author: I THIBODEAUX, Judge.

text:
    Frederick HILLS, JR. v. CYPRESS BAYOU CASINO & ROYAL and Sun Alliance.
    No. 02-758.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 29, 2003.
    Writ Denied May 2, 2003.

      M. Blake Monrose, Hurlburt, Privat & Monrose, Lafayette, LA, for Defendant/Appellee, Chitimacha Tribe of Louisiana d/b/a Cypress Bayou Casino and Royal & Sun Alliance Insurance.
    David M. Kaufman, Lafayette, LA, for Plaintiff/Appellant, Frederick Hills, Jr.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS and JIMMIE C. PETERS, Judges.
   I THIBODEAUX, Judge.

In this workers’ compensation case, plaintiff Frederick Hills, Jr. appeals the judgment of the Office of Workers’ Compensation (“OWC”), which rendered a judgment in favor of the defendants Cypress Bayou Casino (“CBC”) and Royal and Sun. Alliance Insurance Company (“Royal”). In its written reasons for judgment, the workers’ compensation judge (“WCJ”) found that CBC reasonably controverted Hills’ workers’ compensation claim, denying Hills’ request for penalties and attorney fees. Additionally, the OWC found that Hills had violated La.R.S. 23:1208 by making fraudulent misrepresentations concerning benefit payments, forfeiting his rights to benefits. Hills was also assessed penalties in the amount of $5,000.00 and was required to reimburse CBC for indemnity benefits in the amount of $1,760.00, medical benefits and associated expenses in the amount of $2,261.00, and legal expenses in the amount of $1,752.42 pursuant to the forfeiture statute. Plaintiff now appeals the judgment of the OWC rendered March 20, 2002.

We reverse. Medical records, reports, and findings substantiate Hills’ claim that his injury was sustained while in the course and scope of his employment, and that failure of the employer and insurer to grant reimbursement of Hills’ mileage expenses requires this court to assess penalties and attorney fees pursuant to La.R.S. 23:1201 and 23:1203.

The WCJ was manifestly erroneous in concluding that Mr. Hills violated the provisions of La.R.S. 23:1208.

I.

ISSUES

We shall consider:

|g(l) whether the plaintiff misrepresented the extent of his injuries so as to make La.R.S. 23:1208 applicable, forfeiting his workers’ compensation benefits, resulting in the imposition of penalties and restitution of benefits already received?
(2) whether dismissal of Hills’ claims for travel expenses, penalties, and attorney fees was appropriate?

II.

FACTS

Frederick Hills, Jr., a security officer at Cypress Bayou Casino in Charenton, Louisiana, suffered a knee injury as he removed a money box from below a craps table on March 26, 2001. After kneeling down to pick up the money box, Hills felt a slight pop in his knee. Hills, who did not immediately file an accident report with the casino, scheduled an appointment with an orthopaedic surgeon, Dr. Andre Cenac, the next day on March 27, 2001. Hills’ appointment was scheduled the following week on April 3, 2001, the doctor’s first available appointment. Dr. Cenac gave Hills an injection during his visit, told him to place ice on the injured area, and to take Advil. Hills returned to work on April 4, 2001. On that same day, Hills injured himself further when he pushed a 300 pound, wheel-chair bound patron of the casino up a ramp to the location of the nickel machines. According to Hills, he re-aggravated his knee and strained his back as he pushed the casino patron. Hills left early that evening after informing his supervisor of his injury.

The following day Hills was treated by a chiropractor, Dr. Adel Maledeh, at Iberia Chiropractic Clinic. He continued to see Dr. Maledeh regularly for one month after his back was injured. Chiropractic treatment ended when CBC refused to authorize any further treatments.

I,-¡Medical treatment for his knee continued from April to December 2001. During that time, Hills underwent arthoscopie surgery for his right knee on June 1, 2001. Prior to surgery, Hills was also examined by Dr. Gregory Gidman, at the request of the casino. Dr. Gidman confirmed that Hills had indeed suffered a knee injury that would require surgery. As Hills recovered, he continued to attend doctor’s appointments with Dr. Cenac. On July 3, 2001, Dr. Cenac referred Hills for a functional capacity evaluation (FCE). From the FCE, Dr. Cenac determined that Hills could perform light duty work. Hills did not begin working again until August 2001, where he worked as a dispatcher until he could return to regular duties. Hills later made a request to return to his regular position. Dr. Cenac granted Hills a one month trial period to determine whether he could do the work; however, he could not stand for long periods of time without it hurting his knee. During the period of his treatment up to the time of trial, CBC paid for all of Hills’ medical expenses and provided workers’ compensation benefits for lost wages.

CBC became suspicious of Hills’ actual injuries when an employee, Anthony Con-nor, of CBC informed management that he had seen Hills dancing at a local bar on June 27, 2001. Additionally, the casino videotaped Hills walking to and from the casino when he came to fill out his accident report for the second injury. CBC argued that the tape showed no signs of injury to the plaintiff. Based on Connor’s testimony and the videotape, CBC refused to reimburse Hills for mileage expenses as he traveled to and from the doctor’s office. According to CBC, Hills forfeited his rights to benefits by misrepresenting the extent of his injuries.

On or about August 20, 2001, Hills filed a disputed claim for compensation against CBC and its insurer. Hills alleged that CBC failed to pay indemnity benefits, to furnish copies of the reports of the CBC’s practitioners after ^written request, and to authorize medical treatment under workers’ compensation law. He also asserted that CBC should be assessed penalties and attorney fees for failure to reimburse him for medical mileage and for terminating his benefits. CBC denied the allegations and asserted the defense of misrepresentations concerning benefit payments under La.R.S, 23:1208.

On March 4, 2002, Hills dismissed Ms claims for failure to authorize medical treatment and failure to furnish copies of reports. Defendants filed a motion for involuntary dismissal with prejudice of plaintiffs claim for indemnity benefits, which was granted in favor of CBC. The remaining issues were argued before the OWC on March 22, 2002.

In its final judgment, the OWC rendered its decision in favor of CBC and Royal. The OWC found that CBC effectively controverted Hills’ workers’ compensation claim; that Hills was not entitled to penalties and attorney fees; and that he forfeited his rights to benefits pursuant to La. R.S. 23:1208. Additionally, Hills was assessed penalties in the amount of $5,000.00 for violation of the Workers’ Compensation Act, and was required to pay restitution for indemnity benefits, medical benefits and associated expenses, as well as legal expenses totaling $5,773.42.

III.

LAW AND DISCUSSION

Fraudulent Misrepresentations

Hills asserts that the WCJ lacked sufficient evidence to support a finding, and later render a judgment, that Hills had violated La.R.S. 23:1208 by misrepresenting his injuries to the extent that the plaintiff had committed fraud. We agree.

|KOn March 20, 2002, the WCJ rendered a judgment that Hills had violated La.R.S. 23:1208 by making misrepresentations concerning benefit payments, and effectively forfeited his rights to benefits. In his written reasons for judgment, the WCJ failed to specifically state the basis of his decision in finding that Hills had violated the statute. We can only presume that the WCJ relied on a co-worker’s testimony of Hills’ impropriety and videotape evidence, which questions the extent of Hills’ disability, as he outlined this evidence in his findings of fact. After a careful review of La.R.S. 23:1208 and the supreme court’s analysis in Resweber v. Haroil Construction Company, 94-2708 (La.9/5/95); 660 So.2d 7, neither the testimony of the co-employee observing Hills’ dancing at a local bar nor a videotape depicting Hills’ walking without apparent injury rises to the level of fraudulent conduct as required in the statute and in Resweber.

Under La.R.S. 23:1208, “[i]t shall be unlawful for any person, for the purpose of obtaining or defeating any [worker’s compensation] 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.” The supreme court in Resweber determined that “the only 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.” Re-sweber, 660 So.2d at 12.

Hills’ dancing at a local bar as described by Mr. Connor does not constitute fraud. When Connor witnessed the alleged dancing, Hills had undergone arthoscopic surgery and was attending physical therapy for his knee.

In Resiueber, the supreme court stated that “Section 1208 applies to any false statement or misrepresentation ... made wilfully by a claimant for the purpose \ eof obtaining benefits, and thus is generally applicable once an accident has allegedly occurred and a claim is being made.” Id. at 14. Hills’ claim for workers’ compensation benefits was initiated when he informed his employer of the injury, his employer had been paying benefits for months prior to the alleged dancing incident, and both his doctor and the physician, retained by the casino to examine Hills’ medical status, had both concluded that he had suffered a knee injury while in the course and scope of his employment. While it may plausibly impact on the extent of disability, Connor’s testimony concerning Hills’ dancing does not equate to fraud.

Additionally, the videotape of Hills’ walking to and from the casino to file his accident report also does not rise to the level of fraud. Medical reports indicate that Hills had sustained an on-the job injury, permitting Hills’ workers’ compensation benefits. As stated previously, both Hills’ and the casino’s physician confirmed that Hills had sustained a knee injury that would require surgery to repair it and that such an injury prevented him from continuing his regular work duties at the casino. As a result, the videotape of Hills’ walking to and from the casino a few days after he sustained the second injury does not demonstrate an intent to defraud Hills’ employer. The workers’ compensation judge’s imposition of penalties and reimbursement of benefits against Hills was incorrect as a matter of law.

Mileage Reimbursement, Penalties, and Attorney Fees

Hills asserts that defendant’s failure to reimburse him for mileage to and from doctor’s visits is a violation of La.R.S. 23:1203 and 23:1201. La.R.S. 23:1203(D) states the following:

[T]he employer shall be liable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee in order to obtain the medical services, medicines ... which the employer is required to furnish 17under this Section,.... When the employee uses his own vehicle, he shall be reimbursed at the same rate per mile as established by the state of Louisiana for reimbursement of state employees for use of their personal vehicle on state business. The office shall inform the employee of his right to reimbursement for mileage.

According to the record, Hills submitted documentation of medical mileage expenses to CBC as required by La.R.S. 23:1203. Further, defense counsel for CBC stipulated at the beginning of trial that he received the request for mileage; however, his client refused to pay. There is sufficient evidence in the record based on the medical reports confirming that Hills suffered a knee injury. Even the casino’s own physician found that Hills’ injury required medical treatment. Based on the above law, we find that Hills properly requested reimbursement for medical expenses as required by this statute.

Additionally, La.R.S. 23:1201(E) and (F) imposes penalties and attorney fees for failure to pay benefits timely:

E. Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.
F. Failure to provide payment in accordance with this Section shall result in the assessment of a penalty in an amount equal to twelve percent of any unpaid compensation or medical benefits or fifty dollars per calendar day, whichever is greater, for each day in which any and all compensation or medical benefits remain unpaid, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim....

In Johnson v. Transamerican Waste Company, 99-190 (La.App. 3 Cir. 6/2/99); 741 So.2d 764, Johnson sought penalties and attorney fees for its employer’s failure to pay workers’ compensation benefits. Like CBC, Transamerican asserted that it reasonably controverted Johnson’s workers’ compensation benefits, and the plaintiff was not entitled to attorney fees and penalties. The court determined that |s“[i]u order to avoid the imposition of penalties, an employer must reasonably controvert the workers’ compensation claimant’s right to benefits. La.R.S. 23:1201(F). The test to determine if the employer has fulfilled its duty is whether the employer or his insurer had sufficient factual and medical information to reasonably counter the factual and medical information presented by claimant.” Id. at 770.

In this present case, CBC relied on the testimony of Connor, who saw Hills dancing at a lounge, and a video, showing Hills filling out his accident report without any noticeable injury, to deny mileage reimbursement benefits based on fraud. Unfortunately for CBC, this evidence does not constitute fraud. If anything, this evidence exhibits the extent of plaintiffs disability only. CBC provides insufficient factual and medical information that Hills’ willfully misrepresented his claim. As stated above, both Hills’ and the CBC’s physicians found that Hills suffered a knee injury that required arthoscopic surgery. Additionally, a functional capacity evaluation indicated that Hills’ injury permitted him to engage in only light duty work. The record indicates that Hills made a good effort to engage in the activities of the FCE, but was still troubled by his injury. As a result, we find that CBC did not reasonably controvert Hills’ claim. Though the plaintiff submitted mileage expense reports, CBC failed to pay Hills within sixty days of receiving his demand. “Accordingly, the penalty provision of La. R.S. 23:1201(F) is applicable.” Id. at 770-71.

Additionally, under La.R.S. 23:1201(F), we have the authority to impose attorney fees as well. “The factors used to calculate attorney’s fees in workers’ compensation cases are degree of skill and ability exercised, amount of claim, amount recovered, and amount of time devoted to [the] case.” Id. In this case, Hills’ attorney filed a disputed claim for compensation with the .Office of Workers’ Compensation, [ flpre-trial and post-trial memorandums were prepared, claims were argued before the OWC, and a successful appeal was prepared. Based on the analysis in Johnson, we find that the plaintiff is entitled to attorney fees. An award of $5,000.00 is reasonable.

Defendants also assert in their brief that La.R.S. 23:1201(E) and (F) are not applicable in this case because this is a discontinuance of payment case pursuant to La.R.S. 23:1201.2. In Williams v. Rush Masonry, 98-2271 (La.6/29/99); 737 So.2d 41, the supreme court was very clear in distinguishing the imposition of penalties under La.R.S. 23:1201 as opposed to 23:1201.2.

Two statutory provisions, LSA-R.S. 23:2101(F) and LSA-R.S. 23:1201.2 provide for the award of penalties and attorney’s fee in workers’ compensation cases. The applicable statutory authority for assessing an insurer with penalties and attorney’s fees depends on whether the insurer failed to commence the payment of benefits in a timely fashion or discontinued benefits that had been timely paid. In Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737So.2d 41[,] the Louisiana Supreme Court stated that LSA-R.S. 23:1201.2 applies only when an insurer or employer discontinues payment of benefits; it does not apply when there has been a failure to commence or pay benefits timely. Williams, 98-2271, 737 So.2d at 45. (Emphasis added).

Insurance Company of North America v. Labit, p. 2, 99-2448 (La.App.1.Cir.11/15/00); 772 So.2d 385, 387.

In this case, CBC failed to reimburse Hills for any of his mileage expenses. As a result, this is not a discontinuance of benefits case. Thus, La.R.S. 23:1201 is applicable for the imposition of penalties to which the defendant failed to pay within sixty days of the plaintiffs request.

JjflIV.

CONCLUSION

For the above reasons, we reverse the judgment of the OWC. We grant the plaintiff, Frederick Hills, Jr., $2,000.00 in penalties and $5,000.00 in attorney fees based on Cypress Bayou Casino’s failure to timely reimburse Hills for mileage expenses. All costs of this appeal are assessed to defendants, Cypress Bayou Casino and Royal and Sun Alliance Insurance Company.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: JjFITZSIMMONS, J. GUIDRY, J., LPETTIGREW, J.,

license: Public Domain

text:
    Karen J. RICHARD, Individually and on Behalf of Her Minor Child, Emily Richard v. Michael A. HALL, Screening Systems International, Louisiana Division, Inc., Allstate Insurance Company and Empire Insurance Company
    No. 2002 CA 0366.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Gerald L. Walter, Jr., W. Arthur Aber-crombie, Jr., John Stewart Tharp, Baton Rouge, Counsel for Plaintiff/Appellant Karen J. Richard, Individually and on behalf of her minor child, Emily Richard.
    Gary A. Bezet, Robert E. Dille, Gregory M. Anding, Carol L. Galloway, Baton Rouge, Counsel for Defendant/Appellee Screening Systems International, Inc., Louisiana Division.
    David I. Bordelon, Metairie, Counsel for DefendanVAppellee Empire Insurance Company.
    Donald R. Smith, Baton Rouge, Counsel for Defendants Michael A. Hall and Allstate Insurance Company.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   JjFITZSIMMONS, J.

Karen J. Richard, individually and on behalf of her minor child, Emily Richard (Richard), appeals the trial court’s grant of summary judgments in favor of Screening Systems International, Inc. (SSI). Following a review of the facts and the law, this court affirms.

BACKGROUND

SSI, a closely held corporation, entered into a duck hunting lease agreement. SSI paid the sum of $10,000.00 to Loch Leven Plantation for hunting privileges that were to be utilized by three upper level management executives of SSI. During one of the outings, Michael Hall, one of the authorized executives, accidentally, and fatally, shot another hunter, John Richard. The instant suit was subsequently filed by Richard against Michael Hall, SSI, Allstate Insurance Company (Hall’s homeowner’s insurance provider), and Empire Insurance Company (SSI’s general liability insurer). Richard alleged: (1) negligence on the part of Mr. Hall; (2) vicarious liability against SSI pursuant to Mr. Hall’s actions in the course and scope of his employment; and (3) in the use of firearms. Empire Insurance Company filed a motion for summary judgment with regard to the vicarious liability and negligence claims.

The trial court signed a judgment on May 23, 2001, granting Empire’s motion for summary judgment on the basis of vicarious liability; however, it denied summary judgment on the independent negligence claim against SSL Empire Insurance Company filed a second motion for summary judgment on the basis of the Recreational Use Immunity Statutes. The trial court granted summary judgment, holding that Richard’s claim of negligence by SSI was barred by the Recreational Use Immunity Statutes. The action against SSI was dismissed.

14Richard appeals the grant of the summary judgments, and asserts the following assignments of error:

(1) The trial court erred in holding that as a matter of law, SSI was not vicariously liable for the negligent actions of its employee, Michael Hall, in the shooting death of John Richard.

(2) The trial court erred in holding that SSI was a “lessee” of Loch Leven Plantation and, thus, entitled to immunity from its own negligent acts in the shooting death of John Richard pursuant to the Louisiana Recreational Use Immunity Statutes (La. R.S. 9:2791 and 9:2795).

(3) Alternatively, the trial court erred in its application of immunity under the Recreational Use Statutes, which do not permit immunity for any party when the property at issue is used as a commercial recreational development or facility.

DISCUSSION

Vicarious Liability

The initial summary judgment in favor of Empire determined that SSI was not vicariously liable for the act of its employee, Michael Hall, at the hunting camp. A court’s determination that conduct is within the course and scope of employment for purposes of vicarious liability is a factual finding subject to the manifest error rule. Baumeister v. Plunkett, 95-2270, p. 7 (La.5/21/96), 673 So.2d 994, 998. However, in ascertaining whether summary judgment is appropriate, appellate courts review summary judgment de novo under the same criteria that govern the trial judge’s consideration of whether a summary judgment is appropriate. Davis v. AMS Tube Corporation, 2000-1311, p. 4 (La.App. 1 Cir. 6/22/01), 801 So.2d 466, 468, writ denied, 2001-2122 (La.11/2/01), 800 So.2d 877.

Vicarious liability is premised on La. C.C. art. 2320, which provides: “Masters and employers are answerable for the damage occasioned by their ^servants and overseers, in the exercise of the functions in which they are employed.” Emoakemeh v. Southern University, 94-1194, p. 3 (La.App. 1 Cir. 4/7/95), 654 So.2d 474, 476. The vicarious liability of the master or employer is based on the foundation that a business enterprise cannot disclaim responsibility for accidents that could be considered characteristic of its activities. Ermert v. Hartford Insurance Company, 559 So.2d 467, 476 (La.1990). The burden of the court is to determine if the particular accident is a part of “the more or less inevitable toll of a lawful enterprise.” Id. (quoting 5 F. Harper, F. James & O. Gray, The Law of Torts, § 26.7, at 28 (2d ed.1986)). Stated alternatively, if “the purpose of serving the master’s business actuates the servant to any appreciable extent, the master is subject to liability if the act is otherwise within the service.” Ermert, 559 So.2d at 477. Four variables to be considered when determining whether vicarious liability exists are whether the tortious act: (1) was primarily employment-rooted; (2) was reasonably incidental to performance of employment duties; (3) occurred during work hours; and (4) occurred on the employer’s premises. Aycock v. Jenkins Tile Company, 96-2348, 96-2349, p. 5 (La.App. 1 Cir. 11/7/97), 703 So.2d 117, 121, writ denied, 97-3056 (La.2/13/98), 709 So.2d 753.

The facts in Ermert similarly involved an accidental shooting in a hunting camp. Decareaux, the president of, and a majority stockholder in, Nu-Arrow Fence Company, expended company funds on the hunting camp. The supreme court concluded that the trial court had not erred in determining that the Nu-Arrow employee was acting within the scope of his employment while he was at the camp. In its evaluation, the court emphasized that De-careaux, had “repeatedly and consistently used the hunting camp for business purposes!,]” specifically noting that he sold fences to almost every other member of the camp, and he had taken a number of his preferred customers and his employees to the camp for | fientertainment. The supreme court concluded that one of Decar-eaux’s motives was to provide a place to entertain customers and employees of Nu-Arrow. Emnert, 559 So.2d at 478.

The arrangement at Loch Leven does not analogously sustain the proposition that the hunting facility was provided for the purpose of furthering SSI’s business. The three executives to whom exclusive use of the hunting facility was granted never took clients or other employees to hunt with them. Henry Watson, Sr., who negotiated the agreement with Loch Leven Plantation, and Henry A. Watson, Jr., the president of SSI and one of the authorized executives, testified that the hunting privileges were “perks” for upper management. There is simply no evidence in the record to suggest that the activities at the hunting facility provided its users with anything greater than personal entertainment.

In oral reasons, the court stated that, although the lease was purchased by SSI and listed as a business expense on its tax return, the evidence indicated that Mr. Hall was not required to be there as part of his duties. Moreover, “he was not performing business related duties at the time.” This court does not find that the trial court erred in its grant of summary judgment in favor of Empire Insurance Company on the basis of the lack of vicarious liability on the part of SSI.

Lessee Status

Richard contests the status of SSI as a lessee of Loch Leven Plantation within the contemplation of La. R.S. 9:2791 and 9:2795 of the Recreational Use Immunity Statutes. Louisiana Revised Statute 9:2791A provides in pertinent part:

An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping .... If such an owner, lessee or occupant give[s] permission to another to enter the premises for such recreational purposes he does not thereby extend any assurance that the premises are safe for such purposes or 17constitute the person to whom permission is granted one [sic] to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted.

Thereafter, La. R.S. 9:2795A(2) defines “owner” as the “possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.”

A lease is defined in La. C.C. art. 2669 as a “synallagmatic contract, to which consent alone is sufficient, and by which one party gives to the other the enjoyment of a thing, or his labor, at a fixed price.” Three elements are essential: the thing, the price, and the consent. La. C.C. art. 2670. The variable in contention is whether the hunting agreement fails to constitute a lease due to the lack of existence of “a thing.”

SSI entered into an agreement for the use of the premises for hunting, which included the right to one of the blinds on the property. The trial court found that “[t]he thing being leased is the property for use for duck hunting.” This court agrees that SSI leased the use of the hunting premises for the term of the duck hunting season at the agreed upon price of $10,000.00. The fact that the hunters rotated to different hunting blinds does not vitiate SSI’s status as a lease holder within the purview of the Recreational Use Statutes.

Immunity

The final assignment of error relative to SSI’s negligence, vel non, in its failure to instruct and/or supervise its employees, presents the most complex legal issue. Louisiana Revised Statute 9:2791 B states, in part, that immunity conferred by the Recreational Use Statute “shall not apply when the premises are used principally for a commercial, recreational enterprise for profit[.]” It is undisputed that Loch Leven was a for-profit recreational enterprise.

The pivotal issue becomes whether SSI should be precluded from ascription to the protective veil of the Recreational Use Immunity Statutes because the |sowner/lessor of Loch Leven was operating the premises for a commercial, recreational enterprise. The facts in this case present a unique relationship in that SSI, and not the own-erfiessor of Loch Leven, was the party that “[gave] permission to another to enter the premises for ... recreational purposes .... ” La. R.S. 9:2791 A. Moreover, SSI’s provision of hunting privileges to its selected employees was recreational in character. Thus, SSI’s use of the premises was not ‘principally for a commercial, recreational enterprise for profit[.]” Nor was said grant of permission to the three parties for a “commercial, recreational enterprise for profit-” La. R.S. 9:2791 B. Finally, the facts of this case are distinguishable from those in Reed v. Employers Mutual Casualty Company, 32,257 (La.App. 2 Cir. 9/22/99), 741 So.2d 1285, writs denied, 99-3060 (La.1/7/00), 752 So.2d 864, 99-3061 (La.1/7/00), 752 So.2d 864, in which a hunting club member’s actions against another member were excluded from the immunity provisions established pursuant to La. R.S. 9:2791. The court in Reed characterized the defendant member as a mandatary of the hunting club lessee. Here, SSI was the lessee and occupant with the right to make land “available to the public for recreational purposes.” Compare Reed, 32,257, p. 6, 741 So.2d at 1289.

We recognize that the Recreational Use Statutes constitute an impairment to the common or natural right and, therefore, are to be strictly interpreted. Monteville v. Terrebonne Parish Consolidated Government, 567 So.2d 1097, 1100 (La.1990); Keelen v. State, Department of Culture, Recreation and Tourism, 463 So.2d 1287, 1289 (La.1985). They must not be extended beyond their obvious meaning. Monteville, 567 So.2d at 1100. The language of La. R.S. 9:2791 prohibits applicability of the Recreational Use Statute when one party offers another party the use of the premises principally for commercial motives. Such is not the case with SSI. Its grant, of permission to the three executives did not utilize the premises for commercial profit. Therefore, our interpretation that |flSSI qualifies for immunity pursuant to the dictates of La. R.S. 9:2791, et seq, does not constitute a broadening of the statute.

The judgments of the trial court are affirmed. Costs associated with this appeal are assessed to Karen J. Richard, individually and on behalf of her minor child, Emily Richard.

AFFIRMED.

PETTIGREW, J., dissents and Assigns Reasons.

GUIDRY, J.,

concurs and assigns reasons to wit: after applying a conflict of law analysis to this matter, it is clear that Louisiana law applies, thus warranting the plaintiffs concession.

LPETTIGREW, J.,

dissenting.

I respectfully dissent from the majority’s affirmance of the trial court.

The vicarious liability of SSI for the reckless and negligent actions of its employee Michael Hall is governed by Ermert v. Hartford Insurance Company, 559 So.2d 467 (La.1990). In my humble opinion this is a business activity of SSI and falls outside of the scope of La. R.S. 9:2791 and 9:2795. At a minimum, there are material issues of fact in dispute as to whether it is a business activity, and therefore, summary judgment was not proper.

Finally, I am of the opinion that we are not dealing with a lease at all, but the purchase of a personal servitude or right-of-use, which would also exclude the application of La. R.S. 9:2791 and 9:2795. See La. Civ.Code arts. 639-644.

      . The victim, John Richard, was also an employee of SSI; however, he was not an authorized user of SSI's leasehold interest. He was hunting at Loch Leven Plantation as a guest of another person.

      . Loch Leven Plantation is located in Mississippi; however, prior to trial, plaintiffs stipulated that Louisiana law applied to an immunity defense.


author: J^MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Lawrence HOWARD.
    No. 2002-KA-2435.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2003.

      Eddie J. Jordan, Jr., District Attorney, Kristen Keller, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appel-lee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., Judge MICHAEL E. KIRBY).
   J^MICHAEL E. KIRBY, Judge.

This appeal concerns a resentencing only.

Lawrence Howard was found guilty of possession with the intent to distribute cocaine, in violation of La. R.S. 40:967, after a bench trial on January 29, 1998. The State filed a multiple bill of information on March 20, 1998, and the defendant pled not guilty to the multiple bill. At sentencing on October 6, 1999, the trial court sentenced the defendant to serve fifteen years at hard labor.

On appeal, the defendant alleged that he had not been adjudicated a multiple offender on October 6, 1999, even though he was allegedly sentenced under the multiple offender statute. This court ordered the trial court to submit the transcript of the multiple bill adjudication. On September 13, 2001, the trial court conducted a multiple bill hearing. The defendant was adjudicated a second felony offender and sentenced to seventeen years at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, this court affirmed the defendant’s conviction; however, his adjudication and sentence under the multiple bill were ^reversed, and the case was remanded. State v. Howard, 2000-2700 (La.App. 4 Cir. 1/23/02), 805 So.2d 1247.

On May 10, 2002, at the multiple bill hearing, the defendant was found to be a second offender and was sentenced to serve eighteen and one-half years at hard labor without benefit of probation or suspension of sentence.

The facts of the case as presented in the earlier appeal are as follows:

Officer Dennis Bush testified that on the afternoon of March 25, 1997, he was conducting a surveillance of the 1900 block of St. Ann Street when he observed the defendant engage in a narcotics transaction. The officer then saw the defendant put a package in a gray Oldsmobile parked at the intersection of Roman and St. Ann Streets. The officer confiscated the package and found it to contain four rocks of crack cocaine. Detective Nelson found two hundred twenty-five dollars on the defendant. Lakeisha Green attempted to approach the defendant’s vehicle. The officer told her to step back. The officer stated that he knew Leroy Toca, but Leroy Toca was not at the scene.
Officer Russell Nelson was on patrol with Officer Bush when they observed the defendant engage in a narcotics transaction. The defendant placed a package in a gray Oldsmobile after the transaction. The officers confiscated the package and found it to contain four rocks of crack cocaine. Upon searching the defendant, Officer Nelson found two hundred twenty-five dollars in U.S. currency. Officer Nelson also stated that he knew Leroy Toca. Toca lived at 1833 St. Ann Street. The officer testified that Toca came out of his residence while the officers were investigating the defendant. The officer stated that he did not recall seeing anyone playing football or a woman asking for the defendant’s car keys. .
Lekeisha Green testified that she resided at 1732 St. Ann Street. She was present when the defendant was arrested. The witness stated that she, the defendant, Leroy, Corey and Diane Jones were standing on the corner talking. The defendant, Leroy and Corey were throwing a football. She did not see the defendant take|3any money from anyone. When the police arrived, they told her to step across the street. The police put the defendant on the police vehicle and “checked” him. The officers put Corey against the wall and patted him down. The officers then let Corey go. The witness identified the three officers as “Dennis”, “Arthur” and “Duke.” The witness stated that she did not see the officers go into the defendant’s car or take anything out of the vehicle. She asked Officer Bush for the car keys and he told her “not right now.” The witness further testified that she had seen the same officers arrest Leroy Toca on previous occasions. She stated that the officers did not arrest Leroy on the day in question. She indicated that she had never seen any of the guys sell drugs.
Detective Arthur Powell testified that he was not present when the defendant was arrested. The officer stated that he knew Lekeisha Green from the neighborhood. The officer acknowledged that he used to patrol the neighborhood with Officers Bush and Nelson.
Lawrence Howard testified that he was employed as a welder at Avondale Shipyards. On March 25, 1997, he was on Easter vacation. He was playing football with Leroy, Corey and Corey’s little brother that afternoon. LeKeisha Green and Diane Jones were also outside. The defendant denied possessing and selling cocaine. When the officers arrived on the scene, they put him against a wall and told him that they were going to arrest him for loitering. The officers did not go to his car until after LeKeisha asked the officers for the defendant’s car keys. The defendant denied having cocaine in his car. He stated that he did not use cocaine. The defendant acknowledged a prior conviction for accessory after the fact to second degree murder. The defendant testified that Leroy Toca is his cousin. He stated that he knew Leroy sold drugs. The defendant also testified that Arthur Powell was one of the officers on the scene. He further stated that Leroy was also arrested that day. The defendant stated that Leroy was in his house when the officers arrived on the scene but came outside as the officers were arresting him.
Corey Lewis testified that he was on the scene when the defendant was arrested. He stated that the police officers drove the neighborhood once before they stopped and arrested the defendant. The defendant was using a pay telephone the first time the officer drove through the neighborhood. The witness and his brother, RAdonise Reth, were throwing a football. The second time the officers drove past, the defendant, the witness and Reth were playing football. The police officers got out of their vehicle and handcuffed all three of them. The officers put the defendant in the police car. LeKeisha Green asked the officers for the defendant’s car keys. The officers involved were Powell, Nelson and Bush. When LeKeisha asked the officers for the car keys, one of the officers went to the defendant’s car. The witness stated that he heard the officer say that he did not find anything in the car. The witness further testified that the defendant did not possess or sell cocaine that day. The witness also indicated that Leroy Toca had been outside for a while but then went inside his residence. Leroy came back outside after the officers arrested the defendant. The witness stated that he knew Leroy Toca had been arrested on prior occasions.
Adonise Reth testified that he, his brother, Corey Lewis, and the defendant were playing football when the police officers arrived on the scene. The officers stated that the defendant was going to be arrested for loitering. The witness further testified that the defendant did not sell cocaine that day.
Leroy Toca testified that he has two convictions for possession of cocaine with the intent to distribute. He stated that Officers Bush, Nelson and Powell were on the scene when the defendant was arrested. Powell drove up while Bush and Nelson were detaining the defendant. Powell asked if everything was okay and then left. The witness stated that he had been outside earlier in the afternoon playing football with the defendant, Corey and Adonise. He then went inside his residence. The witness stated he came out of his house while the officers were arresting the defendant. The officers told the witness to go back inside. The witness stated that he did not put anything in the defendant’s car, nor did he see anyone else put anything in the defendant’s vehicle.

State v. Howard, 805 So.2d at 1251-1253.

The defendant, through counsel, now makes two assignments of error regarding his sentence: (1) the trial court erred in increasing an excessive sentence without any stated reason, and (2) the defendant is entitled to immediate discharge for the court’s delay in imposing a final sentence.

|rAs part of the first assignment, the defendant maintains that an error patent occurred in that he was sentenced for his entire term without benefit of parole, probation or suspension of sentence. However, the transcript of sentencing on May 10, 2002, indicates that his eighteen and one-half year term was imposed without probation or suspension of sentence as mandated by La. R.S. 15:529.1(G). The defendant’s parole eligibility was not considered although under La. R.S. 40:967(B)(4)(b) a sentence must be imposed without benefit of parole, probation, or suspension of sentence for five years. Thus, the sentence appears to be illegally lenient because parole was not restricted.

However, paragraph A of La. R.S. 15:301.1 provides that in instances where the statutory restrictions are not recited at sentencing, they are contained in the sentence, whether or not imposed by the sentencing court. Moreover, in State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, the Supreme Court has ruled that paragraph A self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence, which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute. Hence, this Court need take no action to correct the trial court’s failure to specify that the defendant’s sentence be served without benefit of parole for five years. The correction is statutorily effected. La. R.S. 15:301.1(A).

We find merit in the first assignment of error that the trial court erred in increasing an excessive sentence without any stated reason. As the defendant points out the defendant was sentenced three times and each time his sentence increased. Initially the sentence was fifteen years at hard labor; next it was seventeen years without benefit of parole, probation, or suspension of sentence. On May 10, 2002, Howard was sentenced as a second offender to serve eighteen |fiand one-half years without benefit of probation or suspension of sentence. The trial court gave no reasons for increasing the sentence.

In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in part by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), the court held that the Due Process Clause of the Fourteenth Amendment prevented an increased sentence following a retrial if the increase in the sentence was motivated by vindictiveness against the defendant, because the fear of such retaliation would have a chilling effect on the defendant’s exercise of his appeal rights. The court held that, when a judge imposes a more severe sentence upon a defendant after a new trial, the reasons must affirmatively appear in the record and must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. The court in Pearce found that this need for objective information arises because, without it, there is a presumption that the greater sentence is imposed for a vindictive purpose.

The Louisiana Supreme Court followed Pearce in State v. Rutledge, 259 La. 543, 250 So.2d 734 (1971), in which a defendant’s guilty plea and sentence of one year imprisonment were vacated and defendant was subsequently tried before a jury, convicted, and sentenced to two and one-half years imprisonment. Because the reasons for the increase in the sentence did not appear in the record, the court found that the second sentence was constitutionally objectionable under Pearce. See also State v. Allen, 446 So.2d 1200, 1202-1203 (La.1984).

In Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), the defendant entered guilty pleas to charges of burglary and rape in exchange for the dismissal of a sodomy charge. The defendant later successfully had his guilty pleas vacated by an appellate court. He then proceeded to trial on all three original charges, was ^convicted on each, and received greater sentences than those imposed after his guilty pleas. The trial court stated that the greater sentences were being imposed because of evidence presented at trial of which the court was unaware at the time of the defendant’s first sentencing. The United States Supreme Court found that, when a greater sentence is imposed after a trial than was imposed after a guilty plea, the presumption of vindictiveness present in Pearce does not exist because the trial court is generally privy to less relevant sentencing information after a plea than after a trial, such as the full nature and extent of the crimes and the defendant’s conduct during the trial itself, and because the factors for leniency attendant to a guilty plea are no longer present after a trial. Alabama v. Smith, 490 U.S. at 801, 109 S.Ct. at 2205-06.

None of the considerations present in Alabama v. Smith is present in this case. The defendant did not enter a guilty plea to the original charge. He never admitted to his status as a second offender, and the transcript of sentencing indicates no bargain for a particular sentence.

In the instant case, the trial court gave no reasons for the increased sentence of eighteen and one-half years. The defendant faced a range of fifteen to sixty years, and his increased sentence was a twenty-three percent- increase above his original sentence of fifteen years. Therefore, under Pearce, we find the sentence must be vacated, and the case remanded for resen-tencing.

The defendant’s argument that his sentence is excessive is moot.

The second argument, that the delay in imposition of sentence entitles the defendant to immediate discharge, was considered in his first appeal where this court found the error without merit because he was not prejudiced by the delay. 1 sUnder La.C.Cr.P. art. 874 excessive sentencing delays deprive the court of jurisdiction to sentence a defendant. Howard was convicted on February 13,1998 and he pleaded not guilty to a multiple bill on March 20,1998. After the bill was amended, he again pleaded not guilty on April 17, 1998. He was initially sentenced on October 6, 1999 to serve fifteen years at hard labor. After the matter was before this court and it was determined that no multiple bill hearing had occurred, the case was remanded to the trial court, and on September 13, 2001, there was a multiple bill hearing and the defendant was sentenced to seventeen years at hard labor. He appealed, and this court vacated his multiple offender adjudication and sentence. On May 10, 2002, Howard was again found to be a second offender and was sentenced to serve eighteen and one-half years at hard labor without benefit of probation or suspension of sentence.

The delays in sentencing occurred solely through the acts and omissions of the trial court. The record is devoid of any factors or circumstances that would justify any delay. However, relief would be available to Howard only if the evidence shows that he was prejudiced by the delay in sentencing. State v. Stewart, 98-1215, p. 5 (La.App. 4 Cir. 3/10/99), 732 So.2d 74, 76. Howard faced a minimum sentence of fifteen to sixty years at hard labor for distribution of cocaine in violation of La. R.S. 40:967 and La. R.S. 15:529.1(A)(1)(a). Because the defendant knew his ultimate sentence would be under the Habitual Offender Bill, he could not have expected a less severe sentence upon re-sentencing as a habitual felony offender and he was not prejudiced by the delays. This assignment is without merit.

1 ¡Accordingly, for the reasons cited above, the defendant’s multiple offender adjudication is affirmed, his sentence is vacated, and the case is remanded for re-sentencing.

ADJUDICATION AFFIRMED; SENTENCE VACATED AND REMANDED.

      . The defendant's sentence was reversed after this court found that the defendant was denied effective assistance of counsel at the multiple bill hearing and the documentation supporting the multiple bill was not included in the appeal record.

      . La.C.Cr.P. article 874 provides that "[s]en-tence shall be imposed without unreasonable delay. If a defendant claims that the sentence has been unreasonably delayed, he may invoke the supervisory jurisdiction of the appellate court.”


author: I t CHARLES R. JONES, Judge.

text:
    STATE of Louisiana v. Cynthia BURKS.
    No. 2002-KA-1939.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2003.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Leslie Parker Tullier, Assistant District Attorney of Orleans Parish, New Orleans, LA, for State of Louisiana.
    Karen G. Arena, Louisiana Appellate Project, Metairie, LA, for Cynthia Burks.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, and MAX N. TOBIAS JR.).
   I t CHARLES R. JONES, Judge.

Cynthia Burks appeals her sentence in connection with her conviction for possession of cocaine as a second felony offender. She was initially sentenced to thirteen months at hard labor, and was resentenced to thirty-seven months after a multiple bill hearing was conducted. Following a review of the record, we reverse, vacate the thirty-seven-month sentence, and reinstate the thirteen-month sentence.

On May 13, 1999, Cynthia Burks was charged by bill of information with possession of cocaine in violation of La. R.S. 40:967(C). Burks elected a bench trial after being advised of her right to a jury trial. She was tried on August 2, 1999 and the district court took the matter under advisement. On August 6, 1999 the district court found her guilty as charged, and sentenced her on August 13, 1999 to serve thirteen months at hard labor. According to the minute entry, the State filed a multiple bill on September 14, 1999, charging Burks as a second felony offender; however, the multiple bill is not a part of the record. On March 24, 2000, a multiple bill hearing occurred, and the district court took the matter under advisement. The district court then found Burks to be a second felony | ¡¡.offender on May 8, 2002, and on May 14, 2002 sentenced her to serve thirty-seven months at hard labor. Burks timely filed the instant appeal.

The facts of the case are not at issue in this appeal.

A review of the record reveals no errors patent.

Burks argues, in her two assignment of errors, that'the district court erred in sentencing her as a multiple offender because (1) she was actually sentenced almost two years after she had completely served her original sentence, and (2) the multiple bill is not part of the record.

Because the second assignment of error is dispositive, it will be considered first. Our review of the record indicates that the only evidence of the multiple bill in the record is a notation in the minute entry of September 14, 1999, stating the multiple bill was filed. This Court requested the multiple bill from the district court but received notice that the multiple bill was not part of the district court’s record. Burks argues that the State failed to file a multiple bill; however, the record indicates that the State filed a multiple bill on September 14,1999.

In State v. Uqdah, 613 So.2d 1113 (La.App. 5 Cir.1993), the Fifth Circuit considered a case wherein the multiple bill was missing from the record, and the court held that the prior conviction could not be used to enhance the defendant’s sentence. Uqdah is silent as to whether there is any indication in the record that a multiple bill was filed, and on that point Uqdah can be distinguished from the case at bar. Considering the minute entry reference to a multiple bill and the fact that Burks did not object prior to appeal that a written multiple bill had not been filed, this Court will assume that the multiple bill was filed and consider the next assignment of error.

|sBurks next contends that she was adjudicated a multiple offender nearly two years after she completed her original sentence. She was sentenced on August 13, 1999, to serve thirteen months at hard labor. Although the multiple bill was filed on August 14, 1999 the hearing on the multiple bill did not occur until March 24, 2000, and the district court took the matter under advisement. Burks was not adjudicated a second felony offender until May 8, 2002, and she was actually sentenced on May 14, 2002, to serve thirty-seven months at hard labor. As counsel points out in her brief, if Burks began serving her sentence on August 13, 1999, she would have been released in September 2000. At both hearings in May of 2002, defense counsel objected to Burks being sentenced as a second felony offender after she had completed her original sentence.

La. R.S. 15:529.1, the multiple offender statute, does not provide a time period in which a multiple bill should be filed and the matter adjudicated except to state that a defendant may be charged as a multiple offender if “at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted” of another felony. In State v. Broussard, 416 So.2d 109, 110 (La.1982), the Louisiana Supreme Court noted that although La. R.S. 15:529.1 does not provide a time limitation, a multiple bill must be filed within a reasonable time after the State learns that a defendant has a prior felony conviction. The Court stated:
The same considerations which underlie the constitutional right to a speedy trial compel a conclusion that upon conviction a defendant is entitled to know the full consequences of the verdict within a reasonable time. Since the enhancement of penalty provision is incidental to the latest conviction, the proceeding to sentence under the provision should not be unduly delayed.

State v. Walker, 98-1410, pp. 6-7 (La.App. 4 Cir. 5/12/99), 735 So.2d 837, 841.

The Broussard doctrine is a fact-specific inquiry depending upon the particular facts and circumstances of each case. State v. McNeal, 99-1265, p. 7 (La.App. 4 Cir. 6/14/00), 765 So.2d 1113, 1117, writ denied, 2000-2134 (La.9/28/01), 797 So.2d 684.

In two cases the Louisiana Supreme Court has found untimely adjudications on the multiple bill where the defendant was already discharged from state custody at the time of the multiple bill hearing. In State ex rel. Glynn v. Blackburn, 485 So.2d 926 (La.1986), the defendant had completed his two-year sentence for simple kidnapping prior to being sentenced as a multiple offender to ten years. The Louisiana Supreme Court vacated the ten-year sentence and ordered the defendant discharged as to that charge. The Supreme Court held that “[proceedings against a convicted defendant to enhance his sentence under R.S. 15:529.1 must be completed before he has satisfied his sentence on the underlying felony and been discharged from custody for that offense.” Id. In State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974), the defendant was sentenced on May 26, 1971 to serve two and one-half years at hard labor. On August 15, 1972, the State filed a multiple bill. Because of the filing of motions and requests for continuances by the defense, the resentencing procedure was delayed. The defendant was discharged from custody on September 20, 1972 and was resentenced on December 21, 1972. The Supreme Court held that the “proceeding was not held timely and the State was without power to resentence the defendant.” Id. at 77.

Like the defendants in Williams and Glynn, Burks’ sentence had been served prior to her adjudication as a multiple offender, and the district court erred in sentencing her under the Habitual Offender Law. Furthermore, the State is prohibited from filing another multiple bill against her in this matter. See State ex rel. Glynn v. Blackburn, supra; State ex rel. Williams v. Henderson, supra.

| ¿DECREE

Accordingly, the district court’s adjudication of Cynthia Burks as a multiple offender is reversed with prejudice. Cynthia Burks’ sentence as a multiple offender is vacated, and her original sentence is reinstated.

REVERSED; SENTENCE VACATED.


author: I PATRICIA RIVET MURRAY, Judge.

text:
    C & S SAFETY SYSTEMS, INC. v. SSEM CORPORATION, Continental Common, Inc., Actel Integrated Communications, Inc. and Delta Contractors of New Orleans, Inc.
    No. 2002-CA-1780.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2003.

      Stewart F. Peck, Kristopher T. Wilson, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for Plaintiff/Appellee.
    Paul J. Politz, B. Scott Cowart, Taylor, Wellons, Politz & Duhe, APLC, New Orleans, LA, for DefendanVAppellant (Delta Contractors of New Orleans, Inc.).
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   I PATRICIA RIVET MURRAY, Judge.

This is an action by a subcontractor against, among others, the general contractor to recover the balance due on a subcontract for work performed as part of an office renovation project. The central issue presented by this appeal is whether the subcontractor preserved its claim and privilege under the Private Works Act, La. R.S. 9:4801-55, by timely filing its statement of claim -within the applicable sixty-day period under La. R.S. 9:4822(C). The trial court decided this issue in favor of the plaintiff-subcontractor on summary judgment. For the reasons that follow, we reverse and render summary judgment on the defendant-contractor’s cross-motion in its favor, dismissing this action.

FACTS

Continental Common, Inc. (“Continental”) is the owner of a thirty-one story office building and a fourteen-story annex located at 1010 Common Street in New Orleans. On March 8, 1999, Continental entered into a lease agreement with Actel Integrated Communications, Inc. (“Actel”) for office space located on the thirteenth floor of its annex building (the “Suite”). Before moving into the Suite, Actel contracted with Delta Contractors of New Orleans, Inc. (“Delta”) to perform certain leasehold improvements; those improvements were referred to as a “Build-jOut”.», of the Suite. Delta then sub-contracted with SSEM Corporation (“SSEM”) to install a fire protection package in the Suite. In May 1998, SSEM contracted with C & S Safety Systems, Inc. (“C & S”) to install an FM-200 fire suppression system in the Suite.

An FM-200 system is a dry sprinkler system that extinguishes fire by discharging a chemical onto the surface of com-busting materials. It is designed for use in areas where a sprinkler system is undesirable. Actel needed the FM-200 system installed in the area of the Suite where it planned to house extremely expensive electronic equipment (the switch room) so as to protect that equipment from the water damage a sprinkler system could cause. The installation agreement provided that the FM-200 system would be integrated into the building’s fire detection and control network. The agreed upon price for the design and installation of the FM-200 system was $75,000.

Although Actel paid Delta the amount due for the improvements to the Suite and Delta paid SSEM for its work, including the amount due for the design and installation of the FM-200 system, SSEM failed to pay C & S. As a result, on November 9, 1999, C & S filed a statement of claim and privilege against BHNO Partners, Ltd. (apparently Continental’s predecessor) and Actel, as Owners, under La. R.S. 9:4806, and Delta, as Contractor, in the mortgage records for the Parish of Orleans to preserve its lien and privilege under the Private Works Act. The statement of claim asserts a debt of $75,000, based on C & S’s two invoices totaling $75,000 — one dated June 8, 1999 for $50,000, the other dated July 12, 1999 for $25,000. The statement of claim describes the work done as installing an FM-200 system, “including detection and panels, abort and manual activation stations, discharge piping, smoke detectors, strobe lighting and alarms, and wiring |,.¡together with related materials, equipment and labor.” The statement of claim describes the property as the building located on 1010 Common Street in New Orleans. On November 16, 1999, C & S filed an Amended and Restated Statement of Claim and Privilege listing Continental Common and Actel as Owners and Delta as Contractor.

On January 7, 2000, C & S filed this suit against SSEM, Continental, Actel, and Delta seeking to recover the balance due of $75,000. After suit was instituted, SSEM made one payment of $42,750 to C & S, which reduced the outstanding principal balance to $82,250. SSEM’s payment was made pursuant to a June 20, 2000 Forbearance Agreement and Consent Judgment, which provided for judgment in C & S’s favor against SSEM in the amount of $85,500. Although the agreement provided for payment in two installments of $42,750 each to be made on or before June 30, 2000, and July 31, 2000, respectively, SSEM paid only the first installment and refused to pay the second one. C & S then filed a motion for partial summary judgment against SSEM based on the Forbearance Agreement, which was granted. Due apparently to its inability to collect on the judgment against SSEM, C & S pursued Delta and Actel for the remaining balance due.

Shortly before the scheduled May 2002 trial date, a hearing was held on the cross-motions for summary judgment filed by C & S and Delta. The principal issue addressed on the cross motions was the timeliness of C & S’s filing of its statement of claim. Apparently finding C & S’s statement of claim was timely filed, the trial court granted C & S’s motion for summary judgment and denied |4Pelta’s cross-motion without assigning reasons. The trial court thereafter rendered a final judgment in favor of C & S and against Delta in the amount of $32,750 plus interest, attorney’s fees, and costs. This appeal by Delta followed.

ANALYSIS

On appeal, the standard of review of a trial court’s decision granting summary judgment is de novo. Shelton v. Standard/700 Associates, 2001-0587, p. 5 (La.10/16/01), 798 So.2d 60, 64-65; Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750. We ask the same questions as the trial court asked; to wit: whether there is any genuine issue of material fact, and whether the mover-appellee is entitled to judgment as a matter of law. See La. C.C.P. art. 966(C). In answering these questions, we are guided by the Legislature’s admonition that “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action” and that “[t]he procedure is favored and shall be construed to accomplish these ends.” La. C. Civ. Pro. art. 966(A)(2). We also are guided by the Louisiana Supreme Court’s recent pronouncement that “despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor.” Willis v. Medders, 2000-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050.

Tracking the federal rule, Federal Rule of Civil Procedure 56, the Louisiana summary judgment article, La. C.C.P. art. 966(C), “is designed to allow courts to decide whether enough evidence exists to go to trial, thus giving judges an opportunity to weed out meritless litigation.” Oakley v. Thebault, 96-0937, p. 4 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. Summary judgment should only | Bbe granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits establish that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Conversely, summary judgment should be denied if (1) there is a genuine issue of fact, and (2) it is material to the case. Smith, supra.

In determining whether a “genuine” issue exists, “courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Smith, 93-2512, p. 27, 639 So.2d at 751. An issue is “genuine” if reasonable persons could disagree. Id. A fact is “material” to the case if it is one “that would matter on the trial of the merits.” Id. In making that materiality determination, courts must look to the applicable substantive law underlying the plaintiffs cause of action. See Carter v. Baver, 2002-0765, p. 4 (La.App. 4 Cir. 5/29/02), 821 So.2d 496, 498.

C & S’s claim against Delta is based solely on the Private Works Act. Recently, we summarized the two basic rights that Act affords a subcontractor, stating:

The Private Works Act was enacted to facilitate construction of improvements on immovable property and does so by granting to subcontractors, among others, two rights to facilitate recovery of the costs of their work from the owner with whom they lack privity of contract. The first right is a statutory “claim”— the right to personally sue the owner for the amount that is owed — that is provided by La. R.S. 9:4802(A)(1); particularly, this statute provides that subcontractors have a claim against the owner and a claim against the contractor to secure payment of the price of their work. The second right is the privilege provided by La. R.S. 9:4802(B), which states that “[t]he claims against the owner shall be secured by a privilege on the immovable on which the work is performed.”

Montz v. Conco Constr. Co., 2002-0195, p. 6 (La.App. 4 Cir. 7/24/02), 824 So.2d 498, 502. Given the special nature of the two rights the Act confers, the | (¡jurisprudence holds that those rights must be strictly construed against subcontractors and in favor of the owner and contractor, and requires strict compliance with the Act’s statutory requirements. Montz, 2002-0195 at p. 7, 824 So.2d at 503 (citing Metropolitan Erection Co. v. Landis Constr. Co., 627 So.2d 144 (La.1993)). The subcontractor (here C & S) has the burden of proving its statement of claim was timely filed; unless the subcontractor meets this burden it cannot avail itself of any of the rights provided under the Act. Id.; Marshall Achord Elec. Contractor v. Zeagler, 527 So.2d 51, 53 (La.App. 3d Cir.1988). Stated otherwise, any right a subcontractor would have had under the Act is lost if it fails to timely file a statement of claim to preserve that privilege as required by La. R.S. 9:4822(A) or (C). Montz, supra.

Because neither a notice of contract nor a notice of termination was filed in the mortgage records, C & S had sixty days from the date the work was substantially complete to file its statement of claim under La. R.S. 9:4822(C). Given that C & S filed its initial statement of claim on November 9, 1999, both sides agree that C & S’s statement of claim was untimely only if substantial completion occurred before September 10, 1999. The narrow issue is when did substantial completion occur.

By statute, “substantial completion” is defined by La. R.S. 9:4822(H), which provides the following disjunctive definition of that term:

|7A work is substantially completed when:
(1) The last work is performed on, materials are delivered to the site of the immovable or to that portion or area with respect to which a notice of partial termination is filed; or
(2) The owner accepts the improvement, possesses or occupies the immovable, or that portion or area of the immovable with respect to which a notice of partial termination is filed, although minor or inconsequential matters remain to be finished or minor defects or error in the work are to be remedied. (Emphasis supplied).

Construing this provision, the courts have held that it establishes two discrete dates from which the time for filing the statement of claim begins to run; to wit:

(1) on the date the last work is performed or the last materials are delivered to the site or (2) on such earlier date when the owner accepts the improvement, possesses or occupies the property if only minor or inconsequential matters remain to be finished or minor defects or errors in the work are to be remedied.

Southmark Corp. v. Ellis Millwork, Inc., 535 So.2d 507, 509 (La.App. 2 Cir.1988). “[WJhere the owner occupies the premises, but significant items of work remain to be done, substantial completion does not occur until the unfinished work is completed, that is, the date the last work is performed or materials delivered as described in Subsection (1) of Section 4822(H).” South-mark, 535 So.2d at 510. “Occupancy of the property does not trigger the beginning of the period for filing liens if major or consequential construction items are unfinished or major remedial work remains to be done.” Id.

Conversely, if the only work remaining on the date the owner occupies the premises is minor “punch list” items, substantial completion occurs on that date. E.C. Durr Heavy Equipment, Inc. v. National Tea Co., 538 So.2d 1104, 1106 (La.App. 5 Cir.1989). As a commentator points out, the reference to “minor or | smconsequential matters” in Section 4822(H)(2) is equivalent to “punch list” items; a “punch list” is simply “a euphemism for minor and inconsequential matters that need to be completed.” Michael H. Rubin, Ruminations on the Louisiana Private Works Act, 58 La. L.Rev. 569, 594 (1998).

In this case, Actel began occupying the Suite no later than July 8, 1999 when its representative signed a document entitled “Acceptance/Lease Commencement Notification,” which designated July 1, 1999 as the date of: (i) its acceptance of the lease space “as is,” (ii) Continental’s turning over the Suite, (iii) its occupancy, and (iv) the commencement date of the lease and rent. The question to be resolved is whether on that date the unfinished items were “minor or inconsequential” or “major or consequential.” Delta contends it is the former; C & S contends it is the latter.

Delta contends that the only work performed on the Suite after July 8, 1999 fell into two categories: (i) new work (i.e., work that was not part of the original Build-Out of the Suite) or (ii) “minor or inconsequential” work as contemplated by Section 4822(H)(2). C & S counters that it is a common practice for lessees to take possession and to begin using a budding before construction has been completed, citing Albert K. Newlin, Inc. v. Weingarten’s Markets Realty Co., 253 So.2d 594, 597 (La.App. 3 Cir.1971) and Southmark, supra. Continuing, C & S argues that such is the case here since when Actel took occupancy of the space in July 8, 1999 the FM-200 system was not operational, essential work remained to be done, and the state fire marshal’s approval had not been obtained.

In support of its motion for summary judgment, C & S offered affidavits from a corporate representative, Rodney Co-meaux, and from a deputy assistant secretary with the state fire marshal, Mark Gates, who both attested that:

|n« Installation of a FM-200 system is not considered substantially complete and the system is not authorized for use until state fire marshal certification is obtained;
• It is not uncommon for the state fire marshal to require additional work on a fire suppression system before signing off on a certificate of completion; and
• The FM-200 system in the Suite had neither been inspected nor certified by the state fire marshal as of April 2002, the time they executed their affidavits.

Mr. Comeaux additionally attested that:

• Under the standards of the fire protection industry a fire suppression system is not substantially complete until it can save life and property and has been tested and certified by the appropriate governing authorities, which here is the state fire marshal;
• Under the contract between SSEM and C & S, installation of the FM-200 system shall not be deemed substantially complete until the system has been tested and certified by the state fire marshal’s office;
• Critical to the proper functioning of the FM-200 system is its integration into the building’s existing fire detection and control network;
• Proper integration requires that all other contractors working on elements that may impact the FM-200 system complete their work before C & S finalizes and fully tests the system, and final testing before that point would be premature; and
• C & S’s final activities would include: “connecting the fire suppression cylinders to make the system operable, integrating the building’s fire alarm system into the FM-200 system, and integrating the FM-200 system into Actel’s security system.”

According to C & S, from May 1999 to July 1999 it performed work on the FM-200 system and left the job in July 1999 because it had done all the work it could up to that point. C & S claims that it had to await SSEM’s completion of the sprinkler system as well as other work, such as HVAC and electrical work, before it could complete integrating and final testing of the system and before it would be ready for inspection by the state fire marshal. C & S additionally claims that both it and other contractors performed work on the Suite after July 8, 1999 and that the | ^subsequent work it performed was essential. Particularly, Mr. Comeaux attested that on both October 14-15, 1999, and December 29, 1999, C & S was called back to perform original work (not corrective work) that could not be performed in July 1999. He stated that in October 1999, C & 5 was allowed to tie-in the flow and tamper switches of the wet sprinHer system to the FM-200, which work was required for the FM-200 system to properly function and which was an essential part of the work as defined by the installation specification. In December 1999, it reconnected some of the installations that were made in October and conducted some of the programming of the system. According to Mr. Comeaux, as of December 1999, the FM-200 system was not operational, and as of the date of his affidavit, April 2002, C 6 S had neither completed programming the FM-200 system nor done the full function test of the system.

Delta contends that the fact that repair work was required to be performed on the FM-200 system after July 8, 1999 did not necessarily preclude the project from being substantially complete upon Actel’s occupancy of the Suite. In support of that position, Delta cites the deposition testimony of the building’s property manager, Tanjha Stoll, which it introduced in support of its cross-motion for summary judgment.

Ms. Stoll testified that the Suite was “second generation” space, which means it was previously occupied by a tenant and had walls, carpet, ceilings, lights, doors and locks, as opposed to “first generation” space, which is an unfinished shell. Describing the Build-Out of the Suite, she stated that:

Walls were knocked down and reconfigured, ceiling was replaced, lights were installed, electrical was installed, HVAC was reconfigured. The sprinkler system was already in place. The sprinkler lines inside the switch room were changed out to a dry system [the FM-200 system] from a wet system, floors were installed.

| nAccording to Ms. Stoll, the Build-Out work on the Suite commenced in April 1999, shortly after the lease was signed, and was completed in July 1999, when Actel took possession. During that interval, SSEM was contemporaneously completing the installation of the sprinkler system for the entire building pursuant to its separate agreement with Continental; and, during that interval, Continental was leasing space in the building pursuant to a variance from the state fire marshal. Explaining the variance, Ms. Stoll stated that when Continental acquired the building in March 1998, it had no sprinkler system. Thereafter, the state fire code was amended to require that all high-rise buildings in New Orleans have a sprinkler system installed by the end of 1999. Although Continental contracted in good faith with SSEM to install a sprinkler system in its entire building, SSEM could not complete that work by the end of 1999. For that reason, Continental obtained a variance from the state fire marshal for the entire building.

Although Actel took possession and occupancy of the lease space in July 1999, Ms. Stoll testified that a certificate of occupancy was not issued by the City of New Orleans at that time because the building was operating under the variance; specifically, she stated:

At the time the build-out was going on and we were rehabbing the building, we were in the process of a complete life safety upgrade, so we had a blanket permit on the entire property while we were trying to comply with code issues for sprinkler work and fire alarms and things of that nature. We did not do a certificate of occupancy because the sprinkler system was not certified at that time. We were working on it under a variance.

She clarified that it was a matter of sequencing “everything under one roof.”

lnAs to the sprinkler system work on the Suite, Ms. Stoll explained that Continental and its property management company had input into selecting SSEM as the subcontractor for the sprinkler system work in the Suite for two reasons. First, since the sprinkler system for the entire budding was still not certified and approved by the state fire marshal, the entire system was “technically SSEM’s system;” hence, SSEM was the only one “authorized to be installing the system and working on the system until it was 100 percent completed and inspected.” Second, if another contractor were hired to work on the system, it “could compromise the integrity of that system, make it so that they couldn’t get an inspection or cause other problems.”

Although the state fire marshal did not issue the final certificate of occupancy for the entire building until September 2001, Ms. Stoll testified that the delay in obtaining the state fire marshal’s approval for the building was unrelated to any of the work performed on the Build-Out of the Suite; rather, that delay was attributable to work undertaken by SSEM pursuant to its separate contract with Continental. As of July 1, 1999, she stated that both the sprinkler system and the fire suppression system in the Suite were complete. On cross-examination, however, she acknowledged that she just assumed the fire suppression system was functioning and that she had no personal knowledge of whether it was operational. Nonetheless, she testified that the only large-scale, major construction work performed on the Suite after July 8,1999 was some reconfiguring of an office that was done in 2000, which was not encompassed in the Build-Out of the Suite. She further testified that the only other work performed on the Suite after July 8, 1999 involved either correcting punch list items or addressing problems with the fire protection system and the alarm. Ms. Stoll testified that since Actel took | ^occupancy during the first week of July 1999 the Suite has continuously been occupied.

C & S’s focus solely on the point at which the installation of the FM-200 system was completed as determining the crucial date on which substantial completion occurred is misplaced. Substantial completion is a Private Works Act concept, not a contractual concept. Indeed, as noted earlier, the Act affords a subcontractor, like C & S, rights against a contractor, like Delta, despite the lack of privity of contract between them. As a result, the proper focus in determining substantial completion under the Act is on the entire construction project. In this case, the project was the Build-Out of the Suite, and installation of the FM-200 system was only one aspect of that larger project.

In support of its contention that substantial completion of the Build-Out occurred on July 8, 1999, Delta stresses that by July 12, 1999, C & S had billed SSEM for 100% of the contract price. Delta additionally stresses that the Forbearance Agreement between SSEM and C & S declares that “after completion of the work, C & S Safety Systems, Inc. invoiced SSEM Corporation for the amount due and owing, $75,000.00.” (Emphasis supplied).

On the other hand, C & S contends that substantial completion legally could not have occurred either at the time of occupancy or any time before it filed its statement of claim because the state fire marshal’s office approval had not yet been obtained. C & S stresses that under the contractual installation specifications, the fire protection industry customs, and state fire marshal mandates, an FM-200 lusystem is not substantially complete until it has been inspected and certified by the state fire marshal. C & S thus argues that the “last furnishing of services or materials” under Section 4822(H)(1) could not reasonably be found to have occurred until the state fire marshal inspected and approved the FM-200 system. C & S’s position is that when (as here) an act of construction must be inspected and approved by a local governing authority (here, the state fire marshal), substantial completion does not occur until such approval has been obtained; in support of that position, C & S cites Shreveport Long Leaf Lumber Co. v. Spurlock, 9 La.App. 224, 120 So. 126 (2 Cir.1928) and Rex Elec. Co. v. Glorioso, 19 La.App. 712, 140 So. 236 (2 Cir.1932).

Contrary to C & S’s position, substantial completion is not indefinitely prolonged pending testing or inspection. Instead, when testing or inspection is a requirement, such testing or inspection is simply a fact to be considered in determining when the work is completed; it is not controlling in making that determination. Chambers v. Zeigler, 207 So.2d 262 (La.App. 1 Cir.1968). Indeed, “[w]here a test or inspection is involved the facts are important in determining the issue.” Janice T. Martin, Comment, Laborers’ and Materialmen’s Privileges under Louisiana Building Law, 44 Tul. L.Rev. 326, 339 (1970).

Illustrative, in Electric Contracting Co. v. Brown, 39 So.2d 100 (La.App. 2 Cir. 1949), the plaintiff performed electrical work on the defendants’ house and completed the work on March 10th; however, with the city’s electrical inspector’s approval, the plaintiff used a ground clamp that did not meet the requirements of the Alexandria city ordinance because a proper one was unavailable. The clamp 1^plaintiff used worked, and the defendants began using the electrical fixtures after March 29th. On April 25th, the plaintiff returned to the job and installed a ground clamp that complied with the ordinance. On June 13th, plaintiff filed a lien. Claiming the lien was timely filed within the sixty-day window, the plaintiff argued that the job was incomplete until the proper clamp was installed. Disagreeing, the court reasoned:

Under these circumstances, we think the holding of the Court in the case of Hortman-Salmen Company, Inc. v. White, 168 La. 1067, 123 So. 715, is applicable and, as stated by the Court in that case, the last labor is done and the last service or material is furnished, within contemplation of the lien statute, when the building is treated as completed and the correcting of defects which may appear from time to time in the work after the building is considered and treated as completed, is not to be considered or deemed as part of the labor contemplated by the statute in fixing the time. Otherwise, as the Court in that case observed, the time within which to record liens might linger indefinitely and the rank of mortgages and other claims against the property might be displaced unreasonably.

39 So.2d at 101-102.

Although the Hortmam-Salmen decision was decided in 1929 and although the Legislature has since amended the statutory definition of substantial completion, the official revision comments to La. R.S. 9:4822(H) expressly state that the Legislature did not intend to change the law. See Official Comment (h) to La. R.S. 9:4822 (stating “[n]o substantial change in the law is intended. ’) Applying those principles here, we find that the lack of the state fire marshal’s approval of the FM-200 system was simply another fact to be considered in determining whether the Build-Out of the Suite was substantially complete as of July 8,1999.

C & S apparently contends that substantial completion occurred not only after July 8, 1999 (the date of Actel’s occupancy), but also (if at all) sometime after |1fiit filed its statement of claim. Accepting C & S’s argument would mean that the sixty-day delay never began to run because it filed its statement of claim before substantial completion occurred. This argument raises the res nova issue of whether a claim can be filed before the sixty-day period commences to run. Suggesting that perhaps a claim filed too early is equally as invalid as a claim filed too late based on the statutory language that the claim must be filed “within” sixty days of substantial completion, a commentator notes that the courts apparently have never addressed this issue. Michael H. Rubin, Ruminations on the Louisiana Private Works Act, 58 La. L.Rev. 569, 591-92 (1998). In this case, however, we find it unnecessary to resolve that issue as we find C & S failed to establish the crucial date of substantial completion.

Establishing the date on which substantial completion of the project occurred is an essential element of a subcontractor’s claim under the Private Works Act because by statute that date marks the commencement of the lien period. La. R.S. 9:4822(C). C & S’s failure to establish that date results in an inability to establish the timeliness of its claim. For that reason, the trial court erred in granting summary judgment in C & S’s favor. For that same reason, we further find that the trial court erred in failing to grant Delta’s cross-motion for summary judgment.

|17DECREE

For the foregoing reasons, we reverse the trial court judgment granting summary judgment in favor of C & S, and grant summary judgment in favor of Delta on its cross-motion, dismissing this action.

REVERSED AND RENDERED.

      . At this juncture, the dispute is solely between C & S and Delta. C & S originally sought summary judgment against Delta and Actel. Actel was dismissed from the case by judgment dated January 23, 2002, apparently because of its bankruptcy filing. Continental also filed a motion for summary judgment against C & S that was heard on that same date as the cross-motions filed by C & S and Delta; the trial court denied that motion.

      . La. R.S. 9:4822(C) provides a sixty day period when:
      Those persons granted a claim and privilege by R.S. 9:4802 for work arising out of a general contract, notice of which is not filed, and other persons granted a privilege under R.S. 9:4801 or a claim and privilege under R.S. 9:4802 shall file a statement of their respective claims and privileges within sixty days after:
      (1) The filing of a notice of termination of the work; or
      (2) The substantial completion or abandonment of the work, if a notice of termination is not filed.

      . We note that the record contains a Certificate of Completion issued by the City of New Orleans Department of Safety and Permits for the installation of mechanical equipment in the Actel lease space on the 13th floor., which is dated July 21, 1999.

      . Although the Private Work Act contains provisions that permit an owner to divide a project into parts and to declare partial completion, those provisions are not at issue in this case. Nonetheless, those provisions evidence the Legislature’s view of the Act as applicable to an entire construction contract absent the owner availing itself of these special provisions. See Janice T. Martin, Comment, Laborers' and Materialmen’s Privileges under Louisiana Building Law, 44 Tul. L.Rev. 326, 330 (1970)(noting that owner’s selection of how to proceed under the Private Works Act controls which provisions of the Act apply and results in “the rights and duties of a laborer or materialman differing].”)

      . Although Delta also assigns as error C & S’s improper designation of the property covered by the lien as the entire building as opposed to Actel’s leasehold interest, we do not reach that issue as we find summary judgment was inappropriately granted on another basis.