediation and | n arbitration. Appellant argues that Section 14.2(b) provides an exemption that applies here. Section 14.2(b) provides the following exemption:

Any [sic] suit by the Association to obtain a temporary restraining order (or equivalent emergency equitable relief) and such other ancillary relief as the court may deem necessary in order to maintain the status quo and preserve the Association’s ability to enforce the provisions of Article IX (Architectural Standards) and Article X (Use Restrictions and Rules)[.]

In this case, Barkley Estates is seeking a permanent injunction and damages. The parties disagree that the request for a permanent injunction and damages is included in the exemption. Appellant argues that the exemption should be construed broadly to encompass a permanent injunction and the specific type of damages asked for in the petition.

The mandatory dispute resolution section states that its purpose is to encourage the applicable resolution of disputes involving the Properties in order to avoid the emotional and financial costs of litigation. Article XIV, Section 14.1.

The exemption clearly states that it exempts a temporary restraining order, equivalent emergency equitable relief, and other ancillary relief as the court may deem necessary. However, that exemption pertains to relief a court “may deem necessary in order to maintain the status quo and preserve the Association’s ability to enforce the provisions” of the use restrictions and rules.' The action here of seeking a permanent injunction and damages is not an action to maintain the status quo and preserve the Association’s ability to enforce its use restrictions and rules. Therefore, the exemption does not apply. As such, the trial judge correctly found there was a binding alternative resolution agreement.

But even if the provision is deemed ambiguous, we hold, for the reasons that follow, that under the policy of the Louisiana Arbitration Law, there was a binding alternative resolution agreement.

| |2The Louisiana legislature has adopted a policy favoring arbitration. Broussard v. Compulink Business Systems, Inc., 41,276, p. 3 (La.App. 2 Cir. 8/23/06), 939 So.2d 506, 509, citing Aguil-lard v. Auction Management Corp., 04-2804 (La.06/29/05), 908 So.2d 1 (Aguillard questioned on other grounds as stated in Arkel Constructors, Inc. v. Duplantier & Meric, Architects, L.L.C., 06-1950 (La. App. 1 Cir. 7/25/07), 965 So.2d 455). The Louisiana arbitration Law is contained in La. R.S. 9:4201, et seq. La. R.S. 9:4201 provides:

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

La. R.S. 9:4202 allows for a stay of trial proceedings until an arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration. La. R.S. 9:4203 allows a party to petition the court for an order directing that arbitration proceed in the manner provided for in the agreement. La. R.S. 9:4209 grants the court jurisdiction to issue an order confirming the award “unless the award is vacated, modified, or corrected as prescribed in R.S. 9:4210 and 9:4211.”

In Aguillard, supra, the court held:

[E]ven when the scope of an arbitration clause is fairly debatable or reasonably in doubt, the court should decide the question of construction in favor of arbitration. The weight of this presumption is heavy and arbitration should not be denied unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation that could cover the dispute at issue. Therefore, even if some legitimate doubt could be hypothesized, this Court, in conjunction with the [United States] Supreme Court, requires resolution of the doubt in favor of arbitration.

04-2804 at 25, 908 So.2d at 18.

11 ^Conclusion

In view of Aguillard, we find that the trial judge did not err in granting the exception. Accordingly, the judgment is affirmed.

AFFIRMED.

      . Section 4.3 states:

        Enforcement. The Association may impose sanctions for violations of this Declaration, any applicable Supplemental Declaration, the By-Laws, including a reasonable monetary fines and suspension of the right to vote and to use any recreational facilities within the Common Area. In addition, in accordance with Section 3.24 of the ByLaws, the Association may exercise self-help to cure violations and may suspend any services it provides to the Lot of any Owner who is more than 30 days delinquent in paying any assessment or other charge due to the Association. All remedies set forth in this Declaration and the ByLaws shall be cumulative of any remedies available at law or in equity. In any action to enforce the provisions of this Declaration or Association rules, if the Association prevails it shall be entitled to recover all costs, including, without limitation, attorneys fees and court costs, reasonably incurred in such action.

      . Article III, Section 3.1 states:

        Function of Association. The Association shall be the entity responsible for management, maintenance, operation and control of the Area of Common Responsibility. The Association shall be the primary entity responsible for enforcement of this Declaration and such reasonable rules regulating use of the Properties as the Board or the membership may adopt pursuant to Article X. The Association shall also be responsible for administering and enforcing the architectural standards and controls set forth in this Declaration and any Design Guidelines. The Association shall perform its functions in accordance with this Declaration, the By-Laws, the Articles and the laws of the State of Louisiana.

      .Section 4.4 provides:

        Implied Rights: Board Authority. The Association may exercise any right or privilege given to it expressly by this Declaration or the By-Laws, or reasonably implied from or reasonably necessary to effectuate any search right or privilege. Except as otherwise specifically provided in this Declaration, the By-Laws, the Articles, or by law, all rights and powers of the Association may be exercised by the Board without a vote of membership.


author: CLARENCE E. McMANUS, Judge.

text:
    Deborah TATE v. Michael TATE.
    No. 09-CA-591.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 12, 2010.
    Mark M. Dennis Attorney at Law, Cov-ington, Louisiana, for Plantiff/Appellee.
    Rudy W. Gorrell, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

1 STATEMENT OF THE CASE

Deborah and Michael Tate were married on January 26,1980. Deborah filed a petition for divorce on June 8, 1993. She then filed motion to partition community property on April 26, 1999 and a descriptive list of assets and liabilities on October 27, 1999 listing assets of a community home in Ken-ner and a piece of vacant land in Mississippi. The property values were listed as unknown. The mortgage on the community home was listed as a liability and Deborah claimed reimbursement claims for household bills she had paid.

Michael filed a descriptive list on December 13, 1999 listing the same immov-ables as assets with unknown values. He also listed assets of furnishings in the community home and the proceeds from the sale of timber on the Mississippi property. Michael listed tax bills on the Mississippi property and unknown amounts paid to the tax assessor, as well as the mortgage on the community home, as liabilities.

On March 23, 2009, the hearing officer recommended that a proposed consent judgment submitted with a motion to enforce consent judgment be made a judgment of partition in accordance with the transcript of July 17, 2000 |,proceedings. The proposed consent judgment had been dictated in open court on July 17, 2000.

Michael filed an objection to the hearing officer’s recommendation on March 23, 2009 arguing there was never a consent judgment signed by either party. A hearing on the objection was held April 20, 2009 and the trial court issued a judgment on May 1, 2009 adopting the consent judgment dictated into the record July 17, 2000. That consent judgment provided that Michael transfer and convey his undivided one-half interest in the immovable property in Kenner with the community house, and the immovable property in Mississippi to Deborah in full ownership. Therefore, Michael was to transfer and convey the entirety of his interests in all immovable property to Deborah. Michael’s retirement pension benefits in his name were to be assigned according to the “Sims formula”, which was to go into effect on the date of divorce and the length of time that the benefits had accrued would be determined. Any pension benefits accrued after the date of divorce would be Michael’s separate property. The consent judgment further provided that Deborah waived all rights she may have had under a retirement savings investment portion plan in Michael’s name. Finally, Deborah was to indemnify Michael for any of the loan amount on the listed properties and was to hold Michael harmless for payment on the loan.

At the April 20, 2009 hearing before the trial court, Michael argued that even though he was present at the hearing in 2000, he stated to the trial court that he did not understand what was going on, especially related to the community property at issue. The trial court asked if he understood and he responded “[y]eah. I understand but there are certain things that I don’t understand.” Michael argued there was no meeting of the minds and, although there was some discussion before |4the court, there was some confusion regarding him agreeing to reimburse Deborah or turn over the land to her. Michael then left court without signing anything.

Deborah argued there was some confusion at the hearing, however, both attorneys and the court explained the law of reimbursement and in the end Michael understood the transfer of the land to Deborah and then asked questions regarding the retirement account.

Following the hearing, the trial court adopted the consent judgment. Michael now appeals the trial court’s judgment granting the motion to make the consent judgment the formal judgment of the court. For the following reasons, we affirm the trial court’s judgment.

DISCUSSION

First, we find there was a valid consent judgment placed on the record between the parties on July 17, 2000. On that date, both Michael and Deborah were present in court and both were represented by counsel. Deborah’s counsel stated that they were set for trial but had reached an agreement or consent judgment. Both attorneys stated the terms of the consent judgment. Both parties were then asked if they understood what was put into the record by the attorneys. Michael then stated “Yeah. I understand but there are certain things that I don’t understand.” He stated he had talked it over with his attorney but did not understand about the land and house. Michael then explained that he had paid on the land every year except one and had paid on the house until 1993. So, he asked why Deborah deserved to get the land.

The trial court explained to Michael that Deborah would receive the land and house for reimbursements he owed to her for her payment of community debts. Michael’s attorney also explained to him that the reimbursements were for Deborah’s payments of the mortgage and household bills. Michael again stated he |sdid not understand. Deborah’s attorney went on to provide a financial explanation stating the appraisal value of the house, the balance of the loan, and the reimbursement due to Deborah. She then explained that half of the value of the house was $14,464.14 for each party and one half of the reimbursements due to Deborah equal $14,620.00. Therefore, Michael’s one half of the house value is almost even with the reimbursements due to Deborah. The trial court further explained why Michael owed the reimbursements to Deborah.

Michael asked why the land was included since he had paid on it. The trial court explained that Michael owed the money and it had to be paid from somewhere, so the value in the Mississippi land made up the difference. The trial court went on to offer a hypothetical of Michael having a savings account that had nothing to do with the mortgage. The trial court stated that even in that instance, it would order Michael to pay Deborah the reimbursements out of the savings account, even if it had nothing to do with the marriage.

Michael asked no further questions regarding the reimbursement or transfer of the land. He did ask one question regarding the retirement plan. His attorney and the court explained that only the portion accrued during the marriage would be divided and anything accrued after would be his separate property. The court then asked one final time if everyone understood. There were no direct responses from the parties and the court instructed the attorneys to draw up the papers.

We find it is clear from this transcript that the court and attorneys fully explained the terms of the consent judgment to Michael. He did have questions regarding why the Mississippi land was being included to pay the reimbursements to Deborah. However, once he received extensive explanations from the court and attorneys, he did not offer any further objection to the consent judgment. The consent judgment appears to have been fully discussed between the attorneys and | f,parties prior to the court hearing. And, the court had a chance to review the consent judgment and hear from each party. After all explanations were offered, the court accepted the consent judgment and asked the attorneys to present a written judgment.

La. C.C. art. 3072 provides that “[a] compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings.” In this case, the consent judgment or compromise was not perfected in writing, however, it was recited in open court and there was a full discussion on the record.

Therefore, we find the trial court found there to be a valid consent judgment on that date. Since the trial court found there to be a valid consent judgment at the hearing in open court in 2000, we also find the trial court correctly granted the motion to enforce the consent judgment in 2009.

AFFIRMED.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Ella PINKINS, Sharlin Miller Davis, as the Mother and Administrator of the Minor Child, Terrielle Winston v. The HOME DEPOT, INC.
    No. 09-CA-721.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 12, 2010.

      Fred R. Defrancesch, Attorney at Law, LaPLACE, LA, and James A. Harry, Attorney at Law, Springfield, LA, for Plaintiffs/Appellants.
    Christopher B. Conley, M. Davis Ready, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and MARC E. JOHNSON.
   EDWARD A. DUFRESNE, JR., Chief Judge.

12This is an appeal by Ella Pinkins and Sharon Miller Davis, as the mother and administrator respectively of the minor child Terrielle Winston, plaintiffs-appellants, from a summary judgment in favor of The Home Depot, Inc., defendant-appel-lee, in this action arising from a shopping cart incident. For the following reasons, we affirm that judgment.

The basic facts as alleged in the petition are as follows. Ella Pinkins and Terrielle Winston were in a check-out line at a Home Depot store. Another customer was pushing a lumber cart and it ran into the plaintiffs. Plaintiffs further asserted that Home Depot was liable for a number of reasons including its failure to train customers in the proper use of the carts, failure to place proper warnings on carts, and failure to inspect the carts.

After taking Pinkins’s deposition, Home Depot moved for summary judgment, which was granted. This appeal followed.

Summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and affidavits, if any, show that there is no genuine issue as to any material fact and that the mover is entitled to judgment as a matter |sof law. La.Code Civ.Pro. Art. 966 B. That article further provides that when the mover -will not bear the burden of proof at trial it is sufficient to point out to the court that there is an absence of support for one or more of the essential elements of the adverse parties’ claim. Art. 966 C(2). Moreover, in Elmwood MRI, Ltd. V. Paracelsus Pioneer Valley Hosp., Inc., 01-764 (La. 5 Cir. 12/26/01), 806 So.2d 748, this court reiterated the established jurisprudence that nonmoving parties may not simply rely on the allegations of their petition to oppose the motion, but must produce factual support sufficient to establish that they will be able to satisfy their burden of proof at trial. If the party fails to do so, there is no genuine issue of material fact and summary judgment should be granted.

In the present case, Home Depot urged in its motion for summary judgment that plaintiffs could not show any breach of duty owed, or that any of its actions or inactions were a cause in fact of the incident. It cited Jackson v. Home Depot, Inc., 2004-1653 (La.App.l Cir. 6/10/05), 906 So.2d 721, and Reinhardt v. Great Atlantic & Pacific Tea Co., Inc., 02-319 (La.App.5 Cir. 9/30/02), 829 So.2d 600, for the legal proposition that where a patron in a check-out line is injured by another customer pushing a cart there is no liability on the part of the store unless there has been some additional breach of duty, or if there is a defect in the cart or the premises. Those cases also rejected the allegations of failure to train customers in the use of carts or failure to warn customers about their use.

In response, plaintiffs failed to produce any evidence whatsoever which would show that they could prevail at trial. In this circumstance, summary judgment was properly granted.

As a final matter, plaintiffs assert that they were not properly served with the motion for summary judgment. The sheriffs return in the record shows that service was in fact made on their attorney. This assignment is without merit.

j4For the foregoing reasons the summary judgment of the district court dismissing the suit against The Home Depot with prejudice is hereby affirmed.

AFFIRMED.


text:
    Teresa Turpin DILEO v. Vincent L. DILEO, Jr.
    No. 09-CA-597.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 12, 2010.

      H. Craig Cabral, Attorney at Law, Me-tairie, LA, and Donald L. Hyatt, II, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellee.
    David A. Dalia, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and MARC E. JOHNSON, Judges.
   CLARENCE E. McMANUS, Judge.

i statement of the case

Teresa Dileo filed a Petition for Divorce against Vincent Dileo on April 6, 2000. The couple had one child. A consent judgment regarding custody and visitation was entered into on July 19, 2001. The parties again entered into a consent judgment on December 13, 2007. The consent judgment suspended Vincent’s visitation with the child and provided that his visitation would be supervised thereafter. A supervisor was appointed and the judgment provided that Vincent was allowed one hour per week supervised visitation to take place at the office of the court appointed supervisor.

On July 14, 2008, Vincent filed a Rule for Restoration & Normalization of Visitation and Joint Custody, and for Sanctions & Contempt. He requested termination of the supervised visitation and requested that joint custody be restored.

On September 11, 2008, Teresa filed an Exception of No Cause of Action, Exception of Res Judicata, Exception of Prematurity, and Exception of Improper Venue. A hearing was held on October 29, 2008 and on November 21, 2008, the trial court issued a Judgment granting the exception of no cause of action by |3Teresa and finding all other exceptions and motions moot. On December 4, 2008, Vincent filed a motion for reconsideration. On January 26, 2009, before a hearing or judgment on the motion for reconsideration, the trial court issued Reasons for Judgment regarding the granting of the exception of no cause of action. The trial court found that a petition to change custody must allege facts that show a change in circumstances that would warrant the change in custody. Vincent’s Rule requested the court terminate supervised visitation and restore joint custody, but there was a consent judgment from December 13, 2007 in which they had agreed to the supervised visitation and custody arrangement. The trial court found Vincent’s rule did not allege specific facts regarding- a change in the circumstances. Therefore, the trial court found his pleading failed to state a cause of action regarding a change in the custody arrangement stipulated to by the parties in December 2007. The trial court granted Teresa’s exception of no cause of action. The trial court also noted that the exception of improper venue by Teresa had been withdrawn. A motion to appoint an attorney to represent the minor child was continued without date. All other motions and exceptions were found to be moot.

A hearing on Vincent’s motion for reconsideration was held on March 19, 2009. On March 31, 2009, the trial court denied his motion. Also on March 30, 2009, Vincent filed a Rule for Contempt alleging Teresa had failed and/or refused to schedule eight of these supervised visits in violation of the court’s order.

Vincent now appeals the trial court’s judgment granting the exception of no cause of action. For the reasons which follow, we affirm the trial court’s judgment.

\ ¿DISCUSSION

On appeal, Vincent argues his rule states a cause of action because it attempts to set aside a consent judgment which was improperly entered into. He claims his rule specifically pled acts constituting errors of fact, errors in the principle cause for contract formation, fraud and ill practices, and vices of consent. He further claims he has identified approximately nineteen untruths made in pleadings filed by Teresa, as well as misrepresentations made by Teresa, including that the consent judgment would only be temporary.

In opposition, Teresa argues the trial court did correctly find that Vincent failed to plead specific facts which would warrant a change in custody since the facts alleged were previously known to Vincent and did not directly impact the custody considerations. Teresa does agree with Vincent that the trial court should have addressed the issue of whether or not he can attempt to nullify a consent judgment through a collateral attack. However, she argues Vincent cannot attempt to nullify the consent judgment through a collateral attack for relative nullities. Teresa argues these relative nullity claims related to a judgment must be asserted in a direct proceeding and not in a collateral attack.

When a custody decree sought to be modified is a stipulated judgment, the party seeking to modify the decree must prove (1) that there has been a material change in circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Ordoyne v. Ordoyne, 07-0235 (La.App. 4 Cir. 4/2/08), 982 So.2d 899, citing Evans v. Lungrin, 97-0577 (La.2/6/98), 708 So.2d 731.

In this case, the consent judgment was properly entered into by both parties in December 2007 and accepted by the trial court. That consent judgment provided Vincent with supervised visitation with the child. Vincent’s rule filed in | July 2008 requests that visitation and custody be changed. However, the only reasons given in this pleading for such a change are claims that Teresa provided untrue information in prior pleadings and a claim that he thought the consent judgment was only temporary. These reasons stated in this rule do not provide allegations of facts to show any change in the circumstances of the parties that would necessitate a change in visitation or custody. Therefore, we agree with the trial court and find that Vincent’s rule does not state a cause of action for a change in visitation or custody.

We further note, as the parties both argue on appeal, that it appears Vincent’s rule does attempt to nullify the consent judgment entered into by the parties in December 2007. However, it appears the trial court did not address or rule on this issue. Nevertheless, we find that Vincent’s rale is not the proper procedure for an attempt to nullify the consent judgment.

The nullity of a final judgment may be demanded for vices of either form or substance. La. C.C.P. art. 2001. La. C.C.P. art. 2004 provides that a final judgment obtained by fraud or ill practices may be annulled for vices of substance. The proper procedure to seek annulment for vices of substance not apparent in the record or on face of judgment is by direct action to annul judgment. Coleman E. Adler & Sons, Inc. v. Waggoner, 538 So.2d 1131, (La.App. 5 Cir.1989). In this case, Vincent alleges the consent judgment should be annulled due to vices of substance, however, he did not file a direct action to annul the judgment. Instead, he filed his rule attempting to have visitation and custody changed. Therefore, he did not properly file a direct action to annul the consent judgment.

Accordingly, we find the trial court correctly granted Teresa’s exception of no cause of action, dismissing Vincent’s rule.