author: I, TRAYLOR, Judge Pro Tempore.

text:
    COHORT ENERGY COMPANY, Plaintiff-in-Concursus-Appellee, v. CADDO-BOSSIER PARISHES PORT COMMISSION, The Cowley Corporation, Kathryn Nichols Cowley, Sheri Lynn Cowley Soulie, Susan A. Cowley Bantle, The Kathryn C. Turner Testamentary Trust, The Dorothy Colleen Cowley Trust and Dorothy Colleen Cowley, Defendant-Appellant; Defendants-Appellees.
    No. 37,449-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      Tutt, Stroud & Bordelon, LLC, by Charles G. Tutt, Jennifer P. McKay, Shreveport, for Appellant, Caddo-Bossier Parishes Port Commission.
    Blanchard, Walker, O’Quin, & Roberts, by William Timothy Allen III, Paul M. Adkins, Shreveport, for Appellees, The Cowley Corporation, Argent Financial Group, Inc. and E.H. Turner, III, as Co-Trustees of The Kathryn C. Turner Testamentary Trust, Kathryn Nichols Cowley, Sheri Lynn Cowley Soulie, Susan A. Cowley Bantle, The Kathryn C. Turner Testamentary Trust, The Dorothy Colleen Cowley Trust and Dorothy Colleen Cowley LeBlanc.
    Hargrove, Pesnell & Wyatt, by Paul A. Strickland, Shreveport, for Plaintiff-in-Concursus-Appellee, Cohort Energy Company.
    Before STEWART, MOORE and TRAYLOR (Pro Tempore), JJ.
   I, TRAYLOR, Judge Pro Tempore.

This appeal requires us to interpret Article IX, Section 4 of the Louisiana Constitution of 1974 (“1974 Constitution”) and La. R.S. 31:149, two provisions in our law dealing with imprescriptible mineral interests. The Caddo-Bossier Parishes Port Commission (“Port Commission”) appeals a summary judgment granted in favor of a group of private purchasers, defendants, known as (“the Cowleys”), holding that the mineral servitude created by the Port Commission when it sold a 340-acre tract to the Red River Waterway District (“Waterway District”) on April 6, 1987, prescribed after ten years’ nonuse on April 6, 1997. Consequently, when the Waterway District sold the subject property to the Cowleys six months later on September 5, 1997, no mineral servitude burdened the tract in question, and the Cowleys acquired the land and the minerals in and under the tract. For the following reasons, we reverse and render.

Facts

On April 6, 1987, the Port Commission conveyed a 340-acre tract of land to the Red River Waterway District (‘Waterway District”) reserving the minerals “in perpetuity, in accordance with La. R.S. 31:149.” Ten years [2and six months later, on September 5, 1997, the Waterway District conveyed the property without reservation of the minerals to the Cowleys.

On April 2,1998, the Cowleys executed a mineral lease (“Cowley Lease”) covering the tract in favor of Cohort Energy Company (“Cohort”). The Cowley Lease was granted for a primary term of three years and provides for a one-fifth mineral royalty interest.

On November 18, 1999, the Port Commission executed a mineral lease (“Port Lease”) in favor of Cohort covering the tract owned by the Cowleys. The Port Lease was granted for a primary term of two years and provides for a one-fifth mineral royalty interest.

Several unit wells were drilled on parts of the subject property resulting in gas production. When production commenced and revenues accrued, Cohort, on October 12, 2001, initiated this concursus proceeding by petition and placed $66,282.64 in the registry of the court; this sum represented one fifth of all production thus far attributable to the subject property. Cohort named the Port Commission and the Cowleys as defendants in order to determine ownership of the proceeds.

The petition recited the fact that both the Cowleys and the Port Commission executed mineral leases to Cohort covering the property. |3 Cohort’s petition further alleged that it was unable to determine to whom the proceeds were owed:

(1) If the Port is the ‘state’ under Article 9, Section 4(B), of the Louisiana Constitution of 1974, the mineral servitude created by the mineral reservation of the Port on April 6, 1987, is impre-scriptible, and the Port is the current owner of the minerals underlying the Subject Property;
(2) If the Port is not the ‘state’ under the Louisiana Constitution of 1974, but the Port is a ‘person’ under the Louisiana Revised Statute 81:149 A, then the ten-year nonuse prescriptive period running against the Port’s mineral servitude may have been suspended during the time the Red River Waterway District owned the Subject Property;
(3) If the Port is neither the ‘state’ under Article 9 Section 4(B), of the Louisiana Constitution of 1974 nor a ‘person’ under Louisiana Revised Statute 31:149, the Port’s mineral servitude created on April 6, 1987, would have prescribed on April 6, 1997, and the Cowleys would be the current owners of the minerals in and under the Subject Property.

The Port Commission filed a motion for summary judgment alleging that it, and not the Cowleys, is the current owner of the minerals. The Port Commission argued that it had reserved the rights in the minerals on the property and that it was the “state” under La. Const, art. IX, § 4(B) (1974) which provides that state-owned mineral interests cannot be lost by prescription. The Port Commission also argued that it was a “person” for purposes of La. R.S. 31:149, which suspends the running of prescription against persons who have sold land to the state, its political subdivisions, agencies or any legal entity with expropriation authority. Accordingly, the 14Port Commission claimed that the ten-year prescriptive period did not run against its mineral servitude while the property was in the hands of the Waterway District, and it remains the owner of the minerals in and under the subject property.

The Cowleys opposed the motion arguing that the Port Commission is neither the “state” nor a “person” for purposes of the question presented. The trial court denied the Port Commission’s motion for summary judgment and issued an Assignment of Reasons for Judgment (“Reasons for Judgment”) concluding that the Port Commission was not the “state” under La. Const, art. IX, § 4(B) (1974), and it was not a “person” under La. R.S. 31:149. A final judgment was not signed or filed in the record.

Subsequently, the Cowleys moved for summary judgment, which the trial court granted for the reasons stated in the Reasons for Judgment. A final judgment was signed, and this appeal followed.

Discussion

Appellate courts review summary judgments de novo under the same criteria that govern the district courts’ consideration of whether summary judgment is appropriate. Clark v. City of Shreveport, 31,407 (La.App.2d Cir.01/20/99), 726 So.2d 1042, writ denied, 99-0502 (La.04/01/99), 742 So.2d 872. A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there exists no genuine issue as to any material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

^Interpretation of a statute is a question of law that may be decided by summary judgment. In reviewing questions of law, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Gardner v. State ex rel. Dept. of Educ., 2002-0643 (La.App. 1st Cir.03/28/03), 844 So.2d 311, writ denied, 2003-1183 (La.06/27/03), 847 So.2d 1280.

The question presented in this case by motion for summary judgment is whether the mineral servitude created on April 6, 1987 by the Port Commission prescribed ten years later on April 6, 1997 for nonuse. The Port Commission claims that its mineral servitude is imprescriptible because it is both the “state” under La. Const, art. IX, § 4(B) (1974) and because it is a “person” under La. R.S. 31:149.

A reservation of minerals is extinguished by prescription of nonuse if not exercised within ten years, and a mineral servitude owner then loses his rights unless some event or condition intervened during that time to interrupt the running of prescription. Horton v. Mobley, 578 So.2d 977 (La.App, 2d Cir.1991), writ denied, 582 So.2d 1310 (La.1991); Haynes v. King, 219 La. 160, 52 So.2d 531 (1951); Standard Oil Co. of Louisiana v. Futral, 204 La. 215, 15 So.2d 65 (1943); Palmer Corp. of Louisiana v. Moore, 171 La. 774, 132 So. 229 (1930); Frost-Johnson Lumber Co. v. Salling’s Heirs, 150 La. 756, 91 So. 207, 239 (1920); see La. R.S. 31:27. The ten-year prescriptive period begins to run from the date the mineral rights are acquired or created. Ober v. Williams, 213 La. 568, 35 So.2d 219 (1948); Chicago Mill & Lumber Co. v. Ayer Timber Co., 131 So.2d 635 (La.App. 2d Cir.1961); see La. R.S. 31:28.

The law of Louisiana regarding prescription of mineral interests reflects a historically strong policy against separate ownership of minerals and a policy of keeping land and minerals in commerce. Ultramar Oil & Gas Ltd. v. Fournet, 598 So.2d 645 (La.App. 3d Cir.1992), writ denied, 605 So.2d 1122 (La.1992); Kalmn, Inc. v. Walker Louisiana Properties, 488 So.2d 340 (La.App. 3d Cir.1986).

|7In this instance, all the parties agree that ownership of the mineral interests at stake in this case turns upon whether the Port Commission’s mineral servitude prescribed for nonuse, and that question turns upon whether the Port Commission is either the “state” under La. Const, art. IX, § 4 (1974) or a “person” under La. R.S. 31:149.

Is the Port Commission the “State” Under La. Const, art. IX, § I (1971)?

Louisiana Const, art. IX, § 4 (1974) provides, in pertinent part:

(A) Reservation of Mineral Rights. The mineral rights on property sold by the state shall be reserved, ...
(B) Prescription. Lands and mineral interests of the state, of a school board, or of a levee district shall not be lost by prescription....

(Emphasis added).

|sOur interpretation is guided by the following established principles of constitutional construction expressed by the supreme court in Succession of Lauga, 624 So.2d 1156 (La.1993):

In general, the constitution is subject to the same rules of interpretation as other laws and written instruments. When a constitutional provision is clear and unambiguous, and its application does not lead to absurd consequences, it must be applied as written without further interpretation in search of its intent. Every provision must be interpreted in light of the purpose of the provision and the interests it furthers and resolves. When a constitutional provision is identical or very similar to that of a former constitution, it is presumed that the same interpretation will be given to it as was attributed to the former provision. Because the question is how the constitution was understood by the people adopting it, not merely how it was viewed by the drafters, the debates of a convention, as a general rule, cannot be resorted to for the purpose of varying the otherwise clear and unambiguous meaning of a constitutional provision. (Citations omitted) (Emphasis added).
It is a fundamental principle of constitutional construction that when a provision is clear and unambiguous it should be applied as written. Id. (Citations omitted). Accordingly, effect should be given to the purpose indicated by a fair interpretation of the language used, and that construction which effectuates, rather than that which destroys a plain intent or purpose of a constitutional provision, is not only favored but will be adopted. Board of Comm’rs v. Department of Natural Resources, 496 So.2d 281 (La.1986); Barnett v. Develle, 289 So.2d 129 (La.1974); Stokes v. Harrison, 238 La. 343, 115 So.2d 373 (1959); In re Bankston, 306 So.2d 863 (La.App. 1st Cir.1974).
... [E]very clause in a written constitution is presumed to have been inserted for some useful purpose, and courts should avoid a construction which would render any portion of the constitution meaningless. Barnett v. Develle, 289 So.2d 129 (La.1974); Meyers v. Flournoy, 209 La. 812, 25 So.2d 601 (1946). Furthermore, our customary rules of constitutional and statutory interpretation require that different provisions relating to the same subject matter must be interpreted in the light of |9each other. Hoppe v. City of Shreveport, 340 So.2d 1314 (La.1976); Antoine v. Consolidated-Vultee Aircraft Corp., 217 La. 251, 46 So.2d 260 (1950); La. C.C. art. 13.

Prior to the adoption of the 1974 Constitution, the Louisiana Constitution of 1921 (“1921 Constitution”) contained a provision nearly identical to Section 4(A) above in prior La. Const. art. IV, § 2 (1921), which stated in pertinent part:

In all cases the mineral rights of any and all property sold by the State shall be reserved....

This provision changed the prior law, which had provided no such prohibition against alienation of state minerals. Dynamic Exploration, Inc. v. LeBlanc, 362 So.2d 734, n. 1 (La.1978). Although there was no written provision in the 1921 Constitution similar to La. Const. art. IX, § 4(B) (1974) regarding the imprescripti-bility of state-owned minerals, a jurisprudential rule holding that prescription does not run against state-owned mineral rights was established as a corollary to the prohibition against alienation of state-owned minerals. See Shell Oil Company v. Board of Commissioners of Pontchartrain Levee District, 336 So.2d 248 (La.App. 1st Cir.1976), writ refused, 338 So.2d 1156 (La.1976). (The court held that the “Constitutional prohibition against the alienation of minerals by the state equally prohibits the acquisition of these minerals by others by the running of prescription against the state.”) Id. at 254; see also, Dynamic Exploration, supra; see also, Guy E. Wall, “Imprescriptible Mineral Interests in Louisiana,” 42 La. L.Rev. 123, 137 (1981). Thus, in this regard, La. Const. art. IX, § 4(B) (1974) codified existing jurisprudence. 42 La. L.Rev. at 138.

|inLike the case presently before this Court, the wording of former La. Const, art. IV, § 2 (1921) raised the question of whether the prohibition against alienation by the “state” also applied to state agencies.

In Stokes v. Harrison, 238 La. 343, 115 So.2d 373 (1959), the supreme court unanimously held that when the Beauregard Parish School Board sold a parcel of land that it had previously purchased from a private landowner without reservation of minerals, the sale was not a sale of property by the “state” for purposes of La. Const. art. IV, § 2 (1921). Id. at 381.

The Stokes court concluded that the framers of the constitution intended that the mandatory reservation of minerals in sales of lands applied only where the sale was by the “state” proper, holding that the constitutional requirement that minerals be reserved was inapplicable to lands sold by “political corporations.” Two years later, Judge Tate of the Third Circuit opined that what the supreme court meant to say in Stokes was that the term “state” does not refer to a purely local political subdivision such as a school board, but does encompass an arm of the executive branch such as a levee district. See Rycade Oil Corporation v. Board of Commissioners, 129 So.2d 302 (La.App. 3d Cir.1961) (Tate, J. concurring).

The First Circuit considered the “state” issue again in Shell Oil Company, supra. Distinguishing Stokes, the court held that the Pontchartrain Levee District, which had acquired the land in question by [¿jgrant from the state and “... was created as an arm of the executive branch of government for the purpose of carrying out a governmental function, i.e., flood control, is the ‘state’ within the intent of Section 2, Article IV of the Constitution of 1921.” Id. at 253. The appellate court stated that the opinion accorded with the supreme court’s holding in Stokes, which had, in fact, affirmed the First Circuit’s judgment and, as noted by the First Circuit panel, the Stokes decision “adopted with approval that portion of our opinion in the same case wherein we made a distinction between the ‘state’ as a separate legal entity on the one hand and its political subdivisions on the other.” Id. The supreme court denied writs.

Although the supreme court denied writs in Shell Oil Company, supra, it granted a writ application in a subsequent First Circuit case involving the same issue with the Pontchartrain Levee District in a concursus suit over disputed ownership of mineral rights. In Dynamic Exploration, Inc., supra, the question was whether the levee district was the “state” under La. Const, art. IV, § 2 (1921). The supreme court affirmed the First Circuit’s holding that the levee district was the “state” under La. Const, art. IV, § 2 (1921), “for reasons similar to those set forth in Shell Oil Company v. Board of Commissioners of Pontchartrain Levee District,” supra. It further stated:

Decisions of this court, have consistently held that, for purposes of this article, levee districts were a state agency, performing a state function and administering state lands; they were therefore subject to this constitutional provision prohibiting alienation after 1921 of mineral rights owned by the state. (Footnote text with citations omitted) (Emphasis added).

|1?.Henee, the supreme court expressly approved the rationale used to decide Shell Oil Company, supra, and Dynamic Exploration, Inc., supra, and tacitly approved the First Circuit’s analysis in Stokes, supra. Even though these cases interpreting the meaning of the term “state” were decided under the 1921 Constitution, since the former constitutional provision and La. Const, art. IX, § 4(A) (1974) are nearly identical, and since the prior jurisprudence regarding prescription of state lands and minerals is codified in La. Const, art. IX, § 4(B) (1974), the same rationale governing the decisions in these cases should apply to the case sub judice. “When a constitutional provision is identical or very similar to that of a former constitution, it is presumed that the same interpretation will be given to it as was attributed to the former provision.” Succession of Lauga, supra.

The conclusions reached in the cases decided under the 1921 Constitution holding that a levee district was the “state” for purposes of non-alienability of state minerals were based on the rationale that levee districts were “state agencies” created by the state to carry out the duties of the state to construct and maintain levees. Ownership of the land had not really changed hands. The state had simply transferred the land to the levee districts for administration. See Shell Oil Company, supra; State ex rel. Board of Com’rs v. Grace, 161 La. 1039, 109 So. 830 (1926). In some instances, it is noted as an important factor that the members of the levee district were appointed by the governor and, therefore, levee districts were “arms of the executive branch.” See, e.g., Shell Oil Company, supra at 253; King v. Board of Com’rs for Atchafalaya Basin Levee, 148 So.2d 138, 145 (La.App. 3d Cir.1963)(Tate, J. concurring), writ denied, 244 La. 118, 150 So.2d 585 (1963).

On the other hand, in Stokes, supra at 377-8, the court stated that legislative enactments and the jurisprudence conclusively show that a school board is “an agency of the State, a corporate body, a political corporation, the recipient from the legislature of certain delegated powers” ... “[njowhere, however, do we find a parish school board called the ‘State.’” In affirming the court of appeal, the supreme court expressly agreed with the following statement from the First Circuit:

A comparison of the language of Sections 2, 12 and 13 of Article 4 of the Constitution in this particular [case] leaves it crystal clear that where the framers intended that the restriction or limitation should apply to the State only as a separate entity from its political subdivision, the word State alone was used, but where the limitation or restriction was intended to apply to the State and to all political subdivisions thereof, the intent was so spelled out in terms of ‘the State, or any political corporation thereof.’

Id. at 379.

Hence, the Stokes court concluded that a “political subdivision” or a “political corporation” was not intended by the framers of the Constitution to be included within the term “state” where it applies to the restriction or limitation of the strong policy of this state favoring prescription of reserved mineral interests.

With respect to prescription, La. Const, art. IX, § 4(B) (1974) codified the existing jurisprudence holding that minerals owned by the “state” could not be acquired by prescription since they could not be alienated. See, e.g., Shell Oil Company, supra. Additionally, the new [ constitution added that land and minerals could not be acquired from “a school board” or “a levee district” by prescription. However, the framers of La. Const, art. IX, § 4 (1974) did not include these two specific public bodies in Section 4(A) providing that the “state” shall reserve its mineral interests.

Thus, the question of whether the Port Commission is the “state” for purposes of prescription under La. Const, art. IX, § 4(B) (1974) turns largely on whether the Port Commission is an “arm of the executive branch” type of state agency like a levee district or whether it is “a political corporation” or “political subdivision” of the state. The Port Commission contends that while it may be a political subdivision of the state, it is not a “local” political subdivision as characterized by the trial court. See Rycade Oil Corporation, supra at 305 (Tate, J. concurring).

The Port Commission was created by constitutional amendment by Act 504 of 1962, La. Const, art. VI, § 32 (1921) which was continued as a statute, La. R.S. 34:3158 through 3165 after the 1974 Constitution was adopted. La. R.S. 34:3158 provides that the Port Commission

A .... shall be composed of nine members, who shall serve without compensation and who shall be |1Rappointed for overlapping terms of six years as follows:
(1) One of the commissioners shall be appointed by the governing authority of the parish of Caddo.
(2) One of the commissioners shall be appointed by the governing authority of the parish of Bossier.
(3) Five of the commissioners shall be appointed by the governing authority of the city of , Shreveport.
(4) Two of the commissioners shall be appointed by the governing authority of the city of Bossier City.

Louisiana R.S. 34:3160 sets forth the rights and powers of the Port Commission. Among these is the power to purchase and sell lands pursuant to its purpose of regulating commerce and traffic within the local geographic area of its authority. Importantly, the statute provides that “[t]itle to such property and improvements shall be in the public and shall vest in the commission for public administration, ...” (Emphasis added). Prior to its amendment in 1978, this particular provision read, “all property and improvements thereon shall vest in the state of Louisiana.” 1978 Acts No. 316, Section 1, effective July 10,1978. (Emphasis added).

Because the Port Commission is locally appointed by the municipal and parish authorities, it is clearly not an arm of the executive branch of state government. King, supra. If anything, it is an arm of local government. This conclusion is confirmed in La. Atty. Gen. Op. No. 81-713A wherein the opinion reaffirms its earlier Opinions 81-713 and 1026, that “all Port Commissions are ‘political subdivisions of the state’ under the [1fi1974 Constitution.” 1981 WL 154727 (La.A.G.). Further reaffirming Opinion 81-713, the Attorney General opined that “Port Commissions were ‘local government entities, political subdivisions,’ and not part of the ‘executive branch of government.’ ”

The legislative mandate of the Port Commission is to act in the interest of the public, and clearly the purpose of La. Const, art. IX, § 4 (1974) is to protect the public’s ownership of state lands and minerals. See King, supra.

On the other hand, title to all lands acquired by the Port Commission is in the public and vests in the commission for public administration. Prior to 1978, La. R.S. 34:3160 provided that title “vested in the state of Louisiana.” The 1978 amendment to La. R.S. 34:3160 expressly provides that title to land or property acquired by the Port Commission now vests in the commission. Hence, by implication, title is no longer vested in the state. The commission can be viewed as “a separate entity from the state, created by the state, it is true, to accomplish certain public purposes, but is nevertheless distinct from it.” See Board of Commissioners of Caddo Levee District v. Pure Oil Co., 167 La. 801, 811, 120 So. 373, 377 (1929).

We also note that the record does not demonstrate that the Port Commission obtained land in question by transfer from the state to the Port Commission. In Shell Oil Company, the land in question was acquired by the levee district directly from the state, whereas in Stokes, supra, the land was purchased by the school board from a private party. The Shell Oil 117Company court expressly noted that the state transferred the land in question to the levee district in determining that the land was still “state” land, and, by contrast, the Stokes court, distinguishing its case from earlier “levee district” cases, felt “constrained” to note that the Beauregard Parish School Board acquired the land by purchase from a private vendor.

Finally, we observe that the 1974 Constitution refers to political subdivisions in other parts of the Constitution and expressly defines “Political Subdivision” in Section 44(2) of Article VI as “... a parish, municipality, and any other unit of local government, including a school board and a special district, authorized by law to perform governmental functions.” Thus, a political subdivision, as a body of local government, is distinguished from the state in the 1974 Constitution itself.

Considering all these factors in light of the jurisprudence discussed above, including the rule of construction expressed in the phrase, “expressio unius est exclusio alterius,” (the expression of one thing necessarily excludes the other things not expressed), we conclude that the term “state” in La. Const. art. IX, § 4(B) (1974) does not include the Caddo-Bossier Parish Port Commission. With the exception of “a school board” and “a levee district,” the framers intended that the restriction or limitation on the running of prescription contained in that constitutional provision applies to the “state” only as a separate entity from its political subdivisions. Stokes v. Harrison, 109 So.2d 506, 510 (La.App. 1st Cir.1959).

Is the Port Commission a “Person” under La. R.S. 31:149?

We turn now to the question of whether the Port Commission is a “person” under La. R.S. 31:149. This statute suspends the running of the prescription of nonuse against a mineral interest reserved by a “person” when the land is acquired by the United States, the State of Louisiana, or any subdivision or agency of either, or any legal entity with expropriation authority. The question in this case is whether the Port Commission qualifies as a “person” for purposes of the statute.

The Port Commission contends that it acted as a “person” pursuant to the statute when it sold the land to the Red River Waterway District, reserving the minerals pursuant to the statute. “Person,” it argues, includes political corporations such as itself. Thus, prescription did not run against its servitude until the Waterway District sold the land to the Cowleys.

The term “person” in La. R.S. 31:149 (the Mineral Code) can be narrowly construed as signifying only “natural persons,” or alternatively, can be broadly construed to include juridical entities such as corporations, partnerships and other entities to which the law ascribes personality, both public and private. Relying on language from the case of Aetna Casualty & Surety Co. v. Lively-Culpepper Chevrolet, 609 So.2d 1055 (La.App. 2d Cir.1992), the district court determined that it must seek the legislative purpose and history of La. R.S. 31:149 to determine the meaning of the word “person.” The trial court held that the term “person,” in its general usage, “does not include the State or its political subdivision; and even after |19analysis into the purpose, context and legislative history of the statute in question, it appears that it was not intended to constitute a “person” in the context of this case.”

The Mineral Code does not define “person” for purposes of La. R.S. 31:149 or the Mineral Code as a whole, but it does specify that where the Mineral Code does not expressly or impliedly provide for a particular situation, the Civil Code applies. La. R.S. 31:2. The Mineral Code was adopted in 1975. At that time, former La. C.C. art. 3556(23) stated that the term “person,” as a term of law employed in the Civil Code, “is applicable to men and women, or either.” However, we think the plain meaning of this article, which is now repealed, is that the law applies with equal force to men and women alike when the term “person” is used, and the article should not be seen as providing a definition of the term “person” to mean only natural persons.

There is no definition of the term “person” per se in the code. The Civil Code today classifies persons into natural and juridical persons. La. C.C. art. 24 reads:

* There are two kinds of persons: natural persons and juridical persons.
A natural person is a human being. A juridical person is an entity to which the law attributes personality, such as a corporation or a partnership. The personality of a juridical person is distinct from that of its members.

Comment (c) to the article states that:

According to civilian doctrine, juridical persons are classified either as private persons or public persons. A public person is governed by rules of public law ... The state and its political subdivisions have dual personality. At times they act 13nas public persons in a sovereign capacity and at times as private persons in the capacity of a citizen or a private corporation....

See also, City of New Orleans v. T.L. James & Company, 96-1112 (La.01/14/97), 685 So.2d 111.

In this instance, the Port Commission is clearly a juridical person possessing the same attributes of personality of most corporations. The Port Commission consists of nine members who act as a single body. The Port Commission is granted by La. R.S. 31:3160 various attributes of personality, among them the power to enter contracts, sell property, purchase property, enter service agreements and numerous other powers as a corpus in order to fulfill its purpose of regulating commerce and traffic on the river. Title to lands it purchases is vested in the Port Commission, not the state.

Regarding the land transaction in the instant case, the Port Commission sold a 340-acre tract to the Red River Waterway District, an entity with expropriation authority, reserving the minerals thereto pursuant to La. R.S. 31:149. The record does not demonstrate whether the Port Commission acquired the land in its capacity as a public person or in its capacity to act as a private person. See City of New Orleans, supra. Be that as it may, we conclude that when the Port Commission sold the tract in question, it was utilizing the attributes of personality conferred upon it by the legislature and acting as a juridical person such as a corporation.

The question, then, is whether La. R.S. 31:149 includes juridical persons such as Port Commissions. La. C.C. art. 9 provides:

l^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 in search of the intent of the legislature.

The ordinary meaning or definition of the term “person” in law is this: A person is any human being, corporation or body politic having legal rights and duties.

The trial court obviously believed that it was required to investigate the history of the statute to find the purpose of the law in order to ascertain the meaning of the term “person,” since the term “person” is susceptible of several meanings, including juridical persons as well as natural persons. La. C.C. art. 10. We do not agree that this approach is called for in this instance.

La. C.C. art. 10 requires that courts search for “the meaning that best conforms to the purpose of the law” when “the language of the law is susceptible of different meanings.” In this instance, however, the language of La. R.S. 81:149 really has only one meaning which does not change whether the term “person” is construed to mean a natural or juridical person, or both. Thus, when a federal or state governmental entity or entity with expropriation authority acquires a tract of land from any person who reserves the minerals, the servitude thereby created shall be imprescrip-tible as long as the governmental entity or entity with expropriation authority owns it. The meaning of Section 149 does not change whether by “person” we mean a human being, corporation or body politic.

IggThe Mineral Code is a body of law involving many terms of art and technical terms. These terms must be given their technical meaning when the law involves a technical matter. La. C.C. art. 11. It seems somewhat incongruous to ignore the ordinary legal sense of the word “person” in favor of its non-legal sense in a technical area of the law such as the law regarding reservation and prescription of mineral interests.

Lastly, although we do not consider it necessary in this case to look into the history and purpose of La. R.S. 81:149 to construe the term “person,” our broad construction to include juridical persons is nevertheless bolstered by the statute’s pri- or history and purpose. We have no doubt that the purpose of former La. R.S. 9:5806 was to enable the acquisition of land more easily by allowing landowners to keep the minerals for an indefinite time in the future. Humble Oil & Refining Co. v. Freeland, 216 So.2d 689 (La.App. 3d Cir.1968); see also, Guy E. Wall, 42 La. L.Rev. 123 (1981). As it was originally drafted, La. R.S. 9:5806 was aimed primarily at encouraging corporate, firm, and individual private landowners to sell large tracts of land for state use. However, when the legislature enacted La. R.S. 31:149 of the Mineral Code, it eliminated the terms “firm” and “corporation” contained in the source statute, La. R.S. 9:5906, and only the term “person” remained. The question is, does this narrow or broaden the meaning of the statute?

If the meaning of the term “person” is to be found in the statute’s historical purpose, which was to make it easier for governing entities to obtain land from private landowners, then we must conclude that the | ^legislature surely did not intend to confine the meaning of “person” in the statute to natural persons alone, so that the acquiring governmental entity could acquire land more easily only from landowners who were natural persons, while continuing to face difficulty in obtaining land from those owners who happen to be corporations.

Rather, we think that the purpose of leaving out “firms” and “corporations” was to eliminate redundancy, since “person” applies to natural and juridical persons, and to avoid a laundry list of entities to which the law now attributes personality, such as, e.g., the illustrative list of entities listed under the term “person” contained in La. C.C.P. art. 5251(12), which reads: “ ‘Person’ includes an individual, partnership, unincorporated association of individuals, joint stock company, corporation, or limited liability company.”

Accordingly, we conclude that the term “person” in La. R.S. 31:149 is broad enough to include the Port Commission in this instance.

Conclusion

For these reasons, we conclude that the trial court erred in holding that the servitude reserved by the Port Commission prescribed for ten years’ nonuse. We further render judgment in favor of the Port Commission and against the Cowleys, who are also assessed with the costs of this appeal.

REVERSED AND RENDERED.

      . The defendants are The Cowley Corporation, Argent Financial Group, Inc. and E.H. Turner, III, as Co-Trustees of The Kathryn C. Turner Testamentary Trust, Kathryn Nichols Cowley, Sheri Lynn Cowley Soulie, Susan A. Cowley Bantle, The Kathryn C. Turner Testamentary Trust, The Dorothy Colleen Cowley Trust and Dorothy Colleen Cowley LeBlanc.

      . The pertinent parts of the statute provide:
      § 149. Mineral rights reserved from acquisitions of land by governments or agencies thereof imprescriptible
      A. When land is acquired from any person by the United States or the state of Louisiana, or any subdivision or agency of either ... by ... contract ... a mineral right otherwise subject to the prescription of nonuse is reserved, the prescription of non-use shall not run against the right so long as title to the land remains in the government, or any of its subdivisions or agencies, or any legal entity with expropriation authority. (Emphasis added).
      B.
      (3) If the land or any part thereof is transferred by the government, or subdivision, or agency, or legal entity ... to a private owner, the prescription of nonuse shall apply, as in the usual case, but shall commence only from the date on which the act of acquisition by the private owner is filed for registry.

      . § 4. Reservation of Mineral Rights; Prescription
      (B) Prescription. Lands and mineral interests of the state, of a school board, or of a levee district shall not be lost by prescription. ...

      . Perhaps the most lucid expression of this policy is found in Chicago Mill & Lumber Co. v. Ayer Timber Co., 131 So.2d 635 (La.App. 2d Cir.1961), wherein the court opinion reads:
      The landmark case of Frost-Johnson Lumber Co. v. Salling’s Heirs, 1920, 150 La. 756, 91 So. 207, 239, is generally regarded as the original decision of our Supreme Court establishing the paramount rule of Louisiana mineral law that a mineral sale or reservation does not create a separate mineral estate, but only a right in the nature of a servitude subject to the liberative prescription of ten years. If restrictions had not been so imposed on the right to hold minerals out of commerce, as Justice O’Niell stated:
      ' * * * it would recognize a species of perpetual incumbrance upon real estate which has never yet found an abiding place in our civil law system.’
      Six years before the Sailing’s Heirs case, supra, the Court in Bristo v. Christine Oil & Gas Co., 1916, 139 La. 312, 71 So. 521, struck down as being null a contract purporting to give a perpetual option to hold land under a mineral lease, on the ground that it:
      ' * * * would take the property out of commerce, and would be violative of the doctrine of ownership, defined in the second title of the second book of the Civil Code.’ 139 La. at 315, 71 So. at 522.
      In the recent case of Gueno v. Medlenka, 1960, 238 La. 1081, 117 So.2d 817, the Supreme Court restated the basic principle as follows:
      ' * * * it is contrary to the public policy of this State to hold property out of commerce and this Court has consistently applied the liberative prescription of ten years in dealing with the exercise of mineral rights.’ 238 La. at 1101, 117 So.2d at 824.
      It is clear from the Sailing’s Heirs case, and later decisions, that Louisiana public policy is directed against the withdrawal of valuable property rights from commerce.
      Almost every device conceivable has been employed in an attempt to circumvent our law on this question. In every instance where the Supreme Court has found such an intent it has zealously protected the State’s public policy. This vigilance of the Supreme Court has curtailed the attempts of those who seek to withhold mineral rights from commerce beyond the prescriptive period. Chicago Mill & Lumber Co. v. Ayer Timber Co., 131 So.2d 635 (La.App. 2d Cir.1961).

        See also, the court’s discussion of cases regarding efforts by landowners to extend the life of the mineral servitude by stipulations in instruments: Bodcaw Lumber Co. of Louisiana v. Magnolia Petroleum Co., 1929, 167 La. 847, 120 So. 389; Union Producing Co. v. Parkes, D.C.W.D. La.1940, 40 F.Supp. 163; Vincent v. Bullock, 192 La. 1, 187 So. 35 (1939).

      . Even though the Beauregard Parish School Board failed to reserve the minerals, it claimed that the reservation occurred by operation of law under Article IV, Section 2, and based on the jurisprudence, that its ownership of the minerals was imprescriptible. See, e.g., Shell Oil Company, supra.

      . Although Stokes was a school board case, the court expressly noted that the issue of prescription was not reached. Stokes, supra at 381. The case involved the question of whether a school board was acting as the "state” when it sold land without reserving the minerals and was only indirectly concerned with prescription. The court held that the school board was not acting as the “state” for purposes of the constitutional prohibition against alienation of state minerals. Had the court ruled that the school board was the "state,” the issue of imprescriptibility of state-owned minerals would have been raised. Accordingly, Section 4(B) limits the applicability of Stokes only to the issue of acquiring land or minerals from "a school board” by prescription, while at the same time tacitly codifies the jurisprudence distinguishing between "a school board” and the "state” as used in La. Const, art. IX, § 4(B) (1974).

      . In fact, however, the Port Commission's deed from its vendor contains a mineral reservation in favor of a private vendor that has apparently prescribed.

      . See note 1, supra at p. 1.

      . Funk & Wagnall's Standard College Dictionary. New York: Harcourt, Brace & World. 1963.


source: Caselaw Access Project

author: | t PEATROSS, J.

license: Public Domain

text:
    Levita K. FIGUEROA, Plaintiff-Appellant, v. HARDTNER MEDICAL CENTER, Defendant-Appellee.
    No. 37,568-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      Reiser, Auzenne & Boudreaux, L.L.C., by Stacy C. Auzenne, Alexandria, for Appellant.
    Hayes, Harkey, Smith & Cascio, by John B. Saye, Monroe, for Appellee.
    Before WILLIAMS, PEATROSS & DREW, JJ.
   | t PEATROSS, J.

This is an appeal from a judgment of the Workers’ Compensation Judge (“WCJ”) awarding Levita Figueroa supplemental earnings benefits (SEBs) subject to a credit of $1,944 per month, representing the amount Ms. Figueroa earned or could have earned as a high school teacher. Ms. Figueroa appeals the portion of the judgment ordering the credit of the teaching wage. For the reasons stated herein, we affirm.

FACTS

Ms. Figueroa, a registered nurse, was injured during the course and scope of her employment at Hardtner Medical Center (“Hardtner”) when she was physically attacked by an elderly Alzheimers patient on May 9, 1999. Ms. Figueroa sustained an aggravation to a pre-existing TMJ condition and injury to her right radial nerve, causing pain and weakness in her right arm. Ms. Figueroa received workers’ compensation benefits after the incident. On March 10, 2000, Hardtner filed a disputed claim to terminate benefits when it discovered that Ms. Figueroa was teaching at Alexandria Senior High School (“ASH”) in January 2000. Ms. Figueroa taught biology and algebra at ASH for the 1999-2000 school year. She did not renew her contract for the 2000-2001 school year and has not worked at all since May 2000.

The WCJ dismissed Hardtner’s claim for forfeiture of benefits and dismissed Ms. Figueroa’s claim for back due SEBs. On appeal, this court affirmed the dismissal of Hardtner’s claims, but reversed the dismissal of Ms. Figueroa’s claim for back due SEBs and, noting a lack of detailed wage information to allow the court to determine the precise amount of SEBs, | ^remanded for a determination of the amount of SEBs due her. See Figueroa v. Hardtner Medical Center, 35,678 (La.App.2d Cir.1/25/02), 805 So.2d 1267. After trial on remand, the WCJ awarded Ms. Figueroa SEBs from January 2000 through March 12, 2002, offset by her teacher’s earnings, determined to be $1,944 per month. In addition, the WCJ awarded her temporary total disability benefits from March 12, 2002, through July 25, 2002, in the amount of $359.48 per week. Finally, she was awarded SEBs based on zero earnings beginning July 25, 2002, and continuing until Hardtner could prove Ms. Figueroa’s ability to return to work after that date. This appeal ensued.

DISCUSSION

The only issue before this court is whether the WCJ erred in offsetting the SEBs from January 2000 through March 12, 2002, by Ms. Figueroa’s earnings and potential earnings as a teacher. It is not disputed that Ms. Figueroa could not continue working in her pre-injury capacity as a nurse at Hardtner due to the pain and weakness in her right arm. She further argues that she resigned her position at ASH at the end of May 2000 because she missed too many school days and because of the pain and depression resulting from her injury. Ms. Figueroa argues that the offset awarded by the WCJ, which continued until March 12, 2002, the date on which her treating physician, Dr. P.C. Am-biavagar, determined that she was temporarily totally disabled, was, therefore, manifestly erroneous and should be overturned. We disagree.

|3As previously mentioned, in the prior appeal of this case, a panel of this court reversed the WCJ’s dismissal of Ms. Figueroa’s claim for SEBs and remanded for a determination of the amount of SEBs owed. This court specifically found as follows:

Based upon the evidence presented by both sides at trial, SEBs should be computed from the time that Hardtner discontinued benefits through the present time, with credit to Hardtner for the wages Figueroa could have earned as a teacher, whether or not she was actually employed. Regarding Figueroa’s claim, that she is no longer able to work as a teacher, we do not find that she established, by clear and convincing evidence, that she was unable to perform continued and available work as a teacher after the time that she quit her position at the high school in May 2000. (Emphasis added.)

We find the above ruling to be the “law of the case” on the issue presented in the instant appeal. The law of the case doctrine is a discretionary guide which relates to (a) the binding force of a trial judge’s ruling during the later stages of trial, (b) the conclusive effects of appellate rulings at trial on remand and (c) the rule that an appellate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same case. Northeast Realty v. Jackson, 36,276 (La.App.2d Cir.8/14/02), 824 So.2d 1264, citing Glenwood Hospital, Inc. v. Louisiana Hospital Service, Inc., 419 So.2d 1269 (La.App. 1st Cir.1982). Reargument in the same case of a previously decided point will be barred where there is simply a doubt as to the correctness of the earlier ruling. Only where there is palpable error or where, if the law of the case was applied, manifest injustice would occur, is the doctrine not applied. Northeast Realty, supra; Glenwood Hospital, Inc. v. Louisiana Hospital Service, Inc., supra. The reasons for the law of the case doctrine are: to avoid relitigation of the same | ¿issue; to promote consistency of result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Will Drill Resources, Inc. v. Huggs, Inc., 36,797 (La.App.2d Cir.1/29/03), 836 So.2d 1211; Northeast Realty, supra, citing Day v. Campbell-Grosjean Roofing and Sheet Metal Corporation, 260 La. 325, 256 So.2d 105 (1971); Louisiana Land and Exploration Company v. Verdin, 95-2579 (La.App. 1st Cir.9/27/96), 681 So.2d 63, writ denied, 96-2629 (La.12/13/96), 692 So.2d 1067, cert. denied, 520 U.S. 1212, 117 S.Ct. 1696, 137 L.Ed.2d 822 (1997).

We find no palpable error in this court’s prior ruling and further find that no manifest injustice would occur in application of the law of the case doctrine to the case sub judice. On remand from the prior appeal, the WCJ was constrained by this doctrine to follow the above-quoted holding and apply a credit to Hardtner for wages that Ms. Figueroa earned or could have earned as a public high school teacher, whether or not she was actually employed. Further, notwithstanding the fact that the WCJ allowed evidence on this point on remand, application of the law of the case doctrine allows this court to decline to reconsider the prior ruling of the court in the earlier appeal in this case.

Even if the law of the case doctrine did not operate to preclude reconsideration of this issue, we find a sufficient factual basis in the record before us, which includes the entire record from the previous appeal, to support the finding that a credit to Hardtner for Ms. Figueroa’s teaching |fiwage was proper in this case. As previously stated, Ms. Figueroa taught at ASH during the 1999-2000 school year. During that year, her husband accepted employment in, and moved to, Lake Charles, with Ms. Figueroa maintaining a residence in Pineville. At the end of the school year, in May 2000, Ms. Figueroa resigned her teaching position at ASH and the record reflects that Ms. Figueroa had secured an offer for a teaching position in Lake Charles, but chose not to accept the position. Ms. Figueroa argues that she resigned from ASH and declined the position in Lake Charles because she was unable to continue working as a teacher because she “could not keep up” and had excessive absences due to substantial pain from her injury to her right arm. See La. R.S. 23:1221(3)(c)(ii). The record, however, reveals that Ms. Figueroa indicated as her reason for resigning her teaching position at ASH that she was moving to Lake Charles to be with her husband. Further, we note that her personnel records from ASH indicate satisfactory performance and attendance by Ms. Figueroa for the year that she was employed by the school.

IfiNeither Dr. Ambiavagar nor Dr. Stephen Kátz, a pain management specialist who treated Ms. Figueroa during the year she was teaching, was aware that Ms. Figueroa was working as a teacher in 1999-2000. Despite her argument that she was in such pain during that school year that she often had to leave school early and was excessively absent due to pain and depression, there are no notations in any of the medical records that Ms. Figueroa discussed her difficulties performing her teaching duties with either of her treating doctors. According to Dr. Ambiavagar’s deposition testimony, Ms. Figueroa told Dr. Ambiavagar that she had been teaching only after the fact that she was working and receiving benefits at the same time became an issue and Ms. Figueroa was anxious about the pending court appearance. Dr. Ambiavagar’s testimony reveals that Ms. Figueroa related to her another entirely different reason for her decision to quit working as a teacher:

Q: Do you know that the reason that she stopped teaching was, according to her exit interview with Rapides Parish School Board, was to move to Lake Charles to be with her husband?
A: (No response.)
Q: Do you know that?
A: No. She said she was stopped; because she was told she could not work. She — Because when you’re under a Comp case you’re not supposed to work and then she worked. She didn’t realize that. And then they stopped her.

In addition, we note that the deposition testimony of Dr. Katz indicates that Ms. Figueroa was responding well to pain therapy and medications during the time period in which she was teaching and shortly |7after she resigned from ASH. While Dr. Katz declined to express a medical opinion as to Ms. Figueroa’s degree of disability, he testified as follows:

Q: Again, at that time, July of 2000, you didn’t tell her she couldn’t work as a teacher or a nurse or anything; is that correct?
A: That is correct.
Q: She didn’t—
A: I have never told Ms. Figueroa not to go to work. I have never restricted Ms. Figueroa from any work-related activities. And I’m unaware of any work-related activities that Ms. Figueroa was involved in.

We acknowledge that Ms. Figueroa has experienced continuing symptoms and pain from her injury and we do not dismiss her ongoing physical and psychological problems created by her injury and inability to work at her pre-injury job as a registered nurse. Notwithstanding application of the law of the case doctrine, however, this record contains sufficient evidence to support the reasonable conclusion that Ms. Figueroa was not prevented from performing as a teacher due solely to substantial pain. There is no manifest error in such conclusion and, therefore, no error in applying a credit to her SEBs for teaching wages.

CONCLUSION

For the foregoing reasons, the judgment of the Workers’ Compensation Judge awarding SEBs to Levita Figueroa based on her earnings as a teacher of $1,944 per month is affirmed. Costs are assessed to Levita Figueroa.

AFFIRMED.

      . Ms. Figueroa was subsequently released to restricted duty work on July 25, 2002.

      . La. R.S. 23:1221(3)(c) states as follows:
      (i) Notwithstanding the provisions of Sub-paragraph (b) of this Paragraph, for purposes of Subparagraph (a) of this Paragraph, if the employee is not engaged in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, or is earning wages less than the employee is able to earn, the amount determined to be the wages the employee is able to earn in any month shall in no case be less than the sum the employee would have earned in any employment or self-employment, as described in Subparagraph (b) of this Paragraph, which he was physically able to perform, and (1) which he was offered or tendered by the employer or any other employer, or (2) which is proven available to the employee in the employee’s or employer’s community or reasonable geographic region.
      (ii) For purposes of Subsubparagraph (i) of this Subparagraph, if the employee establishes by clear and convincing evidence, unaided by any presumption of disability, that solely as a consequence of substantial pain, the employee cannot perform employment offered, tendered, or otherwise proven to be available to him, the employee shall be deemed incapable of performing such employment.


author: | .BROWN, C.J.

text:
    Ora and Lloyd WILLIAMSON, Plaintiffs-Appellants, v. MONROE MEDICAL CLINIC, Defendant-Appellee.
    No. 37,463-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.
    Matthew M. Courtman, Monroe, for Appellants.
    Nelson, Zentner, Sartor, et al., by F. Williams Sartor, Jr., Monroe, for Appellee, Monroe Medical Clinic.
    Brent A. Talbot, New Orleans, for Ap-pellee, Laboratory Corp of America Holdings.
    Before BROWN, GASKINS, and TRAYLOR (Pro Tempore), JJ.
   | .BROWN, C.J.

Defendant’s motion for summary judgment was granted and plaintiffs claims were dismissed. Plaintiff appealed. For the reasons set forth below, the judgment of the trial court is affirmed.

FACTS

Plaintiff, Lloyd Williamson, was employed by Railserve Rail Switching Company (“Railserve”), which is required by federal regulations to conduct random drug testing of its employees. Defendant, Monroe Medical Clinic (“MMC”), served as the collection facility for employee specimens which were then sent to a third-party laboratory to be tested. On February 4, 1999, Williamson provided his sample to MMC between 12:30 and 12:50 p.m. The sample, however, was not within the required temperature range (90 to 100 degrees Fahrenheit). A temperature lower than 90° F indicates that the sample had cooled and was obtained before Williamson appeared at the clinic, which creates the possibility that someone else provided the sample. Accordingly, Williamson returned between 3:00 and 3:30 p.m. that same day to provide a second urine sample. This specimen was forwarded to the testing facility, Laboratory Corporation of America Holdings (“LabCorp”). The custody and control form accompanying the sample indicated that it had been taken at 12:30 or 12:50 p.m., the time of Williamson’s first sample. The specimen tested positive for marijuana. The reporting entity, University Services MRO, issued a’report to Rail-serve after performing a medical review of the test results. As a result of the positive test, Williamson was terminated from his employment with Railserve.

li>On September 2, 1999, Williamson filed suit against MMC alleging that the test resulted in a “false positive” because of negligence in collecting the urine specimen. Williamson alleged in his petition that he has not smoked or otherwise ingested marijuana since 1984. His arguments center around the time shown on the control form for the collection of the specimen.

On July 10, 2002, MMC filed a motion for summary judgment. Attached to its motion was the affidavit of Betty Yruegas, the MMC employee who collected the urine specimen. According to her affidavit, Williamson gave two separate specimens on February 4, 1999. The first was rejected due to a lower than acceptable temperature and distinctive odor. She discarded the first specimen by pouring it into a sink and flushing the sink with water. When Williamson returned to provide the second specimen, she took it from him and, once she determined that it was within the acceptable temperature range, she capped the specimen cup. After Williamson signed the evidence seal attesting to the fact that it was his specimen and that he had not tampered with it in any way, she placed the seal over the specimen cup. Ms. Yruegas then placed the specimen cup in the evidence submission bag to be picked up by the courier. This was all done in the presence of Williamson. She signed the custody and control | aform after receiving “the” specimen from Williamson. The information on the form is accurate with the exception of the time of collection, which is incorrectly noted as 12:30 p.m., when in fact the specimen forwarded for testing was collected between 3:00 or 3:30 p.m.

Also attached to the motion for summary judgment were requests for admission propounded to the plaintiff which he failed to deny. The facts so admitted which are pertinent to the disposition of this case are the following:

The specimen submitted by Lloyd Williamson to Monroe Medical Clinic on February 4, 1999, at approximately 12:40 p.m. was, in fact, a specimen produced by Lloyd Williamson.
The second specimen submitted by Lloyd Williamson to Monroe Medical Clinic on February 4, 1999, sometime after 2:00 p.m. was, in fact, a specimen produced by Lloyd Williamson.

Lastly, MMC attached the federal regulations promulgated by the U.S. Department of Transportation regarding the proper procedures for collection of urine samples.

No opposition memorandum or affidavits were filed on behalf of plaintiff. The matter came for hearing on September 19, 2002. The trial court granted summary judgment, and a written judgment to that effect was signed on September 23, 2002. The instant appeal by Williamson followed.

DISCUSSION

Williamson argues on appeal that the trial court erred in granting summary judgment because there remains a genuine issue of material fact as to which specimen was forwarded to the testing lab and because it is clear |4from the evidence that MMC did not follow the applicable regulations for proper urine specimen collection.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966(C)(1). A fact is material if its existence or non-existence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Curtis v. Curtis, 28,698 (La.App.2d Cir.09/25/96), 680 So.2d 1827.

When a motion for summary judgment has been properly made and supported, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967.

MMC moved for summary judgment on two separate grounds. First, MMC argued that in light of Betty Yruegas’ affidavit, there is no issue of fact as to which of the two specimens provided by Williamson was forwarded to LabCorp for testing and that the incorrect collection time noted on the custody and control form was simply an error. Second, MMC argues that, regardless of whether an issue of fact exists as to which of the |Btwo specimens was forwarded, that fact is not material because Williamson concedes that both specimens were his.

By not denying MMC’s requests for admission or objecting to summary judgment, Williamson admitted that both specimens in question were of his urine. While the first was rejected as a valid sample because of its low temperature, Williamson presented no evidence that the low temperature could affect the integrity of the specimen for the purposes of yielding accurate results when being tested.

The purpose of the regulation requiring that the urine specimen collected fall within a prescribed temperature range is to help ensure that the specimen provided is that of the individual to whom the drug test is to be administered. It ensures that the specimen provided by the employee to be tested is in fact a specimen of his urine (as opposed to that of a third party brought in by the employee) and that it has not been tampered with (such as through dilution). This purpose is clearly reflected in the language of 40 CFR § 40.25(e)(2)®, the regulation relied on:

(2) For the purposes of this part, the following circumstances are the exclusive grounds constituting a reason to believe that the individual may alter or substitute the specimen:
ls(i) The employee has presented a urine specimen that falls outside the normal temperature range (32-38 C/90-100 and ...

The duty owed pursuant to this statute is owed to the employer, the party for whom the drug test is to be performed. It is intended to ensure that the right individual is being tested. The regulation does not indicate or suggest that a below range or normal temperature reading at the time of collection can affect the integrity of the specimen so as to affect the results of the test nor did Williamson present any evidence to that effect, i.e., that a below normal temperature reading at the time of collection could be the cause of a false positive result for marijuana. Therefore, there is no evidence that the test of either specimen, both of which Williamson has admitted to being his, could have been negatively affected by any actions of MMC or its employees. Therefore, we find that plaintiff failed to meet his burden of showing a causal connection between the negligence complained of and the particular harm suffered, absent which MMC’s conduct is not actionable. Kniepp v. City of Shreveport, 609 So.2d 1163 (La.App. 2d Cir.1992), writ denied, 613 So.2d 976 (La.1993).

We likewise find no merit in Williamson’s argument that summary judgment is precluded by MMC’s failure to comply with the regulation which required it to “properly” execute the chain of custody block on the custody and control form, 49 CFR § 40.25(c). Because Ms. Yruegas admitted to placing the wrong collection time on the form, Williamson concludes that the form could not have been “properly” executed, thus constituting negligence per se. Assuming, arguendo, that this would be 17prima facie evidence of negligence, Williamson was still obligated to show some causal connection between the alleged negligent behavior and the harm suffered, He has not done so. Williamson presented evidence tending to show that any alleged “false positive” test result is causally connected to MMC’s negligence in either forwarding the first specimen with a below normal temperature reading or in sending the second specimen with the wrong collection time noted on the custody and control form.

Lastly, we find no merit in Williamson’s argument concerning the trial court’s alleged error in allowing MMC to present evidence in support of its motion for summary judgment which contradicts what he asserts to be a previously admitted fact. Williamson specifically refers to the following request for admission which was served on MMC with his original petition for damages:

You are requested to admit that, regarding the drug testing of Lloyd Williamson conducted on February 4, 1999, the urine specimen collected at either 12:30 p.m. or 12:50 p.m. and bearing the “Specimen ID No.” of “097053594-1” is the only urine specimen that the records of Monroe Medical Clinic show Lloyd Williamson as having presented on February 4,1999.

Williamson asserts that because this request was served on September 7, 1999, and MMC did not respond until October 20, 1999, more than 30 days after the request was made, the request was deemed admitted. La. C.C.P. art. 1467. This court, however, has recognized in specific cases that the failure to timely answer a request for admissions does not always result in an automatic admission of those facts, and we need not make any such analysis here. See Jie v. Certified Lloyds Plan, 34,545 (La.App.2d Cir.04/04/01), 785 So.2d 118; Security National Trust v. Kalmback, 613 So.2d 664 (La.App. 2d Cir.1993).

Williamson does not dispute that he supplied two separate specimens. At best, the admission of this fact would support the argument that the specimen forwarded to LabCorp for testing was the earlier of the two specimens with the below normal temperature. As discussed above, we do not believe such a finding precludes summary judgment due to Williamson’s failure to present any evidence regarding this alleged act of negligence being a cause-in-fact of the alleged harm suffered. However, by not responding to the summary judgment motion, we are left with only Ms. Yruegas’ affidavit that the time was simply a mistake. This fact is uncontradicted.

CONCLUSION

For the reasons set forth above, we affirm the trial court’s grant of MMC’s motion for summary judgment and dismissal of Williamson’s claims against it. The costs of this appeal are assessed to Williamson.

Affirmed.

      . After MMC filed its answer denying any role in the actual testing of the specimen, Williamson filed an amending and supplemental petition adding LabCorp and University Services MRO as defendants and maintaining its action against MMC for negligent collection of his specimen. Both LabCorp and University Services MRO were subsequently dismissed from the suit.
      Williamson's wife, Ora, was a co-plaintiff making a “loss of consortium” claim; however, this claim was dismissed in an amended petition.

      . Admissions may be used to establish uncon-tradicted facts or controversial issues which constitute the crux of the matter in litigation. La. C.C.P. art. 1467; Succession of Rock v. Allstate Life Ins. Co., 340 So.2d 1325 (La.1976). When the party receiving the request for admissions fails to respond to the request by any means, the fact is deemed admitted. Succession of Rock, supra; Tandy v. Pecan Shoppe of Minden, Inc., 34,578 (La.App.2d Cir.04/04/01), 785 So.2d 111. However, in Succession of Rock, the Louisiana Supreme Court pointed out that the codal articles do not require a party to utilize a particular form to respond to the request. The only formality dictated by La. C.C.P. art. 1467 is that "a written answer or objection addressed to the matter, signed by the party ...” be served upon the party which requested the admission. In the case presently before us, MMC’s requests for admissions went unanswered and were not objected to; therefore, Williamson admitted that both specimens in question were his urine.


author: B CARAWAY, J. |,BROWN, C.J.,

text:
    Arthur RUSSELL, Jr., Plaintiff-Appellee, v. TMT TRANSPORTATION CORP. and Clarendon National Insurance Co., Defendants-Appellants.
    No. 37,462-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.
    Cook, Yancey, King & Galloway by S. Price Barker, Rebecca Lear Castillo, Shreveport, for Appellants.

      Law Offices of Jack M. Bailey, Jr. by Jack M. Bailey, Jr., J. Allen Cooper, Jr., Mary Lou Salley, Shreveport, for Appellee.
    Before BROWN, CARAWAY and TRAYLOR (Pro Tempore), JJ.
   B CARAWAY, J.

This dispute concerns a worker’s compensation claim arising out of the hiring of the plaintiff as an independent contractor. The plaintiffs claim must rest upon the manual labor exception to the independent contractor rule under the Worker’s Compensation Act. The defendants challenged the claim as premature based upon an arbitration provision in the parties’ contract. The worker’s compensation judge (“WCJ”) denied defendants’ exception of prematurity and the defendants appeal. Finding that the parties’ contract did not provide for the arbitration of a worker’s compensation claim, we affirm the WCJ’s ruling.

Facts

Arthur James Russell, Jr., (“Russell”) filed this disputed claim for compensation with the Office of Workers’ Compensation (“OWC”), requesting wage benefits, disability status, and penalties, interest and attorney’s fees in connection with an alleged on-the-job accident. Russell alleged that he injured his back and leg after he lost his footing and fell on the trailer portion of his tractor-trailer rig while untarp-ing the load during the early morning of August 16, 2001.

Russell alleged an employment relationship with TMT, Inc. (“TMT”), with whom he had entered an “independent contractor contract” dated May 9, 2001. The contract recited that TMT was a for-hire motor carrier and that “[Russell was] an independent contractor who is in the business of providing transportation service and is willing to assist TMT in providing that service.” The contract further stated, “[t]his contract is not intended to | gcreate an employee/employer relationship between the [contractor] and TMT.”

Additionally, we note that a reference to worker’s compensation was set forth in the following provision of the contract:

Occupational accident insurance premium — If CONTRACTOR fails to provide TMT with proof of all states worker’s compensation coverage, TMT is authorized, at its sole discretion, to obtain an occupational accident policy for CONTRACTOR at a premium of One Hundred and Fifty Dollars ($150) per month. The premium will be charged and reflected on the first settlement of each month.

After the requisite initial mediation conference with the OWC, the issues were unresolved by the parties. Thereafter, TMT and its insurer, Clarendon National Insurance Company, were served through their attorney of record. They responded by urging a dilatory exception of prematurity based on the existence of an arbitration clause in the parties’ contract. The arbitration clause provided as follows:

Any claim, dispute, or controversy between the parties arising, directly or indirectly, under the Contract shall be submitted to the American Arbitration Association in Dallas, Texas for binding arbitration pursuant to the American Arbitration Association’s Rules. Neither party will be entitled to recover punitive or exemplary damages, damages for mental anguish or emotional distress or pain and suffering, or similar damages. Neither party will be entitled to recover attorney’s fees. This provision shall survive termination of the Contract.

At the conclusion of the hearing on the exception and immediately prior to overruling TMT’s exception, the WCJ noted that the inclusion of the above quoted language prohibiting recovery of punitive damages, damages for mental anguish, and the recovery of attorney’s fees by either party, conflicted with provisions of the worker’s compensation law under which an independent contractor may be afforded benefits, penalties and ^attorney's fees. Because of this conflict, the WCJ found that Russell’s alleged remedies under the facts of the case were grounded in the worker’s compensation law and denied the exception.

Thereafter, TMT moved for reconsideration of the WCJ’s ruling based on its waiver of the contractual limitations on recovery of damages and attorney’s fees. The WCJ denied TMT’s motion to reconsider, whereupon TMT requested thirty days within which to apply for supervisory writs from this court. Upon the application, this court granted its application as the equivalent of an appeal of an interlocutory ruling under La. C.C.P. art.2083.

Discussion

The parties’ contract purports to create an independent contractor relationship between Russell and TMT. While Section 1021(6) of the Worker’s Compensation Act (“the Act”) provides that independent contractors are excluded from the Act’s coverage, the provision also lists an exception to that rale for those independent contractors who spend a substantial part of their work time performing manual labor. La. R.S. 23:1021(6); Moreno v. Simonton, 33,854 (La.App.2 Cir.12/20/00), 779 So.2d 887, writ denied, 01-0444 (La.4/20/01), 790 So.2d 634; Savoy v. Clark Directional Drilling Equip., 01-918 (La.App. 3d Cir.12/12/01), 801 So.2d 610; Fleniken v. Entergy Corp., 00-1824 (La.App. 1st Cir.2/16/01), 780 So.2d 1175, writs denied, 01-1268, 01-1305, 01-1317 (La.6/15/01), 793 So.2d 1250, 1253, 1254. Whether the manual labor exception applies and provides coverage under the Act is the threshold issue for the OWC to decide in this case. Riles v. Truitt Jones Const., 94-1224 (La.1/17/95), 648 So.2d 1296; Guillory v. Overland Express Co., 01-419 (La.App. 3d Cir.10/3/01), 796 So.2d 887; Mullen v. R.A.M. Enterprises, 02-1157 (La.App. 1st Cir.3/28/03), 844 So.2d 376.

The Louisiana Arbitration Law (“LAL”) provides that “a provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract ... shall be valid, irrevocable and enforceable.” La. R.S. 9:4201 (emphasis supplied). We note that the LAL expressly states that it shall not apply to “contracts of employment of labor.” La. R.S. 9:4216. Likewise, the Worker’s Compensation Act provides in Section 1033 that no contract shall operate to relieve the employer from any liability created by the Act. La. R.S. 23:1033.

Although these statutory provisions do not directly address the arbitration issue presented by this agreement for an independent contractor relationship, they indicate to this court that the substantive coverage of the Act, which may have application in this case because of the statutory manual labor exception, may not be thwarted by the parties’ contract. Additionally, the arbitration provisions of the LAL appear concerned with controversies arising out of contracts, not those arising from the Act and related to the employment relationship.

Nevertheless, TMT argues that the contractual provision at issue is procedural and does not affect substantive rights under the Act, particularly in view of its waiver of the contract’s prohibition against penalties and attorney’s fees. In other words, TMT argues that the contract contains only a forum selection clause waiving Russell’s procedural rights before the OWC, but not his substantive rights under the Act. Since arbitration is 1 flavored in Louisiana and since freedom of contract exists beyond any limitation in the LAL, TMT insists that a contractual forum selection provision should be enforceable for arbitration of worker’s compensation claims in Louisiana.

While our Civil Code provides for contractual freedom under Article 1971, “persons may not by their juridical acts derogate from laws enacted for the protection of the public interest.” La. C.C. art. 11. Specifically dealing with conventional obligations, Article 1968 provides:

The cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy.

Prior to the enactment of the Federal Arbitration Act in 1925, the legal system nationally did not favor nonjudicial dispute resolution. See, Thomas E. Carbonneau, Arbitral Justice: The Demise of Due Process in American Law, 70 Tul.L.Rev.1945 (1996). At the same time, Louisiana enacted special legislation which eventually led to the current LAL. See, Acts 1928, No. 262. The provisions on arbitration which have always been contained in our Civil Code are narrow in their scope, arguably extending only to a “submission” to arbitrate an existing dispute. See, La. C.C. art. 3099, et seq. Additionally, the legislature has found it necessary to enact various statutes, including the LAL, specifically allowing arbitration. See, e.g., La. R.S. 38:2314.1; La. R.S. 40:1299.47; La. R.S. 3:855; and La. R.S. 37:381(5). Thus, there is significant question whether, in the absence of the LAL or other statutory enumeration in favor of arbitration, the parties’ freedom of contract allows an arbi-tral provision for the nonjudicial | (¡resolution of future disputes arising from their contract. TMT’s argument goes even further in asserting that freedom of contract may allow for the arbitral resolution of the Act’s non-contractual obligations imposed by law despite the contrary implications of the LAL and the special adjudicatory system under the OWC. Nevertheless, we need not resolve the question of public policy which this argument raises in this case given the parties’ contract.

The contract in question expressly states that the parties did not intend for an employee/employer relationship to exist. It indicates that Russell would therefore be responsible for his own worker’s compensation insurance which would not be the obligation of TMT. While this agreement may be contrary to the Act to the extent that the manual labor exception is established, the parties clearly did not intend for worker’s compensation obligations to be applicable to their relationship. Most importantly, there is no express authority in the contract referring a worker’s compensation claim by Russell to arbitration. Even assuming that such provision would not offend public policy, we would require an express statement in the contract waiving Russell’s rights to adjudication before the OWC. Accordingly, we affirm the WCJ’s denial of TMT’s exception of prematurity. The case is remanded, and costs of appeal are assessed to appellant.

AFFIRMED AND REMANDED.

BROWN, C.J., concurs with written reasons.

|,BROWN, C.J.,

Concurring.

The employer in this case maintains that plaintiff is an independent contractor based solely upon a written agreement. Whether plaintiff is an independent contractor must be decided by the WCJ and depends on the particular facts and circumstances. The WCJ must take into consideration the total economic relationship between the parties and all other factors weighing for or against an employment relationship. Moreno v. Simonton, 33,854 (La.App.2d Cir.12/20/00), 779 So.2d 887, writ denied, 01-0444 (La.04/20/01), 790 So.2d 634. Only if plaintiff is found to be an independent contractor would the manual labor exception be relevant.

The Workers’ Compensation Act provides an exclusive remedy, both procedurally and substantively. It cannot be waived. An arbitration provision in a written contract is without effect and contrary to public policy where a claim falls under the Workers’ Compensation Act.

      . 9 U.S.C. § 1, et seq. TMT agrees that the federal law has no application in this case.


author: 11 MOORE, J.

text:
    UNITED RENTALS HIGHWAY TECHNOLOGIES, INC., Plaintiff-Respondent, v. ST. PAUL SURETY, et al., Defendants-Applicants.
    No. 37,265-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.

      Osborn & Osborn by R.A. Osborn, Jr., R.A. Osborn, III, Gretna, for Respondent.
    Krebs, Farley & Pelleteri, L.L.C. by David J. Krebs, Alberta L. Adams, for Applicants.
    Before GASKINS, PEATROSS and MOORE, JJ.
   11 MOORE, J.

United States Fidelity & Guarantee (“USF & G”) contests an order denying, without written reasons, its motion for summary judgment. Upon our de novo review, we find that the Public Works Act claim of United Rentals Highway Technologies Inc. (“United Rentals”) was not timely filed and that USF & G is entitled to judgment as a matter of law, but that USF & G is not entitled to attorney fees for defending this action. We therefore grant the writ and make it peremptory, dismissing United Rentals’ invoice claims and USF & G’s attorney fee claim.

Factual Background

The dispute arises out of a subcontract between United Rentals and Neosho Construction Company (“Neosho”), which was the general contractor on a public works project (“the Project”) in DeSoto Parish for the Louisiana Department of Transportation (“DOTD”). USF & G provided a payment and performance bond for Neo-sho’s work on the Project. Under its subcontract, United Rentals provided Neosho guard rails and related road work. United Rentals began its work on June 28, 2001, and upon completion of its work, sent an invoice for $68,366.68 to Neosho on August 31, 2001, seeking payment. Neosho did not pay, despite the invoice and attempted collection phone calls. After learning that Neosho had filed for bankruptcy protection, DOTD filed a notice of default against Neosho, recorded in the public records of DeSoto Parish on October 11, 2001. On October 5, 2001, United Rentals contacted DOTD’s engineer who referred United Rentals to USF & G for collection of their invoice amount under RNeosho’s bond. United Rentals contends that DOTD and USF & G failed to advise them of the fact that DOTD had filed the notice of default two days earlier. On October 10, 2001, United Rentals forwarded a claim with invoice and a sworn statement of amount due to USF & G. United Rentals sent a duplicate claim to DOTD on October 17, 2001. On December 1, 2001, United Rentals filed a sworn statement of claim in the public records of DeSoto Parish. November 29, 2001 was the 45th day following DOTD’s recording of the notice of default against Neosho.

Procedural Background

United Rentals admits it did not file its statement of claim within 45 days after DOTD filed notice of default in the public records, but argues that this was because USF & G and DOTD failed to advise it that DOTD had already filed a notice of default. United Rentals urges this withholding of information constituted fraud and created a ground for a contra non valentón argument. USF & G urges that United Rentals failed to strictly comply with the 45-day filing requirement of La. R.S. 48:256.5 B and thus, as a matter of law, cannot maintain its claim. USF & G further argues that under Louisiana’s public record doctrine, it owed no duty to advise United Rental of DOTD’s notice of default filing. USF & G also contends that fraud is not a ground for relief under the Public Works Act, R.S. 48:250 et seq.

On March 26, 2002, United Rentals filed suit against USF & G seeking payment for materials United Rentals allegedly supplied to the Project. USF & G answered urging prescription and/or peremption under the Public Works Act applicable to DOTD projects pursuant to La. R.S. 48:250 et seq. |3 USF & G also requested attorney fees pursuant to La. R.S. 48:256.11 B.

On' July 11, 2002, USF & G filed a peremptory exception of no right of action and no cause of action and a motion for summary judgment on the ground that United Rentals was precluded from pursuing the claims on its invoices because United rentals failed to comply with the strict claim filing requirement of La. R.S. 48:256.5. The trial court heard arguments on USF & G’s motion for summary judgment and exceptions and on October 13, 2002, issued an order expressly denying USF & G’s summary judgment motion without reasons. The order did not mention USF & G’s exceptions.

On January 11, 2003, USF & G filed an application for supervisory writ with this court, which writ was granted on February 20, 2003. The matter was briefed and orally argued in due course.

Applicable Law

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of all except certain disallowed actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. After adequate discovery or after a case is set for trial, a|4motion which shows that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966 C(l).

The burden of proof remains with the mover; however, if the mover will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, then the mover may merely point out to the court that there is an absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to the plaintiff to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966 C(2); Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41. After the burden has shifted, the plaintiff must make a positive showing of evidence creating a genuine issue as to an essential element of its claim. Mere speculation is not sufficient. Babin v. Winn-Dixie La. Inc., 00-0078 (La.6/30/00), 764 So.2d 37. Appellate review of a grant or denial of summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226; Belt v. Wheeler, 36,585 (La.App. 2 Cir. 12/18/02), 833 So.2d 1256; McEachern v. Mills, 36,156 (La.App. 2 Cir. 8/16/02), 826 So.2d 1176. La. R.S. 48:256.5 B provides:

Any claimant shall, after the maturity of his claim and within forty-five days after the recordation of final acceptance of the work by the department or of notice of default of the contractor or subcontractor, file a copy of sworn statement of the amount due him with the department having the work done and record the original | Bsworn statement of the amount due him in the office of the recorder of mortgages for the parish in which the work is done.

La. R.S. 48:256.12 further provides in pertinent part:

Nothing in this part shall be construed to deprive any claimant, as defined in this part and who has complied with notice and recordation requirements of R.S. 18:256.5 B, of his right of action on the bond furnished by this Part, provided that said action must be brought against a surety or the contractor or both within one year from the registry of acceptance of the work or of notice of default of the contractor; except that before any claimant having a direct contractual relationship with a subcontractor but no contractual relationship with the contractor shall have a right of action against the contractor or the surety on the bond furnished by the contractor, he shall in addition to the notice and recordation required in R.S. 48:256.5 B give written notice to said contractor and surety within forty-five days from the recordation of the notice of final acceptance by the department of the work or notice by the department of default, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor or service was done or performed. * * * * (Emphasis supplied.)

Discussion

United Rentals admits that it did not file a copy of its sworn statement of claim within 45 days from the DOTD’s recording of notice of default in the public record of DeSoto Parish, as is required by R.S. 48:256.5 B, supra.

It is a long-standing principle of statutory interpretation that “[a]s a general rule, lien statutes are stricti juris and should thus be strictly construed.” State v. McInnis Brothers Construction, 97-0742 (La.10/21/97), 701 So.2d 937, 944, and authorities therein. “[Pjublic contract laws are to be strictly construed such that the privileges granted are not extended beyond the statutes.” Mclnnis, supra at 944.

|fiBecause the law grants special rights to claimants, there must be strict compliance with the provision. See, City of Alexandria v. Shevnin, 240 La. 983, 126 So.2d 336 (1961). Rights and privileges granted third parties (such as United Rentals) by the legislature for materials and labor in construction projects must be preserved by recordation of claims by third parties within the time delays established by statute. See, Pratt v. Damon Castle Hall Co., 2 Pelt 67, 1918 WL 1371 (Orleans App.1918). Furthermore, if a third party fails to preserve his statutory privilege by timely filing a sworn statement of his claim with the owner and duly record the claim within the statutory time delay, then the third party has no right of action on the bond securing performance and the bond may be summarily erased and canceled upon the demand of any party in interest. See, Louisiana Glass & Mirror Works v. Irwin, 126 La. 555, 52 So. 765 (1910); Julius Aaron & Son v. Keyser, 2 La.App. 649 (La.App. 2 Cir.1925). Likewise, under La. R.S. 48:255.2, the surety must strictly comply with the statutory obligation of presenting the DOTD with a plan to assume performance and procure completion of the project or a response for the contractor’s default within 45 days of notice of contractor’s default from DOTD. Failure to do so subjects the surety to statutory damages, including cost to complete the project and stipulated damages up to the total amount of the bond.

Although United Rentals concedes that it failed to strictly comply with R.S. 48:256.5 B, United Rentals argues that the 45-day filing period is prescriptive in nature and subject to suspension. Specifically, United ^Rentals argues that contra non valentem suspended the time limit because USF & G did not advise United Rentals of the DOTD filing in DeSoto Parish. United Rentals contends that this conduct, which United Rentals asserts was fraudulent, prevented it from discovering DOTD’s notice filing in time to meet the 45-day claim filing requirement. This argument would fall under the “discovery rule,” typically being the fourth category establishing a basis for contra non valen-tem, based on the equitable notion that “prescription does not run against one who is ignorant of the facts upon which his cause of action is based as long as such ignorance is not willful, negligent, or unreasonable.” See, Fontenot v. ABC Ins. Co., 95-1707, p. 8 (La.6/7/96), 674 So.2d 960, 965. USF & G counters that the rights created by R.S. 48:256.5 and 256.12 are peremptive in nature and not subject to suspension or interruption.

For purposes of our review, we preter-mit analysis as to whether the 45-day filing requirement of R.S. 48:256.5 is prescriptive or peremptive in nature. Assuming arguendo that it is prescriptive, we find that United Rentals has, not proved fraud or any other conduct sufficient to interrupt the time period of R.S. 48:256.5 and 256.12.

We have long held that on the basis of the public records doctrine, third persons need only to look to the public records to determine adverse claims. Thomas v. Lewis, 475 So.2d 52 (La.App. 2 Cir.1985), citing, McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909). All persons are held to have constructive notice of recorded instruments affecting immovable property. See, McConnico v. Red Oak Timber Co., 36,985 (La.App. 2 Cir. 5/16/03), 847 So.2d 191; Powell v. Dorris, 35,510 (La.App. 2 Cir. 4/5/02), 814 So.2d 763; Ridgedell v. Succession of Kuyrkendall, 98-1224 (La.App. 1 Cir. 5/19/99), 740 So.2d 173. Under the public record doctrine, United Rental is charged with knowledge of DOTD’s filing of the notice of default which triggered the 45-day claim filing period. Because USF & G provided notice to the world, there is no substance to the claim it fraudulently withheld valuable information from United Rentals or that United Rentals was prevented from pursuing its claim. Because United Rentals failed to preserve its statutory privilege by timely recording its sworn statement of claim in DeSoto Parish, United Rentals lost its right of action to proceed under the Public Works Act, R.S. 48:250 et seq. We also note that United Rentals’ independent tort allegation of fraud against USF & G is without merit, as R.S. 48:250 et seq., is “sui generis” and provides no such relief. See, McInnis, supra at 944.

We further note relative to United Rentals’ allegation of fraud that, notwithstanding that the claim falls outside the purview of relief accorded by R.S. 48:250 et seq., it is without factual merit. For instance, Exhibit G, to United Rentals’ memorandum in opposition to USF & G’s exceptions and motion for summary judgment, is a letter from Nancy Smiley, Surety Claim Administrator for USF & G, to Freída Anderson of United Rentals, which clearly expresses that USF & G was investigating the instant claim and was making no promise to pay the claim, along with a reservation of rights which included that the reservation was without limitation, defenses available at law or equity and pursuant to any notice and suit limitation | provisions. The letter also expressly requested claim documentation from United Rentals, clearly reflecting USF & G’s claim investigation posture, which reasonably should not be subject to misinterpretation or a basis for detrimental reliance in terms of any promise by USF & G to pay United Rentals’ claim.

Based upon the record, United Rentals’ admission of not timely recording its claim as required by R.S. 48:256.5, R.S. 48:256.12 and the principle of Louisiana Glass & Mirror Works, supra, we find no genuine issue of material fact in dispute regarding USF & G’s liability. United Rentals’ right of action on the payment and performance bond was extinguished, and inasmuch as no right of action exists by operation of law, USF & G is entitled to summary judgment as a matter of law. Thus, we grant the writ and enter summary judgment in favor of USF & G, dismissing United Rentals’ invoice claims.

Award of Attorney Fees Provided by R.S. 48:256.11 B

Lastly, USF & G argues that the trial court erred in not granting it attorney fees pursuant to R.S. 48:256.11 B, which states:

If the trial court finds that such an action was brought by any claimant without just cause or in bad faith, the trial judge shall award the principal or surety a reasonable amount as attorney fees for defending such action.

USF & G specifically urges that inasmuch as United Rentals’ claim was clearly barred under R.S. 48:256.12, attorney fees are warranted under R.S. 48:256.11 B, supra. Upon the record and the showing made we cannot say that United Rentals’ pursuit of this claim was in bad faith. Although the | ^assertion of contra non valentem was not ultimately successful, we cannot say the claim was devoid of good cause. Accordingly, the claim for attorney fees is denied.

Conclusion

For the reasons expressed, we grant USF & G’s writ, make it peremptory, and render summary judgment dismissing the invoice claims of United Rentals. The request for attorney fees is denied. Costs are assessed against respondent, United Rentals.

WRIT GRANTED AND MADE PEREMPTORY; SUMMARY JUDGMENT RENDERED.

      . The petition improperly designated St. Paul Surety as the defendant.