author: J^DECUIR, Judge. |, GREMILLION, J.,

text:
    Kevin FLUGENCE v. A & M FARMS, INC., et al.
    No. 02-1054.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.
    Michael Langdon Cave, Cave Law Firm, Baton Rouge, LA, for Plaintiff/Appellee, Kevin Flugenee.
    Edward Paul Landry, Landry, Watkins, Repaske & Breaux, New Iberia, LA, For Defendants/Appellants, A & M Farms, Inc., Seth Viator.
    Kenny Layne Olivier, Rowe, Bares & Oliver, L.L.C. Lafayette, LA, for Defendants/Appellants, A & M Farms, Inc., Seth Viator, Malcolm Viator.
    Michael Wayne Adley, Judice and Adley, Lafayette, LA, for Defendant/Appellant, Iberia Sugar Cooperative, Inc.
    Charles Collins Garrison, Caffery, Ou-bre, Campbell, & Garrison, L.L.P., New Iberia, LA, for Intervenor/Appellee, Louisiana Farm Bureau Casualty Ins. Co.
    Court composed of JOHN D. SAUNDERS, BILLIE C. WOODARD, OSWALD A. DECUIR, MICHAEL G. SULLIVAN and GLENN B. GREMILLION, Judges.
   J^DECUIR, Judge.

In this case, the defendants, A & M Farms, Inc. and its employee, Seth Viator, appeal the trial court’s grant of summary judgment in favor of A & M’s insurer, Louisiana Farm Bureau Casualty Insurance Company. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2000, Kevin Flugence filed suit for personal injuries and damages. He alleged that in October 1999, as he waited to have his load of sugar cane weighed at the scales of the Iberia Sugar Cooperative, Viator “became frustrated and ran his tractor into the rear of [Flu-gence’s] vehicle,” knocking Flugence from the vehicle. Flugence further urged that Viator was within the course and scope of his employment at the time of this accident.

In December 2000, Farm Bureau filed a petition for intervention and declaratory judgment urging that the trial court declare that its policy did not provide coverage for the damages complained of in Flugence’s petition, and that it should be dismissed from the suit.

Following a February 2002 hearing on the motion for summary judgment, the trial court rendered judgment in favor of Farm Bureau, finding that the policy Farm Bureau issued to A & M Farms did not provide coverage for the acts and injuries complained of in the main demand. A & M Farms timely appealed to this court, urging that the trial court erred in finding that it did not have insurance coverage for the accident.

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This | ^inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B)(0). However, since the amendment to La.Code Civ.P. art. 966 in 1996, this court has recognized that summary judgment is designed to secure the just, speedy, and inexpensive determination of every action, and that the procedure is now favored. Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-281 (La.3/14/97), 690 So.2d 41. This was a significant shift in the law of summary judgment which legislatively overruled the jurisprudential presumption against granting summary judgment. Id.

The court explained in Hayes:

[T]he initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, under Art. 966(C), once the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that material factual issues remain. Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.

Id. at 694.

INTENT

The issue of whether Viator’s actions were intentional is material to Flu-gence’s cause of action, as this finding determines whether the Farm Bureau policy provides coverage for this incident.

In Bazley v. Tortorich, 397 So.2d 475, 482 (La.1981) (citations omitted), the supreme court defined intent as follows:

The meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did. Several courts of appeal have stated the two prongs of the definition in the conjunctive, thus requiring a plaintiff to prove, in order to recover, that the defendant desired the physical results of his act in every case. Intent is not, however, limited to consequences which are desired. If the actor knows |athat the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.

In this case, the trial court found that there was no genuine issue of material fact in dispute. We agree. Farm Bureau proved that Viator intended to hit Flu-gence’s vehicle and his resulting injuries were substantially certain to follow. Therefore, Viator had the requisite intent to ram the vehicle and is deemed by law to have intended the resulting injuries. These issues were appropriately determined on summary judgment.

The evidence is irrefutable that Viator intentionally and deliberately struck the unit operated by Flugence. Viator stated that Flugence had cut in line at the mill several times and that he finally had enough. He also stated that he had reported Flugence’s actions to the people in the mill office in the past and they made Flugence get off of the scales and wait his turn in line. In this instance, Viator testified he was angry and attempted to push Flugenee’s vehicle off the scales with his tractor. While denying specific knowledge that Flugence was in the vehicle at the time, Viator testified that he assumed Flu-gence was in the vehicle. Later in his testimony, when questioned by Farm Bureau’s counsel, Viator said:

Q. ... But your intention was to push the tractor and carts off of the scale, correct?
A. Yes, sir.

It is clear from this testimony that Via-tor intended to impact Flugence’s vehicle with his own. There is no evidence in the record to suggest that he did not intend to strike Flugence’s vehicle or had reason to believe it was unoccupied. To the contrary, Viator’s testimony clearly and unambiguously states that he intended to strike the vehicle that he assumed was occupied by Flugence.

14At the most basic level this case is nothing more than a slow motion “road rage” incident. Viator became incensed when Flugence cut in front of him and retaliated by ramming Flugence’s vehicle. A person who rear-ends another vehicle with a huge piece of farm machinery should know that damages are substantially certain to follow. In this case, Viator testified that he assumed Flugence was in the vehicle.

In addressing Viator’s use of the word “accidental,” at times when referring to the incident, the trial court stated at the end of the hearing on the motion:

You can’t accidentally bump something to cause him to get off of the scale. He was just misusing the word accidental. I mean, you can’t accidentally bump something to intentionally cause it do something. He intentionally bumped the cane cart.

We agree with the trial court’s finding that Viator’s misuse of the word accidental did not change the intentional nature of his act.

We find that summary judgment was appropriately granted. This assignment is without merit.

COVERAGE

A & M argues that its Farm Bureau policy provided insurance coverage for this accident, even if it was intentional, citing McBride v. Lyles, 303 So.2d 795 (La.App. 3 Cir.1974). We disagree. The portion of the Farm Bureau policy addressing exclusions under the policy states:

This policy does not apply:
(c) under Coverages A, B, and C, to injury, sickness, disease, death or destruction which is either expected, or intended from the standpoint of the insured.

Part III of the policy defines an insured as:

The unqualified word “insured” includes (a) the named insured stated in the declarations.
(e) any other person while operating farm tractors, self-propelled farm machinery, or animal drawn farm vehicles or implements, in any of the named insured’s operations covered by the policy and with the permission of an insured as defined in (a) and (b).

Under the clear wording of the policy, Viator is an insured as he was operating the named insured’s farm tractor. Thus, his intentional act precludes application of coverage under the policy pursuant to Part (c) above.

CONCLUSION

Summary judgment in favor of the inter-venor-appellee, Louisiana Farm Bureau Casualty Insurance Company, was properly granted. All costs of this appeal are assessed against the defendants-appellants, A & M Farms, Inc. and Seth Viator.

AFFIRMED.

GREMILLION, J., dissents and assigns reasons.

SAUNDERS, J., dissents for the reasons assigned by Judge GREMILLION.

|, GREMILLION, J.,

dissenting:

I have carefully reviewed the testimony in this case and it is clear that Viator intended to impact Flugence’s tractor with his own. Viator claimed that he intended to “bump” the tractor and carts and to push them hard enough to cause them to come off of the scales. There is no other evidence in the record to suggest that he did not intend these physical results and his testimony is clear and unambiguous that those were his desired results. However, Viator testified that he did not know whether Flugence was on the tractor or not. In Walker v. American Honda Motor Co., 93-1659, p. 4 (La.App. 3 Cir.6/1/94), 640 So.2d 794, 796, writ denied, 94-1741 (La.10/7/94), 644 So.2d 644 (citations omitted) (emphasis added), we .adopted the trial court’s findings including:

The word ‘intent’ for the purposes or tort law and exclusionary clauses in insurance policies connotes that the actor desires to cause the consequences of his act or believes that the consequences of his act are substantially certain to result. Thus, intent has reference to the consequences of an act rather than the act itself. Only where the actor entertains a desire to bring about the consequences that followed or when the actor believed that the result was substantially certain to follow has an act been characterized as intentional.

Accordingly, I would find that a genuine issue of material fact exists as to whether Viator intended to physically injure Flu-gence. While it is clear he intended to bump Flugence’s tractor, it is unclear whether he intended the actual consequences that 12flowed from his act. As I have noted, Viator testified that he did not know if Flugence was in the tractor at the time he struck it. Credibility calls as to the truthfulness of this statement are better left to the jury and are inappropriate for summary judgment determination. In my opinion, there exists a material question of fact as to whether Viator intended the consequences of his act, that of injuring Flugence. Therefore, I would find that the trial court improperly granted the motion for summary judgment and remand the case for further proceedings.

For these reasons, I respectfully dissent from the majority opinion.


source: Caselaw Access Project

author: hDECUIR, Judge. bPETERS, J., hSAUNDERS, Judge,

license: Public Domain

text:
    Blaine MacDONALD v. TRIAD ELECTRIC & CONTROLS.
    No. 02-1080.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.

      James L. Babin, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellee Blaine MacDonald.
    Gregory Edgar Bodin, Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, LA, for Defendant/Appellant Triad Electric & Controls.
    Court composed of NED E. DOUCET, Chief Judge, and JOHN D. SAUNDERS, OSWALD A. DECUIR, JIMMIE C. PETERS and GLENN B. GREMILLION, Judges.
   hDECUIR, Judge.

Triad Electric & Controls appeals a workers’ compensation judgment awarding penalties and attorney fees in favor of its employee, Blaine MacDonald. Triad contends that its discontinuance of benefits was reasonable, that penalties are not statutorily authorized in this instance, and that the award of attorney fees was manifestly erroneous. Our review of the proceedings below reveals error in the judgment rendered; accordingly, we reverse.

The stipulated facts and medical records contained in the record show that MacDonald injured his neck in the course of his employment on March 14, 2000. He performed light-duty work until April 11, 2000, when no further light-duty work was available. Thereupon, Triad paid weekly indemnity benefits at the statutory maximum rate and paid all medical expenses incurred by MacDonald. His treating physician was Dr. James Perry, an orthopedist, who noted in October of 2000 that the complaints of pain were out of proportion to the clinical findings. After several months of medical treatment for neck pain and inconclusive diagnostic testing, MacDonald was referred by Dr. Perry to Dr. John Budden, another orthopedist. He diagnosed a soft tissue injury which could possibly be resolved with surgery. However, because Dr. Budden does not perform surgery, he sent MacDonald to Dr. Jack Hurst, a neurosurgeon. Dr. Hurst determined that MacDonald was not a surgical candidate and could return to work without restrictions.

Based upon Dr. Hurst’s report, and considering there was no contrary medical advice, Triad discontinued MacDonald’s indemnity benefits on December 14, 2000. Triad continued to pay medical expenses and authorized payment for MacDonald to see his own choice of neurosurgeon, Dr. William Foster. Dr. Foster determined that MacDonald was disabled from returning to work, and he recommended further testing to determine if MacDonald would benefit from surgery. When MacDonald instituted [ ¿this disputed claim for benefits, Triad immediately requested a court-appointed independent medical examination to resolve the two conflicting opinions regarding MacDonald’s medical condition: Dr. Hurst’s unequivocal conclusion that MacDonald did not need surgery and Dr. Foster’s equivocal statement that surgery may be an option.

In June 2001, Dr. Anthony Ioppolo, the court appointed neurosurgeon, issued a report stating that a cervical fusion may be warranted. Dr. Ioppolo’s opinion was based in part on a positive diseogram performed in May. Triad then reinstated indemnity benefits, paid retroactive benefits, and paid for MacDonald’s surgery, which was performed in October of 2001 by Dr. Perry. At the time of trial, MacDonald remained under Dr. Perry’s care and was receiving indemnity benefits from Triad.

The discontinuance of workers’ compensation benefits is addressed in La.R.S. 23:1201.2, which provides:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims. The provisions of R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions of R.S. 22:658(C) shall be applicable to claims arising under this Chapter.

Under this statute, MacDonald is not entitled to a penalty for the employer’s alleged arbitrary and capricious discontinuance of benefits. By the clear language of the statute, only attorney fees can be awarded for the improper discontinuance of benefits. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41. Thus, the $2,500.00 penalty assessed by the workers’ compensation judge must be reversed.

IsOur review of Triad’s activities concerning this claim reveals manifest error in the award of attorney fees as well. The evidence shows that Triad’s decision to discontinue indemnity payments was based on competent medical reports and a medical release to return to work. Triad availed itself of the methods outlined in the Workers’ Compensation Act to resolve the claimant’s medical complaints by requesting the appointment of an independent medical examination. Triad continued to investigate the claim and provide medical benefits after it discontinued indemnity payments. Upon receipt of the report from the IME, Triad reinstated benefits.

In Robinson v. Integrated Tank Services, Inc., 96-1080 (La.App. 5 Cir. 5/14/97), 695 So.2d 1009, citing Menard v. Winn Dixie Louisiana, Inc., 93-1497 (La.App. 3 Cir. 6/1/94), 640 So.2d 775, the court explained that a worker’s compensation claim is reasonably controverted, thereby precluding the imposition of penalties, if the employer had sufficient factual and medical information upon which to base a decision to reduce or terminate benefits. The jurisprudence has held that an employer may avoid the imposition of penalties and attorney fees if it relies upon competent medical information in the decision not to provide benefits or to terminate benefits. Manuel v. River Parish Disposal, Inc., 96-302, 96-303 (La.App. 5 Cir. 10/1/96), 683 So.2d 791.

The court in Bradley v. Justiss Oil Co., Inc., 618 So.2d 646 (La.App. 2 Cir., 1993) discussed the basis for an employer’s reduction of benefits:

Whether reduction or termination of workers’ compensation benefits is without probable cause so as to render the employer liable for attorney fees and penalties depends primarily on facts known by the employer at the time of its action. When a reduction or termination is based on legitimate disputes as to extent or cause of claimant’s disability, penalties and attorney fees will not be awarded. A workers’ compensation claim is “reasonably controverted,” precluding imposition of penalties and attorney fees, if the employer had sufficient factual and medical information upon which to base a decision to reduce or terminate benefits.

618 So.2d at 650-651. (Citations omitted.)

We find that MacDonald’s claim for benefits was reasonably controverted based on the medical information available to Triad at the time of discontinuance of indemnity payments. Therefore, Triad’s decision to discontinue benefits was not arbitrary, capricious, or without probable cause, and the award of attorney fees for the discontinuance was in error. For the foregoing reasons, the judgment of the Office of Workers’ Compensation is reversed. Costs of this appeal are assessed to the claimant.

REVERSED.

PETERS, J., concurs in part and dissents in part.

SAUNDERS, J., dissents and assigns written reasons.

bPETERS, J.,

concurring in part and dissenting in part.

He would reverse the award of penalties but affirm the award of attorney fees.

hSAUNDERS, Judge,

dissenting.

In my view the actions of the Defendant in discontinuing the Plaintiffs indemnity benefits were arbitrary and capricious. The plaintiff had undergone treatment from three prior physicians who reported some level of injury that could possibly be improved with cervical or lumbar surgery and had undergone diagnostic tests indicating a possible disk herniation. Moreover, subsequent examinations by additional physicians also resulted in a recommendation for surgery. In light of this arbitrary and capricious behavior by the defendant I would affirm the workers’ compensation judge’s imposition of $5,000.00 in attorney’s fees under the provisions of La.R.S. 1201.2. Accordingly I respectfully dissent.


author: I tSAUNDERS, Judge.

text:
    PRECISION DRYWALL & PAINTING, INC. v. WOODROW WILSON CONSTRUCTION CO., INC.
    No. 03-0015.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.

      Michael Thomas Johnson, Attorney at Law, Alexandria, LA, for Defendant/Appellant, Woodrow Wilson Construction Co., Inc.
    Eugene A. Ledet, Jr., Rivers, Beck, Dal-rymple & Ledet, Alexandria, LA, for Plaintiff/Appellee, Precision Drywall & Painting, Inc.
    Court composed of NED E. DOUCET, JR., Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   I tSAUNDERS, Judge.

This matter arises from a construction contract between Defendant, Woodrow Wilson Construction Company, Inc., and Plaintiff, Precision Drywall and Painting, Inc. Defendant appeals the judgment of the trial court holding that it breached its contract with Plaintiff and casting judgment against Defendant in the amount of $7,631.38, plus attorney fees.

FACTS AND PROCEDURAL HISTORY

The State of Louisiana contracted with Woodrow Wilson Construction Company, Inc. (Woodrow Wilson) to remodel the Edith Garland Dupre Memorial Library on the campus of the University of Louisiana at Lafayette, in Lafayette, Louisiana. Woodrow Wilson took bids from various subcontractors, including Plaintiff, Precision Drywall and Painting, Inc. (Precision), who was awarded the bid for the drywall/painting portion of the job. The initial contract price was $282,693.00.

The construction was set to be completed in February, 2000. Unfortunately, the construction went on longer than planned and was not completed until November, 2000. In addition to the work set forth in the subcontract agreement, Precision was called upon to do additional work in the form of change orders, making the contract price $306,457.07.

Woodrow Wilson claims that it experienced numerous problems with the job performance of Precision. Accordingly, Woodrow Wilson states that it kept track of expenses incurred by Precision throughout the job in the form of backcharges (deductions assessed to Precision). Precision received payment for work performed in connection with the library from Woodrow Wilson in March, 2001, from which a majority of the backcharges were deducted, and then received a final payment in the |¡>amount of $36,853.00 on September 19, 2001. Both payments were submitted with an itemized list of backcharges that amounted to $7,631.38. Precision claims it was completely unaware of Woodrow Wilson’s intent to unilaterally assess backc-harges.

After the check was submitted to Precision, its attorney, Eugene Ledet, sent a letter to Woodrow Wilson dated September 19, 2001, which stated that Precision rejected the final check of $36,853.00. The check was inscribed on the back with the following: “Acceptance of this check represents full and final payment for all materials and labor provided for the Dupre Library project, in Lafayette, Louisiana.” Precision offered to settle with Woodrow Wilson, and that offer was not accepted. Precision then deposited the $36,853.00 check into its account on October 11, 2001.

Precision subsequently filed suit seeking to recover the backcharges assessed to it. Trial on the merits was held on June 13, 2002. The court rendered judgment in favor Precision and held that Woodrow Wilson breached its contract with Precision. The court cast judgment against Woodrow Wilson in the amount of $7,631.38 in addition to $2,500.00 in attorney fees.

LAW AND ANALYSIS

On appeal, Woodrow Wilson presents four issues for review:

(1)whether the trial court erred in ruling that accord and satisfaction had not been reached in the instant matter;
(2) whether the trial court erred in finding that Woodrow Wilson breached the contract between the parties;
(3) whether the trial court erred in not finding that Precision breached the contract between the parties; and
(4) whether Precision put on sufficient evidence to support the trial court’s ruling in its favor.

| ^Accord and Satisfaction

Woodrow Wilson argues that the trial court erred in ruling that accord and satisfaction had not been reached in the instant matter. The trial court held that evidence that Precision negotiated a check issued by Woodrow Wilson, containing the language, “[ajcceptance of this check represents full and final payment for all materials and labor provided for the Dupre Library project in Lafayette, Louisiana,” was not sufficient to meet Woodrow Wilson’s burden of proof in showing that accord and satisfaction had been reached by the parties.

Although accord and satisfaction is a common law principle, not founded in statutory law in Louisiana, it has been adopted by our courts. See Anesthesia East, Inc. v. Bares, 594 So.2d 1085 (La.App. 4 Cir.1992); Harmon v. Simon, 624 So.2d 981 (La.App. 3 Cir.1993); Creative Mktg. Sales, Inc. v. Rayborn, 615 So.2d 1107 (La.App. 5 Cir.1993). The concept of accord and satisfaction is similar to principles of novation, contained in La.Civ.Code arts. 1879 through 1887, wherein a new performance is substituted for one that was previously owed. The accord and satisfaction doctrine is an affirmative defense which is proven when there is an unliqui-dated or disputed claim between the debt- or and creditor, a tender by the debtor for less than the sum claimed, and acceptance of the tender by negotiation of the check. Anesthesia E., 594 So.2d 1085.

In the past, the appellate courts of this state have held that the debtor’s issuance of a check for an amount less than is owed to the creditor, with the notation “final payment”, together with the creditor’s negotiation of the check, constitutes accord and satisfaction. Harmon, 624 So.2d 981; Creative Mktg. Sales, 615 So.2d 1107; Anesthesia E., 594 So.2d 1085. For instance, in Anesthesia East, Plaintiff claimed Rthat an outstanding amount was due on an open account. The defendant sent a check which stated it was in “[fjinal payment” of the account. Plaintiff replied by letter stating that, if the account was not paid in full, action would be taken. Plaintiff negotiated the check three months later. The court held that the correspondence showed that Plaintiff was cognizant of the nature of the tender as “full and final payment” and, accordingly, held that there was an accord and satisfaction of the debt.

Likewise, in the instant case, Precision was issued a check by Woodrow Wilson stating that it was full and “final payment” of all work done on the Dupre Library project. Precision’s attorney notified Woodrow Wilson that it would not accept this amount as full payment, but subsequently decided to negotiate the check denoting “full and final payment.”

We find no distinction between the instant case and Anesthesia East. Woodrow Wilson clearly fulfilled its burden by showing that: (1) there was an unliquidated or disputed claim between Precision and Woodrow Wilson, (2) a tender was made by Woodrow Wilson for less than the sum Precision claimed it was owed, and (3) Precision accepted the tender by negotiate ing the check.

Precision argues that inherent in accord and satisfaction principles is mutual consent of the parties. Further, Precision argues that recent case law has underscored the imperative of determining mutual consent. It asserts that mutual consent is established when the creditor understands that the payment is tendered in full settlement of the dispute. Precision argues that its letter of September 19, 2001, to Woodrow Wilson, which stated that “Precision categorically reject[s] receipt of the $36,853.00 in full and final payment of all materials and labor provided,” shows that there was no mutual consent.

| .We agree that “mutual consent” is a requirement of accord and satisfaction. However, as the case law denotes, evidence of “mutual consent” is shown when the creditor negotiates a form of payment that specifically states “full and final payment.” We find no basis for changing the legal principles and analysis of accord and satisfaction used in nearly every circuit within the State. Mutual consent and understanding of the transaction were clearly exhibited by Precision when it negotiated this check that clearly stated “full and final payment.”

Accordingly, we find that Woodrow Wilson has presented sufficient evidence to show that the debt described herein was extinguished by the accord and satisfaction of the parties.

Breach of Contract

On review, Woodrow Wilson asserts that the trial court erred in ruling that it breached its contract with Precision. Instead, it asserts that Precision breached the contract. As explained above, the parties reached an accord and satisfaction of their claims against one another. Because the matter was settled by the parties, it is unnecessary for us to review whether either party breached the contract.

Precision’s Sufficiency of Evidence

Finally, in Woodrow Wilson’s last assignment of error, it asserts that Precision failed to put on sufficient evidence to support the trial court’s ruling its their favor. Once again, because an accord and satisfaction was reached by the parties, our review of this issue is unnecessary.

DECREE

For the reasons explained herein, we find that the trial court erred when it | fifound that Woodrow Wilson breached its contract with Precision. Accordingly, we reverse the judgment of the trial court where it assessed $7,631.38 to Woodrow Wilson, along with the $2,500.00 in attorney fees. The parties reached an accord and satisfaction wherein all claims were resolved. All costs of this appeal are assessed to Plaintiff, Precision.

REVERSED.


author: 1 .DOUCET, Chief Judge.

text:
    Charlene STEINHOFF v. Cletus STEINHOFF.
    No. 03-24.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.

      W. Allen Pesnell, Crowell and Owens, L.L.C., Alexandria, LA, for PlaintiffiAppel-lee: Charlene Steinhoff.
    Henry H. Lemoine, Jr., Pineville, LA, for Defendani/Appellant: Cletus Steinhoff.
    Court composed of NED E. DOUCET, JR., Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   1 .DOUCET, Chief Judge.

Defendant, Cletus Steinhoff, appeals a judgment of the trial court awarding his ex-wife, Appellee, Charlene Steinhoff, $18, 240.00, plus interest in connection with the settlement of the community of acquets and gains that existed between the parties during their marriage. We affirm the judgment of the trial court.

FACTS

The Steinhoffs were married in 1987. They separated in late 1994 and on July 6, 1995, Charlene Steinhoff filed a petition for divorce. Judgment of divorce was granted March 11, 1996. In that judgment the community of acquets and gains which had existed between the couple was terminated retroactively to July 6, 1995, the date of the filing of the petition for divorce.

During the time the Steinhoffs were married, they both worked for Dresser Industries. On or about June 1, 1994, Mr. Steinhoff was terminated by Dresser. The following facts are quoted from the Reasons For Judgment issued by the pro tem-pore trial judge on January 5, 2001:

Following the defendant’s termination from employment on or about June 1, 1994, the defendant filed a lawsuit [177,-736-F] against his employer alleging age discrimination. After trial on the merits, judgment was rendered in favor of Cletus Steinhoff and against his employer. The defendant herein was awarded the following sums:

(a) back pay in the amount of Four Hundred Two Thousand Seven Hundred Seventy-Two Dollars ($402,-772.00);
(b) front pay in the amount of One Hundred Eighty-Four Thousand Four Hundred Thirty-Six Dollars ($184,436.00);
(c) damages for mental pain and suffering in the amount of One Hundred Thousand Dollars ($100,000.00);
(d) attorney’s fees in the amount of Two Hundred Twenty-Nine Thousand. Sixty-Nine Dollars and Thirty-Nine Cents ($229,069.39); (e) interest on all sums from the date of judicial demand; and (f) all costs of court. Lie) interest on all sums from the date of judicial demand; and
(f) all costs of court.
The award for back pay was made retroactive to the date of employment termination, i.e., June 1, 1994.
In conclusion, this Court finds that the plaintiff herein, Charlene Steinhoff, is entitled to an award of one-half Qk) of the amount related to the community of acquets and gains that previously existed between the parties from June 1, 1994 through July 6, 1995, [399 days] with no offset for severance pay through December 31,1994.
[Mr. Steinhoffs earnings were] calculated based upon Defendant’s Post Trial Memorandum which allocates to the defendant a yearly earning of Fifty-Two Thousand Dollars ($52,000.00) at the time of his termination. Defendant then calculates a day rate of One Hundred Forty-Four Dollars and Forty-Four Cents ($144.44) based upon his own assertion of his annual income. Plaintiffs addendum to her Post Trial Memorandum, in the form of a letter, correctly calculates the number of days for the time period of June 1,1994 through July 6, 1995 to be Three Hundred Ninety-Nine (399). Applying Defendant’s day rate to Plaintiffs computed days equates to $ 144.44 X 399 = $ 57,631.56; one half of this amount, or $28,815.78, is attributable to Plaintiff, Charlene Stein-hoff, as community earnings.

Following the judgment in suit 177,736-F, which formed the basis for the Reasons For Judgment issued above, Dresser appealed the judgment in that suit. During the pendency of that appeal, Dresser and Mr. Steinhoff reached a compromise settlement in which Dresser agreed to pay Mr. Steinhoff a total of $471,713.73, $100,000 of which represented damages for emotional distress and mental anguish. Because of the settlement, Mr. Steinhoff filed a motion for a new trial. The motion was granted and following a new trial the trial court issued the following Reasons for Judgment on August 7, 2002:

|aThe Court determined there was $587,208.00 of wages that were awarded in [the pro tempore judge’s] judgment. This excluded severance pay, mental anguish, attorney’s fees, interest or costs. Cletus settled the case while on appeal for $471,713.73, of which $100,000.00 was emotional distress and mental anguish. The balance of 371,713.73 is payment of money for wages, for in the settlement agreement Dresser made separate payments for attorneys and acknowledged to be in addition to normal severance benefits. This represents a payment of 63.3% of the judgment amount attributable to new money for wages. This is also inclusive of interest.
The fact that the language does not set forth what is “back or front pay” does not create any greater rights to funds for Charlene. The issues of offsets for other severance payments were addressed in the first Reasons for Judgment and are adopted herein.
Charlene had been awarded $28,815.78, based upon calculations from the judgment by Judge [Mansour]. The Court applies the percentage of 63.3% towards his amount and reaches a sum due to Charlene in the amount of $18,240.00.
The original judgment granted Charlene a pro-rated amount of interest on the amount awarded to her (her portion of the wage claim), however, the settlement was a lump sum figure for all claims, and therefore by definition includes the interest payments. Accordingly, the interest portion of the judgment is amended to award judicial interest to Charlene from dates of receipt of funds pursuant to the settlement agreement. Since this was an outstanding obligation, the Court deems payment of legal interest to be due from October 18, 2000 [the date the settlement documents were executed]. All costs of these proceedings are split between the parties.

Defendant, Cletus Steinhoff, appeals alleging the trial court erred in calculating the award due to Plaintiff, Charlene Stein-hoff. This argument is two-fold: (1) Cle-tus argues that he received his full pay, in the form of a severance package between July 1, 1994, and December 31, 1994; hence, Charlene should only receive credit for 186 days of Cletus’ pay rather than 399 days as decided by the trial court; and (2) that he (Cletus) should get an off-set for Charlene’s earnings during that period of time.

| ¿LAW AND DISCUSSION

The record contains neither a transcript nor a note of evidence from the original hearing on the division of the community. Likewise, the record before us contains no evidence introduced at that hearing which helps us in our determination of the matter: there is no W-2 from either party; there is nothing to explain the terms of Mr. Steinhoffs severance package; and there is nothing which establishes how many employers paid what to which Stein-hoff in 1994 or 1995. Thus, we find ourselves in a position similar to our position in Miller v. Potier, 94-1000 (La.App. 3 Cir. 2/1/95); 649 So.2d 1130. Addressing the situation in Miller we stated:

Since we have no transcript of the trial our review is necessarily limited. As was stated in Carter v. Barber Bros. Contracting Co., Inc., 623 So.2d 8, 10 (La.App. 1 Cir.), writ denied, 629 So.2d 1180 (La.1993): “The appellant has the duty to secure either a transcript of the testimony or a narrative of facts; the inadequacy of the record is imputable to the appellant.” See also Preuett v. Preuett, 517 So.2d 848 (La.App. 3 Cir.1987).
“Where, as in this case, there is no transcript, no narrative of facts by the parties or by the trial judge, the judgment of the trial court is presumed to be supported by competent evidence. Succession of Walker, [276 So.2d 372 (La.App. 2d Cir.), writ granted, 279 So.2d 691 (La.1973), affirmed, 288 So.2d 328 (La.1974) ]; Bourque v. L.C. Electro-Comm. Inc., 460 So.2d 18 (La.App. 1st Cir.1984); Miller v. Miller, 480 So.2d 789 (La.App. 3rd Cir.1985), writ denied 481 So.2d 1337 (La.1986); Gulling v. E.I. Du Pont de Nemours and Company, 228 So.2d 750 (La.App. 4th Cir.1969).
Said another way, review is limited to determining whether the trial court correctly applied the law to the facts it “found.” Smith v. Gilmer, 488 So.2d 1143 (La.App. 2d Cir.1986). Those facts can often be gleaned from the trial court’s written reasons for judgment. When a record contains written reasons for judgment by a trial judge which reveals substantially all of the material testimony, and the record is sufficiently complete to permit full consideration of the issues presented on appeal, the reasons for judgment will be considered in lieu of the narrative of |Kthe facts required by LSA C.C.P. Art. 2131. Moity v. Guillory, 430 So.2d 1243 (La.App, 1st Cir.1983), writ denied 437 So.2d 1148 (La.1983); Robinson v. Jackson, 255 So.2d 846 (La.App. 2d Cir.1971), writ denied 260 La. 700, 257 So.2d 155 (1972); Paige v. Tregre, 283 So.2d 777 (La.App. 1st Cir.1973), writ not considered, 284 So.2d 335 (La.1973).”
Simmons v. Yelverton, 513 So.2d 504, 506-507 (La.App. 2 Cir.1987). Accordingly, we will limit our review to a consideration of whether the trial judge correctly applied the law to his factual findings.

Miller, 94-1000, pp. 2-3; 649 So.2d 1131—32.

Our review of the mathematical calculations reveals no errors. Mr. Steinhoff argues that allowing Mrs. Steinhoff credit for 399 days of his earnings gives her double recovery for the period of June 1 through December 31, 1994. However, without testimony and evidence to support this argument, we must assume the trial court’s finding was correct.

Likewise, when we consider Mr. Steinhoffs argument that he is due credit for what Mrs. Steinhoff earned from June 1 through December 31, 1994, we find we are unable to properly consider this matter as we have neither any evidence before us establishing what Mrs. Steinhoff earned during that period nor any evidence that the trial court failed to consider, or wrongly decided this issue.

In sum, it is well settled that “[i]n the absence of record evidence, the trier of fact’s conclusions are presumed to be properly supported by evidence. Smith v. Lewis, 597 So.2d 1267 (La.App. 3 Cir.1992) citing Succession of Rock v. Allstate Life Ins. Co., 340 So.2d 1325 (La.1976). The judgment of the trial court is presumed correct, absent any evidence in the record which would indicate to the contrary. Maxwell v. Swain, 524 So.2d 826 (La.App. 3 Cir.1988).” Brimer v. Brimer, 95-592, p. 2 (La.App. 3 Cir. 11/2/95); 664 So.2d 622, 623.

1 fiFinally, it is well settled that an appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). The appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one, after reviewing the record in its entirety. Mart v. Hill, 505 So.2d 1120 (La.1987); Stobart, 617 So.2d 880; Rosell, 549 So.2d 840. The Louisiana Supreme Court has constantly emphasized that “[t]he reviewing court must always keep in mind that ‘if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).

Considering the presumption in Brimer and the well settled rules of appellate review, we find we must affirm the judgment of the trial court. Costs of this appeal are assessed against Appellant, Cletus Stein-hoff.

AFFIRMED.


author: | .LANIER, J. | iFITZSIMMONS, Judge,

text:
    Robert M. CARBO and Linda S. Carbo v. CITY OF SLIDELL, et al.
    No. 2001 CA 0170.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 8, 2003.
    Writ Denied April 25, 2003.

      Joseph E. Stoekwell, III, Baton Rouge, Counsel for Plaintiffs/Appellants Robert & Linda Carbo.

      Dwight C. Paulsen, III, New Orleans, Counsel for Defendants/Appellees Greg S. Lyons & Sunmark Construction Co.
    Neil C. Hall, III, Covington, for St. Tammany Parish.
    Timothy Mathison, Slidell, for City of Slidell.
    Before: FITZSIMMONS, KUHN, DOWNING, CIACCIO and LANIER, JJ.

      . The Hon. Philip C. Ciaccio, Judge (retired), Fourth Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

      . The Hon. 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.

   | .LANIER, J.

This is an action for an injunction. The plaintiffs, Robert M. and Linda S. Carbo (the Carbos), seek the removal of alleged obstructions of natural drainage erected by the defendants that cause flooding on the Carbos’ property. In the alternative, the Carbos pray for compensatory damages if the court finds that injunctive relief is “greatly disproportionate in cost to the actual damages caused the plaintiffs, and/or the injunctive relief due the plaintiffs is found to have a substantial negative effect on third parties .... ” The original defendants are: (1) the City of Slidell (City); (2) the Parish of St. Tammany (Parish); (3) Gregg S. Lyons (Lyons); and (4) Sunmark Construction, Inc. (Sunmark). Lyons and Sunmark filed a motion for summary judgment asserting that they performed some of the construction work about which the Carbos complain, the work was performed with the consent of the City and the work was performed gratuitously. The Parish filed a motion for summary judgment asserting it did not create the obstructions about which the Carbos complain, the constructions complained of are located entirely in the corporate limits of the City and “the Parish did not have the care, custody or control over the area in question and owed no duty to petitioners.”

The trial court granted summary judgments in favor of the Parish, Lyons and Sunmark and dismissed the Carbos’ injunction claims against them with prejudice. The trial court gave the following rationale for dismissing the injunction action against Lyons and Sunmark:

The court finds as a matter of law that Lyons was a mandatory [sic], and that his actions were ratified by the City of Slidell. As a matter of law, he cannot be held liable for his actions in repairing the berm. The Court further notes that injunctive relief is not applicable to Lyons or Sunmark, since they neither own now [sic] control the berm and canal. The flooding of which plaintiff [sic] complains [sic] long precedes the actions of Gregg Lyons.

The trial court gave the following rationale for dismissing the injunction action against the Parish:

| .¡It [the Parish] argues that because it neither owns the land nor the canal which are the subject of the suit, injunc-tive remedies under codal articles pertaining to the rights and obligations of owners of estates are not available. The court agrees with this rationale. The court also agrees that the Gaharan case is inapplicable, partially because the City and Parish have the right to alter natural drainage, and certainly because the Parish does not own the land or the canal in question. The Parish has a right of way granted in 1948 for the purpose of drainage. The Court also agrees that the natural drainage can be altered by statute and by agreement, both of which have occurred. The court also finds that the canal is not a servient estate.

The Carbos took this devolutive appeal.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B; Calhoun v. Hoffman-La Roche, Inc., 98-2770, p. 4 (La.App. 1 Cir. 2/18/00), 768 So.2d 67, 60-61, writ denied, 2000-1223 (La.6/23/00), 765 So.2d 1041. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, and 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 that shows 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(l). The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 C(2).

14Appellate courts review summary judgments de novo under the same criteria that govern the trial judge’s consideration of whether a summary judgment is appropriate. Doucet v. National Maintenance Corp., 2001-1100, p. 5 (La.App. 1 Cir. 6/21/02), 822 So.2d 60, 65.

FACTS

The evidence presented by the parties supporting and opposing the motions for summary judgment shows the following.

The Carbos allege, and the evidence shows, that they own property adjacent to the eastern corporate limits of the City. A survey map attached to the petition indicates the Carbos’ property is in Lot 2 of Section 11, T9S, R14E, in St. Tammany Parish. This map also shows that the W-14 Drainage Canal enters the Carbos’ property on its northern side, traverses the property in a southwesterly direction and exits the property on its west side where the property is adjacent to the City. The obstructions about which the Carbos complain are located on the west side of the W-14 canal.

The Parish asserts the W-14 canal was constructed on the Carbos’ property pursuant to the authority of a conventional servitude granted by V.C. Scogin, an ancestor in title to the Carbos. This servitude (right of way) provides as follows:

Right of Way Grant. State of Louisiana, Parish of St. Tammany, Know all men by these presents: That V.C. SCO-GIN, does by these presents grant unto the Parish of St. Tammany, through its Police Jury, the necessary right of way for the construction, maintenance and improvement of drainage facilities through and across my property in: part of the West one half of the southwest one quarter of Section 11 — T. 9. S. — R. 14. E., St. Tammany Parish, Louisiana, being understood that the Police Jury will construct and maintain a bridge across the canal at the extension of Blanchard Street, in Slidell, Louisiana; Present fence to be moved to East line of Right of Way H.O.F. WIT. V.C.S.
According to Parish Wide Drainage Program Map File No. Diversion Canal.
The consideration for this grant is the expectation of benefits to said property as a result of the drainage improvement program. (Emphasis added.)

1 ^Pursuant to interrogatories propounded by Lyons and Sunmark, the Carbos gave the following answers:

Please state each and every date that any of plaintiffs’ property east of the W-14 canal was damaged by flood water as alleged in Paragraphs III-G, III-J, III— K, III-O, and III — S of the petition.

ANSWER TO INTERROGATORY NO. 2:

The home [sic] was built in 1965 and the plaintiffs moved into home in November of 1965. As early as 1968 the plaintiffs experienced sporadic flooding of their property which continued through 1973. In 1973, the constructions complained of in the plaintiffs’ petition were initiated, exacerbating the plaintiffs’ flooding problems as more and more obstructions were completed thereafter to present.
The plaintiffs do not have records of exact dates when their residence flooded or sustained flood damage. However, the plaintiffs’ land has flooded countless times over the time periods indicated and their residence has flooded at least five (5) times.
Unfortunately actual invoices, receipts and photographs evidencing the flood damages prior to 1995 were destroyed by Harold M. Wheelahan, III, a previous attorney who did not preserve their files.

INTERROGATORY NO. 3:

Please state whether plaintiffs’ home has ever flooded, and, if so, please state:
a. The date or dates the home flooded;
b. The reason the home flooded;
c. Whether the flood damage was repaired, and if so, by whom and at what cost; and
d. Whether you made a claim against your homeowners’ insurer or flood insurer, and, if so, the name of the insurer, the amount of the claim and the amount received.

ANSWER TO INTERROGATORY NO. 3:

a. House flooded four times between 1968 and 1973; and flooded in May of 1995;
b. Obstructions of natural drainage as delineated in the plaintiffs’ petition;
c. Flood damage repaired by self, except for 1995 flood; and
d. Filed one claim in either 1972 or 1973 against the National Flood Insurance Program and was awarded approximately $800.00, and also filed a claim for the May 1995 flood.

INTERROGATORY NO. 4:

IfiFor each item of damages claimed in Paragraph VI-A of your petition, please give the following information:
a. The date or dates the alleged damage was sustained;
b. The amount of the damages sustained;
c. The cost of repair;
d. The cost for the construction and maintenance of the levee, pumps and plumbing referred to in Paragraph VI-A(2) of the petition; and

ANSWER TO INTERROGATORY NO. 4:

a. House has sporadically flooded from 1968 to present;
b. For floods prior to May of 1995, the plaintiffs sustained damages including carpet, sheetrock, cabinets, appliances, paneling, and other articles customarily damaged in residences where flood waters enter a home. Receipts and invoices from previous floods were destroyed by Harold M. Wheelahan, III as indicate supra.
c. The cost of repair for the flood damage of May of 1995 was $31,560.00.
d.The total cost for the construction and maintenance of the levee, pumps and plumbing referred to in Paragraph VI-A(2) of the petition was $44,950.00.

Pursuant to interrogatories propounded by the Carbos, Lyons gave the following answers:

ANSWER TO INTERROGATORY NO. 1

In May 1995, defendants had just begun clearing a piece of property owned by Racole Investments, LLC in order to build apartments. While clearing the property, defendants noticed that a section of the “berm” on the west side of the W-14 canal had eroded considerably, in the neighborhood of 2-3 feet. Defendants assumed that the erosion was due to the May 5,1995 flood.
Defendants obtained the verbal consent of the City of Slidell, through its authorized agent, City Engineer Stanley P. Polivick, P.E., to repair the section of the “berm” that had eroded and on or about May 22, 1995 defendants restored the “berm” to its original condition. Sometime thereafter plaintiff Robert M. Carbo met with defendants, requested that defendants restore the “berm” to the state it was prior to May 22, 1995 and threatened to sue defendants if the “berm” was not restored to its prior condition. Defendants agreed to restore the “berm” to its prior condition and granted plaintiff Carbo permission through September 1, 1995 to cross property owned by Racole Investments, LLC and/or Berkley Apartments, A Partnership in Commendam, to lower the height of the “berm” to protect plaintiffs’ property in case of emergency. Defendants notified the City of Slidell through City Engineer Polivick of the foregoing |7and requested permission to restore the “berm” to its prior condition. In correspondence dated August 15, 1999, the City of Slidell issued a “directive” to defendants to “... leave the levee in the repaired state.” See August 15, 1995 letter of City Engineer Polivick.

ANSWER TO INTERROGATORY NO. 5

Defendants restored the “berm” on the west side of the W-14 canal to its original state on or about May 22, 1995 to protect the persons and property of hundreds of residents of the City of Slidell from further flooding and because it was the “right thing to do.” Defendants had a bulldozer at the site in order to clear property owned by Racole Investments, LLC to construct apartments and it took defendants less than one hour to restore the “berm” to its original condition.

ANSWER TO INTERROGATORY NO. 6

See defendants’ answer to interrogatory no. 2. The properties owned by Berk-ley Apartments, A Partnership in Com-mendam and Racole Investments, LLC include portions of the W-14 canal, as evidenced by the surveys defendants produced in response to request for production no. 1 of Plaintiffs’ First Requests for Production.

ANSWER TO INTERROGATORY NO. 8

The section of the “berm” that apparently eroded in the May 5, 1995 flood and that defendants restored to its original condition on or about May 22, 1995 is located on property owned by Racole Investments, LLC. (Emphasis added.)

In his deposition, Lyons testified that the Carbo property is adjacent to the property where the berm was repaired. Lyons denied that he dammed a creek.

In answer to interrogatories propounded by Lyons and Sunmark, the City admitted that it authorized and ratified the berm repair gratuitously done by Lyons and Sunmark on or about May 22, 1995, and denied that “Gregg S. Lyons was acting as a duly authorized agent for the City of Slidell when he made repairs to the ‘berm’ or levee on the west side of the W-14 canal in May 1995.”

In an affidavit, Daniel G. Zechenelly, Sr. identified himself as “an employee of the St. Tammany Parish Police Jury, Department of Public Works, since February 18, 1981” who at the time of the affidavit (September 15, 1999), was “the Foreman of Area III which includes the area where the Carbo property is located.” Zechenelly stated the following:

I have personal knowledge of the dam which is described in the Carbos’ lawsuit as being located at the mouth of the creek where it intersected the W-14 Canal.
|SI also have personal knowledge of the levee or berm that is referred to in the lawsuit as being along the west bank of the W-14 canal between Cousin and Danny Streets.
I am familiar with the allegations that, due to the levee or berm, water is now trapped on the plaintiffs’ property to an even greater extent during heavy rains, because water cannot overflow the W-14 Canal bank to the west, as it did during extreme rains prior to the City of Sli-dell’s construction of the levee or berm and due to the City of Slidell’s and/or St. Tammany Parish’s damming of the creek, water cannot continue past the plaintiffs’ property in its natural course through the creek to the lower land in the west and southwest. Instead, rain water simply fills the W-14 Canal to capacity and then backs up on the plaintiffs’ property, causing severe flooding and damages. To my knowledge, the west bank of the W-U Canal and the dam and levee on the west side of the W-U Canal, at the location in question, are all within the corporate limits of the City of Slidell.
I know that during my term of employment neither myself nor anyone else assigned to perform maintenance in the area in question has done anything to create or exacerbate drainage problems for the Carbo property. The Parish of St. Tammany did not create the earthen dam at the mouth of the creek where it intersects the W-U Canal and did not create or rebuild the levee or berm that is referred to in the lawsuit as being along the west bank of the W-H canal between Cousin and Danny Streets.
To the best of my knowledge, the W-14 Canal was created several decades ago by the Louisiana Department of Transportation and Development’s Office of Public Works. (Emphasis added.)

In an affidavit, James R. Clary, Sr. identified himself as having “been retained by Robert and Linda Carbo ... as an expert witness to testify at trial regarding obstructions to natural drainage .... ” He stated, in pertinent part, the following:

2.
I attended an initial meeting on April 19, 1996, in Slidell at City Hall with Messrs. Stan Polivick, Dan Yeates, and Lloyd Walters, in order to discuss the plaintiffs’ petition and the obstructions to natural drainage the plaintiffs complained of.
3.
At the meeting, both Messrs. Poliv-ick and Yeates admitted that the City had maintained the levee and dam at issue in this suit so as to repel waters from Slidell and that the dam and levee were directly across the W-U Canal from the plaintiffs’ property.
4.
Both Messrs. Polivick and Yeates agreed that the removal of the dam and levee system located across the W-14 Canal from the plaintiffs’ property would cause severe flooding in the City of Slidell, and Mr. Yates [sic] indicated that it would “put six feet of water in downtown Slidell." 5.
Messrs. Polivick and Yeates could not, at that meeting, define what St. Tammany Parish’s role had been in the maintenance of the W-14 Canal, or the construction of the obstructions. (Emphasis added.)

DENIAL OF CONTINUANCE

(Assignments of Error Nos. 1 and 7)

In these assignments of error, the Car-bos assert the trial court erred in not granting their motion for a peremptory and/or discretionary continuance of the summary judgment hearings to allow them (1) further discovery to show “that St. Tammany Parish is the owner [of] a right of way at the site where obstructions to natural drainage are located”, and (2) “to seek entry on to Gregg S. Lyons property and conduct a survey to determine the boundary lines of ownership in order to establish whether the defendant trespassed on plaintiffs’ property.”

This suit was filed on March 25, 1997. Lyons and Sunmark filed their motion for summary judgment on August 27, 1999, and the Parish filed its motion on September 17, 1999. Both motions were set for a hearing on November 17, 1999. These motions ultimately were heard on Decern-ber 16, 1999, and they were denied. At this same time, the trial court (1) ordered the depositions of Lyons and Sunmark taken not later than February 14, 2000; (2) granted Lyons, Sunmark and the Parish the right to reset their motions for summary judgment; and (8) fixed the trial on the merits for September 21 and 22, 2000. Lyons and Sunmark filed a motion to reset a hearing on their summary judgment on March 8, 2000, and the Parish filed a similar motion on March 27, 2000. Both were fixed for hearings on May 10, 2000.

On May 2, 2000, the Carbos filed a motion to continue the hearings fixed for May 10, 2000. They asserted entitlement to the continuance because of newly discovered evidence (the Scogin-Parish right of way agreement) provided to them by the Parish on April 19, 2000, and the refusal of Lyons to allow them “access to his property for the purpose of surveying and identifying the exact location of the dam at issue, etc.” A written notation on the order attached to this motion states “Ct Denied mtn to Continue in Open Court 5/10/00”.

| ^Continuances in civil proceedings are provided for in La. C.C.P. art. 1601 et seq. In Heaton v. Gulf International Marine, Inc., 536 So.2d 622, 625 (La.App. 1 Cir.1988), appears the following:

On appeal, defendants contend that they were entitled to a continuance under the provisions of La. C.C.P. art. 1601 and 1602. La. C.C.P. art. 1602 provides “[a] continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.” When the conditions of art. 1602 are met, the granting of a continuance is mandatory. Armstrong v. State Farm Fire & Cas. Co., 423 So.2d 79 (La.App. 1st Cir.1982). An additional ground for granting a continuance is addressed in La. C.C.P. Art. 1601 which provides “[a] continuance may be granted in any case if there is good ground therefor.” Under this article, a continuance rests within the sound discretion of the trial court. Sparacello v. Andrews, 501 So.2d 269 (La.App. 1st Cir.1986), writ denied, 502 So.2d 103 (La.1987).

The survey map attached to the Carbos’ petition and the evidence show that the western boundary of the Carbos’ property also is the eastern corporate limit of the City. If this survey line has been obliterated, it can easily be re-established by a new line using the original boundary corner and line monuments and the same courses and distances. Such a new survey can be made from sites on the Carbos’ property. Such a survey could have been made at any time after suit was filed on March 25, 1997, and well prior to the May 10, 2000 summary judgment hearings. Such a survey would have revealed if the dam and/or the berm (levee) complained of were on the Carbos’ property or on other property. If the dam and/or berm were not on the Carbos’ property, then they were on the property of someone else and are located in the City. This evidence could have been obtained by the Carbos through the exercise of due diligence. The Carbos’ claim that their inability to go on the “Lyons” property to conduct a survey affecting their ability to locate their boundary is without merit.

Ownership of the properties adjacent to and west of the Carbos’ property and the authority pursuant to which the W-14 canal was constructed was available to the Carbos at any time before or after their suit was filed. First, the Carbos could have run their own chain of title in the public conveyance records of St. Tammany Parish. This l^would have revealed the Scogin-Parish servitude for the canal. These same public records would reveal the ownership of the properties adjacent to and west of the Carbos’ property. It is reasonable to infer that since the servitude contract for the Scogin-Carbo property was recorded in the public records, the contracts for other canal servitudes were similarly recorded. A simple search of the public records would have revealed whether or not this inference is correct. This title search could have been made before or after suit was filed in 1997 and before the Carbos received the copy of the Sco-gin-Parish servitude contract from the Parish on April 19, 2000. Between April 19, 2000, and May 10, 2000, the requisite title search could have been conducted and the appropriate documents could have been obtained with the exercise of due diligence.

The evidence, for which the Carbos contend they should have been granted a ;peremptory continuance, could have been obtained through the exercise of due diligence. Discovery need not be completed and a party may not rely on his own delinquency in conducting discovery to prevent a summary judgment. Weathersby v. Jacquet, 2001-1567, pp. 4-5 (La.App. 3 Cir. 4/3/02), 813 So.2d 1135, 1138-1139. Finally, review of the record shows that the trial court did not abuse its discretion by refusing to grant a discretionary continuance.

These assignments of error are without merit.

RIGHT TO INJUNCTION

(Assignments of Error Nos. 2, 3, 4, 5 and 6)

Applicable Law on Injunctions

Injunction is a special proceeding and a provisional remedy provided for in La. C.C.P. art. 3601 et seq. Louisiana Code of Civil Procedure article 3601 provides, in pertinent part, as follows:

An injunction shall issue in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law .... (Emphasis added.)

Injunctive relief is specifically provided for by La. C.C.P. art. 3663 for the possessor of a real right in immovable property. Article 3663 provides, in pertinent part, as follows:

| ^Injunctive relief, under the applicable provisions of Chapter 2 of Title I of Book VII, to protect or restore possession of immovable property or of a real right therein, is available to:
(1) A plaintiff in a possessory action, during the pendency thereof; and
(2) A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right therein of which he claims the ownership, the possession, or the enjoyment. (Emphasis added.)

Revision Comment (b) for Article 3663 provides as follows:

(b) Injunctive relief is made available in two separate and distinct types of cases: (1) as an ancillary remedy in a possesso-ry action; and (2) as the relief to be granted in an injunction suit brought to enjoin trespassers and other disturbers, and which is neither a possessory nor a petitory action. See Churchill Farms v. Gaudet, 184 La. 984, 168 So. 123 (1936). (Emphasis added.)

As indicated by the authorities cited herein below, a personal servitude of right of use on an immovable (such as the Carbos’ property) is an incorporeal immovable and a real right. Irreparable injury is not an element of proof for obtaining injunctive relief pursuant to Article 3663. A. Yianno-poulos, 2 La. Civ. Law Treatise, Property, § 299, pp. 590-595 (4th Ed.2001) and the cases cited therein.

Applicable Law on Servitudes

Louisiana Constitution of 1974, art. I, § 4, provides, in pertinent part, as follows:

Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. (Emphasis added.)

A person may have (own) a right of servitude in a thing. La. C.C. art. 476. Private things (such as the Carbos’ property) may be subject to public use in accordance with law or by dedication. La. C.C. art. 455. Servitudes on immovable things are incorporeal immovables. La. C.C. arts. 461 and 470.

The police power is the plenary power of the State of Louisiana to do what is necessary to protect the people’s health, safety, welfare and morals. See the excellent discussion of the police power in Morial v. Smith & Wesson Corporation, 2000-1132, pp. 17-18 (La.4/3/01), 785 So.2d 1, 15.

There are two kinds of servitudes: (1) personal and (2) predial. La. C.C. art. 533. A personal servitude is a charge on a thing for the benefit of a person (the Parish). La. C.C. art. 534. A predial servitude is a charge on a servient estate for the benefit of a dominant estate. La. C.C. art. 646. The personal servitude of right of use confers in favor of a person a specified use of an estate less than full enjoyment (such as drain). La. C.C. art. 639. A right of use servitude is regulated by application of the rules governing usufruct and predial servitudes to the extent that their application is compatible with the rules governing a right of use servitude. La. C.C. art. 645. Thus, a conventional right of use servitude may be established by a juridical act. La. C.C. art. 654.

The parties to the Scogin-Parish contract established a servitude by a juridical act. This contract must be interpreted pursuant to the general rules for interpreting contracts, found in La. C.C. art.2045 et seq., and the special rules for interpreting servitude contracts found in La. C.C. arts. 697-734. Ogden v. Bankston, 398 So.2d 1037 (La.1981).

The Scogin-Parish contract is clear and unambiguous in stating that “V. C. Scogin, does by these presents grant unto, the Parish of St. Tammany, through its Pohce Jury [a person], the necessary right of way for the construction, maintenance and improvement of drainage facilities .... ” This language grants a servitude in favor of a person; it does not grant a servitude in favor of an estate. A right to drain can be granted in a conventional, personal right of use servitude. La. C.C. arts. 640, 699 and 706; Hunter Co. v. Ulrich, 200 La. 536, 551, 8 So.2d 531, 536 (1942); King v. Stroke, 95-656, pp. 1-5 (La.App. 3 Cir. 5/8/96), 673 So.2d 1329, 1331-1338. The | ucontract herein gives the Parish the right to use the property “for the construction, maintenance and improvement of drainage facilities .... ” This servitude is located and its extent fixed “[ajccording to Parish Wide Drainage Program Map File No. Diversion Canal” referenced in the act creating the servitude. The Carbos’ property is analogous to a servient estate for purposes of this servitude in favor of the Parish.

The right of use includes the rights contemplated or necessary to enjoyment at the time of the creation of the servitude, as well as rights that may later become necessary, provided, that a greater burden is not imposed on the property. La. C.C. art. 642. Pursuant to La. C.C. art. 645, the following additional rules are applicable. The Parish has the right to ’ enter with its workmen and equipment into the part of the Carbos’ property that is needed for the construction or repair of works required for the use and preservation of the servitude. La. C.C. art. 745. See also La. R.S. 38:113 and Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314, 317 (La.1981). The Parish may deposit materials to be used for the works and the debris that may result, under the obligation of causing the least possible damage and of removing them as soon as possible. The Parish has the right to make at its expense all works that are necessary for the use and preservation of the servitude. La. C.C. arts. 744 and 745; Tournillon v. Sewerage and Water Bd. of New Orleans, 96-1457 (La.App. 4 Cir. 2/12/97), 689 So.2d 655, writ denied, 97-0662 (La.4/25/97), 692 So.2d 1091; Dautreuil v. Degeyter, 436 So.2d 614, 617 (La.App. 3 Cir.1983). However, rights that are necessary for the use of the servitude are acquired at the time the servitude is established. They are to be exercised in a way least inconvenient for the property burdened by the servitude. La. C.C. art. 743; Jackson v. Jackson, 2000-2591, p. 10 (La.App. 1 Cir. 3/6/02), 818 So.2d 192, 199. See generally A. Yiannopoulos, 3 La. Civ. Law Treatise, Personal Servitudes, §§ 222-230, pp. 454-475 (4th Ed.2000).

The natural servitude of drainage is provided for in La. C.C. art. 655 as follows:

An estate situated below is bound to receive the surface waters that flow naturally from an estate situated above unless an act of man has created the flow. (Emphasis added.)

The prescription of nonuse does not run against natural servitudes. La. C.C. arts. 758 and 3448; Gaharan v. State, Dep’t of Transp. and Dev., 579 So.2d 420, 422 (La.1991). However, the natural servitude of drainage may be altered by agreement (juridical act) if the public interest is not affected adversely. La. C.C. art. 729; Eubanks v. Bayou D’Arbonne Lake Watershed District, 32,334, p. 9 (La.App. 2 Cir. 9/22/99), 742 So.2d 113, 119, writ denied, 99-3026 (La.12/17/99), 751 So.2d 887. The natural servitude of drainage can be altered by lawful acts of persons. Elam v. Cortinas, 219 La. 406, 53 So.2d 146 (1951); St. Martin v. General Homes-Louisiana, Inc., 467 So.2d 1361 (La.App. 5 Cir.1985). Finally, the natural servitude of drainage can be altered by “the reasonable exercise of the police power.” La. Const, of 1974, art. I, § 4.

All of the State of Louisiana (State) was naturally drained prior to human habitation. This natural drainage was dependent upon the quirks of nature and resulted in extensive flooding. With the advent of human occupancy, alteration of natural drainage patterns began. Without alteration of the State’s natural drainage patterns, vast areas of land in the State would be unsuitable for residential, agricultural, recreational or commercial purposes.

The State has utilized its police power to effect extensive alterations to its natural drainage. The governor has been given extensive authority to act in matters pertaining to flood control and drainage. La. R.S. 38:81 et seq. A State Department of Public Works has been created to oversee levees, canals and drainage systems. La. R.S. 38:1 et seq. A statewide flood control program has been adopted by the legislature. La. R.S. 38:90.1 et seq. State soil conservation districts have been created with authority over floodwater and land drainage. La. R.S. 3:1201 et seq. Numerous state and local government levee and/or drainage districts have been created and/or authorized. La. R.S. 38:111 et seq.; 38:281 et seq.; 38:1481 et seq.; 38:1601 et seq.; 38:1751 et seq. The unauthorized interference with, or obstruction of, natural or artificial drainage has been made criminal. La. R.S. 38:214, 215, 218 and 219. In 1950, pursuant to La. R.S. 33:1236(13), a police jury had the following power pertaining to drainage:

To construct and maintain drainage, drainage ditches, and drainage canals; to open any and all drains which they may deem necessary and to do and perform all work in connection therewith; to cut and open new drains, ditches and canals, to acquire lands for necessary public purposes, including rights of way, canals and ditches by expropriation, purchase, \wprescription or by donation; to enter into contracts for the construction of such drainage works, and to purchase machinery and have the work performed under their own supervision; to allocate, use and expend the general alimony of the parish for any of the above purposes; to incur debt and issue bonds for drainage and drainage canals in the manner provided for by Subtitle II of Title 39; and use such other funds as may be legally expended for such purposes; to levy taxes for the maintenance of said drainage works in the manner provided for and under the authority of Article X, Section 10 of the Constitution of the State of Louisiana, as amended, and to construct any works and do any and all things necessary to effect proper drainage and carry this Paragraph into effect; to enter into contracts or agreements, under such terms and conditions as may be mutually agreeable with the State of Louisiana, through the Department of Public Works for the securing of State aid for the purposes herein authorized; to cooperate and participate in any State or Federal program which may now exist or which may hereafter come into effect under any State or Federal law. Police juries shall open all natural drains which they deem necessary in their respective parishes and shall perform all work connected therewith, which they may deem necessary to make the opening of natural drains effective. They may perform all other acts necessary to fully drain all the land in their respective parishes and maintain such drainage when established. This Paragraph is intended to furnish additional means whereby parishes in the State of Louisiana may accomplish the • objects and purposes herein referred to, and shall be liberally interpreted. (Emphasis added.)

Injunctive Relief Sought by the Carbos

In their petition, as amended, the Car-bos seek the following injunctive relief:

(1) “Total removal of the dam where the creek meets the W-14 Canal”;
(2) “Total removal of all material from the western bank of the W-14 Canal so as to restore the bank of the W-14 canal to a grade that is level with or below the natural topography of other properties adjacent to the W-14 Canal’s western bank ....”;
(3) “The removal of all structures built on top of the original creek bed, west of the W-14 Canal, and the total restoration of the creek to its original course, depth, and breadth ....”; and
(4) “The removal of all fill dirt and/or obstructions directly adjacent to the mouth of the creek .... ”

Injunction Against the Parish

(Assignments of Error Nos. 2, 3 and 4)

The Carbos assert the trial court erred by denying them an injunction against the Parish because (1) it found that “no genuine issue of material fact exists to prove that ... [the Parish] owns the W-14’, on or near where obstructions to natural drainage have been constructed”; (2) it ruled “as a matter of law the W-14’ and/or the right of way upon which the canal is located is not considered a servient estate for the purposes of natural drainage”; and (3) it ruled “as a matter of law that a right of way granted to the ... Parish, by plaintiffs’ ancestor-in-title constitutes an agreement thereby providing [the] ... Parish with contractual authority to obstruct natural drainage.”

|17The Scogin-Parish servitude contract gives the Parish the right to use the Carbo property to construct, maintain and improve the W-14 Canal for the purpose of draining water across it. If the Parish owned the estate adjacent to the Carbos’ estate and this was a predial servitude, the Parish’s estate would be the dominant estate and the Carbos’ estate would be the servient estate. Because the Scogin-Parish servitude is a personal servitude of right of use for drainage, there is no dominant estate. Without a dominant estate, there can be no servient estate. However, the legal obligations owed by the Carbos and their property to the Parish are analogous to that of a servient estate.

Pursuant to La. C.C. art. 655, there is no natural servitude of drainage from one estate to another when “an act of man has created the flow.” The construction and operation of the W-14 Canal has altered the natural drainage on the Carbos’ property and on all other properties through which it traverses. That is what it is specifically designed to do. The Sco-gin-Parish servitude agreement states that the servitude is being given in consideration of an expected “drainage improvement program”. This obviously contemplated an artificial change in the existing natural drainage. Waters drain into the W-14 Canal north of the Carbos’ property and, after being collected therein, flow in a southwesterly direction across the Carbos’ property. The water exits the Carbos’ property on its western boundary and flows into the City. The W-14 Canal is an artificial drainage channel whose water flow has been created by “an act of man”. Therefore, Article 655 pertaining to the natural servitude of drainage is not applicable and the W-14 Canal is not a servient estate.

In paragraph III-T of their petition, the Carbos allege they “actually own the property where the creek meets the W-14 Canal and where the dam was constructed by the defendants” and refer to a survey map attached as Exhibit C. Exhibit C has an arrow drawn on it entitled “LOCATION OF DAM”, but the point of the arrow ends to the lowest of, and does not touch, the City-Carbo boundary line. In their appellate brief, the Carbos stated: (1) “[t]he source of the flooding problem primarily involves two construction projects that have been built adjacent to the Carbos’ property on or near a man made canal known as the W-14’ that prevent the natural drainage of surface waters.”; (2) “in addition to the construction of the dam, a levee or type of berm was built over portions of the western side of the W-14’ across from the Carbos property.”-, and (3) “surface waters that would normally drain into and over the W-14’ during rain storms became trapped by the dam and berm structures forcing flood waters to back up on to the Carbos property.” (Emphasis added.) Finally, in Paragraph II-A of their petition, the Carbos admit they own “40 acres of property adjacent to and outside the eastern border of the City of Slidell-” (Emphasis added.)

In answer to a written interrogatory, Lyons declared that “[t]he section of the ‘berm’ ... that defendants restored ... is located on property owned by Racole Investments, LLC.” In his deposition, he states that the Racole property is adjacent to the Carbos’ property. In an affidavit, Daniel G. Zechenelly, Jr., the Parish’s Foreman for public works in the area where the Carbos’ property is located, stated that “[t]he west bank of the W-14 Canal and the dam and levee on the west side of the W-14 Canal, at the location in question, are all within the corporate limits of the City of Slidell.” Because the berm and dam are in the City’s limits, they are not on the Carbos’ property.

Although the Carbos allege in their petition that the dam was constructed on their property, the summary judgment evidence and the Carbos’ admissions in their brief show that the dam and berm are not located on their property but are located on the property of other persons in the City. The summary judgment evidence given by Lyons shows that the part of the berm that was repaired is located on Racole’s property. The record does not reflect who owns the property where the dam is located.

In his reasons for judgment, the trial judge stated that “[t]he Parish does not own the land or the canal in question.” This statement is not factually or legally accurate. The Carbos’ predecessor in title conveyed to the Parish a personal servitude of right of use for the construction, maintenance and improvement of the W-14 | t 9drainage canal. The cause (consideration) for this contract was (1) construction of a bridge across the canal, (2) relocation of a fence, and (3) benefits from drainage improvement (changing natural drainage). This servitude dismembered the total ownership rights of the owner of the property and it is an incorporeal immovable right subject to ownership. La. C.C. arts. 461 and 470. Simply stated, the Parish owns a servitude on the Carbos’ property to use it for the operation of the W-14 Canal. In this sense, the Parish owns the canal on the Carbos’ property and owns the canal on any other property on which it has a similar servitude.

However, although (1) the W-14 Canal is not a servient estate, (2) the natural servitude of drainage does not apply, (3) the Carbos do not own the land where the obstructions are situated, and (4) the trial judge committed legal error in defining the Parish’s servitude rights, the issue of whether the Parish is entitled to a summary judgment still remains.

The factual essence of the Carbos’ claim is that (1) the Parish has a real right (servitude or otherwise) in the property where the dam and/or the berm on the W-14 canal is located; (2) these constructions were built after the Scogin-Parish servitude was established; and (3) these constructions have made the servitude more onerous than when it was established in violation of La. C.C. arts. 642 and 743. La. C.C.P. arts. 862 and 1154. The Car-bos’ rights provided for in Articles 642 and 743 are real rights that can be enforced by the injunction remedy provided for in La. C.C.P. art. 3663(2).

The initial burden of proof is on the Parish as the movant on a motion for summary judgment. However, as a party defendant, the Parish will not have the burden of proof on the trial of the merits. Therefore, the Parish need not negate all essential elements of the Carbos’ claim against it; the Parish can prevail on its motion if it can show an absence of material fact to support any essential element of the Carbos’ claim against it.

| ¡>nIn their amended petition, the Carbos assert, in pertinent part, that: (1) “St. Tammany Parish undertook the digging of what is known as the W-14 Canal” ’; (2) “[bjeginning in approximately 1972 ... the Parish ... began altering natural drainage by damming the mouth of the creek [Bayou Potassat] where it intersected the W-14 Canal ....”; (3) “[t]he plaintiffs, being situated on the east side of the W-14 Canal, began to experience flooding on their property, because the water that naturally drained to the west through the creek was blocked by the dam, directly causing water to back up on the plaintiffs property”; (4) “rain water simply fills the W-14 Canal to capacity and then backs up on the plaintiffs’ property, causing severe flooding ....”; and (5) “the defendants created yet another obstruction by building the levee on the west side of the W-14 Canal .... ”

In their answers to interrogatories, the Carbos stated the following:

As early as 1968 the plaintiffs experienced sporadic flooding of their property which continued through 1973. In 1973, the constructions complained of in the plaintiffs’ petition were initiated, exacerbating the plaintiffs’ flooding problems as more and more obstructions were completed thereafter to present.

In his affidavit, Zechenelly stated “I know that during my term of employment neither myself nor anyone else assigned to perform maintenance in the area in question has done anything to create or exacerbate drainage problems for the Carbo property.” Zechenelly worked for the Parish at least from February 18, 1981, until his affidavit was given in 1999. Whether or not the servitude was made more burdensome on the Carbos’ property after the servitude was established, is a material issue of fact. La. C.C. arts. 642 and 743. The Zechenelly affidavit does not refute the Carbos’ interrogatory answers for the period of 1968 to 1981. For the period of 1981 until 1999, there is a dispute about these material facts between the Carbos and Zechenelly. The Parish is not entitled to a summary judgment on this basis.

In answers to interrogatories, the City stated that the date of the development of the property “in the vicinity of Bayou Pat-tasat ... is not firmly established”, but that “[a] reasonable guess would be the early sixties” and “[t]he development was done several years after the construction of the W-14 canal.” The rights necessary for the use of a servitude are acquired at the time the servitude is established. La. C.C. art. |g1743. The Scogin-Parish servitude was established on September 9, 1949. The record on appeal does not reflect when the W-14 Canal was built. The extent of the servitude was fixed by reference to a “Parish Wide Drainage Program Map File No. Diversion Canal” incorporated in the contract by reference. This map is not in the record. There is nothing in the record that shows the extent of the servitude or the structure of the W-14 Canal at the time it was built.

Because the Parish obtained a servitude from Mr. Seogin for the construction of the W-14 Canal, it can reasonably be inferred that the Parish obtained other servitudes for the canal from other property owners in the area. See, for example, Brown v. Rougon, 652 So.2d 1052, 1054 (La.App. 1 Cir.1989), writ denied, 559 So.2d 121 (La.1990). If the Parish obtained W-14 servi-tudes on the property or properties where the dam and the berm are located, it (the Parish) would have responsibility for what was constructed on its servitude and could remove constructions placed thereon illegally or without its consent. If the Parish had such servitudes and entered into intergovernmental contracts for the construction of the dam and/or berm on its servitude after the initial construction of the W-14 Canal, then it would be directly responsible for them. Conversely, if the Parish does not own servitudes where the berm and dam are located, and the dam and berm were built without the participation of the Parish, then the Parish would be entitled to summary judgment dismissing the Carbos’ claims against it.

Unfortunately, there is insufficient evidence in the record to adjudicate this issue. In addition to the lack of evidence previously noted, the record does not reflect whether or not the Parish obtained servitudes from the owners of the properties where the berm and dam are located. As previously indicated, the initial burden of proof in a motion for summary judgment is on the movant, who, in this case, is the Parish. The inadequacy of the record is imputed to the Parish and the burden of proof has not shifted to the | ^Carbos. The burden was on the Parish to negate the assertions in the Carbos’ pleadings with summary judgment evidence. Motton v. Lockheed Martin Corporation, 97-0204, p. 7 (La.App. 4 Cir. 12/1/97), 703 So.2d 202, 205. The Parish has failed to do so and is not entitled to a summary judgment.

The trial court erred in granting summary judgment in favor of the Parish.

These assignments of error have merit.

Injunction Against Lyons and SunmarJc (Assignments of Error 5 and 6)

The Carbos assert the trial court erred by denying them an injunction against Lyons and Sunmark because (1) no “valid contract of mandate existed between defendants, Gregg S. Lyons and the City of Slidell, thereby releasing Gregg S. Lyons and his company, Sunmark Construction, Inc., from liability for restoring an obstruction to natural drainage when both defendants lacked authority as owners of servient estates to prevent the natural flow of surface waters”, and (2) “in finding that no genuine issue of material fact remains as to whether defendants, Gregg S. Lyons and the City of Slidell, actually agreed to a contract of mandate when the record is void of any written evidence of such an agreement and the City of Slidell denies that Gregg S. Lyons acted as its authorized agent.”

In his deposition and answers to interrogatories, Lyons gave the following pertinent testimony. On or about May 22, 1995, Sunmark contracted with Bruce Woods to do bulldozer work on land owned by Racole Investments, LLC (Racole) in the City. Sunmark and Racole were corporations in which Lyons and his wife were the sole stockholders. While the bulldozer work was being done, Lyons noticed that a portion of the berm on the west side of the W-14 Canal located on the Racole property was “eroded”. Lyons assumed this erosion was caused by the May 5, 1995 flood. Lyons, with the consent of the City, gratuitously “restored” the berm “to its original condition” using Woods’ bulldozer. Lyons knew nothing about a dam and did no other work pertaining to the W-14 Canal. The Carbos presented no summary judgment facts that conflict with these facts.

| ¡^Initially, it must be noted that no summary judgment evidence was presented by the Carbos that connects Lyons or Sun-mark with the dam and creek obstructions about which the Carbos complain in injunction requests (1), (3) and (4) listed herein above. Therefore, there is no genuine issue of material fact concerning Lyons’ testimony that he had no knowledge of, or connection with, these obstructions. Accordingly, Lyons and Sunmark are entitled to summary judgments on those issues.

As to the repair of the W-14 Canal berm (item 2), the trial court held, in part, that Lyons and Sunmark could not be enjoined to remove “all material from the western bank of the W-14 Canal” berm because they were mandataries for the City “as a matter of law”. In a written interrogatory, the City denied “that Gregg S. Lyons was acting as a duly authorized agent for the City of Slidell when he made repairs to the ‘berm’ or levee on the west side of the W-14 Canal in May 1995.” This is a genuine issue of material fact of the type that ordinarily would preclude a summary judgment. The trial court judge erred by ruling otherwise.

However, Lyons and Sunmark are entitled to summary judgment whether they were or were not mandataries. The trial court held, and the uncontested facts show, that neither Lyons nor Sunmark owned or controlled the berm or the property and/or servitude on which it was constructed. The property is owned by Racole. Thus, Lyons and Sunmark as non-owners have no legal authority to enter the property and/or remove the berm (assuming that the Carbos are entitled to such relief). They merely gratuitously repaired the berm with the consent of the City (when the City acted with apparent authority). Racole is not a party to this suit and will not be affected by a judgment rendered herein.

Finally, the Carbos assert that “... as the sole owner of these companies, Mr. Lyons controls, manages, and is completely responsible for the said property”, Lyons is “the alter ego of the above mentioned companies and every act undertaken was by Mr. Lyons and his solely owned companies” and the corporations “were simply established for tax purposes.” Lyons, Sunmark and Racole are three separate persons. La. C.C. art. 24. The shareholders of a corporation (Lyons and his wife) are not liable personally for the acts of the corporations. La. R.S. 12:93. In Riggins v. Dixie Shoring Co., Inc., 590 So.2d 1164, 1168 (La.1991), the court stated that when considering “piercing the corporate veil” the following factors should be considered, along with the totality of the circumstances: (1) commingling of corporate and shareholder funds; (2) failure to follow statutory formalities for incorporating and transacting corporate affairs; (3) under capitalization; (4) failure to provide separate bank accounts and bookkeeping records; and (5) failure to hold regular shareholder and director meetings. The Carbos have produced no summary judgment evidence pertaining to any of these five factors. Accordingly, this argument must fail.

These assignments of error are without merit.

DECREE

For the foregoing reasons, the summary judgment granted in favor of Lyons and Sunmark against the Carbos is affirmed; the summary judgment granted in favor of the Parish against the Carbos is reversed and this portion of the Carbos’ claim is remanded to the trial court for further proceedings in accordance with law. The Carbos and the Parish are each cast for 50% of the total cost of this appeal of $1,728.25.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

FITZSIMMONS, J., concurs in the result, and assigns reasons.

FITZSIMMONS, J., concurs in the result, and assigns reasons.

| iFITZSIMMONS, Judge,

concurring, with reasons.

I respectfully concur in the result. Admittedly, the parish owns the servitude over which the canal is located. However, the Carbos have not asked that the canal be removed, nor do they claim that the canal worsened their drainage in violation of the servitude agreement. The obstructions complained of are the dam and the berm. Genuine issues of material fact do remain on whether the parish acquired servitudes or rights of way over the property where the berm and dam were built, and whether the parish performed any maintenance. As to Lyons and Sunmark, no genuine issues of material fact exist concerning the only issues raised by the Carbos on appeal.

      . Additional persons not pertinent to this appeal were subsequently added as parties defendant.

      . Lyons and Sunmark also filed a cross-claim against the City for indemnification and/or contribution. The trial court granted a summary judgment in favor of them and against the City on the cross-claim. The City did not appeal this judgment.

      . These obstructions are referred to in the record as a berm, levee and/or a dam. It appears that the dam is a separate structure from the berm.

      . The descriptions of the Carbos' property on the survey map and in the servitude agreement are not identical. The record does not show how the Carbos acquired ownership nor does it contain a chain of title from Scogin to the Carbos. However, in brief, the Carbos concede that the Scogin servitude affects their property. La. C.C. art. 1853.

      . This document shows it was recorded in the public records on March 25, 1952, in Convey-anee Book 205, folio 347.

      . There is jurisprudence that indicates that injunction is not available where a public work is completed or substantially completed. Verdun v. Scallon Bros. Contractors, Inc., 263 La. 1073, 270 So.2d 512 (1972); Gray v. State, Dep't of Highways, 250 La. 1045, 202 So.2d 24 (1967). Cf. Airline Constr. Co., Inc. v. Ascension Parish School Bd., 568 So.2d 1029 (La.1990); Bristol Steel and Iron Works, Inc. v. State, Dep’t of Transp. and Dev., 507 So.2d 1233 (La.1987).

      . A person as used in this opinion can refer to a natural or juridical person. La. C.C. arts. 24, 479 and 641.

      . See also Sharp v. Harrell, 1999-0737 (La.App. 1 Cir. 5/12/00), 762 So.2d 1119, writ denied, 2000-2458 (La.11/3/00), 773 So.2d 150 (power line); Wood v. Bonomolo, 2000-61 (La.App. 5 Cir. 5/30/00), 762 So.2d 261, writs denied, 2000-2345, 2000-2276 (La. 12/8/00), 776 So.2d 459 (alley).

      . The map attached to the Carbos' petition as Exhibit C shows the Carbos have a twelve foot wide drainage ditch that flows into the W-14 Canal. The record does not reflect to what extent, if any, this drainage channel alters the natural drainage on the Carbos' property.

      . See A. Yiannopoulos, 2 La. Civ. Law Treatise, Property, § 79, pp. 160-164 (4th Ed.2001).

      . The prescriptive period for these rights is not at issue in this case. Because these rights do not pertain to a natural servitude, La. C.C. art. 758 does not apply.

      . In his affidavit, Zechenelly stated "the W-14 Canal was created several decades ago by the Louisiana Department of Transportation and Development’s Office of Public Works.” La. Const, of 1974, art. VI, § 20; La. R.S. 33:1324 and various statutes in Title 38 of the Revised Statutes.