author: | ¡¡PARRO, J.

text:
    David HENDERSON v. KINGPIN DEVELOPMENT COMPANY and Riddick Investments, Ltd.
    No. 2001 CA 2115.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 6, 2003.

      S. Bradley Rhorer, Baton Rouge, for Plaintiff-Appellee David Henderson.
    Richard P. Reina, Denham Springs, for Defendant-Appellant Kingpin Development Company.
    Patricia Turner Riddick, Winston Wade Riddick, Baton Rouge, for Defendant-Appellant Riddick Investments, Ltd.
    Before: PARRO, McDONALD, and JAMES, JJ.

      . Judge A. Clayton James, retired from the Twenty-Second Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | ¡¡PARRO, J.

This is an action by a property owner, who was a third possessor, to set aside a sheriffs sale of his property to the foreclosing mortgagee and the subsequent sale to a purported good faith purchaser. For the following reasons, the trial court’s judgment, granting summary judgment in favor of the third possessor, is affirmed in part, reversed in part, vacated in part, and remanded.

Factual Background and Procedural History

The factual background, as reflected in the pleadings filed of record in this case, is as follows. Jesse and Cynthia M. Juban were owners of a four-acre tract of land situated in Section 4, Township 7 South, Range 3 East, in Livingston Parish, when they executed an act of exchange relative to this land on August 13, 1986, in favor of Ted Ray Juban (Juban). The act of exchange incorrectly reflected that the property being transferred to Juban was situated in Section 9, as opposed to Section 4.

Juban also executed a promissory note and a collateral mortgage on August 13, 1986. The obligation evidenced by the promissory note was secured by the collateral mortgage. This mortgage was recorded on August 14, 1986. The mortgage identified the subject property as a four-acre tract situated in Section 9, but a referenced map that was allegedly attached to the mortgage document reflected the property’s actual location in Section 4.

On April 23, 1996, David C. Henderson (Henderson) purchased from Juban the immovable property that is the subject of this lawsuit. The act of sale was recorded on April 24, 1996. At some point in time, Kingpin Development Company (Kingpin) apparently became the holder of the 1986 note secured by the 1986 collateral mortgage. On July 18, 1997, Kingpin filed a petition for executory process, seeking a writ of seizure and sale of the property given by Juban as security for the 1986 [¡¡collateral mortgage. Juban was the only named defendant in Kingpin’s petition, which identified the property as being situated in Section 9. The trial court ordered the issuance of the writ on July 23, 1997. Kingpin purchased Henderson’s property at a sheriffs sale that was conducted in early 1998, without notice of such sale being given to Henderson. Subsequently, Kingpin sold the property to Riddick Investments, Ltd. (Riddick).

On August 4, 2000, Henderson filed a petition to set aside the sheriffs sale. As a basis for his attack on the sheriffs sale, Henderson argued the following: the invalidity of the mortgage based on the prescription of the underlying promissory note and the lack of timely reinscription of the mortgage; the sheriffs sale involved property described as being situated in Section 9; the lack of notice to the record owner of the property of the petition for executory process and the subsequent sheriffs sale; the lack of service on Juban of the citation in the petition for executory process; and the absence of authentic evidence to support the executory proceeding. In his petition, Henderson also sought a judgment declaring him to be the owner of the property in question free and clear of all encumbrances.

To Henderson’s petition, Riddick and Kingpin separately filed peremptory exceptions raising the objections of no right of action and prescription. Riddick also filed a peremptory exception raising the objection of no cause of action. The trial court overruled all of these exceptions. Subsequently, Henderson filed a motion for summary judgment, contending that there were no genuine issues of material fact and that he was entitled to the requested relief as a matter of law based on allegations questioning the viability of the mortgage and the lack of constitutionally mandated notice. In an affidavit attached to his motion, Henderson declared that he purchased the subject property from Ju-ban on April 23,1996, and recorded the act of transfer the following |4day. He further attested that he did not receive notice of the March 18,1998 sheriffs sale.

Kingpin and Riddick opposed Henderson’s motion for summary judgment on the basis that Henderson, a third possessor, failed to meet the requirements of LSA-R.S. 13:3886.1, which governs the rights of a third possessor who is not given notice of a sheriffs sale. They also asserted this statutory provision as support for their newly filed peremptory exception raising the objections of no cause of action and prescription. After considering the pleadings, evidence, and arguments of counsel, the trial court overruled Kingpin and Riddick’s peremptory exceptions and granted Henderson’s motion for summary judgment. The trial court ordered that the purported sheriffs sale of Henderson’s property be set aside and declared Henderson to be the owner of the four-acre tract in question, free and clear of all claims of Kingpin and Riddick. From the judgment to that effect, Kingpin and Rid-dick appealed, contending that there were genuine issues of material fact that precluded summary judgment in this case. Furthermore, relying on LSA-C.C. art. 3315, LSA-C.C.P. art. 2703, and LSA-R.S. 13:3886.1, they argue that the trial court erred in denying their peremptory exception raising the objections of no cause of action and prescription. They also submit that the trial court erred in declaring Henderson to be the owner of the property free and clear of their claims based on Riddick’s status as a good faith third-party purchaser.

Standard of Review

Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Jarrell v. Carter, 632 So.2d 321, 323 (La.App. 1st Cir.1993), writ denied, 94-0700 (La.4/29/94), 637 So.2d 467. The summary judgment procedure is favored and is designed to secure |sthe just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Rambo v. Walker, 96-2538 (La.App. 1st Cir.11/7/97), 704 So.2d 30, 32. 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. LSA-C.C.P. art. 966(B).

When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing that there is no genuine issue of material fact is on the party bringing the motion. LSA-C.C.P. art. 966(C)(2); Buck’s Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431.

Notice Provisions in Executory Proceedings and LSA-R.S. 13:3886

Louisiana law provides two means of enforcing a conventional mortgage — ordinary or executory proceedings. LSA-C.C.P. art. 3721. When a mortgage contains a confession of judgment, a person may enforce the mortgage through execu-tory process, which is an action in rem. See LSA-C.C.P. art. 2631. The person must file a petition to enforce the mortgage, requesting the seizure and sale of the subject property. LSA-C.C.P. art. 2634. The court reviews the petition and supporting documents and, if the seizing creditor is entitled thereto, orders the issuance of a writ of seizure and sale, commanding the sheriff to seize and sell the property affected by the mortgage. See LSA-C.C.P. arts. 2635-2638. In general, the statutory scheme for executory proceedings includes no express requirements of actual notice to the defendant (debtor), except that the sheriff is mandated to serve upon the defendant a written notice of the seizure of the subject property— after the order has been signed. See LSA-C.C.P. art. 2721(B). The only other notice required is the advertisement of the | fisheriffs sale. LSA-C.C.P. art. 2722; Davis Oil Company v. Mills, 873 F.2d 774, 777-778 (5th Cir.), cert. denied, 493 U.S. 937, 110 S.Ct. 331, 107 L.Ed.2d 321 (1989).

If the original debtor or his legal successor has sold the property to a third person, the mortgage may nevertheless be enforced by executory process directly against the property, without regard to any sale or alienation of the property to the third person. LSA-C.C.P. art. 2701. In the case of executory proceedings, there is no statutory requirement that the present owner receive notice of the seizure. Small Engine Shop, Inc. v. Cascio, 878 F.2d 883, 885 (5th Cir.1989); see LSA-C.C.P. art. 2701.

An additional feature of the Louisiana statutory scheme for notice is the so-called request-notice provision contained in LSA-R.S. 13:3886. Under LSA-R.S. 13:3886, any person may obtain notice of the seizure of specific immovable property by paying a ten-dollar fee to the sheriff and by filing the request for notice of seizure, together with his or her name and address, in the mortgage records of the parish where the property is located. The act of requesting notice under LSA-R.S. 13:3886 allows one whose identity as an interested person may not otherwise be readily ascertainable to protect his or her interest in the subject property through a single, simple act. Davis Oil Company, 873 F.2d at 791. In other words, LSA-R.S. 13:3886 acts as a supplement to notice by publication, allowing otherwise unascertainable parties to make themselves known. Small Engine Shop, Inc., 878 F.2d at 889. It does not relieve the responsible state actor in a particular case from exercising the reasonable diligence appropriate in the circumstances to ascertain, reasonably, the identity of an individual or entity subject to the deprivation of his or its property. Small Engine Shop, Inc., 878 F.2d at 893 n. 9. Accordingly, a party with an interest in property does not waive its due process rights by failing to request notice under LSA-R.S. 13:3886. See Davis Oil Company, 873 F.2d at 787.

17Failure to Give Notice (LSA-R.S. 13:3886.1)

Concerning the failure to give notice of seizure to a person having an interest in the property, LSA-R.S. 13:3886.1 provides:

A.The failure to notify any lienholder or other interested person having an interest in the property shall not affect the rights of the seizing creditor nor invalidate the sheriffs sale; nor shall any lien, privilege, or other encumbrance that is inferior to the rank of the lien of the seizing creditor affect the property after the sheriffs adjudication. The exclusive remedy for any person affected by the provisions of this Subsection shall be to institute a claim by summary pleadings, within one year from the date of the sheriffs adjudication, proving that he has been damaged by the failure to notify him. In connection with any such claim, the court shall consider and the person claiming damages shall have the burden of proving all of the following:
(1) That his name and address were reasonably ascertainable through the exercise of reasonable diligence.
(2) That he lacked actual knowledge of the seizure.
(3) The respective ranking and amounts of all liens, privileges, and other encumbrances affecting the property as of the date of the sheriffs adjudication.
(4) The value of such respective rights.
(5) The value of the property as of the date of the sheriffs adjudication.
(6) The respective positions the parties would have occupied had the required notice been given.
(7) His ability and capacity to have obtained funds to purchase the property at the foreclosure sale had the required notice been given.
(8) That in such circumstances he would have bid on the property in such an amount as to have prevented him from suffering the alleged damages, either by such bid being successful or by such bid leading to a higher bid by another party.
B. In no event shall the claim of any such person exceed the value of the interest he possessed on the date of the sheriffs adjudication.
C. The provisions of this Section shall be applied both retrospectively and prospectively; however, any action for which the time period for bringing such action would otherwise be shortened by the provisions hereof shall be instituted within one year from July 17, 1991, and any suit not instituted within that time and any claims relating thereto shall be forever barred.

|8We note that LSA-R.S. 13:3886.1 has been found to be applicable to third possessors. See Matter of MHC Properties, Inc., 624 So.2d 977, 978 (La.App. 3rd Cir. 1993). Although the third possessor in that case had assigned as error the failure of the trial court to apply the due process requirements under the Fourteenth Amendment, that error was not briefed and was therefore considered abandoned. Matter of MHC Properties, Inc., 624 So.2d at 978. However, the appellate court found the third possessor had actual notice of the seizure and sale by virtue of service of the foreclosure proceedings on its president, director, and agent for service of process, who was present at the time of the sheriffs sale. Matter of MHC Properties, Inc., 624 So.2d at 979. Therefore, it appears procedural due process was in fact satisfied under the facts of that case.

Due Process Clause of the Fourteenth Amendment Versus LSA-B.S. 13:3886.1

The provision of the Fourteenth Amendment of the United States Constitution that no state shall deprive any person of life, liberty, or property without “due process of law,” requires that deprivation of life, liberty, or property by adjudication be preceded by notice and an opportunity for hearing appropriate to the nature of the case. See Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 70 S.Ct. 652, 656-657, 94 L.Ed. 865 (1950). Certainly, the seizure and sale of the subject property by the use of state foreclosure procedures deprived Henderson of a legally protected property interest within the meaning of the Fourteenth Amendment. However, the issue before this court is whether such action violated Henderson’s constitutional right to procedural due process.

In Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the United States Supreme Court found that constructive notice of an impending tax sale was not sufficient to satisfy due process for a mortgagee who was identified in a mortgage that was publicly recorded. Mennonite, 103 S.Ct. at 2711. The court held that notice by mail— or other means as certain to ensure actual notice — is |aa minimum constitutional precondition to a proceeding that will adversely affect the liberty or property interests of any party, if its name and address are reasonably ascertainable. Mennonite, 103 S.Ct. at 2712. A reviewing court must balance the interest of the state and the individual interest sought to be protected by the Fourteenth Amendment. The focus is on the reasonableness of the balance, and whether a particular method of notice is reasonable depends on the particular circumstances. Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 1344, 99 L.Ed.2d 565 (1988).

Kingpin and Riddick argue that the standards for notice established in Mennonite are inapplicable in this case, in that they apply only in cases involving tax sales. We disagree. However, the Louisiana Supreme Court in Magee v. Amiss, 502 So.2d 568 (La.1987), retroactively applied the standards for notice set forth in Mennonite to private foreclosure proceedings, implicitly finding that Louisiana’s private foreclosure proceedings involve state action and implicate due process guarantees. Michael H. Rubin and E. Keith Carter, Notice of Seizure in Mortgage Foreclosures and Tax Sale Proceedings, 48 La. L.Rev. 535, 563 (1988). Accordingly, a seizing creditor who avails itself of Louisiana’s foreclosure procedures is constitutionally obligated to provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action. Davis Oil Company, 873 F.2d at 788, citing Mullane, 70 S.Ct. at 657; see Bonner v. B-W Utilities, 452 F.Supp. 1295, 1300 (W.D.La.1978). The decision in Mennonite sets forth á federal constitutional requirement; thus, its holding regarding standards for notice cannot be altered by a state statute such as LSA-R.S. 13:3886.1, and federal law is controlling in this circumstance. See Parkview Oak Subdivision Corporation v. Tridico, 95-0604 (La.App. 1st Cir.11/9/95), 667 So.2d 1101, 1104, writ denied, 96-0622 (La.5/19/96), 672 So.2d 921.

| ^Identification of Third Possessor

The reasonableness of constructive notice in a particular case may turn on the nature of the property interest at stake and the relative ease or difficulty of identifying such interest holders from the land records and also on the existence of alternative means of insuring the receipt of notice. Davis Oil Company, 873 F.2d at 790. A third possessor has a number of rights that can be asserted effectively only if he is notified of foreclosure proceedings prior to a sale. Rubin and Carter, Notice of Seizure in Mortgage Foreclosures and Tax Sale Proceedings, 48 La. L.Rev. at 547; see LSA-C.C.P. arts. 2702, 2703, and 1092. When the name and address of a third possessor are known to the seizing creditor, the third possessor is entitled to more than constructive notice of the seizure of the subject property in a foreclosure by executory process. See Bonner, 452 F.Supp. at 1302. Although his identity may be unknown to the seizing creditor, a third possessor is entitled to notice by mail, or other means as certain as mail, to ensure actual notice if his name and address are reasonably ascertainable through the exercise of reasonably diligent efforts. See Mennonite, 103 S.Ct. at 2711-2712. Mennonite does not require actual notice to every party who has a publicly recorded interest in the subject property. Davis Oil Company, 873 F.2d at 790. However, if a third possessor’s name and address could be found in a publicly recorded instrument after a reasonably diligent search, that person is reasonably ascertainable. See Rubin and Carter, Notice of Seizure in Mortgage Foreclosures and Tax Sale Proceedings, 48 La. L.Rev. at 569, citing Mennonite, 103 S.Ct. at 2708-2709.

Although it may be reasonable to draw some line limiting a seizing creditor’s obligation to search land and conveyance records, Davis Oil Company, 873 F.2d at 790 n. 24, the burden of searching the conveyance records to determine whether Juban had transferred the property to a third possessor would not have been unreasonable under the circumstances of this case. Based on the allegations of record, a search of the conveyance records for the transfer to Henderson would have involved only a single In search. Accordingly, we find that the exercise of reasonable diligence required that Kingpin search the conveyance records to ascertain the identity of a subsequent owner of the subject property.

If Henderson’s name, identity as a third possessor, and address were readily ascertainable from the conveyance records of Livingston Parish, he was entitled to actual or mailed notice of the seizure and sale of the subject property. In an affidavit attached to his motion for summary judgment, Henderson declared that he purchased the property from Juban on April 23, 1996, and recorded the act of transfer the following day. He further attested that he did not receive notice of the March 18, 1998 sheriffs sale. However, the alleged act of sale from Juban to Henderson was not filed in the record, nor is there any information concerning the parties to the alleged act of sale in the record on appeal. Such information is crucial to a determination as to whether the exercise of reasonable diligence would have uncovered the identity of Henderson as a third possessor, as well as his name and address, before the sheriffs sale occurred in this case, so as to have entitled him to actual or mailed notice of the seizure. Accordingly, we find that a genuine issue of material fact exists in this case, and the trial court’s grant of summary-judgment was improper.

Decree

For the foregoing reasons, that portion of the trial court’s judgment denying Kingpin and Riddick’s peremptory exception is affirmed. In all other respects, the judgment is reversed and vacated, and this case is remanded for further proceedings | ^not inconsistent with this opinion. The parties are responsible for payment of their own costs in connection with this appeal.

AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED.

      . A third possessor is one who acquires mortgaged property and who is not personally bound for the obligation the mortgage secures. LSA-C.C. art. 3315. One who acquires the mortgaged property without knowing of the mortgage, or who expressly takes it "subject to” the mortgage, but without assuming the principal obligation secured by the mortgage, is a third possessor. LSA-C.C. art. 3315, comment.

      . Henderson, the record owner of the property in question, was not served with Kingpin's petition.

      . Henderson never received notice of the order.

      . The clerk of court is required to issue a demand for payment, which shall notify the defendant that, in default of payment within three days of service, exclusive of holidays, a writ of seizure and sale will be issued; however, the demand for payment need not be issued if it has been waived by the debtor in the act of mortgage. LSA-C.C.P. art. 2639.

      . If Henderson’s identity was known or reasonably ascertainable, then termination of his ownership interest without actual or mailed notice violated due process. In such a case, the lack of proper notice under the Fourteenth Amendment invalidated the sale, notwithstanding LSA-R.S. 13:3886.1, LSA-R.S. 13:4112, and LSA-R.S. 9:5622. See Magee, 502 So.2d at 572-573; Parkview Oak Subdivision Corporation, 667 So.2d at 1104; see also Smith v. Brooks, 97-1338 (La.App. 3rd Cir.4/15/98), 714 So.2d 735, 739 (holding that the failure to give notice of the tax delinquency and sale to the record owner rendered the tax sale an absolute nullity, notwithstanding the peremptive period set forth in LSA-Const. art. VII, § 25(C), in deference to the supremacy of the Fourteenth Amendment to the United States Constitution as interpreted in Mennonite). Thus, we find no error in the trial court’s denial of Kingpin’s and Riddick’s peremptory exception raising the objections of no cause of action and prescription.


source: Caselaw Access Project

author: JgCIACCIO, J.

license: Public Domain

text:
    Timothy K. DUNAWAY v. LAKEVIEW REGIONAL MEDICAL CENTER.
    No. 2002 CA 2313.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 6, 2003.

      Irving J. Warshauer, Tracey L. Rannals, New Orleans, Counsel for Plaintiff/Appellant Timothy K. Dunaway.
    S. Daniel Meeks, Patrice W. Oppenheim, Metairie, Counsel for Defendant/Appellee Lakeview Regional Medical Center.
    Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

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

   JgCIACCIO, J.

This is an appeal from a workers’ compensation proceeding in which the claimant was denied relief upon a finding that he failed to prove he contracted a Pseudomo-nas aeruginosa infection during the course and scope of his employment at a hospital. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The claimant, Timothy K. Dunaway, began his employment with Lakeview Regional Medical Center (Lakeview) in Cov-ington, Louisiana, as a registered nurse, in 1995. On April 12, 1998, while off-duty, Mr. Dunaway was operating his recreational boat when it struck a sandbar in the Pearl River Navigational Canal. The collision caused Mr. Dunaway to suffer multiple facial and nasal fractures that required extensive reconstructive surgery. Mr. Dunaway was unable to work from the date of the accident until July 13, 1998, when his surgeon, Dr. Richard Sabatier, released him to return to work without any restrictions.

Following his return to duty, Mr. Duna-way worked in the cardiac rehabilitation unit at Lakeview until a second surgery, in August of 1999, was necessitated by complications unrelated to the instant proceedings. Thereafter, Mr. Dunaway returned to work at Lakeview in November of 1999, without restriction. Because healing of Mr. Dunaway’s wounds was incomplete and he was concerned about his disfigurement, an attempt was made to avoid scheduling Mr. Dunaway to work “on the floor” or with cardiac patients having open wounds. Nevertheless, Mr. Dunaway, at times, did work “on the floor,” requiring him to handle IV lines, chest tubes, urinary bladder catheters, and other wound drainage.

In December of 1999, Mr. Dunaway began to experience a green discharge and a foul smell from his nasal area, along with discomfort in the nasal cavity, and fever. On December 29, 1999, a sinus culture was collected, and it was determined that he had contracted Pseudomonas aeruginosa, a bacterial infection. Mr. Dunaway continued working until January 7, 2000. In correspondence dated January 11, 2000, Dr. Sabatier explained to Lakeview that Mr. Dunaway was unable to work because of the infection.

Although Mr. Dunaway returned to work again in February 14, 2000, he underwent another surgery in April of 2000, and by June of 2000 discovered that he |3was still infected with Pseudomonas ae-ruginosa. Dr. Sabatier stated, in a June 2, 2000 letter, that Mr. Dunaway should not have contact with patients due to his infection. Because of his condition, Mr. Dunaway was unable to return to work, and has undergone additional treatment and surgeries.

On November 20, 2000, Mr. Dunaway filed a disputed claim for compensation with the Office of Workers’ Compensation (OWC), contending that he contracted the Pseudomonas aeruginosa infection during the course and scope of his employment as a registered nurse at Lakeview. Following a May 16, 2002 trial, the OWC judge signed a judgment on June 24, 2002, finding that Mr. Dunaway had “failed to prove he contracted an occupational disease related to his employment at Lakeview Regional Medical Center under the provisions of La. R.S. 28:1031.1.” Mr. Dunaway’s suit was dismissed. From this judgment, Mr. Dunaway appealed and on appeal asserts the following assignments of error:

1) The [OWC] erred in making no finding on whether Timothy Dunaway suffered a work related “accident” at Lakeview Regional Medical Center under the provisions of La. R.S. 23:1021.
2) The [OWC] erred in finding that employee, Timothy Dunaway, failed to prove that he contracted an occupational disease related to his employment at Lakeview Regional Medical Center under the provisions of La. R.S. 23:1031.1.

LAW AND ANALYSIS

Occurrence of an Accident under La. RS. 23:1021

Mr. Dunaway contends that he contracted the Pseudomonas aeruginosa infection at Lakeview, and thus, suffered an “accident” in the course and scope of his employment pursuant to La. R.S. 23:1021. Mr. Dunaway asserts that he is entitled to recover workers’ compensation benefits as a result of the Pseudomonas aeruginosa infection. Further, Mr. Dunaway argues that the OWC judge erred in failing to make a determination as to whether he sustained a work-related accident at Lake-view.

Under La. R.S. 23:1031(A), an employee who sustains a personal injury by an accident arising out of and in the course and scope of his employment is entitled to collect workers’ compensation from his employer, unless he is otherwise eliminated from benefits under the provisions of Title 23. An “accident” is defined by La. R.S. 23:1021(1) as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at |4the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” The claimant has the burden of proof to establish a work-related accident by a preponderance of the evidence. Bolton v. B E & K Construction, 2001-0486, p. 8 (La.App. 1 Cir. 6/21/02), 822 So.2d 29, 35, citing Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992). The factual findings of the OWC judge are subject to the manifest error standard of review. Bolton v. B E & K Construction, 2001-0486 at p. 7, 822 So.2d at 35.

In written reasons for judgment, the OWC judge reasoned as follows:

Mr. Dunaway must prove he contracted pseudomonas as a result of a cause or condition peculiar to and characteristic of his work as a nurse.
* * *
Looking at the expert medical evidence as a whole, the court finds that Mr. Dunaway has failed to prove he contracted pseudomonas as a result of his employment at Lakeview. The medical evidence and literature is devoid of any support for the proposition that hospital workers are more susceptible to contracting pseudomonas than other groups. Additionally, as of his August 1999 hospitalization and surgery at St. Tammany Parish Hospital, Mr. Duna-way already exhibited risk factors for pseudomonas: he was on a course of antibiotics because of sinusitis and he was hospitalized and underwent a surgical procedure, after which he was placed in intensive care. Therefore, it is just as likely or possible that Mr. Dunaway was exposed to and contracted the bacteria during his August 1999 hospitalization.

After a thorough review of the testimony and evidence appearing in the record, we are unable to say the trial court erred in finding that Mr. Dunaway failed to prove he sustained the Pseudomonas ae-ruginosa infection at work. We find no merit in Mr. Dunaway’s argument that the formal judgment entered by the OWC judge mentioned only that Mr. Dunaway failed to prove an “occupational disease” and did not mention that the La. R.S. 23:1021 cause of action was denied as well. Mr. Dunaway’s suit was dismissed by the judgment rendered. It is well settled that silence in a judgment as to any issue litigated is construed as a rejection of that issue. Junot v. Morgan, 2001-0237, p. 4 (La.App. 1 Cir. 2/20/02), 818 So.2d 152, 156.

Claim for Occupational Disease under La. R.S. 23:1031.1

In addition to Mr. Dunaway’s claim under La. R.S. 23:1021, he asserts that his condition qualifies for workers’ compensation benefits as an occupational disease under La. R.S. 23:1031.1, which provides, in pertinent part, as follows:

A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an |Bemployee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

Prior to the legislative extension of workers’ compensation coverage to include occupational diseases, a worker’s entitlement to compensation hinged on the occurrence of an “accident,” which can only be established by the heightened burden of proof by the claimant of an “identifiable precipitous event” that caused injury. See O’Regan v. Preferred Enterprises, Inc., 98-1602, pp. 10-13 (La.3/17/00), 758 So.2d 124, 132-33. While enlarging workers’ compensation coverage to cases of occupational disease, La. R.S. 23:1031.1 retains the requirement that an employee establish the disease arises from his work, i.e., from “causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.” See Coats v. American Telephone & Telegraph Company, 95-2670, p. 7 (La.10/25/96), 681 So.2d 1243, 1247. Thus, the claimant must show that he contracted the disease at issue during the course of his employment and that the disease was the result of the nature of the work performed. Vargas v. Daniell Battery Manufacturing Company, 93-1249, pp. 7-8 (La.App. 1 Cir. 5/20/94), 636 So.2d 1194, 1197. The causal link between a claimant’s illness and his work-related duties must be established by a reasonable probability; the claimant fails in his burden of proof upon a showing of only a possibility that the employment caused the disease or that other causes not related to the employment are just as likely to have caused the disease. Comeaux v. Star Enterprise/Motiva Enterprise, 2002-0024, p. 8 (La.App. 1 Cir. 12/20/02), 836 So.2d 359, 364.

Mr. Dunaway testified at trial that he believed that he contracted his infection at work. Mr. Dunaway explained that he could have violated the universal precautions that are generally adhered to by healthcare workers, which require a worker, after handling patients, to refrain from touching his/her body and to wash his/her hands and change 1 figloves. Mr. Dunaway asserts that he could have contracted the infection by touching himself with his glove, his bare hand, or from direct patient contact. Mr. Dunaway also surmised that the infection could have come from his lab coat or from something he touched. However, Mr. Dunaway admitted that he could not identify a specific patient with whom he had contact at Lakeview, who had a Pseudomonas aeruginosa infection during the pertinent time period.

Mr. Dunaway’s co-worker at Lakeview, Peggy Verlander, was a registered nurse who also served as the director of the cardiac rehabilitation unit. Ms. Verlander testified that she prepared Mr. Dunaway’s work schedule and purposefully avoided scheduling him “on the floor,” handling patients with IV lines, catheters, dressings, or open wounds. However, Ms. Ver-lander admitted that once, on December 25, 1999, Mr. Dunaway was scheduled “on the floor.” It was Ms. Verlander’s testimony that if Mr. Dunaway did work “on the floor” at other times, it was of his own volition and not due to scheduling or necessity.

The OWC judge’s written reasons placed great emphasis on the testimony of the expert witnesses, noting that Mr. Dun-away’s experts, Drs. William Grant and Camille Bitar, were not board certified in infectious diseases, while Lakeview’s expert, Dr. David Martin, was board certified in infectious diseases.

Dr. Grant testified in his deposition that he had never seen Pseudomonas aerugi-nosa as a community-acquired organism, and that it is “nosocomial,” meaning that it can only be acquired in a hospital setting. Yet, the OWC judge noted that the literature Dr. Grant attached to his affidavit contradicted his testimony. The literature disclosed that Psetidomonas aeruginosa could be community-acquired, as it thrives in moist settings. The OWC judge also noted that while Dr. Grant testified that Pseudomonas aeruginosa was nosocomial, he presented no supporting documentation to indicate that hospital workers were at a greater risk, and the literature indicated that it was hospital patients who were at an increased risk of infection.

Dr. Bitar acknowledged in his deposition that Pseudomonas aeruginosa was not merely hospital-acquired, but could be community-acquired. He testified that it was his opinion that Mr. Dunaway more likely than not acquired the infectious colonization from his job, but he admitted that he could not rule out other possibilities.

17Pr. Martin testified in his deposition that Pseudomonas aeruginosa could be found in various places and could be contracted in a hospital or, just as easily, in any other place. Dr. Martin explained that healthcare workers are not recognized as a group that is at high-risk for Pseudo-monas aeruginosa infection. Dr. Martin also explained that Mr. Dunaway could have contracted this organism prior to returning to work in December of 1999, since he did have chronic sinusitis, which made him more susceptible to having a Pseudo-monas aeruginosa infection. Additionally, Dr. Martin explained that since a culture was not taken prior to that time, it is not known when Mr. Dunaway could have contracted the organism, and the infection could have occurred when he was hospitalized for his previous surgeries.

Although Mr. Dunaway asserts there exists a presumption that he contracted the occupational disease at his work place, evidence in the record provides a reasonable basis for the OWC finding that this infection was latent and could have been contracted in various settings. Mr. Duna-way’s earlier surgeries and hospital stays exposed him to other hospital settings where he could have just as likely have contracted the Pseudomonas aeruginosa infection. The OWC judge heard conflicting expert testimony as to the most likely cause of Mr. Dunaway’s infection. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Hull v. Fluker Farms, 2000-0757, p. 6 (La.App. 1 Cir. 5/11/01), 787 So.2d 535, 539-40, writ denied, 2001-2291 (La.11/16/01), 802 So.2d 612. Hence, we are unable to say the OWC judge erred in finding Mr. Dunaway failed to prove he sustained an occupational disease in his employment with Lakeview.

CONCLUSION

For the reasons assigned herein, the OWC judgment is affirmed; all costs of this appeal are assessed to appellant, Timothy K. Dunaway.

AFFIRMED.


author: | gPARRO, J.

text:
    Ricky E. NEWMAN v. RICHARD PRICE CONSTRUCTION.
    No. 2002 CA 0995.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 8, 2003.

      Michael B. Forbes, Hammond, for Plaintiff-Appellant Ricky E. Newman.
    Stephen W. Brooks, Jr., William G. Tabb, III, Richard J. Voelker, The Brooks Law Firm, L.L.C., Covington, for Defen-danL-Appellee Richard Price Construction.
    Before: PARRO, McDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | gPARRO, J.

An employee appeals from a judgment of the Office of Workers’ Compensation Administration, granting his former employer’s motion for summary judgment based on a finding that the employee had forfeited his right to workers’ compensation benefits pursuant to LSA-R.S. 23:1208. For the following reasons, the judgment is reversed.

Facts and Procedural History

On May 7, 2001, Ricky E. Newman (Newman) filed a disputed claim for workers’ compensation, alleging that on February 12, 2001, while employed with Richard Price Construction (Price Construction), he tripped and fell while carrying steel rebar. An injury to his right leg was given as the basis for his claim. No further information about his alleged injury was provided on the claim form, which indicated that the accident had been reported to his supervisor, Dennis. His claim further indicated that no indemnity benefits had been provided, nor had Price Construction authorized any medical treatment. Newman sought authorization to obtain treatment from an orthopedist, temporary total disability benefits, attorney fees, and penalties.

Subsequently, Price Construction filed a motion for summary judgment relative to Newman’s entitlement to workers’ compensation benefits, which was granted by the workers’ compensation judge, based on the finding that Newman had forfeited his right to workers’ compensation benefits, pursuant to LSA-R.S. 28:1208. From the resulting judgment, Newman appeals, contending the workers’ compensation judge erred in granting summary judgment based on a finding that Newman had forfeited his right to workers’ compensation benefits by violating LSA-R.S. 23:1208.

Summary Judgment

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Jarrell v. Carter, 632 So.2d 321, 323 (La.App. 1st Cir.1993), writ denied, 94-0700 (La.4/29/94), 637 So.2d 467. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. LSA-C.C.P. art. 966(A)(2); Rambo v. Walker, 96-2538 (La.App. 1st Cir.11/7/97), 704 So.2d 30, 32. 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. LSA-C.C.P. art. 966(B).

When appropriate under Articles 966 and 967, summary judgment is available in workers’ compensation cases. See LSA-C.C.P. art. 966(A)(2); LSA-R.S. 23:1317(A); Pope v. Younger Bros, Inc., 96-1604 (La.App. 1st Cir.5/9/97), 693 So.2d 1287, 1289. An appellate court reviews a trial court’s decision to grant a motion for summary judgment in workers’ compensation cases de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Pitts v. Helmrich & Payne Drilling, 98-1345 (La.App. 1st Cir.6/25/99), 739 So.2d 335, 337, writ denied, 99-2194 (La.11/5/99), 750 So.2d 187.

The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing 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, the nonmoving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2); Clark v. Favalora, 98-1802 (La.App. 1st Cir.9/24/99), 745 So.2d 666, 673. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Zeringue v. Karl Ott Poles & Pilings, 00-0522 (La.App. 1st Cir.5/11/01), 808 So.2d 628, 631.

Forfeiture for Violation of LSA-R.S. 23:1208

Newman argues that the trial court’s granting of Price Construction’s motion for summary judgment was improper, since genuine issues of material fact exist as to the issue of whether a violation of LSA-R.S. 23:1208 occurred. In pertinent part, LSA-R.S. 23:1208 provides:

|4A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
* * *
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

This section was intended to prevent and discourage fraud in relation to workers’ compensation claims. LSA-R.S. 23:1208 applies to any false statement or misrepresentation, including one concerning a prior injury, made specifically for the purpose of obtaining workers’ compensation benefits; therefore, the statute generally becomes applicable at the time of an employee’s accident or claim. Resweber v. Haroil Constr. Co., 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7, 14. This broadly worded statute encompasses false statements or misrepresentations made to anyone, including the employer, physicians, or insurers, when made willfully or deliberately for the purpose of obtaining benefits. Resweber v. Haroil Constr. Co., 660 So.2d at 9. It contains no requirement that an employee be put on notice of the consequences of making such false statements or misrepresentations. Resweber v. Haroil Constr. Co., 660 So.2d at 12.

The requirements for forfeiture of benefits under section 1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Constr. Co., 660 So.2d at 14. A claim under LSA-R.S. 23:1208 is appropriate for resolution by way of summary judgment. See Bibins v. St. Francis Cabrini Hospital, 00-133 (La.App. 3rd Cir.6/7/00), 768 So.2d 102, 103-106, writ denied, 00-3015 (La.12/15/00), 777 So.2d 1235.

Price Construction argues that the factual and medical evidence submitted in support of its motion demonstrates numerous and repeated misrepresentations by Newman in furtherance of his workers’ compensation claim. During his deposition, when questioned about prior injuries and medical treatment, Newman testified that he had crushed the index finger on his right hand while working for a previous employer. |s He said that after being out of work for a few weeks, he returned to work for that employer. Newman also recalled sustaining a lower back injury in an automobile accident that had occurred 11 years earlier, for which he received a settlement in conjunction with a pending lawsuit. One year after his lower back injury, Newman fractured his left ankle while cutting grass. During his deposition, Newman said he could not recall any other injuries.

Medical records were introduced by Price Construction to show that Newman failed to state that he had also sought treatment for a March 9, 1994 injury to his left foot and ankle, which resulted when he slipped off a dock, and for a January 4, 2000 head injury from falling out of his bed. In addition to these two injuries, Newman neglected to mention that he was treated on December 10, 1990, and June 13, 2000, for two separate dog bites on his right leg.

Obviously, Newman’s failure to disclose such information when asked in his deposition constituted a false representation. Nonetheless, a false representation alone does not result in the forfeiture of benefits. The employer must also prove that the false representation was willfully made and that it was made for the purpose of obtaining or defeating any benefit or payment.

The word “willful” has been defined as “proceeding from a conscious motion of the will; voluntary; knowingly; deliberate; intending the result which actually comes to pass; designed; intentional; purposeful; not accidental or involuntary.” Grant v. Natchitoches Manor Nursing Home, 96-1546 (La.App. 3rd Cir.5/14/97), 696 So.2d 73, 76, writ denied, 97-1582 (La.10/17/97), 701 So.2d 1330. The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. A false statement which is inconsequential to the present claim may indicate that the statement was not willfully made for the purpose of obtaining benefits. Clearly, an inadvertent and inconsequential false statement would not result in forfeiture of benefits. Resweber v. Haroil Constr. Co., 660 So.2d at 16. The injury to Newman’s left foot and ankle, as well has his head injury, are inconsequential to his present claim. Furthermore, there is no evidence that the two dog bites on his right leg had any causative effect with respect to his claim. Based on the evidence offered in support of Price Construction’s motion for summary judgment, we conclude there are genuine issues of material fact as to whether the false representations were willfully made and whether they were made for the purpose of obtaining or defeating any benefit or payment.

Moreover, in the record of his February 12, 2001 visit to the emergency room for treatment of the injury for which Newman is claiming benefits, the treating physician noted a scrape on his right leg that had occurred a few days earlier. On the other hand, the notes of the treating nurse reported a cut to his right leg that had occurred at approximately 3:00 p.m. that afternoon. The particular document on which Price Construction relies as part of its proof under LSA-R.S. 23:1208 contains inconsistencies as to when the injury occurred and the nature of the injury. Although not completely consistent with his testimony, a portion of those records supports Newman’s claim of an injury occurring on February 12, 2001. Accordingly, we find that a genuine issue as to material fact exists as to whether Newman made false statements to attending hospital personnel on February 12, 2001.

Based on our findings, we conclude that the workers’ compensation judge improperly granted Price Construction’s motion for summary judgment relative to the LSA-R.S. 23:1208 forfeiture issue.

Forfeiture for Violation of LSA-R.S. 23:1208.1

On appeal, Price Construction also urges that the requirements for forfeiture under LSA-R.S. 23:1208.1 were satisfied in this case. Because the workers’ compensation judge did not make such a finding and Price Construction has not 17properly challenged her failure to do so, this issue is not properly before us on appeal. Moreover, we note that the appellate record does not include a copy of the post-hire medical history questionnaire that was completed by Newman a few days after he began working for Price Construction. Therefore, there is no way for this court to determine, nor could the workers’ compensation judge have determined, that the LSA-R.S. 23:1208.1 requirements for forfeiture were satisfied in this case.

Entitlement to Benefits

Aside from its forfeiture arguments, Price Construction maintains that the workers’ compensation judge properly granted its motion for summary judgment relative to Newman’s entitlement to workers’ compensation benefits in light of his failure to produce factual support sufficient to establish that he could satisfy his burden of proving entitlement to indemnity and related medical benefits at trial.

In order to recover workers’ compensation benefits, a claimant must prove by a preponderance of the evidence that a work-related accident occurred. LSA-R.S. 23:1031; Middleton v. Int’l Maint., 95-0238 (La.App. 1st Cir.10/6/95), 671 So.2d 420, 423-424, writ denied, 95-2682 (La.1/12/96), 667 So.2d 523. In addition, the claimant must establish the accident caused the injury and the injury necessitated medical treatment and/or caused a disability. LeBlanc v. Grand Isle Shipyard, Inc., 95-2452 (La.App. 1st Cir.6/28/96), 676 So.2d 1157, 1160-1161.

For purposes of the disposition of its motion for summary judgment, Price Construction did not dispute the occurrence of a work-related accident. Instead, it focused on whether Newman sustained personal injury; and if so, whether the injury was causally related to the work-related accident. Price Construction will not bear the burden of proof on these issues at trial; therefore, its burden on the motion for summary judgment does not require it to negate all essential elements of Newman’s claim. Rather, Price Construction’s burden on the motion for summary judgment is to point out to the court that there is an absence of factual support for one or more |selements essential to Newman’s claim. See LSA-C.C.P. art. 966(C)(2); Babin v. Winn-Dixie Louisiana, Inc., 00-0078 (La.6/30/00), 764 So.2d 37, 39. Thereafter, if Newman cannot provide 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, and summary judgment should be granted. See LSA-C.C.P. art. 966(C)(2).

In support of its motion for summary judgment, Price Construction offered the deposition testimony of Newman, as well as his medical records from Lallie Kemp Medical Center, Earl K. Long Medical Center, and North Oaks Health System (North Oaks).

Newman had testified by deposition as follows. He began working for Price Construction on January 1, 2001, primarily as a pipe layer. On Monday, February 12, 2001, to escape the path of a backhoe working in the area, Newman stepped with his right foot, wearing a muddy boot, onto the top of a curb while carrying four thirty-foot-long pieces of muddy steel rebar that were used in making curbs. As he lifted his left foot from the ground, his right foot slipped; he lost his balance and fell with his right leg landing on the top of the curb, injuring his right shin area. Blood poured down his leg onto his sock from a six-inch-long cut that was opened to the bone. Newman used a borrowed knife to cut off his pant leg, which was used to wrap the injured part of his leg. Following the accident, Newman lay on the ground for approximately 30 minutes, because his leg was hurting and he could not get up. Newman’s supervisor encouraged him to complete the time remaining on his shift — a couple of hours — and to seek medical attention after work if he was still in pain. Newman completed his workday before walking alone to his home, which was a little more than a mile away, because his girlfriend was unable to pick him up and his supervisor had refused to drive him home.

Upon arriving at his home, Newman used an outside hose to wash the mud off of himself, then unwrapped his leg, which was still hurting but had stopped bleeding, and took a bath. After helping him out of the bathtub, Newman’s girlfriend examined his leg. At approximately eight o’clock that evening, a family member or his girlfriend took him to the emergency room at North Oaks. His girlfriend was at the; hospital at the same time, but was being examined because of pregnancy-related pain that she |9was experiencing. While at the emergency room, Newman was evaluated for a cold and for the injury to his leg. On account of his cold, a chest x-ray was taken. A shot and breathing treatment were administered, because he was having difficulty breathing. He explained that while at the hospital, his leg was washed, an over-the-counter antibiotic was applied, gauze was placed on his leg, and he was given a tetanus shot. During this visit, no x-rays were taken of Newman’s leg, nor were stitches applied to his wound. The emergency room physician advised him that his leg would heal and said he should return if his leg bothered him. He was cautioned to stay off his leg for a couple of days.

Newman said the emergency room physician gave him “a paper” to bring to his supervisor. He was uncertain as to whether his need to be off work related to his cold or his leg. Newman recounted that he had returned to work on Thursday and that he continued to work for Price Construction until he was laid off a week- and-a-half later. He felt pain in his leg when he walked on it for a long period of time. During this time, he did not pick up anything.

On the morning of April 30, 2001, Newman returned to the emergency room at North Oaks because of pain in his leg caused by swelling that had occurred during the night. He felt a shocking sensation when he walked. After an examination and a x-ray, Newman was informed that his leg was infected and was given medication for pain and the infection. Based on the information from the x-ray, the emergency room physician recommended that Newman not return to work until he consulted with a specialist.

Newman asked his former supervisor whether Price Construction would pay for him to see a specialist, but this request was denied. Although he testified that he still experienced a sharp, needling pain when he put a lot of pressure on his leg, he said he could not afford to get further treatment or continue on his medication.

Since being laid off by Price Construction, Newman has not been employed. He testified that initially, he could not do much because of the pain in his leg. Although | insince then, Newman thought that he probably could work, he had not applied for employment. From time to time, he had washed cars for cash for people that he knew, but has had no work available to him lately. When asked if he was capable of working now, he responded, “I think I can, but I’m scared because I want to go to this specialist.” He clarified, “I think I could do some work, but I’m not for sure because I want to see a specialist because my leg hurts putting pressure on it.”

The records of North Oaks reveal that Newman visited the emergency room on February 12, 2001. His chief complaints during that visit were of flu related symptoms, including runny nose, cough, cold, fever, and aching all over. Furthermore, he complained to the triage nurse of slipping on steps at approximately 3:00 p.m. that afternoon and cutting his right leg. Nonetheless, the notes of the treating physician reflect that Newman reported that he sustained a scrape to his right leg a few days earlier. Following a physical exam and the chest x-ray, Newman was diagnosed with sinusitis. As a result, he was prescribed an antibiotic and Claritin D for congestion. Additionally, he was advised to increase his fluid intake, use a humidifier, use Advil, and rest. He would be allowed to return to work in two-three days. The records do not reflect that any medical treatment was rendered for the scrape/cut on his right leg.

Due to the lack of any reference to treatment of his right leg on February 12, 2001, Price Construction maintains that any work-related accident occurring earlier that day did not produce personal injury or, alternatively, that any such injury did not necessitate medical treatment or cause physical disability. Based on this contention, it argues that Newman would be unable to prove his claim for workers’ compensation benefits.

The record shows that Newman returned to work a few days after his accident and worked for about a week-and-a-half; after that, at least initially, his reason for not continuing to work was because of his termination, which was unrelated to the accident. Nonetheless, Newman contends that his leg never properly healed despite his home treatment of the wound. Newman explained that even though he realized that his leg was not healing properly, he did not seek further medical treatment until April 30, 2001, and then only because of the extent of the swelling.

InNorth Oaks’ records for April 30, 2001, show that Newman complained of pain, redness, and swelling to his right lower leg related to a fall that occurred in February, causing a laceration to the area which never healed. The examination of his right leg revealed swelling in the mid-shin area, which Newman related to an old injury that seemingly occurred in February. The physician’s diagnosis was pain in the leg secondary to a contusion/abrasion or superficial laceration to lower leg. Medication for the infection and pain was prescribed, and Newman was advised to consult with an orthopedist as soon as possible, apply warm compresses to the affected area, and frequently elevate his right lower leg. A determination was not made at this time as to Newman’s ability to return to work nor were restrictions imposed.

On May 9, 2001, Newman visited the emergency room, again complaining of pain in his right leg related to an old wound to the right leg. Newman reported that the pain was unbearable, he had fever at night, and he was unable to bear weight on his leg. The examination revealed swelling to the mid-lower leg anterior aspect, which was tender to palpation. The treating physician noted complaints of pain in the right lower leg at the site of an injury that occurred two-and-a-half months ago “when patient fell over curb while carrying rebar.” In his history, the physician indicated that the wound had apparently healed, but that the area of the old injury was red and swollen.

During this visit, an x-ray was taken of the right tibia and fibula, because of the treating physician’s concern regarding two small areas of increased density projection along the distal aspect of the tibia in the pretibial location and regarding possible cortical reactive change. A review of the x-ray revealed that these concerns were not related to osteomyelitis or post-traumatic sequela; rather, the report related that “[i]t may well be spurious.”

Newman’s condition was noted as being unimproved. The diagnosis was an abscess , for which Erythromycin, an antibiotic, and pain medication were prescribed, [1g The discharge report does not reveal if the physician felt that the abscess was causally related to the old injury. For follow-up, Newman was directed to see the orthopedist of his choice. He was directed to stay off his leg, to apply warm compresses to his leg, and to keep the leg elevated.

For purposes of the workers’ compensation law, injuries are those that result from violence to the physical structure of the body. LSA-R.S. 23:1021(7)(a). The record, although conflicting, lends support to the fact that Newman may have suffered violence to the physical structure of his body in the break or abrasion of his skin on his right leg, which happened when he slipped because of the muddy working conditions while carrying rebar on February 12, 2001. Price Construction argues that the injury occurring on that date was insufficient to necessitate medical treatment or give rise to a disability. Such may have been the case; however, LSA-R.S. 23:1021(7)(a)’s definition of injury includes diseases or infections that naturally result from injuries by violence to the physical structure of the body. Although it is questionable whether Newman’s injury initially necessitated medical treatment and/or caused a disability, there remain genuine issues of material fact as to whether the conditions for which Newman sought treatment on April 30 and May 9 constitute disease or infection naturally resulting from that injury and whether such disease or infection necessitated medical treatment and/or caused a disability. Given the genuine issues of material fact that are critical to the determination of Newman’s entitlement to workers’ compensation benefits, we find that the workers’ compensation judge’s grant of summary judgment was improper.

Motion for Sanctions

In conjunction with Newman’s appeal, Price Construction filed a motion for sanctions on July 18, 2002, for Newman’s failure to timely serve it with a copy of his appellate brief. Uniform Rules-Louisiana Courts of Appeal, Rule 2-14.1 provides:

Legible copies of all papers filed in a Court of Appeal by any party shall, at or before the time of filing, be delivered or mailed by the party to all other parties, or counsel of record.

[ iSThe fact of such service shall be evidenced by a certificate showing, among other things, how and when such service was accomplished. Uniform Rules-Louisiana Courts of Appeal, Rule 2-14.2.

The certificate attached to Newman’s appellate brief reveals that a copy of his brief was mailed, postage prepaid, to counsel for Price Construction on Thursday, July 11, 2002, the date on which Newman’s brief was filed with this court. Price Construction disputes the accuracy of such certification in light of the Monday, July 15, 2002 postmark placed on the envelope used in forwarding Newman’s brief. Newman’s apparent failure to place the document in the mail on or before the date of filing, July 11, 2002, was classified by Price Construction as an inexcusable oversight, which it deemed prejudicial to future filings. In its motion, Price Construction suggested the following as an appropriate sanction in this case: forfeiture of Newman’s right to oral argument, payment of legal expenses incurred in the filing of this motion, and an extension of its briefing delay. Because his appellate brief was not filed timely, Newman was denied his right to oral argument. Moreover, Price Construction filed its brief within the briefing delay set by this court, thus rendering the need for an extension moot. The Uniform Rules — Courts of Appeal do not specifically authorize any sanctions for a party’s failure to comply with Rules 2-14.1 and/or 2-14.2. Given this lack of specific authorization and the relatively short delay between the filing and the mailing, we decline to impose any sanctions in this case.

Decree

For the foregoing reasons, the summary judgment is reversed, and the matter is remanded to the Office of Workers’ Compensation Administration for further proceedings consistent with this judgment. The motion for sanctions is denied. Costs of this appeal are assessed to Richard Price Construction.

MOTION FOR SANCTIONS DENIED. REVERSED AND REMANDED.

      . The workers’ compensation judge in this case was Honorable Elizabeth A. Warren of District 6S.

      . Medical records disclosed that during his emergency room visit for treatment of the latter bite, his wound was cleaned and antibiotic ointment was applied.

      . LSA-R.S. 23:1208.1 provides:
      Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee's forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer’s ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker’s compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

      . Newman recalled having completed a post-hire medical history questionnaire a few days after being hired. He testified that he had answered the questions truthfully to the best of his knowledge, with the assistance of his girlfriend, who was a nurse’s aide. Counsel for Price Construction indicated in Newman’s deposition that a copy of the questionnaire would be attached as an exhibit, but such attachment was not made part of the appellate record.

      . Newman explained that he had a cold when this injury occurred.

      . According to Newman, he was laid off because of his refusal to apologize in connection with a disagreement that he had with a coworker.

      . Osteomyelitis is inflammation of the bone marrow and adjacent bone. PDR Medical Dictionary 1269 (1st ed.1995). Sequela means a condition following as a consequence of a disease. PDR Medical Dictionary at 1600. Spurious means false or not genuine. PDR Medical Dictionary at 1659.

      . Abscess is defined as a circumscribed collection of purulent exudates appearing in an acute or chronic localized infection, caused by tissue destruction and frequently associated with swelling and other signs of inflammation. PDR Medical Dictionary at 5.

      . In its motion, Price Construction also sought to have Newman’s appeal dismissed, which was denied by this court. Newman v. Richard Price Constr., 02-0995 (La.App. 1st Cir.9/25/02) (unpublished).


author: | .PARRO, J.

text:
    Viregilyer H. WARNER v. Alden Ray WARNER.
    No. 2002 CA 1380.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 13, 2003.

      Jill L. Craft, Baton Rouge, for Plaintiff-Appellant Viregilyer H. Warner.
    Donna W. Lee, Baton Rouge, for Defendant-Appellee Alden Ray Warner.
    Before: PARRO, McDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | .PARRO, J.

An ex-wife appeals from a trial court judgment, which declared that the termination of the former community of acquets and gains was retroactive to the date on which her ex-husband filed his petition for divorce, rather than to the date that her petition for divorce was initially filed or subsequently supplemented. For the following reasons, the judgment is affirmed.

Facts and Procedural History

On September 29, 1995, Viregilyer H. Warner filed a petition for divorce against her husband, Alden Ray Warner. The petition stated that the Warners were married on July 20, 1974, and that she desired a divorce; however, it did not set forth any ground on which the divorce could be granted. In her petition, Ms. Warner also asked to have the legal regime of the community of acquets and gains terminated retroactive to the filing of her petition. An amending and supplemental petition was filed by Ms. Warner on September 5, 1997, in which she alleged that she and Mr. Warner had separated prior to September 29, 1995, and had lived separate and apart since their separation. On December 3, 1997, a waiver of service and citation executed by Mr. Warner was filed in this matter.

On January 26, 1998, allegedly as a plaintiff in reconvention, Mr. Warner filed a pleading entitled “Supplemental Petition for Absolute Divorce” in the proceeding that had been commenced by Ms. Warner, in which he alleged that the parties were married on July 20, 1974, had physically separated on September 29, 1995, and had remained voluntarily separate and apart, without reconciliation, since that date. In light of their living separate and apart for more than 180 days, Mr. Warner sought a divorce under the provisions of LSA-C.C. art. 103. Mr. Warner also requested an order dissolving the community property regime retroactive to the date of the filing of his petition.

On January 27, 1998, Ms. Warner filed a motion requesting that a preliminary default be entered relative to her petition, as amended and supplemented. Three days later on January 30, a preliminary default was entered. Prior to any further action by |sMs. Warner, Mr. Warner filed a motion seeking the entry of a judgment by default pursuant to LSA-C.C.P. art. 1701 relative to his petition for an absolute divorce based on the provisions of LSA-C.C. art. 103(1). In this motion, Mr. Warner stated that service of his petition had been made on Ms. Warner and no answer or other responsive pleadings had been filed by her. A judgment of preliminary default was entered on February 27, 1998, pursuant to Mr. Warner’s motion. Following a hearing on the confirmation of his preliminary default, the trial court granted a judgment on March 5,1998, in favor of Mr. Warner, decreeing a divorce between the parties pursuant to the provisions of LSA-C.C. art. 103(1). This judgment further ordered that the community of acquets and gains between the parties was “dissolved retroactively to the date of the filing of the petition for divorce herein.”

In a subsequent pleading concerning the partition of the community property, Mr. Warner alleged that the community regime had terminated as of September 29, 1995, the date of the filing of the initial petition for divorce by Ms. Warner. However, in an amending and supplemental reconventional demand, he took the position that the community did not terminate until January 26, 1998, the date on which his petition for divorce was filed. In a memorandum, Ms. Warner submitted that by her September 5, 1997 amending and supplemental petition, she “converted her original petition from an action under Civil Code Article 102 to an action under Civil Code Article 103.” She urged that since Mr. Warner had not filed any affirmative pleadings in response to her supplemental petition for divorce, his “supplemental” petition for absolute divorce resulted in an amendment or supplementation to her petition.

After considering this issue, the trial court decreed that the community regime terminated on January 26, 1998. Ms. Warner appeals from this judgment, arguing that the date of retroactive termination should be September 29, 1995, the date on which her initial petition for divorce was filed. Alternatively, Ms. Warner submits that the retroactive termination date of the community should be September 5, 1997, the date on which she filed her supplemental petition for divorce.

\ ¿Discussion

Concerning the date of termination of a community property regime, LSA-C.C. art. 159 provides:

A judgment of divorce terminates a community property regime retroactively to the date of filing of the petition in the action in which the judgment of divorce is rendered. The retroactive termination of the community shall be without prejudice to rights of third parties validly acquired in the interim between the filing of the petition and re-cordation of the judgment. (Emphasis added).

Ms. Warner urges that the “date of filing of the petition” in this action was September 29, 1995, because all subsequently filed pleadings were filed in the proceeding initiated by her. Furthermore, Ms. Warner argues that since she is the only party who filed a “petition for divorce,” the date of retroactive termination should be the date that she initiated the proceeding.

At the outset, we note that the title on the pleading is not controlling. Our courts look through the caption, style, and form of pleadings to determine, from the substance of the pleadings, the nature of the proceeding. Gremillion v. Rapides Parish Police Jury, 430 So.2d 1362, 1365 (La.App. 3rd Cir.), writs denied, 435 So.2d 426 and 440 (La.1983); see LSA-C.C.P. art. 865. Mr. Warner’s “supplemental” petition set forth a cause of action for divorce based on the ground that he and Ms. Warner had been living separate and apart continuously for a period in excess of six months on the date his petition was filed. Accordingly, we find no merit in Ms. Warner’s argument that, by virtue of its title, the pleading filed by Mr. Warner on January 26,1998, constituted a supplementation of her petition for divorce, as opposed to a separate and independent petition by Mr. Warner for a divorce. Therefore, we start our analysis by recognizing the viability of Ms. Warner’s supplemental petition for divorce filed on September 5, 1997, and Mr. Warner’s petition for divorce filed on January 26,1998.

1 ¡¡Several cases from other circuits have addressed the issue of determining the retroactive date of termination of a community property regime when a divorce proceeding involves more than one petition. In Gray v. Gray, 463 So.2d 14 (La.App. 5th Cir.1985), the husband initially filed a petition for divorce against his wife based on the ground of adultery. However, the prayer of the initial petition did not request either divorce or separation. A year later, the husband filed a supplemental and amending petition for divorce on the ground that the couple had lived separate and apart for a period of more than one year; the trial court granted the divorce on this ground. Subsequently, an issue arose as to whether the retroactive date of termination of the community related to the filing of the first petition alleging adultery or the supplemental petition, which stated the ground upon which the divorce was ultimately granted. Gray, 468 So.2d at 15. The trial court determined that the termination of the community was retroactive to the date of the filing of the supplemental petition. Gray, 463 So.2d at 16.

In affirming the trial court’s decision to terminate the community as of the date of the filing of the supplemental petition for divorce, the court in Gray stated:

It is the judgment of divorce which triggers the dissolution of community. It seems reasonable that the legislature intended the original petition setting out that action upon which the judgment is based as the controlling factor. Otherwise dissolution could be controlled by filing a petition on non-existent or specious grounds.

Gray, 463 So.2d at 16. The court found that the husband had abandoned his initial divorce petition and had gone to trial on the ground in his supplemental petition based on a voluntary separation for a period of more than one year. Since the supplemental petition was based on a different cause of action, the dissolution of the community became effective on the date of filing of the supplemental petition. Gray, 463 So.2d at 16.

Similarly, in Champion v. Champion, 618 So.2d 1181 (La.App. 3rd Cir.), writ denied, 620 So.2d 850 (La.1993), the wife initiated a divorce proceeding based on the ground of adultery pursuant to LSA-C.C. art. 103(2). Approximately three months later, the husband filed a petition for divorce under LSA-C.C. art. 102. Subsequently, the trial court granted a divorce based on the husband’s Article 102 action, which terminated | fithe community retroactive to the date the husband filed his petition for divorce. The wife argued the termination of the community should be retroactive to the date she initiated the original proceeding. The court disagreed, holding that the dissolution of the community was retroactive to the date that the petition for divorce was filed, when the divorce was based on the ground asserted in the petition. Because the divorce was based on the ground asserted by the husband, the community was terminated as of the date his action was filed, even though it was not the original pleading seeking a divorce. Champion, 618 So.2d at 1183.

In light of the jurisprudence and the language of LSA-C.C. art. 159, we conclude that the retroactive termination of the community is based on the date of filing of the petition which sets forth the grounds of the cause of action “in which the judgment of divorce is rendered.” In the present case, the grounds of the divorce are the same in Ms. Warner’s supplemental petition and in Mr. Warner’s petition. However, the judgment of divorce was rendered on the basis of Mr. Warner’s petition, which was filed on January 26, 1998. Therefore, we are unable to find error, legal or otherwise, in the trial court judgment decreeing that the community property regime terminated on January 26,1998.

Decree

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of the appeal are assessed against Viregilyer H. Warner.

AFFIRMED.

      . The trial court granted Mr. Warner leave of court to file his petition.

      . We do not address the propriety of each spouse filing a petition for divorce in the same proceeding since any objection to such was seemingly waived.

      . Ms. Warner’s initial petition did not set forth any ground for divorce, and because the ground of living separate and apart for a period of six months or more did not accrue until after the initial petition was filed, the date of filing of her supplemental petition determines the effective date for her cause of action. See LSA-C.C.P. art. 1155.

      . See also Lambert v. Lambert, 480 So.2d 784, 787 (La.App. 3rd Cir.1985), where a spouse filed a petition for divorce based on adultery, only to assert in a supplemental petition filed a year later that the divorce should be granted based on the couple’s one-year separation. The court determined the effective date of the termination of the community was the date of filing of the supplemental petition.

      . We observe that both parties had entered preliminary judgments by default, and it was just a matter of who was first in confirming the preliminary default judgment in determining the retroactive date of the termination of the community.


author: | j,PER CURIAM.

text:
    FOXY’S HEALTH AND RACQUET CLUB, INC. v. Kimberly Dawn ALLBRITTON.
    No. 2003 CM 1054.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 15, 2003.
    C. William Frazier, III, Columbia, for Movant Kimberly Dawn Allbritton.
    Matthew W. Tierney, Robert D. Hoover, Baton Rouge, for Respondent Foxy’s Health and Racquet Club, Inc.
    Before: PARRO, KUHN, and DOWNING, JJ.
   | j,PER CURIAM.

Defendant, Kimberly Dawn Allbritton, filed a motion and order to extend the date for filing a civil writ application; for the reasons below, we grant the motion.

FACTS

Plaintiff, Foxy’s Health and Racquet Club, Inc., filed suit against Kimberly Dawn Allbritton in the City Court of Baton Rouge on June 22, 2000. The matter was tried and judgment was rendered in favor of the plaintiff. After the judgment was signed on April 25, 2001, the defendant timely filed a motion and order of appeal. Pursuant to Louisiana Code of Civil Procedure article 5001, the matter was lodged with the Nineteenth Judicial District Court. The district court heard the appeal on May 30, 2002, and signed a final judgment on January 17, 2003, affirming the City Court judgment. The defendant filed an application for rehearing, which was denied.

According to defense counsel, he called the Clerk of Court for the Nineteenth Judicial District Court and was told that any further appeal would go to this court and would be treated as an appeal de novo. On the day notice of judgment was provided to the defense, the defendant submitted a motion for appeal. The district court informed the defendant that the judgment was not final because no written judgment had been submitted and denied defendant’s motion as premature.

The defendant further alleges that plaintiffs counsel submitted the written judgment, and the defendant again submitted the motion returnable to this court. However, to accommodate plaintiffs counsel’s wishes, the motion was entitled “Motion and Order of Writ.” The motion was signed on February 7, 2003, and was assigned a return date of February 14, 2003. Notice of the signing was provided to counsel for the defendant by fax on February 11, 2003; according to the defendant, notice was never provided by mail.

Defense counsel asserts that he then contacted this court, and was allegedly told to wait until the record was lodged, whereupon a docket number | .¡would be assigned and counsel’s office would be notified as to when to submit a brief. According to defendant’s counsel, after over two months had passed, he discovered that the record had never been lodged with this court. Defense counsel was told by a member of the district court judge’s staff that this matter was being treated by its office as a writ application and that he had missed the return date. Defense counsel prepared a motion for an extended return date, which was denied by the district court.

The defendant then filed the present motion and order to extend the return date for filing a civil writ application with this court.

DISCUSSION

Louisiana Constitution Article V, Section 10(A) provides,

Jurisdiction. Except as otherwise provided by this constitution, a court of appeal has appellate jurisdiction of (1) all civil matters, including direct review of administrative agency determinations in worker’s compensation matters as heretofore or hereafter provided by law, (2) all matters appealed from family and juvenile courts, and (3) all criminal cases triable by a jury, except as provided in Section 5, Paragraph (D)(2) of this Article. It has supervisory jurisdiction over cases which arise within its circuit.

Section 16 of Article V of the constitution provides, in pertinent part:

(B) Appellate Jurisdiction. A district court shall have appellate jurisdiction as provided by law.

Louisiana Code of Civil Procedure article 5001 states:

A. Except as provided in Paragraph B of this Article, an appeal from a judgment rendered by a parish court or by a city court shall be taken to the court of appeal.
B. Appeal from a judgment rendered by a city court located in the Nineteenth Judicial District shall be taken to the district court of the parish in which the court of original jurisdiction is located.
C. Appeal shall be on the record and shall be taken in the same manner as an appeal from the district court. (Emphasis added).

While this court has no jurisdiction to hear this matter as an appeal because it is an appeal from the City Court of Baton Rouge, this court does have ^supervisory jurisdiction over cases that arise within its circuit. LSA-Const. art. V, § 10(A); see City of Bossier City v. Jacobs, 488 So.2d 639, 641 (La.App. 2nd Cir.1983). Accordingly, we exercise such jurisdiction in this matter.

Rule 4-3 of the Uniform Rules of the Courts of Appeal provides that:

Upon proper showing, the trial court or the appellate court may extend the time for filing the application upon the filing of a motion for extension of return date by the applicant, filed within the original or an extended return date period. An application not filed in the appellate court within the time so fixed or extended shall not be considered, in the absence of a showing that the delay in filing was not due to the applicant’s fault.

Because the defendant has shown that the delay in filing was not due to her fault, this court will extend the return date, hereby giving Ms. Allbritton until September 15, 2003, to file her writ application with this court. The applicant must fully comply with Rule 4, Uniform Rules of Louisiana Courts of Appeal. A copy of this action must be included in any writ application.

MOTION TO EXTEND RETURN DATE GRANTED.

      . In her memorandum in support of the motion, the defendant mentioned that Louisiana Code of Civil Procedure article 5001(B) maybe unconstitutional. Of course, a court with appellate jurisdiction could not review this issue unless it had first been presented to the trial court. See Vallo v. Gayle Oil Co., Inc., 94-1238 (La.11/30/94), 646 So.2d 859, 864-65.

      . We emphasize, however, that because this court has no appellate jurisdiction over this case, the exercise of our supervisory jurisdiction will not be the "appeal de novo" the defendant might be anticipating. Further substantive review of the city court's judgment, as affirmed by the district court, could only be obtained if the Louisiana Supreme Court granted a timely-filed application for a writ of certiorari. See LSA-Const. art. V, Section 5.


author: I «PER CURIAM.

text:
    Willie J. GREEN, Sr. v. WINN-DIXIE LOUISIANA, INC., Park Place Plaza Associates, and Travelers Indemnity Co. of Illinois.
    No. 2003 CW 0947.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 15, 2003.

      Thomas J. Eppling, Lance E. Harwell, Metairie, for Applicants Winn-Dixie Louisiana, Inc. Park Place Plaza Associates, and Travelers Indemnity Co. of Illinois.
    Walter C. Dumas, Lori D. Brown, Baton Rouge, for Respondent Willie J. Green, Sr.
    Before: PARRO, KUHN, and DOWNING, JJ.
   I «PER CURIAM.

This matter is before this court on an application for supervisory writs taken from the denial of a motion for summary judgment in the City Court of Baton Rouge. Because we decline to exercise our supervisory jurisdiction for the reasons that follow, this matter is transferred to the Nineteenth Judicial District Court.

FACTS

Plaintiff, Willie J. Green, Sr., filed suit against defendants, Winn-Dixie Louisiana, Inc., Park Place Plaza Associates, and Travelers Indemnity Co. of Illinois in the City Court of Baton Rouge. Mr. Green sought damages resulting from a slip and fall in the parking lot of a Winn-Dixie store in Baton Rouge. The defendants filed a motion for summary judgment and for sanctions, which the trial court denied on February 8, 2002. However, the defendants allege that the trial court’s ruling was unknown to any party. According to the defendants, notice of the signing of the judgment was not issued by the court until April 24, 2003. The defendants filed an application for writs to this court directly, bypassing the Nineteenth Judicial District Court. The notice of intent submitted by relators is not file-stamped or dated.

DISCUSSION

Article V, Section 10 of the Louisiana Constitution of 1974, as amended in 1980 and 1990, provides, in pertinent part:

(A) Jurisdiction. Except as otherwise provided by this constitution, a court of appeal has appellate jurisdiction of (1) all civil matters, including direct review of administrative agency determinations in worker’s compensation matters as heretofore or hereafter provided by law, (2) all matters appealed from family and juvenile courts, and (3) all criminal cases triable by a jury, except as provided in Section 5, Paragraph (D)(2) of this Article. It has supervisory jurisdiction over cases which arise within its circuit.

Section 16 of Article V of the constitution provides, in pertinent part:

(B) Appellate Jurisdiction. A district court shall have appellate jurisdiction as provided by law.

Louisiana Code of Civil Procedure article 5001 states:

A. Except as provided in Paragraph B of this Article, an appeal from a judgment rendered by a parish court or by a city court shall be taken to the court of appeal.
B. Appeal from a judgment rendered by a city court located in the | Nineteenth Judicial District shall be taken to the district court of the parish in which the court of original jurisdiction is located.
C. Appeal shall be on the record and shall be taken in the same manner as an appeal from the district court. (Emphasis added).

Based on the last sentence of Louisiana Constitution Article V, Section 10(A), this court has supervisory jurisdiction in this matter. However, Article V, Section 2 of the Louisiana Constitution states, in pertinent part, “A judge may issue writs of habeas corpus and all other needful writs, orders, and process in aid of the jurisdiction of his court.” Based on this provision, therefore, we hold that the Nineteenth Judicial District Court also has jurisdiction to issue supervisory writs as “needful writs” in aid of its appellate jurisdiction. See Hibernia National Bank in New Orleans v. Degraauw, 351 So.2d 1223, 1224 (La.App. 4th Cir.1977).

This Court declines to exercise its supervisory jurisdiction in this matter; we defer to the concurrent supervisory jurisdiction of the Nineteenth Judicial District Court. In accordance with the constitutional and statutory provisions cited above, this writ application is transferred to the Nineteenth Judicial District Court. See Hibernia National Bank, 351 So.2d at 1224.

CONCLUSION

For the foregoing reasons, this court transfers this writ application to the Nineteenth Judicial District Court.

WRIT APPLICATION TRANSFERRED.

      . We recognize that the applicable constitutional provisions have changed since the Hibernia case was decided; therefore, we do not cite it for its substantive conclusion concerning appellate jurisdiction.

      . We note that this writ application does not comply with the Uniform Rules of the Courts of Appeal. More specifically, the defendants have failed to comply with Uniform Rules-Courts of Appeal, Rules 4-2 and 4-3, in that the application does not contain documentation of the date fixed by the trial court for filing the writ application with this Court and a copy of the notice of intent to seek writs or request for return date showing the filing date. Moreover, the defendants also failed to include a copy of the minute entry; the judgment; the judge’s reasons for judgment, if written; and the motion for summary judgment and all documents reviewed by the trial court in considering the motion for summary judgment, including any opposition memos filed, as required by Rules 4-5 (i), (g), (f), and (h). See LSA-C.C.P. arts. 5003 and 2201.