author: | gPARRO, J.

text:
    Jesse Earl WALKER, Jr. v. HIGH TECH REFRACTORY SERVICES, INC. and Liberty Mutual Insurance Company.
    No. 2003 CA 1621.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.

      Joe Arthur Sims, Hammond, for Plaintiff-Appellant Jesse Earl Walker, Jr.
    Constance C. Hobson, Borrello & Dubu-clet, Metairie, for Defendants-Appellees High Tech Refractory Services, Inc. and Liberty Mutual Insurance Company.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | gPARRO, J.

An employee appeals from a judgment of the Office of Workers’ Compensation Administration, which denied his claim for continued disability benefits based on an alleged permanent, total disability and reduced his award for rehabilitation expenses by amounts received from federal grants. For the following reasons, the judgment is reversed in part, amended in part, and as amended, affirmed.

Factual and Procedural History

Jesse Earl Walker, Jr. (Walker) was in the course and scope of his employment with High Tech Refractory Services, Inc. (High Tech) on July 30, 1991, as a laborer when he sustained serious injuries as a result of falling 14 stories while working inside of a “cat cracker” at the Shell plant in Norco, Louisiana. After having paid Walker supplemental earnings benefits for a period of 520 weeks at the maximum rate, High Tech’s workers’ compensation insurer, Liberty Mutual Insurance Company (Liberty), discontinued payments of weekly indemnity benefits on July 27, 2001, prompting Walker to file a disputed claim form, seeking continued benefits on the basis of an alleged psychological disability which precluded him from returning to work.

Although the workers’ compensation judge (WCJ) ordered Liberty to authorize Walker to undergo psychiatric/psychological treatment as recommended by Dr. Craig Waggoner, a psychologist, the WCJ dismissed Walker’s claim for indemnity benefits beyond the 520 weeks previously paid by Liberty based on a finding that he was not permanently and totally disabled. In addition to ordering the payment of certain medical expenses, the judgment awarded Walker reimbursement in the amount of $8,739.06 for tuition expenses incurred at Camelot College for the period of April 5, 2000, through March 14, 2001, subject to a credit in favor of High Tech and Liberty for monies paid to Camelot College under the Federal Pell Grant Program. Walker appealed, contending that the WCJ erred in finding that Walker was not permanently, totally disabled and in recognizing a credit for Pell Grant payments made on Walker’s behalf in favor of High Tech and Liberty against their obligation for tuition expenses incurred at Camelot College.

| ^Discussion

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding, and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an appellate court may set aside a trier of fact’s factual finding only if, after reviewing the record in its entirety, it determines the fact finder’s finding was clearly wrong. See Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Stobart, 617 So.2d at 882. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, 549 So.2d at 844. W/here there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.

To be entitled to compensation benefits, the work-related injury must be disabling, whether it be temporary or permanent. Pursuant to LSA-R.S. 23:1221(l)(c), a claimant has the burden of proving a temporary, total disability by clear and convincing evidence. In the absence of clear and convincing evidence that the claimant is physically unable to engage in any employment, the claimant’s demand for temporary, total disability benefits must fail. LeBlanc v. Grand Isle Shipyard, Inc., 95-2452 (La.App. 1st Cir.6/28/96), 676 So.2d 1157, 1161. In claiming a permanent, total disability, the | claimant must likewise prove by clear and convincing evidence his or her inability to engage in any employment. LSA-R.S. 23:1221(2)(c).

The issue of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. LeBlanc, 676 So.2d at 1161. The issue of disability is determined with reference to the totality of the evidence, including both lay and medical testimony. LeBlanc, 676 So.2d at 1161. After a thorough review of the record and considering the credibility determinations made by the WCJ, we are convinced there was a reasonable factual basis to support the WCJ’s finding that Walker was not entitled to permanent, total disability benefits. This court further concludes the record establishes this factual determination was not manifestly erroneous. Therefore, we find no error in the WCJ’s determination that Walker failed to prove his entitlement to continued indemnity benefits under LSA-R.S. 23:1221.

An employer has a statutory duty to furnish all necessary medical treatment caused by a work-related injury. LSA-R.S. 23:1203; Patterson v. Long, 96-0191 (La.App. 1st Cir.11/8/96), 682 So.2d 1327, 1334, writ denied, 96-2958 (La.2/7/97), 688 So.2d 499. The right to medical expenses is separate and distinct from the right to indemnity benefits. Therefore, an employee may recover medical expenses even though there is no recovery for indemnity benefits. Ridlen v. St. Charles Manor Nursing Center, Inc., 94-275 (La.App. 5th Cir.10/12/94), 644 So.2d 244, 247, writ denied, 94-3039 (La.2/3/95), 649 So.2d 410. Accordingly, we conclude that the WCJ’s award of medical expenses associated with the course of psychological treatment recommended by Dr. Waggoner is not contrary to or inconsistent with its decision regarding indemnity benefits.

The employer’s duty to furnish a compensation claimant rehabilitation services is found in LSA-R.S. 23:1226. When an employee has suffered an injury covered by the workers’ compensation law which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation |sservices. LSA-R.S. 23:1226(A). The goal of rehabilitation services is to return a disabled worker to work, with a minimum of retraining, as soon as possible after an injury occurs. LSA-R.S. 23:1226(B)(1). When it appears that a retraining program is necessary and desirable to restore the injured employee to suitable gainful employment, the employee shall be entitled to a reasonable and proper retraining program for a period not to exceed twenty-six weeks, which period may be extended for an additional period not to exceed twenty-six additional weeks if such extended period is determined to be necessary and proper by the workers’ compensation judge. LSA-R.S. 23:1226(E). If a retraining program requires residence at or near the facility or institution and away from the employee’s customary residence, reasonable costs of board, lodging, or travel shall be borne by the employer or insurer. LSA-R.S. 23:1226(E). We are aware of no statutory authority providing for an offset for any expenses for such rehabilitation services. LSA-R.S. 23:1225 permits the employer a limited reduction in compensation benefits only when the employee is also receiving certain other specifically enumerated benefits. Federal Pell Grant Program payments are not listed therein. Therefore, we conclude that the WCJ erred in finding that High | (¡Tech and Liberty were entitled to an offset for that portion of Walker’s rehabilitation expenses covered by Pell Grant payments.

For the foregoing reasons, that portion of the judgment recognizing High Tech and Liberty’s right to a credit for monies paid on Walker’s behalf under the Federal Pell Grant Program is reversed. Accordingly, the judgment is amended to award Jesse Earl Walker, Jr. full reimbursement for tuition expenses incurred at Camelot College for the period of April 5, 2000, through March 14, 2001. As amended, the judgment is otherwise affirmed. Costs of this appeal are assessed to High Tech Refractory Services, Inc. and Liberty Mutual Insurance Company.

REVERSED IN PART, AMENDED IN PART, AND AS AMENDED, AFFIRMED.

CARTER, J., concurs in the result.

      . The final cost report prepared by a Liberty representative disclosed the following workers’ compensation benefits payments through August 26, 2001: $107,897.44 in total indemnity benefits, $12,670.34 in total rehabilitation expenses, and $92,503.29 in total medical expenses.

      . To recover medical expenses under LSA-R.S. 23:1203, the claimant must prove by a preponderance of the evidence that the expenses are reasonably necessary for treatment of a medical condition caused by the work injuiy. Patterson, 682 So.2d at 1334; see Spurrell v. Ivey, 25,359, 25,360 (La.App. 2nd Cir. 1/25/94), 630 So.2d 1378, 1384.

      .Prior to its amendment by 1989 La. Acts, No. 454, § 6, LSA-R.S. 23:1226(A) provided:
      When an employee has suffered an injury covered by this Chapter which precludes the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. The employer or insurer shall provide such injured employee with appropriate training and education for suitable gainful employment and may utilize programs provided by state and federal agencies for vocational education when conveniently available or may utilize any public or private agency cooperating with such state and federal agencies in the vocational rehabilitation of such injured employee. In the absence of such programs the employer or insurer shall provide vocational rehabilitation with available private agencies.
      Only the first sentence of paragraph A survived the 1989 revisions. Notably, the language relied on by the court in Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, in finding that the employer was not liable for expenses that are covered by the state vocational rehabilitation scholarship that plaintiff received, no longer forms part of LSA-R.S. 23:1226. Freeman, 630 So.2d at 741 n. 3. Similarly, in Bigner v. LSU Medical Center, 27,084 (La.App. 2nd Cir.6/21/95), 658 So.2d 218, the court, relying on paragraph A's former recognition that an employer may “utilize programs provided by state and federal agencies for vocational education,” determined that an employer’s responsibility for retraining would be lessened by the claimant’s receipt of financial aid in the form of a federal grant. Bigner, 658 So.2d at 222 n. 1.

      . Cf. Shelvin v. Waste Management, Inc., 580 So.2d 1022, 1028-1029 (La.App. 3rd Cir. 1991), involving Medicare payments.

      . Furthermore, we are not persuaded that the failure to allow an offset will result in double recovery by Walker for these expenses. In fact, Walker may be personally responsible for refunding the grant monies to the federal Secretary of Education under the provisions of 34 C.F.R. § 690.79. See Till v. Delta School

        of Commerce, Inc., 487 So.2d 180, 183 (La.App. 3rd Cir. 1986).


source: Caselaw Access Project

license: Public Domain

text:
    Albin L. CARTER and Sheryl V. Carter v. AMITE CITY FORD, INC. and Ford Motor Company.
    No. 2003 CA 1536.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Paul L. Billingsley, Hammond, for Plaintiffs-Appellees Abin L. Carter and Sheryl V. Carter.
    Robert W. Maxwell, Joseph F. Clark, Jr., McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Covington, for Defendant-Appellant Ford Motor Company.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | gPARRO, J.

In this redhibition action against the seller and manufacturer of a vehicle, the manufacturer appeals a default judgment against it rescinding the sale, ordering the refund of amounts paid by the purchaser, and ordering the payment of $10,584.84 in damages and attorney fees to the purchasers. For the following reasons, the judgment is vacated.

Factual Background and Procedural History

On March 17, 2001, Albín L. and Sheryl V. Carter purchased a new 2001 Ford Escape from Amite City Ford, Inc. (Amite) for $23,403.48, including taxes, title, license, and sales charges. Eighteen months later, on September 12, 2002, the Carters filed an action in redhibition against Amite and Ford Motor Company (Ford Motor) because of the problems they had been experiencing with the vehicle. In their petition, the Carters alleged the following. Since the acquisition, they had experienced numerous problems with the vehicle, including peeling paint, exterior finish damage, and a defective dashboard. Amite’s attempts at repairing the dashboard were unsuccessful. The defects rendered the vehicle unmerchantable and unfit for the purposes for which it was to be used. Accordingly, the Carters sought (1) rescission of the sale under LSA-C.C. art. 2520, (2) return of the full purchase price together with amounts paid in connection with the purchase, (3) damages and attorney fees on account of Amite’s alleged failure to disclose prior damage to the vehicle which resulted in the peeling of paint, and (4) recovery of the value of personal property that had been stolen from the vehicle while it was in Amite’s custody for repairs.

With neither defendant having filed an answer, the Carters filed on November 7, 2002, a motion for preliminary default as to Amite, which they sought to confirm on November 25, 2002. At the confirmation hearing, the Carters acknowledged that the pending motion did not involve Ford Motor; therefore, they moved for the entry of a preliminary default against Ford Motor and urged that the testimony and evidence from the November 25, 2002 confirmation hearing be preserved as to Ford Motor. However, at the close of evidence, the trial court signed a judgment in favor of the Carters against Amite and Ford Motor, in solido, rescinding the sale of the vehicle, ordering a 1 «refund of all payments made by the Carters (including down payment, monthly payments, sales taxes, sales charges, and rental expenses), and making the following monetary awards: $1,084.84 in reimbursement for movables that were removed from the vehicle while it was being repaired by Amite, $2,500 as general damages for their inconvenience and loss of use, and $7,000 in attorney fees. This judgment was vacated by the trial court on December 20, 2002. Without a further hearing in this matter, a revised judgment against Amite and Ford Motor, which had been signed on November 20, 2002, was filed into the record on January 7, 2003. Ford Motor appealed from the default judgment against it, contending that the judgment was premature and invalid for failure to properly confirm the preliminary default and that the Carters failed to establish a prima facie case that the vehicle had a redhibitory defect.

Applicable Law on Default Judgments

In an ordinary proceeding, the defendant in a principal action must file an answer within fifteen days after service of the citation. LSA-C.C.P. art. 1001. If a defendant in the principal demand fails to answer within the time prescribed by law, a judgment by default may be entered against him. LSA-C.C.P. art. 1701(A). The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes. LSA-C.C.P. art. 1701(A). A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case, as fully as though the defendant denied each of the allegations in the petition. See LSA-C.C.P. art. 1702(A); Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989); Sessions & Fishman v. Liquid Air Corporation, 616 So.2d 1254, 1258 (La.1993). In other words, a plaintiff must present competent evidence that convinces the court that it is more probable than not that he would prevail in a trial on the merits. Thibodeaux v. Burton, 538 So.2d at 1004; Bordelon v. Sayer, 01-0717 (La.App. 3rd Cir.3/13/02), 811 So.2d 1232, 1235, writ denied, 02-1009 (La.6/21/02), 819 So.2d 340.

14Discussion

After being served with the Carters’ petition on September 18, 2002, Ford Motor did not file an answer until January 9, 2003, and then only after a default judgment had been entered against it. With the time prescribed by law having passed without answer by Ford Motor, the Carters acted properly in having a preliminary default entered against Ford Motor by oral motion in open court on November 25, 2002. This default judgment was correctly reflected as an entry in the minutes of the trial court on said date. The minute entry further disclosed that counsel for the Carters had moved to have the testimony and evidentiary offerings presented in connection with the Carters’ November 25, 2002 confirmation hearing relative to Amite perpetuated for the confirmation of the default as to Ford Motor on a later date.

If no answer is filed timely, a judgment of default may be confirmed after two days, exclusive of holidays, from the entry of the judgment of default. LSA-C.C.P. art. 1702(A). In the instant case, the preliminary default against Ford Motor was entered on November 25, 2002, with the confirmation judgment purportedly having been signed by the trial court on November 20, 2002. With the signing of the confirmation judgment before the entry of the preliminary default, the time requirements of LSA-C.C.P. art. 1702(A) clearly had not been satisfied in this case. Thus, the trial court was legally incorrect in confirming the judgment of default, as there was no judgment of default against Ford Motor in existence on November 20, 2002, that was capable of being confirmed.

On appeal, the Carters attempt to circumvent this procedural problem by urging that the November 20, 2002 date on the confirmation judgment resulted from a typographical error and that the correct date on which the judgment was signed is December 20, 2002 — the date on which the original judgment against Amite and Ford Motor was vacated by the trial court. Thus, they urge that the confirmation judgment was signed by the trial court after the lapse of two days from the entry of the preliminary default. Assuming for the sake of argument that we remanded the case to the trial court for correction of this “typographical error,” as requested by the Carters, |Rwe are unable to find that such a correction would completely overcome the procedural problems in this case.

Confirmation of the default is similar to a trial at which the defendant is absent. Frank L. Maraist & Harry T. Lemmon, Civil Procedure, § 12.3 at 326 in 1 Louisiana Civil Law Treatise (1999). The plaintiff must present admissible evidence which establishes a prima facie case. LSA-C.C.P. art. 1702(A). At the hearing on the confirmation of default, the rules of evidence generally apply. Maraist & Lemmon, Civil Procedure, § 12.3 at 327. Louisiana Code of Civil Procedure articles 1702 and 1702.1 specify situations where a plaintiff may confirm a default judgment without a hearing. Upon a plaintiffs compliance with the prescribed procedures in those situations, the trial court may either sign the judgment or direct that a hearing be held. See LSA-C.C.P. arts. 1702(C) & (E). Such a situation is not present in the instant case so as to allow the trial court to simply sign a judgment that confirms the default judgment upon the passage of the time prescribed by LSA-C.C.P. art. 1702(A).

A party is free to preserve the evidence from a prior court hearing for use in a subsequent proceeding. However, the fact that the evidence has been preserved does not automatically make it available for consideration by the trial court at some later date. To be considered by the trial court, such evidence must be offered into evidence at a subsequent hearing — in this case, the hearing held for the purpose of confirming the default judgment as to Ford Motor. See Williams Law Firm v. Board of Supervisors of Louisiana State University, 03-0079 (La.App. 1st Cir.4/2/04), 878 So.2d 557, 562; Ray Brandt Nissan, Inc. v. Gurvich, 98-634 (La.App. 5th Cir.1/26/99), 726 So.2d 474, 476. Otherwise, the evidence is not properly before the trial court. In the absence of such a hearing, it was impossible for the Carters to have presented a prima facie case in this matter. Accordingly, we conclude that the trial court could not have legally entered a confirmation judgment against Ford Motor.

1 bDecree

For the foregoing reasons, the judgment of the trial court is vacated. This matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed to Albín L. and Sheryl V. Carter.

VACATED AND REMANDED.

      . There are no pleadings in the record requesting that the November 25, 2002 judgment be vacated.

      . In light of this decision, we pretermit discussion of the other issues raised in this appeal,


author: | ¡¿LANIER, J.

text:
    Vera M. RAINEY v. ENTERGY GULF STATES, INC.
    No. 2001 CA 2414.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.

      Jo Ann Mays, Appellee In Proper Person.
    James McCallister, Appellee In Proper Person.
    Leonard Cardenas III, Baton Rouge, Counsel for Appellee Craig Brigalia.
    John A. Braymer, Baton Rouge, Kenneth P. Carter, Joseph K. West, New Orleans, Counsel for Appellant Entergy Gulf States, Inc.
    Before: KUHN, DOWNING, and LANIER, JJ.

      . The Honorable Walter I. Lanier, Jr., Judge (Retired), First Circuit Court of Appeal, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.

   ON REHEARING

| ¡¿LANIER, J.

We granted a rehearing in this matter to review our previous ruling on original hearing that the trial court abused its discretion when it denied the defendant-appellant Entergy’s motion to amend its answer to assert the statutory employer affirmative defense when no trial was scheduled at the time the motion was filed. Rainey v. Entergy, 01-2414 (La.App. 1 Cir. 11/8/02), 840 So.2d 586. During the oral argument on rehearing, we noted that the appellee was Craig Briga-lia in his capacity as testamentary executor of Rainey’s succession, that Rainey was survived by two children and that it was arguable that Rainey’s surviving children, and not Brigalia, were the proper parties plaintiff-appellee. Prior to submission of this matter on rehearing En-tergy filed a peremptory exception raising the objection that Brigalia had no right of action, and Brigalia filed a “Motion of Intervention” to be recognized as a party appellee individually, or, in the alternative, as a particular legatee and a residual legatee of Rainey’s estate and cause of action.

Thereafter, on our own motion, we ruled that Rainey’s children were parties needed for a just adjudication pursuant to La. C.C.P. art. 641 et seq. and remanded this action to the trial court with instructions to (1) cite Rainey’s children to appear and assert or renounce any claims they had herein pursuant to Article 641 et seq., (2) have a hearing and decide Entergy’s peremptory exception, and (3) take appropriate action on Brigalia’s motion to intervene. Rainey v. Entergy, 01-2414 (La.App. 1 Cir. 7/2/03), 859 So.2d 63. Brigalia sought a supervisory writ for review of these rulings; it was denied. Rainey v. Entergy, 03-2107 (La.11/14/03), 858 So.2d 426.

On remand the trial court held a hearing that was attended by Rainey’s children in proper person. The children orally stated they wanted to be parties. After the hearing, the trial court (1) ruled that Rainey’s children “be hereby procedurally substituted as parties plaintiff’ but did not require the children to file formal pleadings as required by La. C.C.P. arts. 644-646, (2) overruled Entergy’s |3peremptory exception raising the objection of no right of action and (3) granted “Brigalia’s Alternative Motion to Intervene.” Thereafter, this action was returned to this court for review on rehearing.

AMENDMENT OF ANSWER TO ASSERT AFFIRMATIVE DEFENSE OF STATUTORY EMPLOYER

After due consideration, we conclude that our decision on original hearing is correct and it is reinstated. The original judgment of the trial court is reversed and this action is remanded to the trial court with the instructions previously given.

OWNERSHIP OF RAINEY’S CAUSE OF ACTION: OBJECTION OF NO RIGHT OF ACTION

Entergy asserts the trial court committed error by overruling its peremptory exception with the following rationale:

Entergy submits that the Trial Court committed an error in denying its Exception of No Right of Action as the legal authority cited by Entergy, together with the testimony of Professor Men-gis, clearly shows that La. C.C. Art. 2315.1, as provided for in C.C.P. Article 801, provides the specially designated classes of beneficiaries for the pursuit of this action. Further, one class of beneficiary is exclusive of the lower classes identified in 2315.1. The Trial Court erred in denying Entergy’s Peremptory Exception of No Right of Action as to Craig Brigalia, the testamentary executor of Vera Rainey’s estate, as he belongs to a lower class of the designated beneficiaries. A member of this class is precluded from proceeding in Vera Rai-ney’s stead due to Jo Ann Mays and James [McCallisterj’s joinder in the suit.

Brigalia responds with the following assertions:

Vera Rainey properly and validly transferred all of her substantive rights to the judgment at issue in this appeal to Craig Brigalia, which rights are heritable and freely transferable as a matter of law; therefore he, and only he, is the proper party plaintiff to pursue that judgment on appealf.]
The Exceptions of Failure to Join In-dispensible Parties and No Right of Action are the wrong procedural vehicles by which to properly raise the issue of whether Craig Brigalia has the procedural capacity to proceed as substituted party plaintiff: the Dilatory Exception urging the Lack of Procedural Capacity provides the proper vehicle to raise this issue and, since it was not timely filed, that challenge has been waived.
* * *
The legislatively intended effect of Art. 2315.1 — ensuring the non-abatement of actions — together with the evolution of the codal scheme to grant and expand rights — not to restrict or limit — • renders Article 2315.1 inapplicable to the facts of this case[.]
h * * *
The application of Art. 2315.1 to this case is not only erroneous as a matter of law, it also has the effect of resurrecting forced heirship, which has been Constitutionally abolished in Louisiana[.]

(Emphasis omitted)

Facts

The trial on the merits herein was held on December 6-8, 2000.

On February 12, 2001, Vera M. Rainey executed a last will and testament by notarial act wherein she designated Craig Brigalia as testamentary executor of her succession and bequeathed her “lawsuit” to him in a particular legacy.

On March 14, 2001, the trial court rendered judgment herein in favor of Rainey. Entergy filed a motion for a new trial that was denied on April 4, 2001. Entergy then took a suspensive appeal that was filed on May 9, 2001.

Rainey died on May 25, 2001. Her succession was opened on June 29, 2001. Attached to the succession proceedings is an affidavit of death and heirship showing that Rainey was survived by two children: Jo Ann Mays and James MeCallister. On July 6, 2001, Brigalia was confirmed as testamentary executor of Rainey’s succession by order of the 21st Judicial District Court.

On October 25, 2001, Brigalia filed a motion in this court to substitute himself as the “proper party plaintiff’ in the appeal pursuant to the authority of the judgment confirming him as testimony executor of Rainey’s succession. On April 5, 2002, a/' three-judge panel of this court granted Brigalia’s motion to be “substituted as a proper party plaintiff as successor to plaintiff/appellee Vera M. Rainey.”

On June 10, 2002, a partial judgment of possession was rendered in Rainey’s succession; it did not place Brigalia in possession of Rainey’s “lawsuit”.

Applicable Law

Because Rainey was a natural person, her personality terminated with her death. La. C.C. arts. 24-25. A judgment rendered for or against a dead person | Bis a nullity. Cortes v. Fleming, 307 So.2d 611 (La.1973). The appeal in this case was taken before Rainey died. At that point in time, the jurisdiction of the trial court was divested and the jurisdiction of this court attached. La. C.C.P. art. 2088. Thus, we can not render a valid judgment in this case unless a proper person plaintiff-appel-lee is substituted for Rainey.

Louisiana Code of Civil Procedure Article 821 provides that “[t]he substitution of parties in an action pending ... in a court of appeal is governed by the rules of the appellate court.” Rule 2-9 of the Uniform Rules — Courts of Appeal provides that “[t]he rules and procedures for substitution of parties provided by LSA-C.C.P. Arts. 801-807 shall regulate the substitution of parties.” (Emphasis added.) Louisiana Code of Civil Procedure Article 801 (herein after referred to as Article 801) provides as follows:

When a party dies during the pen-dency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party, on ex parte written motion supported by proof of his quality.
As used in Articles 801 through 804, “legal successor means:
(1) The survivors designated in Article 2815.1 of the Civil Code, if the action survives in their favor; and
(2) Otherwise, it means the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and legatees of the deceased, if the deceased’s succession is not under administration therein.

(Emphasis added.) Louisiana Civil Code Article 2315.1 (hereinafter referred to as Article 2315.1) provides as follows:

Art. 2315.1. Survival action

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
| fi(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.
B. In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased’s succession representative in the absence of any class of beneficiary set out in Paragraph A.
C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.
D. As used in this Article, the words “child”, “brother”, “sister”, “father”, “mother”, “grandfather”, and “grandmother” include a child, brother, sister, father, mother, grandfather, and grandmother by adoption, respectively.
E. For purposes of this Article, a father or mother who has abandoned the deceased during his minority is deemed not to have survived him.

(Emphasis added.)

Article 2315.1 is found in Book III — Of the Different Modes of Acquiring the Ownership of Things, Title V — Obligations Arising Without Agreement, Chapter 3— Of Offenses and Quasi Offenses of the Civil Code. For an excellent history of the Article 2315.1 survival action See J. Johanson, Comment, Common Law “Intervention”: The Rights of Successors and the Uneasy History of Louisiana’s Survival Action, 77 Tul. L.Rev. 737 (2003).

Rules for Interpreting Laws

Interpretation of laws is the province of the judicial branch of State government. The starting point for the interpretation of a law is the language of the law itself. Rules for interpreting the Revised Statutes and the Civil Code have been enacted by the legislative branch and are found in La. R.S. 1:1 et seq. and Civil Code Article 9 et seq. Louisiana Revised Statute 1:3 provides, in pertinent part, that “[w]ords and phrases ... shall be construed according to the common and approved usage of the language” and the “word ‘shall’ is mandatory.” (Emphasis added.) Louisiana Revised Statute 1:4 provides that [7“[w]hen the wording of a Section [of the Revised Statutes] is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.” Louisiana Civil Code Article 10 provides that “[w]hen the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.” Louisiana Civil Code Article 13 provides that “|l]aws on the same subject matter must be interpreted in reference to each other.” A court is bound to follow the language of a relevant law. See La. C.C. arts. 1-4.

The jurisprudence has developed additional rules for interpreting laws. In Ransome v. Ransome, 01-2361, p. 8 (La.App. 1 Cir. 04/21/02), 822 So.2d 746, 754 appears the following:

Pursuant to the standard rules for statutory construction (1) it is presumed that every provision of law was intended to serve some useful purpose; (2) it is not presumed that the lawmaker intended for any part of a law to be meaningless; (3) the lawmaker is presumed to have enacted the law with full knowledge of all other laws pertaining to the same subject matter; (4) it is the duty of the courts to interpret a provision of law which harmonizes and reconciles it with other provisions pertaining to the same subject matter; and (5) when a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is preferred to one that renders part of the act nugatory.

See also David v. Our Lady of the Lake Hospital, Inc., 02-2675, p. 11 (La.07/02/03), 849 So.2d 38, 46-47; Gregor v. Argenot Great Central Insurance Company, 02-1138, pp. 6-7 (La.05/20/03), 851 So.2d 959, 964.

Nature of the Survival Action

As previously indicated, Article 2315.1 is found in Civil Code Book III entitled Of the Different Modes of Acquiring the Ownership of Things and is further located in Title V of that Book entitled Obligations Arising Without Agreement. La. C.C. art. 1756 defines an obligation as “a legal relationship whereby a person, called the obli-gor, is bound to render a performance in favor of another, called the obligee. Performance may consist of giving, doing, or not doing something.” La. C.C. art. 1757 provides, in pertinent part, that “[o]bli-gations ... arise directly from the law, regardless of a declaration of will, in instances such as wrongful acts .... ” La. C.C. art. 1758 A provides, in pertinent part, that “[a]n obligation may give the obligee the right to: ... (3) Recover | Rdamages for the obligor’s failure to perform, or his defective or delayed performance." (Emphasis added.) Thus, under the general law of obligations an obligee has a right to a cause of action against his obligor for damages if the obligee is damaged by the obligor’s failure to perform, or defective performance of, the obligation. Stated more simply, the right to recover damages for the breach of an obligation is a cause of action. La. C.C. art. 1765 provides in pertinent part, that “[a]n obligation is heritable when its performance may be enforced by a successor of the obligee ...” and that “[a] heritable obligation is also transferable between living persons.” (Emphasis added.) In Revision Comments- — 1984 (b) for Article 1765 appears the following: “Under this Article, an obligation is heritable when it is transferable mortis causa.”

Louisiana Civil Code Article 2315 entitled “Liability for acts causing damages” states the general tort (delictual) duty of care that a person (the obligor or tort feasor) owes to another (the obligee or tort victim) as follows: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Violation of this duty by the tort feasor-obligor creates a right of action in the tort victim-obligee to a cause of action for damages. Article 2315.1 entitled “Survival Action” is a specific statute whose purpose is to provide for the transfer of the ownership of a tort cause of action when the tort victim-obligee dies prior to, or during the pendency of, litigation. The tort cause of action is described in Article 2815.1 as “the right to recover all damages for injury ... caused by the offense or quasi offense”. The successors (beneficiaries) of the obligee who have the right of action to enforce the cause of action are specifically listed in Article 2315.1 A(l) through (4). In the instant case, they are Rainey’s children.

Further, a cause of action in tort is an incorporeal movable thing and property that is owned under Louisiana law. See La. C.C. arts. 448, 461, and 473; Heyse v. Fidelity & Casualty Co. of New York, 255 La. 127, 229 So.2d 724 (1969). See also La. C.C. arts. 1536 and 2652; La. R.S. 13:3864-3868; Austin v. Abney Mills, Inc., 01-1598 (La.9/4/02), 824 So.2d 1137, 1145; Mahayna, Inc. v. Poydras Center Associates, 96-2089 (La.App. 4 Cir. 4/30/97), 693 So.2d 355, unit denied, 97-1741 (La.10/13/97), 703 So.2d 619; Conrad v. Swiss Chalet Picnic Grounds & Catering Service, 96-606 (La.App. 5 Cir. 12/30/96), 686 So.2d 1055, writ denied, 97-0299 (La.3/21/97), 691 So.2d 87; A. Yiannopoulos, Property, § 146, 149 and 197, 2 Louisiana Civil Law Treatise (4th ed.2001). Thus, ownership of a tort cause and right of action can be acquired by (1) succession, (2) the effect of an obligation or (3) the operation of law. La. C.C. art. 870.

Article 2315.1 is a law that specifically determines how the ownership of a tort cause and right of action is transmitted upon the death of its original owner. Article 2315.1 clearly and unambiguously transmits the particular tort cause and right of action to designated classes of beneficiaries after the death of the tort victim without the necessity of a succession proceeding. As provided for in Louisiana Civil Code Article 870, this transfer is accomplished “by the operation of law.”

Jurisprudence and Treatises

In Haas v. Baton Rouge General Hospital, 364 So.2d 944, 945 (La.1978) appears the following:

According to the clear language of the first sentence of the third paragraph of the above article, the right to recover damages (other than property damages) caused by an offense, upon the death of the injured person, shall survive for a period of one year from the death of the deceased in favor of certain designated beneficiaries. The right of action does not pass through the victim’s succession to be transmitted to his heirs as an inheritance. Instead, it devolves exclusively upon specially designated classes of beneficiaries or survivors set forth in said article. Therefore, in the instant case, upon the death of Mrs. Pedigo, tort victim, the right to recover damages for the personal injuries sustained by her as a result of the alleged offense survived solely in favor of her spouse, Mr. Pedigo, in view of the fact that Mrs. Pedigo died without children. Hence, the succession representative of the tort victim’s estate has no right to bring the action to recover damages for the personal injuries sustained by the tort victim. The court of appeal correctly sustained the exception of no right of action insofar as it was directed at plaintiff in his capacity as administrator of Mrs. Pedigo’s estate.
* * *
... In sum, although the Tort victim’s right of action does not form part of her own succession, it is included in the Beneficiary’s estate, and thus is transmitted upon his death to his heirs according to the laws of succession.

(Emphasis added.)

|inThe following found in Carl v. Naquin, 93-1725 (La.App. 1 Cir. 5/20/94), 637 So.2d 736, 737-8, accurately shows how Article 2315.1 and Article 801 should be interpreted together:

As stated by the trial court, the statutes applicable to the resolution of this issue are clear and unambiguous and clearly designate the categories of legal successors who are proper party plaintiffs. LSA-C.C.P. art. 801 states:
When a party dies during the pen-dency of an action which is not extinguished by his death, his legal successor may have himself substituted for the deceased party....
As used in Articles 801 through 804, “legal successor” means:
(1) The survivors designated in Article 2315.1 of the Civil Code, if the action survives in their favor; and
(2) Otherwise, it means the succession representative of the deceased appointed by a court of this state, if the succession is under administration therein; or the heirs and legatees of the deceased, if the deceased’s succession is not under administration therein.
([E]mphasis added). LSA-C.C. art. 2315.1 designates the hierarchy of survivors who inherit a cause of action for damages as a result of an offense or quasi-offense as follows:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children;
(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving; and
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child or parent surviving. LSA-C.C. art. 2315.1 further provides:
B. In addition, the right to recover all damages for injury to the decedent, his property or otherwise, caused by the offense or quasi offense, may be urged by the decedent’s suc-
cession representative in the absence of any class of beneficiary set out in the preceding Paragraph.
([Ejmphasis added). Paragraph B is a codification of our supreme court’s ruling in Nathan v. Touro Infirmary, 512 So.2d 352 (La.1987), wherein it affirmatively resolved the issue of whether a succession representative as plaintiff may continue a LSA-C.C. art. 2315 personal injury suit brought by a victim who died without surviving beneficiaries as designated by then LSA-C.C. art. 2315. In applying the two statutes, the court likewise found them to be clear and unambiguous, and concluded, “the wording of C.C.P. art. 801 clearly shows that C.C. art. 2315 beneficiaries are to be given first preference in the definition of ‘legal successor’.” Id. at 355.
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. LSA-C.C. art. 9....
Clearly, since Ms. Carl was survived by a brother, he is to be given first preference as “legal successor”, and pursuant to the application of C.C.P. art. 801 together with C.C. art. 2315.1, he is the proper party plaintiff. Furthermore, paragraph (B) of 2315.1, which confers rights to the succession representative only in the “absence of any class of beneficiary” set out in C.C. art. 2315.1(A) is rendered inoperative.

(Emphasis added; some citations deleted.) See also Short v. Plantation Management Corporation, 99-0899 (La.App. 1 Cir. 12/27/00), 781 So.2d 46, 51-52.

In W. Crawford, Tort Law, § 5.7, at 97-8, in 12 Louisiana Civil Law Treatise (2000) appears the following:

§ 5.7 The Survival Action

C.C. art. 2315.1 provides that the right to recover all damages for injury to the decedent, or his property, shall survive for a period of one year from the death of the deceased in favor of the listed beneficiaries. The article thus provides for the transmission of the right of recovery from the decedent to the beneficiary.
The transmission of the right to enforce an obligation other than delictual is contained in the Code of Procedure. The article applies both to an action to enforce the obligation and to the right to enforce an obligation. An “action” is a term of art from the Code of Procedure. Action is thus a demand in the form of pleadings filed in court. The transmission of the obligation from the deceased to the living is therefore provided for whether it is already a [lawsuit] or whether it is still only a cause of action arising from the obligation owed to the decedent.
If the decedent filed an action to recover his own injuries prior to his death, it is provided in C.C.P. art. 428 that the action does not abate upon the death of either party and the action could proceed with substituted parties, C.C.P. 801. (The only time-bar would be abandonment under C.C.P. [a]rt. 561.)

(Emphasis added; footnotes omitted.)

In W. Mengis, The Article ,2315.1 Survival Action: A Probate or Non-Probate Item, 61 La. L.Rev. 417, 422 (2001), appears the following:

The proceeds from a survival action should be excluded from the estate of the decedent if there exists a survivor under Article 2315.1. Indeed, it is clear from the discussion above that the deceased may have property rights that do not go through the “succession process.” Furthermore, Article 801 of the Louisiana Code of Civil Procedure specifically provides that a “legal successor” includes survivors designated in Article 2315.1 of the Civil Code, when the action survives in their favor. Albeit, one should consider the intent of the deceased as clearly expressed in his last will and testament, but the United States Supreme Court, in Boggs v. Boggs, [520 U.S. 833, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997)], held that legislative acts (whether federal or state) govern the disposition or transmission of certain assets, regardless of a testator’s attempt to divert them.
1T9The provisions of Article 2315.1 point to the conclusion that the legislature intended for the survival action to be “self-contained” and unaffected by the succession distribution laws. The cases involving this situation clearly hold that a right of action does not pass through a victim’s succession to be transmitted to his heirs as an inheritance. Instead, the cause of action devolves exclusively upon the specially designated classes of beneficiaries or survivors set forth in Article 2315.1.

(Emphasis added; footnotes omitted.) See also F. Maraist and H. Lemmon, Civil Procedure, § 4.13, at 84-5, 1 Louisiana Civil Law Treatise (1999); F. Maraist and T. Galligan, Louisiana Tort Law, 18.1-18.2, at 415-421 (1996); T. Andre’, Louisiana Wrongful Death and Survival Actions, § 2-31, pp. 2-44 to 48 (2nd ed.1993).

Succession Law

The essence of Brigalia’s assertions in his brief after remand is that because Rai-ney filed suit while she was still alive and, thereafter, made a donation mortis causa of her “lawsuit” rights to him, the substantive and procedural laws of succession should prevail over the provisions of Article 2315.1 and Article 801. This argument is without merit

A succession is the transmission of the estate of a deceased to his successors. La. C.C. art. 871. Succession occurs at the death of a person. La. C.C. art. 934. There are two types of successors for succession purposes: testate or legatees and interstate or heirs. La. C.C. art. 876. These definitions of successor are not in conflict with the definitions of “legal successor” found in Article 801. Laws on the same subject matter must be interpreted in reference with each other. Because of the various subordination clauses discussed herein below, Article 801 prevails in delictual matters.

Article 426 of the Louisiana Code of Civil Procedure entitled “Transmission of action and of right to enforce obligation” provides that “[a]n action to enforce an obligation is the property of the obligee which on his death is transmitted with his estate to his heirs, universal legatees, or legatees under universal title, except as otherwise provided by law.” (Emphasis added.) The emphasized clause subordinates Article 426 to Articles 2315.1 and 801. Louisiana Code of Civil Procedure Article 685 provides that “[ejxcept as otherwise provided by law, the 1 ^succession representative appointed by a court of this state is the proper plaintiff to sue to enforce a right of the deceased or of his succession, while the latter is under administration.” (Emphasis added.) The emphasized clause subordinates Article 685 to Articles 2315.1 and 801. Because Article 685 is subordinated to Articles 2315.1 and 801, La. C.C.P. art. 3196, which authorizes a succession representative to “exercise all procedural rights available to a litigant,” and La. C.C.P. art. 3211, which states that a succession representative “shall be deemed to have possession of all property of the succession and shall enforce all obligations in its favor,” also are subordinated to Articles 2315.1 and 801.

Louisiana Civil Code Article 1470 provides, in pertinent part, that “[a]ll persons have capacity to make and receive donations ... mortis causa, except as expressly provided by law.” (Emphasis added.) The emphasized clause subordinates Article 1470 to Articles 2315.1 and 801. Because of this subordination, a person does not have the capacity to make or receive a donation mortis causa of a tort cause and right of action as long as a beneficiary listed in Article 2315.1 is alive. The tort cause and right of action herein was transmitted directly to the favored beneficiaries by operation of law; it legally can not go to the legatee who is not the favored beneficiary in this case. See also La. C.C. art. 1472.

Louisiana Civil Code Article 1519 provides that “[i]n all dispositions ... mortis causa ... conditions ... which are contrary to the laws ... are reputed not written.” The legal effect of construing Articles 2315.1, 801, and 1519 together is that Rainey’s death caused her legacy of the “lawsuit” to lapse pursuant to the provisions of La. C.C. art. 1589(2). When Rainey died during the pendency of this case, Brigalia, the legatee, lost his legal capacity to receive the legacy. Finally, because of the combined legal effect of Articles 2315.1, 801 and 1519, there can be no seizing by the legatee (Brigalia) as provided for in La. C.C. art. 935.

Conclusion

When Rainey died during the course of this litigation, her “action to enforce the obligation” and her “right to enforce an obligation” were transmitted |14by Articles 2315.1 A(l) and 801 to her surviving children, Jo Ann Mays and James McCallister. At that time, Rainey’s legacy of this tort cause and right of action to Brigalia lapsed. Rainey’s children are the proper parties plaintiff-appellee in this action; Brigalia individually and in his capacities as testamentary executor and particular legatee is not. The trial court erred when it overruled Entergy’s peremptory exception raising the objection of no right of action. That judgment is reversed, the exception is sustained and Bri-galia’s claims are dismissed.

PROCEDURAL POSTURE

Ordinarily, when substitution of a party pursuant to La. C.C.P. arts. 801-807, or 821, is necessary, the lawsuit continues in the procedural posture existing at the time substitution became necessary. See Benware v. Means, 98-0203 (La.App. 1 Cir. 05/12/00), 760 So.2d 641, writ denied, 00-2215 (La.10/27/00), 772 So.2d 650; Kemper v. Don Coleman, Jr., Builder, Inc., 31,576 (La.App. 2 Cir. 7/29/99), 746 So.2d 11, writs denied, 99-2954, 99-2955 (La.1/7/00), 752 So.2d 861; In re Mary Belsom Welsh Qualified Trust, 98-713 (La.App. 5 Cir. 5/19/99), 733 So.2d 1254; Louisiana Health Service & Indem. Co. v. Cole, 418 So.2d 1357 (La.App. 2 Cir.1982); Semon v. City of Shreveport, 389 So.2d 438 (La.App. 2 Cir.1980); Smith v. Burden Const. Co., 379 So.2d 1133 (La.App. 2 Cir. 1979); Gulfco Finance of Livingston, Inc. v. Lee, 224 So.2d 524 (La.App. 1 Cir.1969); Woodward v. Lewis, 292 So.2d 728 (La.App. 2 Cir.), writ refused, 294 So.2d 839 (La.1974); Fountain v. American Employers Insurance Company, 161 So.2d 120 (La.App. 3 Cir.1964). See also Zylks v. Kaempfer, 190 La. 839, 183 So. 174 (1938). Because the judgment herein was rendered in the lower court prior to the substitution of parties, it will be res judi-cata with respect to the substituted successors. See La. R.S. 13:4231-4232; R.G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980); Quinette v. Delhommer, 247 La. 1121, 176 So.2d 399 (1965); Five N Company, L.L.C. v. Stewart, 02-0181 (La.App. 1 Cir. 7/2/03), 850 So.2d 51; Horrell v. Horrell, 99-1093 (La.App. 1 Cir. 10/6/00), 808 So.2d 363 (on rehearing), writ denied, 01-2546 (La.12/7/01), 803 So.2d 971; Ditch v. Finkelstein, 399 So.2d 1216 (La.App. 1 Cir.1981); Succession of Delesdernier, 184 So.2d 37 (La.App. 4 Cir.1966). Because La. C.C.P. arts. 801-807, and 821 do not specify the procedural course of the litigation after the substitution of a party, courts are authorized to decide the matter according to equity. La. C.C. art. 4; La. C.C.P. arts. 191, 1631 A and 2164.

Based on the particular facts and circumstance of this case, and after considering equity, the interests of justice and judicial economy, we conclude that Rai-ney’s children shall proceed in this case in the procedural posture in which they presently find it. On remand and before proceeding further, the trial court shall substitute Mays and MeCallister as parties as provided for in La. C.C.P. arts. 802-804.

DECREE

For the foregoing reasons, it is ordered, adjudged and decreed that (1) the trial court judgment overruling Entergy’s peremptory exception raising the objection of no right of action is reversed and judgment is rendered in favor of Entergy and against Brigalia, individually and in his capacities as testamentary executor of Rai-ney’s succession and particular legatee, sustaining the exception and dismissing his action against Entergy with prejudice; (2) our judgment on original hearing is ordered reinstated and this action is remanded to the trial court for further proceedings in accordance with law and the instructions contained in our judgment on original hearing and in accordance with the instructions that follow herein; and (3) prior to commencement of compliance with the instructions in our original judgment, the trial court judge shall cause the substitution of Rainey’s children, Jo Ann Mays and James MeCallister, as parties in this action pursuant to the provisions of La. C.C.P. arts. 802, 808, and 804. Brigalia is cast for all costs of the appeal.

REVERSED AND REMANDED WITH INSTRUCTIONS.

      . The two children also are identified in the record as Joann or JoAnn Mays and James McAllister.

      . Pursuant to La. C.C.P. art. 421 a “lawsuit'' is “[a] civil action’’ and "is a demand for the enforcement of a legal right ... commenced by the filing of a pleading presenting the demand to a court....”

      . Although interpretation of laws and declaring whether or not they are constitutional are the province of the judicial branch, the enacting, amending and repealing of laws are the province of the legislative branch. Article II of the Louisiana Constitution provides for the separation of the plenary powers of the State into three branches: legislative, executive and judicial. Section 2 of Article II entitled “Limitation of Each Branch” provides that "[ejxcept as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.” Thus, when interpreting a law, a court can not substantively amend the law; to do so would be an unconstitutional violation of the regime of separation of powers provided for in Article II.


author: I ¡.WHIPPLE, J.

text:
    SHERWOOD FOREST CITIZENS ASSOCIATION, INC., Guy H. Mikes, Michael Morganti & Roy Patton v. Peter T. NEWKIRK & Margaret J. Newkirk.
    No. 2003 CA 1940.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Elliott W. Atkinson, Jr., Baton Rouge, Counsel for Plaintiffs/Appellants, Sherwood Forest Citizens Association, Inc., Guy H. Mikes, Michael Morganti & Guy Patton.
    Lea Anne Batson, Baton Rouge, Counsel for Defendants/Appellees, Peter T. New-kirk & Margaret J. Newkirk.
    Before: WHIPPLE, KUHN and McDonald, jj.
   I ¡.WHIPPLE, J.

Plaintiffs, Sherwood Forest Citizens Association, Inc., Guy H. Mikes, Michael Morganti and Guy Patton, appeal from a judgment of the trial court denying their request for injunctive relief and declaratory judgment against defendants, Peter W. Newkirk and Margaret J. Newkirk. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The Newkirks hired a contractor to build a wrought iron fence around their property in North Sherwood Forest Subdivision located in Baton Rouge, Louisiana. Construction began on December 6, 2001, when the contractor set the posts for the fence. On December 12, 2001, the New-kirks met with the Board of Directors of the Sherwood Forest Citizens Association and presented plans and pictures of the wrought iron fence. Newkirk testified that those present at the meeting agreed that in order for the fence to go up, amendment of the subdivision building restrictions was necessary.

However, on December 20, 2001, New-kirk received a letter from John Hough, the Sherwood Forest Citizens Association President, informing him that the board officially opposed his plans for a fence in the front yard as proposed and that they had “no choice” but to uphold the subdivision restrictions that were in place. New-kirk responded to Hough by letter dated December 26, 2001, contending that the subdivision restrictions dated November 3, 1955 for the North Sherwood Forest Subdivision had been “legally” amended in accordance with paragraph sixteen (16) of the original ^restrictions. The fence posts remained as initially set until January 4, 2003, when the contractor assembled the rails and pickets. Construction of the fence was fully completed the following week.

On June 26, 2002, plaintiffs filed a petition for injunctive relief and declaratory judgment, naming the Newkirks as defendants therein. Plaintiffs alleged that the Newkirks’ erection of a wrought iron fence around their property constituted a violation of certain provisions of the subdivision building restrictions, citing paragraphs two (2) and eleven (11), filed of record in East Baton Rouge Parish at Original 5, Bundle 3624, as recorded on November 15, 1955, and dated November 3,1955.

The matter was heard by the trial court on May 14, 2003. On June 4, 2003, the trial court rendered judgment, with written reasons, denying plaintiffs’ request for injunctive relief and declaratory judgment, finding that “plaintiffs’ suit was untimely under the terms of the building restrictions [and Uthat] [consequently, the fence is deemed to comply with all applicable provisions of said restrictions.”

Plaintiffs appeal.

On appeal, plaintiffs claim that the trial court erred in: (1) applying the requirement that plaintiffs initiate litigation before completion of short term construction such as a fence; (2) holding that all applicable provisions of the restrictions at issue were complied with, including a specific prohibition against erecting a fence nearer to a street than forty feet and failing to find that the fence as erected constituted a nuisance; (3) failing to address the issue of the effectiveness of the purported amendment filed on December 26, 2001 and related issues presented; and (4) in finding the fencing setback line requirement had been abandoned.

In its written reasons for judgment, the trial court determined that the “validity of the ‘Newkirk Amendment’ only becomes necessary following resolution of a threshold issue concerning timeliness of the plaintiffs suit.” Paragraph fourteen (14) of the building restrictions provide:

The committee’s approval or disapproval as required in these covenants shall be in writing. In the event the committee, or its designated representative, fails to approve or disapprove within 30 days after plans and specifications have been submitted to it, or in any event, if no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and the related covenants shall be deemed to have [been] fully complied with. (Emphasis added).

The trial court ruled that under the facts of this case, paragraph fourteen (14) was enforceable, and then determined that plaintiffs’ suit was untimely. In denying the plaintiffs’ request for injunctive relief, the trial court further applied the provisions of paragraph fourteen (14) and ruled that the related covenants shall be deemed to have been fully complied with.

|,DISCUSSION

Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. LSA-C.C. art. 775; Lake Terrace Property Owners Association v. City of New Orleans, 567 So.2d 69, 74 (La.1990). In the case of building restrictions imposed upon a subdivision, the restrictions may be likened to a contract amongst the property owners and the developer. Woodland Ridge Association v. Cangelosi, 94-2604, p. 5 (La.App. 1st Cir.10/6/95), 671 So.2d 508, 511.

In plaintiffs’ first assignment of error, they argue that time delays set forth in paragraph fourteen (14) should not apply herein as the construction of the fence was a short-term project, citing 4626 Corporation v. Merriam, 329 So.2d 885 (La.App. 1st Cir.), writ refused, 332 So.2d 800 (La.1976).

In 4626 Corporation, an owner/developer brought an action to enjoin a subdivision lot owner from erecting a neon sign on the corner of his lot, to advertise for a business. The pertinent subdivision restrictions therein required that a suit to enjoin construction be commenced prior to the completion of the construction, or approval would not be required. 4626 Corporation, 329 So.2d at 889. Construction of the sign took two weeks and the sign was several months old before the committee notified defendant that there was a problem. 4626 Corporation, 329 So.2d at 888. Suit was not filed before the sign was completed. In 4626 Corporation, this court held that, “[h]owever, (if) by the exact wording, this provision could be applied to signs, the application thereto would render the enforcement of the provision impossible since a sign could be installed before being noticed and certainly before a suit could be prepared and filed.” 4626 Corporation, 329 So.2d at 889. This court concluded that, “[a] more reasonable interpretation [of the provision therein] would be that this 1 ^provision applies only to buildings or structures requiring extended times for erection.” 4626 Corporation, 329 So.2d at 889.

The trial court found the facts of the instant case distinguishable from the underlying facts in 4-626 Corporation, stating as follows:

In 4626 Corporation, the defendant did not submit plans and specifications for the sign in question to the appropriate committee prior to its construction. Said construction took two weeks. In contrast, on December 12, 2001, the Newkirks did submit plans for the fence to the Sherwood Forest Civic Association, and construction of the fence took just over a month, lasting from December 6, 2001 to January 9, 2002.
This Court finds the facts of the case at bar distinguishable from those of 4-626 Corporation. Plaintiffs had notice of the fence being constructed from December 12, 2001 at the latest, if not earlier. Further, regardless of plaintiffs’ opinion concerning the validity of the “Newkirk Amendment,” upon receiving notice of said amendment from defendants on December 26, 2001, plaintiffs either knéw or should have known that defendants intended to proceed with construction of the fence. Plaintiffs had a reasonable time in which to file suit prior to completion of the fence on January 9, 2002, but failed to bring this action until almost 6 months later.

After careful review, we agree with the trial court’s reasoning. Initially, we note that Michael Morganti, a resident of Sherwood Forest who testified in opposition to the Newkirks, stated that he first noticed the fence being erected when the post holes were being dug, which was as early as December 6, 2001. He stated that it was obvious that a fence was going up; that it was “a slow process”; and that it took a while before the fence was completed, “at least weeks.”.

The record shows that the fence was under construction for, several weeks and, more importantly, that plaintiffs were aware of this construction. The testimony of record establishes that the Newkirks informed the Sherwood Forest Citizens Association of their plans for the fence as soon as concerns over the fence began surfacing. Moreover, Mr. Newkirk’s letter dated December 26, 2001, advised Hough and the Board of the Sherwood Forest |7Citizens Association' of the Newkirks’ contention that the “amended deed restrictions now allow for the fence referenced above and discussed at the December 13, 2001 meeting with [him] and the subcommittee of the Board of Directors of the Sherwood Citizens Association to be constructed” and clearly showed their intent to complete construction of the fence. Instead of timely challenging the validity of the purported amendment after the submission and presentation of plans, and after being informed of the Newkirks’ position that the restrictions had otherwise been legally amended in accordance with the procedure specified elsewhere in the original restrictions, plaintiffs took no legal action until months after the construction and erection of the fence was complete.

Because we find the trial court' correctly determined that plaintiffs failed to timely commence the suit to enjoin the construction of the Newkirks’ fence in accordance with the terms of the building restrictions, we pretermit discussion of plaintiffs’ other assignments of error.

CONCLUSION

For the above and foregoing reasons, the June 4, 2003 judgment of the trial court is affirmed. Costs of this appeal are assessed against plaintiffs/appellants, Sherwood Forest Citizens Association, Inc., Guy H. Mikes, Michael Morganti and Guy Patton.

AFFIRMED.

      . Paragraph sixteen (16) of the subdivision restrictions provides:
      These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five years from the date these covenants are recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part.
      On December 22, 2001, Mr. Newkirk obtained the signatures of certain lot owners purportedly amending the subdivision restrictions to allow his fence. This amendment was recorded on December 26, 2001 in the conveyance records of the Clerk of Court for the Nineteenth Judicial District Court.

      . Paragraph two (2) of the building restrictions provides, in part:
      No fence or wall shall be erected, placed or altered on any lot nearer to any street than the minimum building setback line unless similarly approved.
      Paragraph eleven (11) provides:
      No fence shall be erected on said lot beyond the front building setback line of that lot, nor nearer any street than forty (40) feet.


author: J^McCLENDON, J. | PETTIGREW, J.,

text:
    Patrick Anthony MORRISSEY, Jr. v. Jason RHODES d/b/a Shady Tree Service; Vernon E. Toups, Jr.
    No. 2003 CA 1819.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Emmett J. Boudreaux, Baton Rouge, Counsel for Plaintiff/Appellant Patrick A. Morrissey, Jr.
    Barry G. Toups, Pamela Noya, Baton Rouge, Counsel for Defendants/Appellees Vernon E. Toups, Jr., Phyllis G. Toups and T & T Rentals.
    Jason Rhodes, d/b/a Shady Tree Service, Houma, Defendant/Appellee, Pro Se.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   J^McCLENDON, J.

The salient issue raised on appeal in this workers’ compensation case is whether the workers’ compensation judge properly granted summary judgment in favor of several defendants upon a finding that those defendants were not the claimant’s statutory employer at the time the claimant was injured. For the following reasons, we affirm the judgment of the Office of Workers’ Compensation.

Patrick Anthony Morrissey, Jr., filed a disputed claim for workers’ compensation benefits against Jason Rhodes d/b/a Shady Tree Service (Shady Tree Service), Vernon E. Toups, Jr., Phyliss G. Toups, and T & T Rentals. Therein, he alleged that, on October 3, 2001, he was working for Shady Tree Service on premises owned by Vernon E. Toups, Jr., Phyliss G. Toups, and T & T Rentals when a tree limb fell and struck his head. He sought wage and medical benefits.

Vernon E. Toups, Jr., Phyliss G. Toups, and T & T Rentals responded by filing a motion for summary judgment, asserting that they were not responsible to Morris-sey for workers’ compensation benefits as they were not Morrissey’s statutory employers. After hearing the matter, the workers’ compensation judge granted summary judgment in favor of Vernon E. Toups, Jr., Phyliss G. Toups, and T & T Rentals, dismissing Morrissey’s claim for benefits against these defendants. Mor-rissey appeals.

Louisiana Code of Civil Procedure article 966(B) provides that a motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. The burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and summary judgment will be granted. LSA-C.C.P. art. 966 C(2); Robles v. Exxonmobile, 02-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

The liability of Vernon E. Toups, Jr., Phyliss G. Toups, and T & T Rentals to Morrissey rests upon the test provided in LSA-R.S. 23:1061 for a principal’s liability to the employees of his contractor. That legislation provides that, in order for a principal to be considered a statutory employer, a written contract must exist between the principal and an independent contractor that specifically recognizes the statutory employer status of the principal. LSA-R.S. 23:1061A(3). An exception to that rule exists where the contractor was executing work that was “a part” of the trade, business or occupation of the principal. LSA-R.S. 23:1061 A(2).

It is undisputed that no written contract existed between Shady Tree Services, the contractor, and Vernon E. Toups, Jr., Phy-liss G. Toups, or T & T Rentals. Therefore, to prevail herein Morrissey must fall under the exception provided by LSA-R.S. 23:1061 A(2). That is, the work he performed at the time of his injury had to constitute a part of the trade, business, or occupation of Vernon E. Toups, Jr., Phy-liss G. Toups, and T & T Rentals. For purposes of this provision, work is “considered part of the principal’s trade, business, or occupation if it is an integral part of or l4essential to the ability of the principal to generate that individual principal’s goods, products, or services.” LSA-R.S. 23:1061 A(2).

Evidence before the workers’ compensation judge on the motion for summary judgment included the affidavit and deposition testimony of Vernon Toups. Therein, Vernon Toups attested that, although he had discussed with Jason Rhodes the possibility of Shady Tree Service trimming the trees on the property at issue, he had specifically instructed Rhodes to not do so until Toups advised him otherwise. Toups testified further that he had no employees to manage or maintain the property. He performed all work that he could handle himself and hired appropriate companies or individuals to perform the remainder of the work. For example, a plumbing company handled all plumbing needs, and an individual cut the grass. He had previously hired Shady Tree Service to trim the trees at his home and intended to hire someone to trim the trees at the apartment house where Morrissey was injured.

Vernon Toups’ testimony was not contradicted by any evidence presented on the motion for summary judgment, and no further evidence was admitted into evidence on the issue of statutory employer. Therefore, Morrissey failed to raise a genuine issue of material fact as to the nature of the business of these defendants. Furthermore, it is clear that, under the facts of this case, an isolated act of tree trimming is not an integral part of the business of renting apartments. Therefore, as a matter of law, Vernon E. Toups, Jr., Phy-liss G. Toups, and T & T Rentals were not Morrissey’s statutory employers. The workers’ compensation judge correctly granted summary judgment in favor of these parties.

| RFor the foregoing reasons, we affirm the judgment of the Office of Workers’ Compensation. Costs are assessed against Patrick Anthony Morrissey, Jr.

AFFIRMED.

PETTIGREW, J., concurs, and assigns reasons.

| PETTIGREW, J.,

concurring.

Although I concur with the results reached by the majority, it is my humble opinion that the majority does not recognize the manual labor exception to the definition of “independent contractor” under Louisiana Workers’ Compensation Law, as defined and spelled out in La. R.S. 23:1021(6). Unfortunately, the plaintiff presented no evidence at the summary judgment hearing to raise a material issue of fact on this issue.

Further, it is my humble opinion that even in a situation where a written contract is required for the employee to be a statutory employee, the work must be a part of the employer’s trade, business, or occupation. If there is a written contract, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services. La. R.S. 23:1061 A(3).

Again, the plaintiff presented no evidence at the summary judgment hearing to raise a material issue of fact on these issues, and therefore, I concur with affirming the judgment of the Office of Workers’ Compensation.

      . At all times pertinent to this litigation, T & T Rentals was a partnership in which Vernon Toups and Phyliss Toups were the only members. T & T Rentals was utilized to manage two apartment houses owned by the Toupses, including the location at which Morrissey was injured.

      . On appeal, Morrissey also questioned the admissibility of a deposition of Wilbur Duet, which the workers’ compensation judge referenced in his reasons for judgment. The factual information in that deposition that the workers' compensation judge relied upon is also contained in other, properly admitted evidence. Therefore, the deposition of Wilbur Duet is merely cumulative evidence, and a determination of the admissibility of that piece of evidence would not change the result herein. For this reason, we decline to reach this issue.