author: | ¡¡PARRO, J. | PATTERSON, J.,

text:
    Jody and Lora BORDELON, Individually and on Behalf of Their Minor Child, Brandon v. MEDICAL CENTER OF BATON ROUGE and Andrew T. Zaruski, M.D.
    No. 2001 CA 2164.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Joseph E. Stoekwell, III, Baton Rouge, for Plaintiffs-Appellants Jody and Lora Bordelon, Individually and on behalf of their minor child, Brandon.
    Daniel A. Reed, Baton Rouge, for Defendant-Appellee Medical Center of Baton Rouge.
    Charles F. Gay, Jr., Ann M. Halphen, Amy C. Lambert, Baton Rouge, for Defen-danb-Appellee Andrew T. Zaruski, M.D.

      Before: WHIPPLE, PARRO, KLINE, JAMES, and PATTERSON, JJ.

      . Judge William F. Kline, Jr., retired, Judge A. Clayton James, retired, and Michael A. Patterson are serving as judges pro tempore by special appointment of the Louisiana Supreme Court.

   | ¡¡PARRO, J.

In this medical malpractice suit, Jody and Lora Bordelon, individually and on behalf of their minor child, Brandon, appeal a judgment maintaining an exception of prescription in favor of defendants, the Medical Center of Baton Rouge and Dr. Andrew T. Zaruski, and dismissing their claims. After a review of the facts and applicable law, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On December 23, 1995, Brandon Borde-lon (Brandon) was taken to the emergency department of the Medical Center of Baton Rouge (Medical Center) due to pain in his left testicle, spine, and legs. The emergency room physician performed a physical examination and found that Brandon’s pain increased with movement and that his left testicle was swollen. Various diagnostic tests were run, after which the emergency room physician contacted Dr. Andrew T. Zaruski, a urologist, by telephone to discuss Brandon’s condition. Based on the information provided to him, Dr. Zaruski diagnosed Brandon’s condition as epididymitis. He advised that Brandon could be discharged with antibiotics and should schedule a visit to his office within five days.

Brandon had an appointment with Dr. Zaruski on December 26, 1995. Additional tests were performed at this time and revealed that there was no blood flow to Brandon’s left testicle. Dr. Zaruski informed Brandon’s parents that his left testicle was dead and further treatment would be unsuccessful. Dr. Zaruski concluded that an infection had caused swelling in the testicle, which had impeded the blood supply.

On December 28, 1995, Brandon was taken to Dr. Kenneth Blue for a second opinion. Dr. Blue concluded that Brandon was suffering from a necrotic left testicle secondary to an old torsion and recommended immediate scrotal exploration to remove the left testicle and re-position the right testicle. This surgery was performed on December 29, 1995. Pathology studies on the left testicle confirmed that a hemorrhagic infarction consistent with torsion had occurred.

LJody and Lora Bordelon, individually and on behalf of their minor child, Brandon (the Bordelons), filed a medical malpractice suit against the Medical Center and Dr. Zaruski in February 1998, in the 19th Judicial District Court, Parish of East Baton Rouge (the first suit). Service on the defendants was withheld. The Medical Center eventually filed a motion to dismiss this suit, pursuant to Louisiana Code of Civil Procedure article 1672(C), based on the Bordelons’ failure to request service as required by Louisiana Code of Civil Procedure article 1201(C).

After a hearing on August 3, 1998, the court granted the motion to dismiss. A judgment to that effect was signed on August 10, 1998, dismissing all claims against the defendants due to the failure to timely request service of citation. However, on August 3, 1998, the same day as the contradictory hearing on the motion and before the judgment was signed, the Bordelons filed a new petition against the Medical Center. This suit (the second suit) was also filed in the 19th Judicial District Court, but Dr. Zaruski was not named as a defendant.

The Medical Center filed an exception raising the objection of prescription in the second suit. The court sustained the exception, stating:

The court is of the opinion that Code of Civil Procedure article 3463 does apply and did not interrupt prescription. It was dismissed because it was not served within 90 days.

|4The Bordelons appealed this judgment in the second suit. On appeal, this court agreed that, on the face of the petition, the Bordelons’ claim had prescribed, and noted that there was insufficient evidence in the record concerning the Bordelons’ argument that prescription had been suspended and/or interrupted by other proceedings, including the medical review panel and the first suit. Therefore, this court affirmed in part and reversed in part, stating:

Although plaintiffs urge that prescription was suspended by proceedings before the medical review panel and by a suit filed in the Nineteenth Judicial District Court on February 5, 1998, the record before this court does not contain any evidence pertaining to these earlier legal proceedings. Thus, plaintiffs failed to meet their burden of proof, and the trial court properly sustained defendant’s exception of prescription. Accordingly, the judgment sustaining the exception of prescription is affirmed.
Although we conclude that the trial court correctly sustained the exception of prescription, we also must conclude that the trial court erred in failing to give plaintiffs an opportunity to amend their petition. Under the provisions of La. C.C.P. art. 934, when the grounds of an objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. See Higginbotham v. Morris, 33,506, p. 6 (La.App.2d Cir.12/8/99), 749 So.2d 840.
In this matter, the judgment sustaining the exception did not provide plaintiffs the opportunity to amend their pleadings. Since it appears that the grounds of the objection may be removed by amendment of the petition, we remand this matter to the trial court to give the plaintiffs a period of time to amend their petition.

Bordelon v. Medical Center of Baton Rouge, 99-0879 (La.App. 1st Cir.5/12/00) (unpublished opinion).

On June 9, 2000, after the second suit was remanded to the district court, the Bordelons amended their petition, pleading facts supporting their claims concerning the suspension and interruption of prescription and adding Dr. Zaruski as a defendant. The Medical Center and Dr. Za-ruski filed exceptions raising the objection of prescription. After a hearing, the court again sustained the exceptions and dismissed the Bordelons’ claims against both defendants, reasoning:

Failure to serve is to be treated as an absolute nullity. As Black’s [Law Dictionary] suggests, a nullity is to be considered as though it never occurred. This is analogous to the treatment of the abandonment provisions.... Here, as with abandonment, an order is not necessary to effectuate the dismissal of the claim. After the 90 day period has passed, by operational (sic) law, the case is deemed dismissed. Although, the plaintiff[s] filed the second suit before the order of dismissal was signed, |5the case had already been dismissed by operation of law. Thus, the plaintiff[s] cannot take advantage of interruption of prescription. Keeping with the intent of the law, I consider that the initial suit is an absolute nullity. As with abandonment, a nullity is considered never to have occurred. Filing a suit alone, did not interrupt prescription. Without service on the defendants, the lawsuit was an absolute nullity, which does not require a judgment. Therefore, the plaintiff[s’] claim has prescribed, and I’m going to grant this.

The Bordelons appealed, assigning as error the trial court’s decision to sustain the peremptory exceptions raising the objection of prescription.

STANDARD OF REVIEW

On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Franklin & Moore v. Gilsbar, Inc., 95-1520 (La.App. 1st Cir.5/10/96), 673 So.2d 658, 660. Appellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. Cangelosi v. Allstate Ins. Co., 96-0159 (La.App. 1st Cir.9/27/96), 680 So.2d 1358, 1360, writ denied, 96-2586 (La.12/13/96), 692 So.2d 375; O’Niell v. Louisiana Power & Light Co., 558 So.2d 1235, 1238 (La.App. 1st Cir.1990).

ANALYSIS

The Bordelons assert that the district court erred in sustaining the peremptory exceptions raising the objection of prescription brought by the Medical Center and Dr. Zaruski. They contend the exceptions should not have been sustained, because the prescriptive period under Louisiana Revised Statute 9:5628 for filing a medical malpractice cause of action was interrupted while the first suit was pending. Prescription is interrupted when the obligee commences an action against the obligor in a court of competent jurisdiction and venue. See LSA-C.C. art. 3462. An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. See LSA-C.C. art. 3463. The Bordelons’ first suit was filed in a court of competent jurisdiction and proper venue, and the final judgment in that lawsuit was not | ^signed until several days after the second suit was filed. When interruption occurs, prescription begins to run anew from the last day of the interruption. See LSA-C.C. art. 3463; LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, 1229. The Bordelons contend, therefore, that the interruption of prescription resulting from the first suit was in effect at the time the second suit was filed. Consequently, the filing of the second suit while the first suit was pending was within the prescriptive period applicable to their medical malpractice claim.

The Bordelons further argue that the district court misinterpreted the law regarding a dismissal for failure to timely request service on a defendant. The district court’s reasoning was based on Louisiana Code of Civil Procedure article 1201(A), which states that service and citation are essential in all civil actions, and without them, all proceedings are absolutely null. The defendants argued, and the district court agreed, that the effect of failing to request service within ninety days was to render the suit an absolute nullity, as if it had never been filed, and that this nullity occurred by operation of law even before the judgment declared it. The court analogized this situation to abandonment of a suit by inactivity over a period of three years, which is operative without formal order. According to this reasoning, the first suit was deemed never to have existed and the plaintiffs could not claim an interruption of prescription during the pendency of that suit. The Borde-lons contend the district court erred in analogizing to the abandonment statute, because Article 1672 has no self-executing language comparable to the abandonment statute.

This court must determine whether the district court was legally correct in concluding that failing to request service of citation on a defendant within ninety days of commencing an action renders the entire lawsuit an absolute nullity by operation of law, as if that suit had never been filed. This issue is res nova for this court, but there 17is jurisprudence from the Third Circuit Court of Appeal that can serve as guidance.

In Bellard v. Lake Charles Mem. Hosp., 00-1599, 00-1600 (La.App. 3rd Cir.4/4/01), 787 So.2d 1017, service was withheld and after ninety days, the defendants brought a motion to dismiss and a rule to show cause, seeking dismissal of the suit under Louisiana Code of Civil Procedure article 1672(C). Before the hearing on the motion, the plaintiffs filed a second suit against the same defendants, asserting the same factual basis for relief. The defendants filed an exception of lis pendens. The two suits were later consolidated, and a hearing was held on both the rule to show cause in the first suit and the exception of lis pendens in the second suit. The district court granted both motions and dismissed both suits without prejudice. The plaintiffs appealed, asserting that the court should have dealt first with the motion to dismiss in the first suit and, if it had done so and dismissed the suit, the exception of lis pendens would have had no merit. On appeal, the court agreed with the plaintiffs’ argument and reversed the judgment on the exception of lis pendens. The court’s analysis of the situation was similar to the rationale of the district court in the matter we are reviewing, in that the court stated:

In the case before us, the plaintiffs never effected citation and service of the August 1999 suit. Therefore, although they commenced a civil action by filing the August 1999 pleading, that proceeding was “absolutely null” for lack of citation and service. The provisions of La.Code Civ.P. art. 1672(C) mandating dismissal for lack of service are nothing more than a recognition of the nullity of the existing action.
Because the August 1999 action was an absolute nullity, it follows that there was no prior suit pending that could be addressed by the exception of lis pen-dens in the February 2000 action. Thus, we find that the trial court erred in granting the exception of lis pendens.

Bellard, 787 So.2d at 1019.

| sHowever, in a later case directly on point with the matter before us, the Third Circuit Court of Appeal declined to follow Bellard and concluded that without citation and service, it is only the court’s actions, “the proceedings,” that are absolutely null, not the lawsuit itself; therefore, although the suit had been correctly dismissed for lack of service, prescription was interrupted by that suit, such that a second suit filed the same day as the dismissal was timely. Jacobs v. Louisiana Farm Bureau Ins. Cos., 01-837 (La.App. 3rd Cir.12/19/01), 815 So.2d 858, 861-63, writ denied, 02-0193 (La.3/28/02), 811 So.2d 946.

The court in Jacobs examined related statutes, including Louisiana Revised Statute 9:5801, which was enacted during the same legislative session as Louisiana Code of Civil Procedure article 1672(C). That statute provides:

Notwithstanding the provisions of Civil Code Article 2324(C), interruption is considered never to have occurred as to a person named as a defendant who is dismissed from a suit because service of citation was not timely requested and the court finds that the failure to timely request service of citation was due to bad faith. Nonetheless, as to any other defendants or obligors, an interruption of prescription, as provided in Civil Code Article 34-63, shall continue. (Emphasis added).

This statute clearly states that even when a defendant is dismissed from a suit because service of citation was not timely requested, absent a finding of bad faith, prescription is still interrupted during the pendency of a suit filed in a court of competent jurisdiction and venue. Cf. Futrell v. Cook, 00-2531 (La.App. 4th Cir.12/19/01), 805 So.2d 325.

Another statute examined by the court in Jacobs was Louisiana Revised Statute 13:5107(D), which sets out the rules for service of process when the state, a state agency, a political subdivision, or any officer or employee thereof is named as a party. Those rules are exactly the same as the requirements for any other defendant, with one exception in subsection (3), as follows:

When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof: however, the effect of interruption of prescription as to other persons shall continue. (Emphasis added).

This subsection, which provides additional protection to the named categories of governmental defendants, would be totally unnecessary if, as the district court found in lathe case we are reviewing, any suit that is dismissed for failure to timely request service of citation were absolutely null, as if it had never existed. The wording of this statute supports the conclusion that such a suit, if filed in a court of competent jurisdiction and venue, does interrupt prescription while it is pending.

Additionally, as the Jacobs court also noted, the second sentence of Louisiana Civil Code article 3463 states certain conditions under which interruption is considered never to have occurred, those being when the plaintiff abandons the suit, voluntarily dismisses it, or fails to prosecute it at trial. See Batson v. Cherokee Beach & Campgrounds, Inc., 530 So.2d 1128 (La.1988). The article does not include as one of those conditions the failure to timely request service under Louisiana Code of Civil Procedure article 1201.

The Jacobs court found further support for its interpretation in the wording of Article 1201(A), which provides that without citation and service in a civil action, “all proceedings” are absolutely null, stating:

When this article is read in pari mate-ria with others ... on the same subject matter, it is apparent that the legislature intended that “all proceedings” on the suit, not the suit, would be absolutely null without citation and service. Otherwise ... the other articles and statutes have no force. While “proceedings” encompass “pleadings” (suits) because, generally, without pleadings, there can be no proceeding, “pleadings” and “proceedings” are not synonymous. “Pleadings” are the statement of allegations which gives notice to an opposing party of the allegations against him. “Proceedings” are courts’ activities in processing the legal action. Thus, under La.Code Civ.P. art. 1201(A), it is the courts’ actions that are absolutely null, not the pleadings, themselves, because, under the law, the “defect” of lack of citation and service can be waived or cured, after which courts can proceed. (Footnotes omitted).

Jacobs, 815 So.2d at 862.

We find the analysis and conclusions of the Jacobs court persuasive. The first suit filed by the Bordelons was filed in a competent court in the proper venue within the prescriptive period. The interruption of prescription resulting from its filing continued as long as that suit was pending. As such, the filing of the second suit before the first suit was dismissed was timely. We note that, had there been any proceedings in the first suit against the defendants, those proceedings, including any judgment obtained, would have been absolutely null. See e.g., In re Justice of the Peace Landry, 01-0657 (La.6/29/01), 789 So.2d 1271, 1277 (default judgment rendered without proper citation |inand service was an absolute nullity); Succession of Barron, 345 So.2d 995, 997 (La.App. 2nd Cir.1977) (default judgment against admin-istratrix of succession was absolutely null, but the case itself was not dismissed as absolutely null and was remanded for further proceedings against her).

We find further support for this determination in the structure of Louisiana Civil Code articles 3462 and 3463, both of which set out two alternative mechanisms for interrupting the running of prescription as to a specific defendant. According to those articles, prescription is interrupted either by filing suit in a court of competent jurisdiction and venue or by service on the subject defendant within the prescriptive period. Under the district court’s reasoning in this case, prescription could only be interrupted by filing suit in a court of competent jurisdiction and venue and by requesting service on the defendant within ninety days of such filing.

In addition, we agree with the Bordelons that the dismissal for failure to serve is not analogous to abandonment, which occurs without formal order if the parties fail to take any step in the prosecution or defense of an action in the trial court for a period of three years. See LSA-C.C.P. art. 561(A)(2). The dismissal in an abandonment situation is ordered as of the date of the abandonment, thus recognizing what has already occurred. See LSA-C.C.P. art. 561(A)(2). Notice and an opportunity to be heard is provided to the party whose action has been dismissed only after the dismissal has been ordered by the court. In contrast, Article 1672(C) requires a contradictory hearing before the dismissal and has no self-executing language.

We note also that the conclusion we reach on this appeal was implicit in this court’s judgment when this issue was before it on the earlier appeal. At that time, the plaintiffs had not pled or provided evidence of the filing of the first suit; therefore, the lawsuit was prescribed on its face, and they had failed to meet their burden of proof that it had not prescribed. However, we remanded the suit, because it appeared that the grounds of the objection might be removed by amendment of the petition. Had we believed at that time that the first suit was an absolute nullity, as if it had never been filed, because the Bordelons had failed to request service within ninety days of filing, |1Twe would not have remanded, because amendment of the petition could not have corrected that situation.

Accordingly, we reverse the judgment of the district court, which sustained the exceptions raising the objection of prescription and dismissed the plaintiffs’ claims, and remand the case for further proceedings.

The Bordelons also seek a determination from this court that the amended petition for damages in the second suit that added Dr. Zaruski as defendant meets the criteria set out in Ray v. Alexandria Mall, 434 So.2d 1083, 1086-87 (La.1983), and thus relates back to the date of filing of the original petition in the second suit. However, we find it unnecessary to reach this issue, because the district court should first have the opportunity to address the question of whether Dr. Zaruski and the Medical Center are solidarily liable or are joint tortfeasors under the law applicable to this case. Accordingly, we pretermit that issue.

CONCLUSION

The judgment, which sustained the exceptions raising the objection of prescription and dismissed the suit, is reversed, and the case is remanded to the district court for further proceedings consistent with this opinion. All costs of this appeal are to be split equally between the Medical Center and Dr. Zaruski.

REVERSED AND REMANDED.

PATTERSON, J., dissents with reasons.

| PATTERSON, J.,

dissenting.

I do not agree with the majority opinion, which concluded prescription was interrupted when the Bordelons’ filed their first suit but failed to serve the defendants, because the first suit was “pending” when the second suit was filed and therefore, the Bordelons’ were within the applicable prescriptive period when the second suit was filed. Louisiana Code of Civil Procedure article 1201 establishes that service and citation are essential in all civil actions, and lack of such renders all proceedings in such an action absolutely null. See La. C.C.P. art. 1201(A). The Bordelons failed to timely serve the defendants within the ninety days mandated by Article 1201(C). Consequently, I cannot agree with the majority’s reasoning that prescription was interrupted and respectfully dissent.

The majority finds that the Bordelons failure to serve the defendants in the first suit could not be absolutely null and of no effect. The filing of a pleading merely commences a civil action. Absent citation and service of the pleading pursuant to Article 1201, all proceedings associated with the pleading “are | ^absolutely null.” See La. C.C.P. art. 1201(C). Article 1201 states that service of the citation must be requested on all named defendants within ninety days of bringing the action. Article 1201(C) clearly mandates such service and citation by providing service of the citation shall be requested on all named defendants within ninety days of commencement of the action. The Bordelons did not request service on the Medical Center or Dr. Zaruski within ninety days of filing the first suit and thus, it is of no effect because it is absolutely null. Therefore, there can be no interruption of prescription through the filing of the first suit when the second suit was filed.

While Louisiana Code of Civil Procedure articles 1201 and 1672 do not have self-executing language, like the abandonment article, which deems the matter dismissed without a formal order of the court, Article 1672 does provide a mechanism to obtain dismissal of the suit for a party who has been sued, but on whom service was not requested within the ninety days required in Article 1201. Article 1672(C) requires that a contradictory hearing be held in which the party who failed to request service must show good cause why service was not effected on the defendant. Due to the Bordelons’ failure to request service on the defendants within ninety days of commencing the original action, the Medical Center and Dr. Zaruski filed a motion to dismiss. See La. C.C.P. art. 1672(C). At |3the contradictory hearing, the Bordelons had an opportunity to set forth good cause for failing to serve the Medical Center and Dr. Zaruski or provide proof of a waiver of service. However, the Bordelons failed to meet their burden and the motion for dismissal was granted.

The majority chooses to rely on Jacobs v. Louisiana Farm Bureau Ins. Cos., 01-837 (La.App. 3 Cir. 12/19/01), 815 So.2d 858, writ denied, 02-0193 (La.3/28/02), 811 So.2d 946 to support its conclusion. In my opinion, the Jacobs case uses procedurally inapplicable statutes to formulate the conclusion that prescription is interrupted when a suit is filed in a court of competent jurisdiction and venue, but service is not effected within ninety days of filing suit. The statutes relied upon in Jacobs concern joint tortfeasors (La.C.C. art. 2324(C)) and the state or a political subdivision as defendant (La. R.S. 13:5107(D)), and have no application to this current matter. The Louisiana legislature did, however, address this matter directly when it enacted Article 1201 and clearly provided that without service and citation, all proceedings are absolutely null. When a law is clear and unambiguous and its application does mot lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9. Therefore, there is no need to look to these outside articles to interpret Article 1201.

Moreover, while the Jacobs case did not overrule Bellard and simply disagreed with its reasoning, the majority chose not to follow Bellard. The Bellard case eor-rectly held that the provisions of Article 1672(C) mandating dismissal for lack of service are nothing more than recognition of the nullity of the existing action. Bellard v. Lake Charles Memorial Hospital, 2000-1599, 2000-1600 (La.App. 3 Cir. 4/4/01), 787 So.2d 1017, 1019.

Finally, this court’s conclusion that prescription is interrupted simply by filing a petition, without timely service and citation, allows the Bordelons another Ryear to file their suit against the defendants, and potentially allows the Bordelons and any other party who fail to abide by Article 1201 the ability to prolong the resolution of a cause of action indefinitely, an absurd consequence. This conclusion renders Article 1201 meaningless. The first suit did not interrupt prescription, because the first suit was absolutely null. An absolute nullity has no effect and cannot interrupt prescription. Accordingly, the second suit filed by the Bordelons on August 3, 1998, was untimely, because prescription had run.

I respectfully dissent.

      . The petition identifies the date of this visit as December 26, 1996, but other facts in the record make it clear that this was a typographical error.

      .A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C), upon contradictory motion of that person or any party or upon the court's own motion, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time. LSA-C.C.P. art. 1672(C).

      . Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this paragraph by any written waiver. LSA-C.C.P. art. 1201(C).

      . According to Louisiana Revised Statute 9:5628, the prescriptive period in a medical malpractice claim is:
      one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.
      The filing of a request for review of a claim with the Medical Review Panel suspends the time within which suit must be initiated. See LSA-R.S. 40:1299.47(A)(2)(a).

      .The court mistakenly referred to Louisiana Code of Civil Procedure article 3463; Louisiana Civil Code article 3463 is the correct article concerning the duration of an interruption of prescription.

      . Article 3462 further states that if the action is commenced in an incompetent court or one of improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.

      . Louisiana Code of Civil Procedure article 561(A)(1) states that, with certain exceptions applicable only to succession proceedings, an action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. Article 561(A)(2) states, in pertinent part:
      This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.

      . In addition to the Third Circuit cases discussed, there are a number of reported cases dealing with the threshold question of whether the lower court should have dismissed the claims when there was no request for service within ninety days of the filing of the petition. All of these cases answered this question in the affirmative, noting in some of the cases that there was no good cause shown for the failure to seek service and no express written waiver. See, e.g., Vicedomini v. Pelts & Skins, 01-2268 (La.App. 1st Cir.2/15/02), 808 So.2d 867, writ denied, 02-0813 (La.5/24/02), 816 So.2d 850; Strong's Plumbing, Inc. v. All Seasons Roofing & Sheet Metal, Inc., 32,783 (La.App. 2nd Cir.3/1/00), 754 So.2d 336; Barrow v. Fair Grounds Corp., 00-0873 (La.App. 4th Cir.3/7/01), 782 So.2d 697, writ denied, 01-0827 (La.5/11/01), 792 So.2d 737; Anderson v. Norfolk Southern Railway Co., 02-0230 (La.App. 4th Cir.3/27/02), 814 So.2d 659, writ denied, 02-1396 (La.9/20/02), 825 So.2d 1169, reconsideration not considered, 02-1396 (La.11/1/02), 828 So.2d 577; Reed v. Norfolk-Southern Railway, 02-0427 (La.App. 4th Cir.4/24/02), 817 So.2d 321, writ denied, 02-1452 (La.9/20/02), 825 So.2d 1171; Bolner v. Daimler Chrysler Corp., 01-1285 (La.App. 5th Cir.6/26/02), 820 So.2d 1252, writ denied, 02-2263 (La.11/15/02), 829 So.2d 430. However, none of these cases dealt with the interruption of prescription and nullity issues that we are considering in this case.

      . According to Ray, the following criteria are used to determine whether Louisiana Code of Civil Procedure article 1153 allows an amendment, which changes the identity of the party or parties sued, to relate back to the date of filing of the original petition: (1) the amended claim must arise out of the same transaction or occurrence set forth in the original pleading; (2) the purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits; (3) the purported substitute defendant must know or should have known that, but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him; (4) the purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action, which otherwise would have prescribed. Ray, 434 So.2d at 1086-87.

      .La. C.C.P. art. 561 provides, in pertinent part:
      A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
      (a) Which has been opened.
      (b) In which an administrator or executor has been appointed.
      (c) In which a testament has been probated.
      (2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The order shall be served on the plaintiff pursuant to Article 1313 or 1314, and the plaintiff shall have thirty days from date of service to move to set aside the dismissal. However, the trial court may direct that a contradictory hearing be held prior to dismissal.

        . A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C), upon contradictory motion of that person or any party or upon the court's own motion, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time. La. C.C.P. art. 1672(C).

      . La. C.C.P. art. 1672(C).

      . La. C.C.P. art. 1201(B).

      . If prescription is interrupted, the time that has run is not counted. Prescription com-menees to run anew from the last day of interruption. La. C.C. art. 3466.


source: Caselaw Access Project

author: | «GUIDRY, J.

license: Public Domain

text:
    Eric LAPEYROUSE Sr. M/V Miss Georgiana v. Joe William BARBAREE M/V Risky Business.
    No. 2002 CA 0086.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.

      Carlton J. Cheramie, Cut Off, Counsel for Defendant/Appellant Joe William Bar-baree.
    Philip J. McMahon, Houma, Counsel for Plaintifl/Appellee Eric Lapeyrouse, Sr.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   | «GUIDRY, J.

In this appeal of an adverse tort judgment, the owner of a shrimping vessel asserts that the trial court erroneously found that there was sufficient evidence to find him liable for the damages sustained by another shrimping vessel. Based on a thorough review of the record, we affirm.

FACTS AND PROCEDURAL HISTORY

In November 1997, the appellee, Eric Lapeyrouse, owned a forty-one foot, wooden shrimp trawling boat named the M/V Miss Georgiana. The appellant, Joe Bar-baree, owned a fifty-foot, steel hull shrimp trawling boat called the M/V Risky Business. On November 17, 1997, the M/V Miss Georgiana sustained certain structural damage, though the parties’ disagree as to how and to what extent the vessel sustained any damage.

A bench trial was held on April 9, 2001, at the conclusion of which the trial court found in favor of Mr. Lapeyrouse. A written judgment in accordance with the trial court’s oral ruling was signed on April 12, 2001. It is from that judgment that Mr. Barbaree appeals, asserting that the trial court erred in: (1) finding that Mr. Lapey-rouse proved his claim by a preponderance of the evidence; (2) allowing certain testimony of Mr. Lapeyrouse’s expert witness; (3) examination of Mr. Lapeyrouse as a pro se litigant and the admission of certain evidence in conjunction therewith; and (4) failing to take into account Mr. Lapey-rouse’s failure to mitigate damages in the judgment award.

DISCUSSION

In his first assignment of error, Mr. Barbaree alleges that the trial court erroneously found that Mr. Lapeyrouse had proven his claim for damages by a preponderance of the evidence. At the trial on the merits, Mr. Lapeyrouse testified on his own behalf and presented the testimony of three | ^eyewitnesses who stated that the M/V Miss Georgiana was damaged when another vessel’s rigging or boom became entangled with the rigging of the M/V Miss Georgiana.

The eyewitnesses testified that they heard a lot of banging and clanking that caused them to observe the entangled vessels, but admitted that they could not see nor identify the name of the vessel that became entangled with the M/V Miss Georgiana. One other witness, Jeffery Scott, testified that he observed the M/V Miss Georgiana tied or moored to the M/V Risky Business on the day of the incident. Mr. Lapeyrouse testified that he observed the accident when it occurred and identified the offending vessel as the M/V Risky Business. Mr. Lapeyrouse also presented the testimony of Robert Hale III, qualified as a marine surveyor expert, who opined that, based on his inspection of the M/V Miss Georgiana following the incident, the damage sustained by the vessel was consistent with the account that the rigging of the vessel had become entangled with that of another vessel.

Conversely, Mr. Barbaree and one witness, a deckhand for the M/V Risky Business, Timothy Kelly, testified that the M/V Risky Business did not damage the M/V Miss Georgiana. Mr. Barbaree and Mr. Kelly both acknowledged that on the date of the incident, the M/V Miss Georgiana was moored to the M/V Risky Business. They further testified that in preparation for sailing that day, they turned the M/V Miss Georgiana around, by virtue of that vessel being moored to the M/V Risky Business, so that it could be moored directly to the Scottco dock and loosed from the M/V Risky Business. Mr. Barbaree and Mr. Kelly then testified that they traveled a short way up the bayou away from the dock to stock up on supplies before launching out to sea.

LMr. Barbaree testified that at no time did the M/V Risky Business become entangled, collide with or otherwise damage the M/V Miss Georgiana. In partial contradiction to Mr. Barbaree’s testimony, Mr. Kelly testified that at one point while moving the M/V Miss Georgiana, the “pelican stabilizer” of the M/V Risky Business started to become entangled with the cable of the M/V Miss Georgiana, so he pulled the “pelican stabilizer” down onto the deck. He stated that the contact did not cause any damage to the M/V Miss Geor-giana. Mr. Kelly explained that the “pelican stabilizer” was a chain mounted about two and a half feet from the top of the boom.

After considering the above-referenced testimony, the trial court made a factual determination that the M/V Miss Georgiana was damaged by the M/V Risky Business. Factual determinations of the trier of fact may not be reversed absent manifest error or unless they are clearly wrong. Pinsonneault v. Merchants & Farmers Bank & Trust Company, 01-2217, p. 11 (La.4/3/02), 816 So.2d 270, 278. To reverse a factual finding of the trial court, an appellate court must: (1) find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Pinsonneault, 01-2217 at 12, 816 So.2d at 279.

As explained in Short v. Plantation Management Corporation, 99-0899 (La.App. 1st Cir.12/27/00), 781 So.2d 46:

| .¡Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact or causation sought to be proved is more probable than not. To carry his burden of proof, the plaintiff must produce evidence from which the factfinder can reasonably conclude that his injuries, more probably than not, were caused by the negligence of the particular defendant. The plaintiff, however, does not have to conclusively exclude all other possible explanations for his injuries, because the standard is not proof beyond a reasonable doubt.

Short, 99-0899 at 9, 781 So.2d at 54 (citation omitted) (emphasis added).

Based on our review of the record, including the testimony presented by both parties, we find no merit in Mr. Barbaree’s contention that Mr. Lapeyrouse did not prove his claim for damages by a preponderance of the evidence. Although Mr. Barbaree’s evidence substantially contradicted that of Mr. Lapeyrouse, that alone was not sufficient to weigh against finding that the plaintiff proved his case by a preponderance of the evidence. See Short, 99-0899 at 9, 781 So.2d at 54. Mr. Lapey-rouse’s testimony, largely corroborated by that of the three eyewitnesses, Mr. Scott, and Mr. Hale, was sufficient to establish by a preponderance of the evidence that the M/V Miss Georgiana was damaged by the operation of the M/V Risky Business on November 17, 1997. Thus, we reject this assignment of error.

In his second assignment of error, Mr. Barbaree contends that the trial court erred in allowing Mr. Hale to testify beyond the stated expertise for which he was qualified. The trial court accepted Mr. Hale as an expert in marine - surveying. Mr. Barbaree points out the following testimony in the record wherein he contends that the trial court allowed Mr. Hale to testify as to causation and accident reconstruction, two areas for which he was not qualified to give expert opinion testimony:

BY MR. CHERAMIE:

[fiQ. Mr. Hale, I’m going to show you a photograph which is part of your survey. This first photograph; what does that show?
A. It shows the bow of the vessel, and it shows where something has ripped some planks out of the deck. And this blackened area here is, generally, what you call the base of the anchor shoot. And this bulwark to the port side is fractured and appears to have been pulled off.
Q. That would be indicative of something hooking onto the front of the vessel and pulling that apart?
A. Most of these vessels, if you look at the second photograph, most of them have a cable or a chain that runs from this part of the A-frame down to this part of the bow (indicating), and it would indicate that something pulled on it and ripped this off.
Q. What’s the condition of the wood in that area?
A. It looks like it’s got quite a bit of advance rot on it.
THE COURT:
Mr. Hale, you’re telling me that whatever force was applied to this vessel came from the rigging?
THE WITNESS:
Yes, sir, that’s my opinion; not from a collision with the dock or anything.

Counsel for Mr. Barbaree, Mr. Cheramie, did not object to the foregoing exchange between the trial court and Mr. Hale, but simply continued to cross examine the witness.

It is evident from this exchange that the trial court was only seeking a clearer understanding of Mr. Hale’s testimony on cross-examination, which is allowed under La. C.E. art. 614. See Billiot v. K-Mart Corporation, 99-1569, p. 7, n. 3 (La.App. 1st Cir.6/23/00), 764 So.2d 329, 333, n. 3, writ denied, 00-2211 (La.10/13/00), 771 So.2d 653. We further note that although La. C.E. art. 614(C) authorizes a party to object to the trial court’s questioning of witnesses, counsel for Mr. Barbaree did not object. The failure to object to this testimony thus precludes Mr. Barbaree from raising the issue on appeal. La. C.C.P. art. 1635; La. C.E. art. 103; McMorris v. Marcotte Builders, L.L.C., 98-2302, p. 7 (La.App. 1st Cir.12/28/99), 756 So.2d 424, 429, writ denied, 00-0664 (La.4/20/00), 760 So.2d 1158. We therefore reject this assignment of error.

In his next assignment of error, Mr. Barbaree contests the trial court’s actions in conducting a direct examination of Mr. Lapeyrouse when he took the stand to testify on his own behalf. Generally, a trial judge, in order to maintain the impartiality that proper trial technique demands, should be careful not only as to the number and type of questions propounded by him to witnesses, but also as to the manner in which they are propounded. Midyett v. Midyett, 32,208, p. 7 (La.App. 2nd Cir.9/22/99), 744 So.2d 669, 674. However, a layman who represents himself cannot be held to the same standards of skill and judgment that must be attributed to an attorney, although a layman assumes responsibility for his own inadequacy and lack of knowledge of both procedural and substantive law. Rader v. Department of Health and Hospitals, Office of Public Health, Engineering Services, 94-0763, p. 5 (La.App. 1st Cir.3/3/95), 652 So.2d 644, 646.

In this case, before commencing to question Mr. Lapeyrouse, the trial court explained that it was doing so “for the sake of brevity.” During the trial court’s examination of Mr. Lapeyrouse, some photographs, referred to earlier in the trial by Mr. Lapeyrouse, were filed into the record. Counsel for Mr. Barbaree objected to Mr. Lapeyrouse’s attempts to introduce the photographs earlier in the trial based on Mr. Lapeyrouse’s failure to properly | sidentify the photographs. Before having the photographs introduced into the record as exhibit “P-3”, the trial court asked counsel for Mr. Barbaree whether he had any objections, to which he responded “No. It’s proper identification, your Honor.” Another set of photographs, identified by Mr. Lapeyrouse as being taken two months before the trial, were also introduced during the trial court’s examination of Mr. Lapeyrouse as exhibit “P-5”. Again, when counsel for Mr. Barbaree was queried for any objections, his response was “No, your Honor.”

The only other evidence introduced during the trial court’s cross examination of Mr. Lapeyrouse was Mr. Lapeyrouse’s tax return for 1997, which evidence was used by the trial court to determine the merit of Mr. Lapeyrouse’s lost income claim. Of particular mention in reviewing the transcript of the trial court’s examination of Mr. Lapeyrouse, is the fact that all of the questions posed by the trial court were limited to issues raised earlier in the trial; no new issues were raised.

Although a trial court has no affirmative duty to assist an unrepresented party, it does have authority, in a non-jury case, to reasonably question a witness for clarification when the facts are confused, undeveloped or misleading. Borgos v. Buras, 611 So.2d 764, 769 (La.App. 4th Cir.1992). Bearing in mind that the trial court’s examination of Mr. Lapeyrouse stayed largely within the scope of questions directed to other witnesses by the parties earlier in the trial, we do not find that the trial court abused its discretion by conducting a direct examination of Mr. Lapeyrouse. Especially considering that this matter involved a pro se litigant, in a non-jury trial, where the trial court’s questions did not stray outside the scope of questions posed to other witnesses and said questions helped to clarify and develop the issues to be decided by the trial court. See Aycock v. City of Shreveport, 535 So.2d 1006, 1011 (La.App. 2nd Cir.1988), writ denied, 536 So.2d 1223 (La.1989); Patin v. DeStevens, 415 So.2d 1011, 1012 (La.App. 4th Cir.1982).

Also, we again note that counsel for Mr. Barbaree did not object to the actions of the trial court, as authorized under La. C.E. art. 614(C), and by such failure, he waives his right to dispute the issue on appeal. See McMorris, 98-2302 at 7, 756 So.2d at 428; Lancon v. Vallot, 459 So.2d 1360, 1365 (La.App. 3rd Cir.1984). Thus, we reject this assignment of error.

Finally, in his last assignment of error, Mr. Barbaree contends that the trial court failed to take into account Mr. La-peyrouse’s failure to mitigate his damages in rendering the damage award, specifically referring to Mr. Lapeyrouse’s failure to salvage the engine and other equipment on the vessel.

At trial, Mr. Hale testified that prior to the accident, the fair market value of the M/V Miss Georgiana was $20,000 and that following the accident, the vessel had a present-day salvage value of $2,000. Mr. Lapeyrouse testified that he purchased the vessel from his father in May 1997 for $15,000. Ronald Lirette, a witness for Mr. Lapeyrouse who testified as to the condition of the vessel prior to the accident, stated that a year or two before Mr. La-peyrouse purchased the vessel, the previous owner had put a new engine on the vessel worth around five to six thousand dollars and that the vessel had a twin-disc clutch, which he said was “pretty expensive.”

The trial court, in awarding Mr. Lapey-rouse $14,000 in damages, considered the testimony of Mr. Hale, stating that the fair market value of the vessel before the accident was $20,000, and also that Mr. Lapey-rouse Imonly paid $15,000 for the vessel. However, it reasoned that “a lot of times daddies do favors for sons[,]” but “you can’t buy 41-feet of anything for less than $15,000.” Then stating that it was taking “kind of the middle road,” the trial court awarded Mr. Lapeyrouse $14,000 in damages.

We note that the trial court seemed to find credible Mr. Hale’s testimony that the pre-accident, fair market value of the vessel was $20,000 and that the difference in that value and the damages awarded is $6,000, the approximate value of the vessel’s engine as opined by Mr. Lirette. There was no testimony or evidence introduced that indicated the value of vessel’s twin-disc clutch, except for Mr. Lirette’s opinion that it was “pretty expensive.” Considering the evidence in the record and that the trial court did not award damages equal to the full, pre-accident value of the vessel, we cannot say that the trial court abused its discretion in the damages awarded. See Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74. Thus, we reject Mr. Barbaree’s final assignment of error.

CONCLUSION

Accordingly, based on our review of the law and the record in this matter, we find no manifest error on the part of the trial court in ruling in favor Mr. Lapeyrouse on his claim for property damage to his shrimp-trawling vessel, the M/V Miss Georgiana. We, therefore, affirm the judgment of the trial court. All costs in this matter are assessed to the appellant, Mr. Barbaree.

AFFIRMED.

      . We note that at one point during the direct examination of Mr. Hale, counsel for Mr. Bar-baree did object to Mr. Hale testifying about issues of causation and accident reconstruction as being beyond the expertise for which he was qualified. The trial court sustained the objection.


author: J^PETTIGREW, J. h GUIDRY, J.,

text:
    Joseph Paul WILLARD v. R & B FALCON DRILLING USA, INC.
    No. 2001 CA 2334.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.

      Barry A. Roach, Lake Charles, for Plaintiff-Appellant Joseph Paul Willard.
    Barry J. Boudreaux, Houma, for Defendant-Appellee R & B Falcon Drilling USA, Inc.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J^PETTIGREW, J.

Plaintiff appeals devolutively from a trial court judgment ordering him to execute a general release in favor of defendant and to conclude the matter in accordance with the terms and conditions of the settlement agreement previously reached by the parties. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On October 12, 1998, plaintiff, Joseph Paul Willard, was injured while employed as a Jones Act seaman by R & B Falcon Drilling USA, Inc. Mr. Willard subsequently filed a petition for damages against Falcon pursuant to the Jones Act and general maritime law. In an effort to resolve their differences, the parties engaged in mediation. On January 9, 2001, the parties reached a compromise agreement wherein Mr. Willard and Falcon agreed to settle the case for $320,000.00. In a letter dated January 9, 2001, counsel for Mr. Willard memorialized the essential elements of the settlement agreement. The letter was signed by counsel for Falcon on January 10, 2001, and returned the same day to opposing counsel. Thereafter, counsel for Falcon prepared a general release, receipt, and indemnity agreement that Mr. Willard would be required to execute at the February 7, 2001 settlement conference. The general release, which released all of Mr. Willard’s claims and causes of action against all persons arising out of the accident of October 12, 1998, was forwarded to Mr. Willard’s counsel on February 5, 2001.

Shortly before the February 7 settlement conference, counsel for Mr. Willard indicated that he wanted to reserve his client’s rights against Falcon’s physician, Dr. William St. Martin, under a theory of medical malpractice for allegedly failing to diagnose a back condition during Mr. Willard’s pre-employment physical examination. He insisted that all that was contemplated in the settlement agreement was a resolution of Mr. Willard’s case against Falcon, in its entirety, for $320,000.00. To the contrary, counsel for Falcon maintained that the settlement agreement contemplated a settlement of all of Mr. Willard’s claims against all potential parties.

When it was clear that no compromise was imminent with regard to the language to be used in the release, both parties filed motions with the trial court to enforce the | ^settlement. In addition to requesting that the settlement agreement be enforced, Mr. Willard requested that Falcon be taxed with penalties and attorney fees pursuant to La. R.S. 22:1220. Both motions were heard by the trial court on March 13, 2001, at which time the parties agreed that the January 9, 2001 settlement agreement was a binding agreement and should be enforced. Thus, the only issue before the court was how to enforce the agreement; i.e., should the parties sign a general release or a restrictive release, reserving a right of action against Dr. St. Martin. At the conclusion of the hearing, the court ruled in favor of Falcon. In an order dated March 14, 2001, the trial court ordered Mr. Willard to “execute a general release to be prepared by R & B Falcon Drilling USA, Inc., within thirty days of the hearing of March 13, 2001, and to execute whatever documents are necessary to conclude the matter in accordance with the terms and conditions of the said settlement.”

According to the record, a settlement conference was held on March 22, 2001, at which time Mr. Willard signed the general receipt, release, and indemnity agreement prepared by Falcon and accepted a check from Falcon in the amount of $320,000.00. Other settlement documents were executed by the parties, along with a “Motion And Order To Dismiss With Prejudice,” which was subsequently signed by the trial court on March 28, 2001. Subsequently, on May 11, 2001, Mr. Willard filed a motion for devolutive appeal, challenging the order signed by the trial court on March 14, 2001.

Thereafter, on June 15, 2001, Falcon moved the trial court to dismiss Mr. Willard’s appeal, alleging that he had “no right of appeal due to his actions of executing a receipt and release, executing a motion and order to dismiss with prejudice and accepting and negotiating a check for the agreed upon amount of the settlement between these parties.” A hearing on the motion to dismiss the appeal was held on August 13, 2001, at which time the trial court denied the motion. A judgment denying the motion to dismiss the appeal was signed on September 11, 2001.

In the instant appeal, Mr. Willard assigns the following specifications of error:

1. [T]he trial court was clearly wrong in allowing witnesses to testify outside the four corners of the January 9, 2001 settlement agreement | regarding the intentions of the parties confecting the settlement and what is customary within the practice of maritime law.
2. [T]he trial court was clearly wrong in disregarding the “four corners” rule, considering the intention of the parties and relying on custom within the practice of maritime law in ordering Willard to execute a general release despite the binding settlement agreement confected on January 9, 2001.
3. [T]he trial court was clearly wrong in not awarding punitive damages pursuant to Louisiana Revised Statute Title 22, Section 1220 based on the failure of Falcon to pay the agreed settlement within 30 days after the agreement was reduced to writing on January 9, 2001.

INTERPRETATION OF SETTLEMENT AGREEMENT

In his first two assignments of error, Mr. Willard asserts the trial court “violated the ‘four corners’ rule by looking beyond the January 9, 2001 settlement agreement for guidance as to the intent of the parties and what is customary in the practice of maritime law.” Mr. Willard suggests that the January 9, 2001 transaction and compromise was clear and explicit, thus requiring no further interpretation of the agreement by the trial court to determine the parties’ intent. Conversely, Falcon contends there was a dispute between the parties as to which matters were intended to be settled by the compromise agreement, thereby making it necessary for the trial court to go beyond the four corners of the agreement to determine the parties’ intent.

A transaction or compromise is “an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.” La. Civ. Code art. 3071. A compromise instrument is the law between the parties and must be interpreted according to the intent of the parties to the agreement. Smith v. Walker, 96-2813, p. 9 (La.App. 1 Cir. 2/20/98), 708 So.2d 797, 802, writ denied, 98-0757 (La.5/1/98), 718 So.2d 418. Thus, it follows that the compromise instrument is governed by the same general rules of construction applicable to contracts. Gaubert v. Toyota Motor Sales U.S.A., Inc., 99-2569, p. 3 (La.App. 1 Cir. 11/3/00), 770 So.2d 879, 881.

Louisiana Civil Code article 2046 sets forth a general rule of construction, providing that “[w]hen the words of a contract are clear and explicit and lead to no absurd |Bconsequences, no further interpretation may be made in search of the parties’ intent.” Because a compromise extends only to those matters the parties intended to settle, the cope of the transaction cannot be extended by implication. La. Civ.Code art. 3073. In determining those matters the parties intended to settle, we must consider the contract as a whole and in light of attending events and circumstances. Ortego v. State, Department of Transportation and Development, 96-1322, p. 7 (La.2/25/97), 689 So.2d 1358, 1363.

The meaning and intent of the parties to a written instrument, including a compromise, is ordinarily determined from the four corners of the instrument, and extrinsic (parol) evidence is inadmissible either to explain or to contradict the terms of the instrument. Gaubert, 99-2569 at 3, 770 So.2d at 881. However, when the terms of a written contract are susceptible of more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, parol evidence is admissible to clarify the ambiguity or show the intention of the parties. Commercial Properties Development Corporation v. State Teachers Retirement System, 2000-0392, p. 7 (La.App. 1 Cir. 3/28/01), 808 So.2d 534, 540. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and other contracts of a like nature between the same parties. La. Civ.Code art. 2053. Whether a contract is ambiguous is a question of law. Hampton v. Hampton, Inc., 97-1779, p. 7 (La.App. 1 Cir. 6/29/98), 713 So.2d 1185, 1189.

The settlement agreement at issue in the instant case is a January 9, 2001 letter from counsel for Mr. Willard to counsel for Falcon. The letter contains the following language:

This letter will confirm our agreement to settle Mr. Willard’s case against R & B Falcon, in its entirety, for $320,000.00, with this amount being paid within thirty days. It is my understanding that Mr. Willard will be responsible for medical expenses incurred at Charity Hospital in New Orleans related to his back injury. It is also my understanding that R & B Falcon will pay for all court costs relating to this matter.
Rif this is your understanding of our agreement, please place your signature on the line provided below and fax this letter back to me at your earliest convenience.

The letter was signed by counsel for Falcon on January 10, 2001, and returned the same day to opposing counsel.

At the March 13, 2001 hearing before the trial court, counsel for Falcon offered Joseph J. Weigand as an expert in the field of personal injury maritime law. The court accepted Mr. Weigand as an expert and heard testimony from him concerning customs and usages in general maritime law. Based on his experience in handling maritime cases, Mr. Weigand opined that the January 9, 2001 agreement between the parties clearly contemplated a general release of all potential defendants. Mr. Weigand acknowledged that to reach this conclusion, you would have to go outside the four corners of the document and consider what is usual and customary in the maritime field.

After hearing from Mr. Weigand and considering the briefs submitted by the parties, the trial court found in favor of Falcon, ordering Mr. Willard to execute a general release. The court noted as follows:

I believe that the letter is clear that a settlement was reached. I also believe that the standards within the practice of law in the maritime industry is as related by Mr. Weigand that a general release follows the confirmation of a settlement. Unless the parties had made a reservation of rights against a party, there would be no anticipated reservation of rights and the general release form would be appropriate.
... I will enforce the settlement under the terms of a general release, as I believe would be standard in the industry and as would have been recognized by the parties on January the 9th, 2001.

When considering the language “This letter will confirm our agreement to settle Mr. Willard’s case against R & B Falcon, in its entirety, for $320,000.00” as is found in the January 9, 2001 letter, one could interpret the phrase “in its entirety” as all-inclusive language implying a general release of Falcon and all potential defendants. However, when considering the contract as a whole, and in light of attending events and circumstances, one could infer that the parties intended to only settle Mr. Willard’s case as against Falcon. When, as here, the parties dispute exactly what claims were clearly contemplated to be covered by the settlement, the jurisprudential rule allowing ^consideration of par-ol evidence to determine the parties’ intent is applicable. Accordingly, we find no manifest error in the trial court’s decision to allow the introduction of parol evidence to clarify the ambiguity as to what the parties intended to include in the settlement. Moreover, we are satisfied, as was the trial court, that a general release of Falcon and all potential defendants was intended by the parties. Therefore, Mr. Willard’s assignments of error regarding this issue are without merit.

PENALTIES PURSUANT TO LA. R.S, 22:1220

In his final assignment of error, Mr. Willard contends the trial court erred in not awarding punitive damages under La. R.S. 22:1220, based on Falcon’s failure to pay the agreed settlement within thirty days after the agreement was reduced to writing on January 9, 2001.

Under La. R.S. 22:1220, an insurer has a duty of good faith and fair dealing toward its insured, including the duty to adjust claims fairly and promptly. The insured is entitled to recover any general and special damages and may recover penalties occasioned by the insurer’s breach of these duties. La. R.S. 22:1220(B) and (C). Due to the penal nature of this statute, it must be strictly construed. Penalties and attorney fees will not be assessed against an insurer unless it is clearly shown that the insurer was, in fact, arbitrary, capricious, and without probable cause in refusing to pay. Block v. St. Paul Fire & Marine Ins. Co., 32,306, p. 7 (La.App. 2 Cir. 9/22/99), 742 So.2d 746, 751. Whether a refusal to pay is arbitrary, capricious, or without probable cause depends on the facts known to the insurer at the time of its action. The determination that an insurer’s handling of a claim is arbitrary and capricious is a factual finding that may not be disturbed unless manifestly erroneous. Wallace v. State Farm Mutual Automobile Insurance Company, 36,099, pp. 7-8 (La.App. 2 Cir. 6/14/02), 821 So.2d 704, 710.

In the instant case, the trial court found La. R.S. 22:1220 to be inapplicable, noting that “Falcon stood ready to tender the funds.” Based on our review of the record, we are satisfied that Falcon was not arbitrary, capricious, or without probable cause in refusing to tender the settlement funds within the time allowed. Thus, the trial court did not err in denying Mr. Willard’s request for penalties pursuant to La. R.S. 22:1220.

^CONCLUSION

For the above and foregoing reasons, the judgment of the trial court is affirmed in all respects. Costs associated with this appeal are assessed against plaintiff-appellant, Joseph Paul Willard.

AFFIRMED.

GUIDRY, J., dissents and assigns reasons.

h GUIDRY, J.,

dissenting.

In the majority opinion, it is found that the use of the phrase “in its entirety” makes the January 9, 2001 letter ambiguous, and thus warranted the acceptance of parol evidence by the trial court to determine the true intent of the parties to the agreement. I disagree with the finding of ambiguity by the majority. Specifically, the phrase at issue is found in the following sentence in the January 9, 2001 letter: “This letter will confirm our agreement to settle Mr. Willard’s case against R & B Falcon, in its entirety, for $320,000.00, with this amount being paid within thirty days.”

The majority construed the use of the phrase “in its entirety” as having two possible meanings in the context of the sentence just quoted: (1) that the phrase meant that Mr. Willard was releasing Falcon and all potential defendants; or (2) Mr. Willard only intended to release Falcon. The first reading of the phrase by the majority is clearly an unwarranted expansion of the plain meaning of the phrase in the context of the sentence in which it is found. In particular, it is noted that no where in the sentence containing the phrase, nor in the entire letter, is any mention made of any other potential tort-feasors. Furthermore, Mr. Willard expressly stated that he was settling his case against R & B Falcon. He did not simply state that he |2was settling his case or claims related to the incident occurring on October 12, 1998, but he expressly limited the release to his “case against R & B Falcon.”

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. In such cases, the meaning and intent of the parties to the written contract must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence. La. C.C. art. 1848.

In this case, the majority seeks to justify the decision to use parol evidence by interpreting the phrase “in its entirety” in isolation and not in the context of the sentence in which it is found and the document as a whole. Such an interpretation expressly contravenes rules of interpretation as delineated in the Civil Code. See La. C.C. art. 2050. Thus, I respectfully dissent from the majority opinion in this matter.


author: JgPETTIGREW, J.

text:
    Lisa FRIEDLEY v. ALEXANDER ELECTRICAL, INC. and CNA INSURANCE COMPANIES.
    No. 2002 CA 0292.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Writ Denied March 28, 2003.

      Lance D. Airhart, Baton Rouge, for Plaintiff-Appellee Lisa Friedley.
    Kirk L. Landry, Baton Rouge, for Defendants-Appellants Alexander Electrical, Inc. and CNA Insurance Companies.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   JgPETTIGREW, J.

In this case, defendants appeal a judgment of the Office of Workers’ Compensation finding that claimant’s preexisting condition was aggravated during the course and scope of her employment and awarding claimant supplemental earnings benefits and medical benefits. For the reasons that follow, we amend and affirm.

FACTS AND PROCEDURAL HISTORY

Claimant, Lisa Friedley, was employed by Alexander Electrical, Inc. to perform construction work. On December 6, 2000, as Ms. Friedley was attempting to cover and protect a threading machine from the rain, a co-worker walked behind her and accidentally struck her hand, knocking Ms. Friedley to the ground. Ms. Friedley was taken to the safety department, where she was told to go home and apply ice to her hand. She returned to work the following day, but was taken to a doctor who ordered x-rays of her hand. The doctor advised Ms. Friedley that she had a cyst on the fifth metacarpal of her left hand and recommended that she see a specialist. In the meantime, the doctor wrapped Ms. Friedley’s hand and sent her back to work with a light-duty restriction.

Ms. Friedley subsequently saw Dr. David Pope, an orthopedic surgeon. Dr. Pope diagnosed Ms. Friedley with a tumor on the fifth metacarpal of her left hand and recommended the tumor be removed. Dr. Pope then referred Ms. Friedley to one of his partners, Dr. Robert Brennan, an orthopedic surgeon who specializes in problems associated with the hand.

According to Dr. Brennan, the type of tumor on Ms. Friedley’s finger is not caused by trauma. Dr. Brennan explained that this type of tumor did not form over the course of a couple of days. Although Dr. Brennan indicated the tumor was probably benign, he noted that Ms. Fried-ley was at a high risk of fracturing the affected finger because of the weakened condition of the bone. Dr. Brennan allowed Ms. Friedley to continue to work, 13but advised her not to do any lifting and to take preventative measures when performing repetitive activities in order to avoid placing stress on her finger. Dr. Brennan testified that once the tumor was removed, Ms. Friedley would have a splint or cast on her hand for four to six weeks, followed by range of motion exercises.

Ms. Friedley testified that she experienced pain in her finger immediately following the December 6, 2000 accident and that she was told the pain would not subside unless the tumor was removed. Ms. Friedley indicated that since the accident, her left hand has been in a half-cast splint. From December 6, 2000 until January 30, 2001, at which time her employment was terminated, Ms. Friedley performed light duty work such as office work, running errands, answering the phone, and sweeping. According to Ms. Friedley, she has not been employed since January 30, 2001.

On February 16, 2001, Ms. Friedley filed a disputed claim for compensation seeking wage benefits and medical treatment. Following a hearing, the workers’ compensation judge found that Ms. Friedley injured her left hand in the course and scope of her employment by aggravating a preexisting tumor. In a judgment rendered on September 6, 2001, the workers’ compensation judge ordered as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that:
1. The claimant ... injured her left hand by accident in the course and scope of her [employment] with the defendant on December 6, 2000; said injury aggravated and made symptomatic a pre-ex-isting tumor.
2. The claimant is awarded Supplemental Earnings Benefits at the Temporary Total Disability rate from January 31, 2001 and continuing under the Act, together with legal interest of 8.241% on each installment's it came due until paid; said award totaling $9792.09, without interest, on the date of trial.
3. The claimant is awarded surgical removal of the tumor and all related costs under the fee schedule and all costs of these proceedings.
4. No penalties or attorney’s fees are awarded as the claim was reasonably controverted.

It is from this judgment that Alexander Electrical, Inc. and its insurer, CNA Insurance Companies (hereinafter collectively referred to as defendants), have appealed, assigning the following specifications of error:

|41. The workers’ compensation judge committed legal error in assigning a legal presumption that the plaintiffs tumor was caused by or worsened because of her employment, where the uncontra-dicted medical evidence from two ortho-paedic surgeons shows otherwise.
2. The workers’ compensation judge committed legal error in awarding workers’ compensation indemnity benefits in the complete absence of any evidence to support such an award.
3. The trial court committed manifest error in ordering the employer to pay for the surgical excision of a pre-existing tumor that was not worsened by any employment-related incident.

ASSIGNMENTS OF ERROR NUMBERS ONE AND THREE

Defendants argue that because both Dr. Berryhill and Dr. Brennan indicated that trauma could not cause the type of tumor on Ms. Friedley’s hand, the workers’ compensation judge erroneously applied the causal presumption between the December 6, 2000 accident and the tumor. Defendants further contend that because there is no evidence that Ms. Friedley’s tumor was caused or worsened by a work-related injury, there is no factual or legal justification for them to be ordered to bear the cost of surgical removal of the tumor. While we note that the evidence is clear that such a tumor is not caused by trauma, the evidence also indicates that the effects of the tumor on Ms. Friedley’s finger did not become symptomatic until the December 6, 2000 accident.

The law is well established that an employer takes an employee as it finds her. The fact that disease alone might have disabled the employee in its ordinary course of progress is not the inquiry. Barber Brothers Contracting Company v. Cuccia, 98-0675, p. 3 (La.App. 1 Cir. 4/1/99), 734 So.2d 820, 822, writ denied, 99-1258 (La.6/18/99), 745 So.2d 31. As noted by the supreme court in Doucet v. Baker Hughes Production Tools, 93-3087 (La.3/11/94), 635 So.2d 166 (per curiam), an employee’s disability is compensable if a preexisting condition or disease is activated or precipitated into a disability manifestation as a result of work:

A plaintiff-employee’s disability will be presumed to have resulted from an employment accident if before the accident the plaintiff-employee was in good health, but commencing with the accident the symptoms of the j ¡^disabling condition appear and continuously manifest themselves, provided that the evidence shows that there is a reasonable possibility of causal connection between the accident and the disabling condition. [Citations omitted]. This presumption is not a conclusive one; rather, it compels the defendant to come forward with sufficient contrary evidence to rebut it.

Doucet, 93-3087 at 3, 635 So.2d at 167-168 (citing Hammond v. Fidelity & Casualty Company of New York, 419 So.2d 829, 831 (La.1982)).

Ms. Friedley testified that prior to the December 6, 2000 accident, she had not experienced any problems with her hand. At the time of the accident, she felt immediate pain, which had not subsided as of the time of trial. Following discovery of the tumor, she was placed on light duty because of the likelihood that her finger could be fractured. According to Ms. Friedley, she was told that the only way her pain would be relieved would be to have the tumor removed.

Although Dr. Brennan testified the tumor was not caused by trauma, he indicated it was possible for someone with this type of tumor to be pain free. Dr. Brennan explained that when Ms. Friedley’s hand was struck, it could have caused inflammation in the region, aggravating the condition. Dr. Brennan indicated, however, that notwithstanding this work-related incident, Ms. Friedley’s condition “most likely would have become symptomatic” due to a defect in the affected finger.

Despite the existence of Ms. Fried-ley’s tumor prior to the accident, it was asymptomatic. The disabling condition began only when the tumor became painful, i.e., symptomatic, as a result of the employment-related accident. Accordingly, the workers’ compensation judge correctly applied the presumption. Further we note the jurisprudence recognizes that although employers do not “pay for every flare-up,” they must compensate claimants who prove a disabling aggravation of prior, asymptomatic conditions as a result of an on-the-job injury. Barber Brothers Contracting Company, 98-0675 at 3, 734 So.2d at 822. Given the fact that Ms. Friedley’s tumor was aggravated by a work-related accident, we find no error in the workers’ compensation judge’s decision to cast the defendants with medical expenses associated with the cost of removal of the tumor. These assignments of error are without merit.

I «ASSIGNMENT OF ERROR NUMBER TWO

Under the provisions of La. R.S. 23:1221(3)(a), an employee is entitled to receive supplemental earnings benefits ' (SEBs) if she sustains a work-related injury that results in her inability to earn ninety percent or more of her average pre-injury wage. Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in her inability to earn that amount under the facts and circumstances of the individual case. In this analysis, the court must be mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. In determining whether a finding that an employee has met the initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine the record for all evidence that bears upon the employee’s inability to earn ninety percent or more of his pre-injury wages. Seal v. Gaylord Container Corporation, 97-0688, pp. 7-8 (La.12/2/97), 704 So.2d 1161, 1166. Factors that have been considered in determining whether a claimant can earn ninety percent of her pre-injury wage include the employee’s age, education, job skills, and work history. See Seal, 97-0688 at 9-10, 704 So.2d at 1166-1167.

The record reflects that Ms. Friedley was 37 years old at the time of this incident. Ms. Friedley, who is right handed, has been diagnosed as having a tumor on the fifth metacarpal of her left hand. Although she was engaged in construction work at the time of this accident, Ms. Friedley also possesses a certificate that qualifies her to be a nursing assistant; however, no evidence was presented regarding whether she could work as a nursing assistant with the restrictions placed on her.

Since the time of the accident, Ms. Friedley has experienced pain in her left hand and has worn a half-cast splint. Following the accident, Ms. Friedley performed light-duty work such as office work, answering the telephone, running errands, and sweeping. No other evidence of Ms. Friedley’s work history was introduced. In fact, Ms. Friedley testified that she had not applied for any jobs or looked for work since being terminated.

According to Dr. Brennan, once the tumor is removed from Ms. Friedley’s finger, she will have a splint or cast on her hand for four to six weeks, followed by range of |7motion exercises. Although Dr. Brennan did not specifically address the issue of whether Ms. Friedley would be able to work following the surgery, one could infer from Dr. Brennan’s testimony that she will be unable to work for approximately eight weeks.

Considering the testimony of Ms. Fried-ley and Dr. Brennan, we find that the record does not support the workers’ compensation judge’s award of SEBs to Ms. Friedley. In oral reasons for judgment, the judge noted that Ms. Friedley was entitled to SEBs from the date she was terminated, January 30, 2001, through the date of the trial, August 6, 2001, which was determined to be $9,792.09 for twenty-seven weeks. Based on our review of the record, we conclude that an award of SEBs for a period of only eight weeks is more appropriate. Thus, we amend the workers’ compensation judge’s judgment accordingly.

CONCLUSION

Having thoroughly reviewed the instant record, we are satisfied that the workers’ compensation judge properly applied the presumption that Ms. Friedley’s preexisting tumor was made symptomatic as a result of the December 6, 2000 accident. Moreover, because the aggravation of her preexisting condition was caused by an accident in the course and scope of her employment, we conclude that the workers’ compensation judge properly awarded all costs associated with removal of the tumor. Accordingly, the judgment is affirmed in those respects. However, that portion of the judgment awarding Ms. Friedley SEBs is amended to reflect an award for only eight weeks, or $2,903.44, plus legal interest on each installment as it came due until paid. All costs associated with this appeal are assessed equally between the parties.

AMENDED AND AS AMENDED, AFFIRMED.

      . The testimony does not contain the name of the first doctor who treated Friedley and placed her on light-duty work restrictions.

      . Dr. Berryhill performed a “Peer Analysis Review” for the defendants in this case.

      . The parties stipulated at trial that Ms. Fried-ley's average weekly wage at the time of this incident was $544.40, resulting in a corresponding indemnity rate of $362.93.


author: | ¡.PETTIGREW, J. | FITZSIMMONS, Judge,

text:
    Carl D. WRIGHT v. Janet WAGUESPACK
    No. 2002 CA 0603.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Stephen J. Holliday, Baton Rouge, for Plaintiff-Appellant Carl Wright.

      Janet Waguespack, Baton Rouge, for Defendant-Appellee Janet Waguespack.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   | ¡.PETTIGREW, J.

In this case, plaintiff appeals the trial court’s judgment granting a motion for summary judgment based on its finding that the defendant fully complied with her duties as curator. For the following reasons, we affirm.

FACTS

Carl D. Wright was a defendant in a petition for executory process filed by the Bank of West Baton Rouge on October 17, 2000. After service of the notice of seizure and motion to appoint an appraiser was returned as unable to locate, the attorney for the Bank of West Baton Rouge, John D. Brady, filed a motion to appoint a curator on December 6, 2000. Attorney Janet Waguespack was appointed as curator for Wright on December 8, 2000. On January 23, 2001, Waguespack was served with the petition for executory process and order appointing her curator, which notified her of Wright’s last known address.

Waguespack was notified that Wright’s last known address was 13077 Perkins Road, Norwood, Louisiana 70722, and that Wright had four other properties located in Baton Rouge, Louisiana. On March 22, 2001, Waguespack mailed a certified letter, return receipt requested, to each address provided. All letters were returned unclaimed. The sheriffs sale was set for April 4, 2001.

On April 3, 2001, attorney Pamela Ma-gee sent a letter to the Foreclosure Department of the East Baton Rouge Sheriffs Office on behalf of Wright seeking to have the sheriffs sale stopped. Subsequently, on April 4, 2001, attorney Charles Blaize, Jr. filed an injunction seeking to prohibit the sheriffs sale of Wright’s property. According to the record, this injunction was granted upon Wright’s posting bond, which Wright failed to do. Thus, the sheriffs sale proceeded.

Waguespack was contacted by Brady and informed that Wright was being represented by Garth Ridge. Waguespack contacted Ridge and requested Wright’s current address. Ridge indicated he could not provide her with that information, but if she would forward the petition to him, he would forward it to Wright. Wagues-pack mailed the petition, certified mail, return receipt requested on April 26, 2001. | ¡.Waguespack then received a letter from Ridge stating that he no longer represented Wright, but had forwarded the information to Wright. By letter dated April 27, 2001, Ridge forwarded the petition to Wright’s new attorney, Stephen J. Holli-day.

On August 13, 2001, Wright filed suit against Waguespáck. Wright alleged that Waguespack violated La.Code Civ. P. art. 5094 when she failed to use reasonable diligence to communicate with him and inform him of the pendency and nature of the petition for executory process and of the time available for the filing of an answer or the assertion of a defense. Wright argued that Waguespack’s failure to use reasonable diligence resulted in a denial of - his constitutional due process rights and prevented him from enjoining the seizure and sale of his property.

Thereafter, Waguespack filed a motion for summary judgment on her own behalf. In support of her motion, Waguespack introduced evidence reflecting what steps she had taken to locate Wright to'inform him of the action. After considering Wag-uespack’s motion, the trial court rendered judgment on December 28, 2001, granting the motion for summary judgment and dismissing Wright’s claim with prejudice. In oral reasons for judgment, the trial court found “clearly on the face of the submissions that Ms. Waguespack fully complied with her duties as curator.” It is from this judgment that Wright has appealed.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ. P. art. 966(A)(2).

|4The initial burden of proof remains with the mover and is not shifted to the non-moving party until the mover has properly supported the motion and carried the initial burden of proof. Only then must the non-moving party submit evidence showing the existence of specific facts establishing a genuine issue of material fact. See Scott v. McDaniel, 96-1509, p. 5 (La.App. 1 Cir. 5/9/97), 694 So.2d 1189, 1191-1192, writ denied, 97-1551 (La.9/26/97), 701 So.2d 991. If the non-moving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. Code Civ. P. arts. 966 and 967.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders, 96-1751 at 7, 696 So.2d at 1035. 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. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

Louisiana Code of Civil Procedure Article 5094 provides:

When an attorney at law is appointed by the court to represent a defendant who is a nonresident or an absentee, the attorney shall use reasonable diligence to communicate with the defendant and inform him of the pendency and nature of the action or proceeding, and of the time available for the filing of an answer or the assertion of a defense otherwise.

The basic purpose of a curator ad hoc is to represent the interests of and to attempt to locate the absent defendant. Brasher v. Brasher, 372 So.2d 752, 753 (La.App. 4 Cir.1979). Black’s Law Dictionary defines “reasonable diligence” as the “fair degree of diligence expected from someone of ordinary prudence under circumstances like those at issue” and “due diligence” as the “diligence reasonably expected from, and ordinarily exercised by a person seeking to satisfy a legal requirement or to discharge an obligation.” Blacks Law Dictionary 468 (7th ed.1999).

In opposition to Waguespaek’s motion for summary judgment, Wright submitted an affidavit, dated November 13, 2001, indicating that his address for over a year prior | ¡¡to the execution of the affidavit was 13077 Perkins Road, Norwood, Louisiana 70761. Wright also argues that he never received anything at the address reflected on his collateral mortgage note, RTE. 1 Box 62M, Norwood, LA 70722.

According to the record, Waguespack sent certified letters regarding the petition for executory process to Wright at the four addresses of the property he owned in East Baton Rouge Parish, and to 13077 Perkins Road, Norwood, Louisiana 70722, the address that was given to her as Wright’s last known address. It appears that when Waguespack was notified of Wright’s last known address, it contained the improper zip code.

If reasonable diligence is to be measured with reference to the particular circumstances, then we note that Wagues-pack was not given the proper information with which to successfully contact Wright. There are two cases addressing whether a curator exercised due diligence. In Leidig v. Leidig, 187 So.2d 201, 202 n. 1 (La.App. 3 Cir.1966), the court noted that a curator who sent an absentee a certified letter at the absentee’s last known address as given by the petition had performed his duties conscientiously. In In re Boyd, 98-0052, p. 5 (La.App. 1 Cir. 12/28/98), 723 So.2d 1107, 1109-1110, an attorney appointed to represent an absentee tried to locate the absentee through the telephone book in the city of her last known address. The attorney also placed a missing person ad in the newspaper of the city of the absentee’s last known address and in the city where the action had been filed. This court found that such actions met the reasonable diligence mandated under La.Code Civ. P. art. 5094.

Considering the circumstances and information available to Waguespack, we find that her actions of sending certified letters to the last known address she was provided and the addresses of Wright’s other property in East Baton Rouge Parish met the standard of reasonable diligence. Accordingly, the trial court properly granted Waguespack’s motion for summary judgment.

Even assuming that Waguespack’s efforts did not meet the standard of reasonable diligence, summary judgment would still be warranted. On a motion for | (¡summary judgment, if the moving party will not bear the burden of proof at trial on the matter before the court on the motion, the moving party must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. If the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial, there is no genuine issue of material fact and summary judgment must be granted. La. Code Crim. P. art. 966(C)(2); McGee v. State Department of Transportation & Development, 2000-2706, p. 4 (La.App 1 Cir. 3/28/02), 813 So.2d 625, 628. In this case, Wright has failed to offer sufficient evidence to prove that Waguespack’s alleged substandard conduct was a cause in fact or a legal cause of his injuries.

Recently, in the case of Perkins v. Entergy Corporation, 2000-1372, p. 7 (La.3/23/01), 782 So.2d 606, 611, the Louisiana Supreme Court discussed the duty/ risk analysis as follows: ’

Under Louisiana jurisprudence, most negligence cases are resolved by employing a duty/risk analysis. The determination of liability under the duty/risk analysis usually requires proof of five separate elements: (1) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). If the plaintiff fails to prove any one element by a preponderance of the evidence, the defendant is not liable. [Citations omitted.]

Assuming arguendo that Waguespack did breach a duty she owed to Wright, Wright still failed to prove that Wagues-pack’s actions were a cause in fact or a legal cause of his injuries. It was Wright who defaulted on the loan with Bank of West Baton Rouge, not Waguespack. The record also reflects that Wright did, in fact, have notice of the sheriffs sale by at least April 3, 2001, and filed an injunction on April 4, 2001, seeking to prohibit the sale. The injunction did not issue, according to the record, due to Wright’s failure to post bond. Even if Wright had known about the foreclosure from the very beginning, there is nothing in the record to suggest that he could have done 17anything to stop it. Wright has not produced factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Accordingly, summary judgment was appropriate.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court granting the motion for summary judgment and dismissing Carl D. Wright’s claim is affirmed. All costs associated with this appeal are assessed to plaintiff-appellant, Carl D. Wright.

AFFIRMED.

GUIDRY, J., concurs.

FITZSIMMONS, J., concurs and assigns reasons.

| FITZSIMMONS, Judge,

concurring with reasons.

The issue of due diligence required of a curator has historically been a fact-driven issue. In this case, it is not disputed that the curator made several attempts to reach the debtor. The means used involved certified letters to various addresses that were provided to her. Irrespective of the correctness of the addresses, it is a fact that the debtor had actual notice.

While I concur with the finding of the majority, I am concerned by the delay that occurred between appointment of the curator and the attempted notification of the pending sale.