author: J^PETERS, J.

text:
    P.G. DINERS, INC. v. CAT SCALE COMPANY and Love’s Country Stores, Inc.
    No. 2004-0757.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.
    Kevin L. Camel, Cox, Cox, Filo & Camel, Lake Charles, LA, for Plaintiff/Appellant, P.G. Diners, Inc.
    Mark R. Pharr, III, D. Patrick Daniel, Jr., Galloway, Johnson, Tompkins, Burr & Smith, Lafayette, LA, for Defendant/Ap-pellee, Love’s Country Stores, Inc.
    Frederic. Theodore LeClercq, Kelly L. Covington, Deutsch, Kerrigan & Stiles, New Orleans, LA, for Defendant/Appellee, CAT Scale Company.
    Court composed of Chief Judge ULYSSES G. THIBODEAUX and Judges JIMMIE C. PETERS and MICHAEL G. SULLIVAN.
   J^PETERS, J.

P.G. Diners, Inc. appeals the trial court’s grant of motions for summary judgment in favor of Love’s Country Stores, Inc. and CAT Scale Company, dismissing its claim for damages against the two defendants. For the following reasons, we affirm.

SCOPE OF REVIEW

This court reviews summary judgments de novo applying the same criteria as the district court in determining whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). In Babin v. Winn-Dixie Louisiana, Inc., 00-0078, pp. 3-4 (La.6/30/00), 764 So.2d 37, 39-40, the Louisiana Supreme Court addressed the conditions under which summary judgment should be granted as follows:

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ. P. art. 966(A)(2). In 1997, the legislature enacted La.Code Civ. P. art. 966(C)(2), which further clarified the burden of proof in summary judgment proceedings, providing:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
laThis amendment, which closely parallels the language of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), first places the burden of producing evidence at the hearing on the motion for summary judgment on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial. See MARAIST AND LEMMON, LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE, § 6.8 (1999). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3d Cir.12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41.

Additionally, in King v. Stranco, Inc., 00-2003, 00-2004, p. 4 (La.App. 1 Cir. 11/9/01), 818 So.2d 48, 50-51, the first circuit explained:

The amended LSA-C.C.P. art. 966 brings Louisiana’s standard for summary judgment closely in line with the federal standard under Fed.R.Civ.P. 56(c). Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 231, quoting Hardy v. Bowie, 98-2821, p. 5 (La.9/8/99), 744 So.2d 606, 610. The federal standard was summarized by the fourth circuit in Huber v. Liberty Mut. Ins. Co., 2000-0679, p. [7] (La.App. 4th Cir.2/7/01), 780 So.2d 551, 555:
Under Fed.Rule Civ.Proc. 56, when the nonmoving party bears the burden of proof at trial, there is no genuine issue of material fact if the nonmoving party cannot come forward at the summary judgment stage with evidence of sufficient quantity and quality for a reasonable juror to find that the party can satisfy his substantive evidentiary burden. In construing the federal summary judgment rule, the United States Supreme Court held that summary judgment shall be granted where the evidence is such that it would require a directed verdict for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If a defendant in an ordinary civil case moves for summary judgment or a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the non-moving hparty on the evidence presented. Id. The Anderson court further held that the mere existence of a scintilla of evidence on the non-moving party’s position would be insufficient; there must be evidence on which the jury could reasonably find for that party. In Lujan v. National Wildlife, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), the court held that Fed.Rule Civ.Proc. 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party’s case and on which that party will bear the burden of proof. Berzas v. OXY USA, Inc., 29,835 (La.App. 2 Cir. 9/24/97), 699 So.2d 1149, 1152-53; Martello v. State Farm Fire and Cas. Co., 96-2375 (La.App. 1 Cir. 11/7/97), 702 So.2d 1179, 1183-84[, writ denied, 98-0184 (La.3/20/98), 715 So.2d 1215].

ISSUE ON APPEAL

P.G. Diners, Inc. (Diners), a small Cal-casieu Parish, Louisiana restaurant chain, brought this suit asserting it sustained damages to its business as a result of the activities of two multi-state corporations, Love’s Country Stores, Inc. (Love’s) and CAT Scale Company (CAT). In its petition naming these corporations as defendants, Diners alleged that the two corporations “conspired to misappropriate confidential and proprietary information supplied by [Diners].”

In response to the petition, the defendants filed, among other pleadings, exceptions of prescription and, alternatively, motions for summary judgment. The trial court granted both the exceptions of prescription and the motions for summary judgment. In granting the exceptions, the trial court concluded that the cause of action asserted by Diners under the Louisiana Unfair Trade Practices Act (LUTPA) had prescribed. In granting the motions for summary judgment, the trial court concluded that Diners could not carry its burden of proof at trial to establish that Love’s and CAT conspired to misappropriate its confidential and propriety | information. At both the trial court hearing and on appeal, Diners asserts that the prescription issue is of no import because it never asserted any claim pursuant to LUTPA. Its only claim, according to Diners, is rooted in Louisiana tort law, particularly La.Civ.Code art. 2315. Thus, on appeal, Diners does not question the trial court’s ruling on the prescription exceptions. Rather, it states in its sole assignment of error:

The trial court erred in granting summary judgment in a case involving substantial circumstantial evidence in support of plaintiffs claims and requiring plaintiff to produce a whistleblower witness to avoid dismissal on summary judgment. In doing so, the trial court held plaintiff to a burden of proof on a motion for summary judgment that was higher than plaintiffs burden at trial.

In addressing the alternate motions for summary judgment, the trial court did not appear at all satisfied that Diners maintained any cause of action outside of LUT-PA. We have the same difficulty. In its oral reasons for judgment on the prescription issue, the trial judge identified the prescribed cause of action under LUTPA as “misappropriation or disclosure of confidential and proprietary information.” Diners used this language in its pleadings as well as in its trial briefs in stating its case, although it did expand on the language by asserting an element of conspiracy.

Although apparently not fully satisfied that Diners had a claim independent of LUTPA, the trial court still rendered judgment on the alternate motions for summary judgment as if one did exist. Earlier in the lower court proceedings, a different judge had overruled a previous exception of no cause of action and motion for summary judgment filed by CAT, but it cannot be determined from the record whether that judge did so thinking Diners was asserting a LUTPA claim or a claim of a different | .^nature. This state of the record explains our uncertainty as to whether Diners has a cause of action independent of LUTPA for misappropriation or disclosure of confidential and proprietary information. However, in affirming the trial court’s grant of the summary judgments, we find it unnecessary to precisely define the cause of action in this case.

Diners’ burden of proof under the allegations of its petition, regardless of how the cause of action might be described, requires it to establish that there was a misappropriation or disclosure of confidential and proprietary information. From the record, we know the nature of the confidential and proprietary information, and the material fact issue to be resolved is whether it was misappropriated or disclosed. Accordingly, we prefer to rest our decision on a resolution of the above-quoted assignment of error as framed by Diners in its appeal.

DISCUSSION OF THE RECORD

The litigation arises because, in 1998, construction began on two truck stops, King’s Travel Plaza and Love’s Travel Center, directly across from each other on Louisiana Highway 383 (La. 383) immediately north of that highway’s intersection with Interstate 10 (I — 10) near Iowa, Louisiana. King’s Travel Plaza is owned by Diners, and Love’s Travel Center is owned by Love’s. Diners was the first to conceive the idea of placing a truck stop at the location, but Love’s opened its facility first. Diners asserts in this suit that the decision by Love’s to build at this location was prompted by its receipt of confidential proprietary information that it had previously provided to CAT.

The record establishes that in the mid-1990’s, Diners began investigating the possibility of constructing a truck stop along I — 10 in Calcasieu Parish and ultimately | (¡settled on a location on the north side of 1-10 at its intersection with La. 383. However, before reaching that decision, Diners commissioned a market study for this location. This occurred in 1996, and the information received in this study included demographic research, traffic counts, competitor surveys, and a market analysis. With this information in hand, Diners leased property at the intersection and contracted with a builder to construct the truck stop.

Recognizing the importance of a weighing scale located at a truck stop location, Diners also contacted CAT to discuss the possibility of having CAT install a weighing scale at the truck stop. CAT, one of the largest operators of truck scales in the industry, leases space at truck stops, installs scales, and shares the income with the truck stop owner. At some point in its negotiation with CAT, Diners provided CAT with its site plan and traffic count information. Both Diners and CAT considered the shared information to be confidential, and it is this information that Diners asserts was shared by CAT with Love’s.

Diners and CAT apparently reached a tentative oral agreement, and, in August of 1997, Diners executed CAT’s standard form lease and returned it to CAT for final action. Almost a year later, when CAT had failed to returned the completed lease, Diners wrote to CAT and inquired of its status. CAT responded by letter, informing Diners that it had committed to place its scale at a truck stop planned by Love’s at the same location. Diners then granted a lease to another scale company and completed construction of King’s Travel Plaza.

The defendants’ position in opposition to Diners’ suit can be found in the attachments to the motions for summary judgment, including the affidavit and deposition of Gregory Love, the general manager of Love’s. Mr. Love stated that in |71996 Love’s decided to add approximately fifty new stores across the country, with four to be located in Louisiana. As the individual in charge of site selection, acquisition of property, preparation for construction, and overseeing actual construction of new Love’s stores, he made the recommendation in early 1998 that Love’s locate stores in Port Allen and Iowa, Louisiana. According to Mr. Love, he based the decision to locate in Iowa upon his own evaluation of the area, taking into consideration the truck traffic on I — 10 and his eighteen years of experience in the industry.

According to Mr. Love, Love’s obtained its own demographic study report for the Iowa site from Precision Marketing Group, but it was after the decision had been made to build at that location and was for the purpose of convincing Hardee’s, a fast-food franchise, to locate at the location. Mr. Love asserted that he had never seen Diners’ traffic count study or any other confidential information regarding it.

Gary Lafollette, vice president of operations of CAT, in both affidavit and deposition, denied that his company ever relayed any proprietary or confidential information to Love’s that it received from Diners. He acknowledged that CAT did significant business with Love’s, which business relationship it wished to maintain.

Diners admitted in a response to an interrogatory that it suffered no loss of revenue as a result of CAT’s decision to locate with Love’s. Additionally, in responses to interrogatories propounded in mid-2001, Diners responded to a question asking it to explain its allegation that Love’s built its store across the highway because it had the benefit of Diners’ plans and traffic study, and its explanation was:

Based on the sequence of events, it is apparent that Love’s Country Stores decided to purchase property directly across the highway from King’s Travel Plaza after learning of P.G. Diners’ plans to build a truck stop at that location.

|¿This “sequence of events” argument constitutes Diners’ sole argument in opposition to the motions for summary judgment. In that argument, Diners asserts that the existing circumstantial evidence constitutes an inference that Love’s decided to build its facility only after gaining access to Diners’ traffic count and plans.

OPINION

It is well established that circumstantial evidence can be used to defeat a motion for summary judgment. See Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226. “Circumstantial or indirect evidence is evidence which, if believed, proves a fact and from that fact you may logically and reasonably conclude that another fact exists.” Id. at n. 6. The question is whether Love’s decision to build a truck stop across the highway from Diners’ planned building of its truck stop is a fact from which it can be logically and reasonably concluded that Love’s and CAT misappropriated Diners’ idea, its traffic study, or its plans. We conclude that it is not, and, as such, Diners has not established the existence of an essential element of its case.

Simply stated, Diners has known of Love’s presence across La. 383 from its location since 1998, and this case has been pending since May 10, 2000. During that time, Diners pursued extensive discovery. It deposed numerous witnesses and obtained access to the available documentary evidence. Affidavits and exhibits have been produced and interrogatories answered. Yet, despite the evidence produced, Diners has nothing to support its conspiracy theory or its theory that either defendant used its idea, its site plans, or its traffic study to cause Love’s to build its truck stop. Its only argument is that the defendants’ denials of impropriety are incredible, based solely on the timing of Love’s construction. Such allegation does not constitute | factual support sufficient to establish that Diners will be able to satisfy its evidentiary burden of proof at trial. Thus, there is no genuine issue of material fact, and summary judgments were properly granted.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the trial court dismissing the demands of P.G. Diners, Inc. against Love’s Country Stores, Inc. and CAT Scale Company. We assess all costs of this appeal to P.G. Diners, Inc.

AFFIRMED.


source: Caselaw Access Project

author: J^COFIELD, Judge.

license: Public Domain

text:
    Joseph Rodney QUIBODEAUX, et al. v. Bruce Roland ANDRUS, et al.
    No. 04-766.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Stanford B. Gauthier, II, Lafayette, LA, for Plaintiff-Appellant, Joseph Rodney Quibodeaux, Sadie Guillot Quibodeaux, Allen J. Quibodeaux, Lawrence LeJeune, and Jules LeJeune.
    Jade R. Andrus, Lafayette, LA, for Defendant-Appellee Bruce Roland Andrus and Patricia Smith Andrus.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.
   J^COFIELD, Judge.

Plaintiffs, Joseph Rodney Quibodeaux, Sadie Guillot Quibodeaux, Allen J. Quibo-deaux, Lawrence LeJeune, and Jules Le-Jeune (hereinafter referred to as “Quibo-deaux”), have sued Bruce Roland Andrus and Patricia Smith Andrus (hereinafter referred to as “Andrus”), alleging a breach of a settlement agreement arising out of an earlier lawsuit involving the rights of the parties pursuant to an irrigation canal right-of-way agreement dated February 9, 1961. For the reasons set forth below, we affirm the trial court’s judgment in favor of Andrus.

FACTS AND PROCEDURAL HISTORY

On February 9, 1961, Quibodeaux’s ancestors in title granted to Andrus “a right-of-way easement to construct, maintain, operate, repair one rice irrigation canal for the transportation of water, together with the right of ingress and egress, over, through and across” certain specifically described parcels of land owned by Quibo-deaux. As consideration for this grant, the agreement provides for Andrus to pay Quibodeaux $50.00 per annum, “together with personal benefits and gains they will derive” from the canal. The canal serves to irrigate the lands of the Quibodeauxs as well as other lands owned or farmed by Andrus. For a number of years, Andrus farmed the Quibodeaux property upon which the canal is situated.

Tensions between the parties apparently began when Andrus ceased farming the Quibodeaux property. Eventually, .a lawsuit was filed by Quibodeaux to cancel the canal grant. Before trial, that lawsuit was compromised and settled in a handwritten agreement which is the basis for the instant lawsuit. In the settlement agreement, the parties essentially agreed as follows:

lal. The February 9, 1961 irrigation canal right-of-way was recognized as being effective;
2. Andrus was to knock down the height of the canal’s outside levees by 50%, and the inside levees would be “spread approximately level with the immediate area;”
3. The canal itself would be maintained to occupy an area twenty feet or less in width, including the canal’s banks; and,
4. The canal would be maintained so that no trees would be allowed to grow in the canal area and existing trees would be poisoned or cut, and then stacked.

Quibodeaux filed the present lawsuit contending Andrus breached the settlement agreement. Andrus filed a general denial answer and filed a reconventional demand seeking damages for Quibodeaux’s placing an “obstruction” in the canal. ' At the trial, it was found that the alleged obstruction was a four-foot drainage culvert placed in the canal which permitted the continued flow of water in the canal but which facilitated the construction of a passageway from one side of the canal to the other.

After a bench trial, the trial court found that Andrus had complied with all provisions of the settlement agreement with the exception that the inside levees had not been adequately leveled. In its judgment, the trial court gave Andrus until August 1, 2004 to achieve the proper leveling of the inside levees. All other claims, including Andrus’ reconventional demand against Quibodeaux for allegedly obstructing the canal, were dismissed. Quibodeaux alone appeals, the appeal being limited to the trial court’s extending the time limit for Andrus to level the inside levees and its failure to dissolve the canal right-of-way agreement.

J^DISCUSSION .

The issue in this appeal is very narrow: Did the trial court have the legal authority to extend the deadline from April 1, 2000 to August 1, 2004 for Andrus to level the inside levees? Quibodeaux persistently contends that the settlement agreement, as well as the initial 1961 canal right-of-way agreement, is a lease. If the settlement agreement can be considered a lease, then Quibodeaux urges the applicability of the Louisiana Civil Code’s lease provisions, particularly Article 2729 which provides:

The neglect of the lessor or lessee to fulfill his engagements, may also give cause for a dissolution of the lease, in the manner expressed concerning contracts in general, except that the judge can not order any delay of the dissolution.

Quibodeaux argues that the trial court violated the law pertaining to this settlement “lease” by ordering a “delay in the dissolution” thereof.

The compromise agreement is not a lease. It is just what it purports to be: a simple contractual settlement of a lawsuit. While a lease is a contract, it is a special contract whereby “one party gives to the other the enjoyment of a thing, or his labor, at a fixed price.” La.Civ.Code art. 2669. Here, in addition to acknowledging the existence of the canal right-of-way, the settlement agreement simply spells out that to which the parties have agreed in order to settle their lawsuit. It is not a document in which a party gives a “thing” or “his labor” to another for a “fixed price.”

Louisiana Civil Code Article 3071, in pertinent part, defines a compromise as follows:

[4A 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.

A compromise is the law between the parties and is to be interpreted according to the intent of the parties. Ryland v. St. Mary’s Residential Training School, 03-0027 (La.App. 3 Cir. 4/30/03), 843 So.2d 1237, writ denied, 03-1536 (La.10/3/03), 855 So.2d 311.

Of more importance to the discussion here is that the compromise agreement “is subject to the normal rules of contract analysis.” Randall v. Martin, 03-1311 (La.App. 5 Cir. 2/23/04), 868 So.2d 913, 916. This means that special rules peculiarly applicable to a contract of lease, such as La.Civ.Code art. 2729, are not germane to the interpretation of compromise agreements.

The focus of this lawsuit is on the settlement agreement. The settlement agreement is an adjunct to the original 1961 grant which Quibodeaux also styles as a lease. Presumably, by characterizing the 1961 grant as a lease, Quibodeaux hopes to strengthen the argument that the settlement agreement is itself a lease, or constitutes a modification of the existing “lease.” We, however, view the 1961 grant to be a predial servitude rather than a lease. The heading of the document identifies itself as an “Irrigation Canal Right-of-Way.” In the body of the document, Quibodeaux grants to Andrus a “right-of-way easement” for the canal. In the document, the parties themselves are referred to as “Grantor” and “Grantee” rather than “Lessor” and “Lessee.” Our law has long recognized that a “right-of-way” is a predial servitude. El Paso Field Serv., Inc. v. Minvielle, 03-1293 (La.App. 3 Cir. 3/3/04), 867 So.2d 120; see also Bidstrup v. Brignac, 93-537 (La.App. 3 Cir. 2/2/94), 631 So.2d 637. It is also uniformly accepted in the law of Louisiana that the common | slaw word “easement” is the same as the Louisiana “servitude.” See Arkansas La. Gas Co. v. La. Dept. of Highways, 104 So.2d 204 (La.App. 2 Cir.1958). There is no question that the 1961 agreement granted to Andrus the enjoyment of a “thing,” i.e., the use and enjoyment of the canal. To be classified as a lease of a thing, La.Civ.Code art. 2674 provides:

To let out a thing is a contract by which one of the parties binds himself to grant to the other the enjoyment of a thing during a certain time, for a certain stipulated price which the other binds himself to pay him.

(Emphasis added.)

The 1961 grant did not set forth a “certain time” in which Andrus would enjoy the canal. The grant contains no term. The grant, therefore, does not qualify as a lease of a thing pursuant to La.Civ.Code art. 2674. The fact that the grant contains no term is typical of a servitude.

Having decided that neither the settlement agreement nor the 1961 grant can be classified as a lease, we find that the settlement agreement is a conventional obligation and it is subject to being interpreted as such.

The trial court found that Andrus had complied with a substantial part of the settlement agreement. Andrus satisfactorily removed the outside levees, maintained the width of the canal to twenty feet or less, and removed the trees from the right-of-way. The only aspect of the settlement agreement with which Andrus did not fully comply is the leveling of the inside levees to “approximately” the same level as the surrounding area. Even this finding by the trial court was apparently a close call because the record reveals that Andrus did reduce the height of the inside levees to a degree that was not insignificant. In other words, Andrus did attempt to comply with the settlement agreement in leveling the inside levees, but these efforts did not |fiquite measure up to the satisfaction of the trial court. Consequently, the trial court gave Andrus additional time to complete this task.

The Louisiana Civil Code’s provisions addressing the dissolution of conventional obligations or contracts are found in Chapter 9 of Title 4 of the Code. Pertinent to this case are the provisions of Article 2014 of the Code which provides as follows:

A contract may not be dissolved when the obligor has rendered a substantial part of the performance and the part not rendered does not substantially impair the interest of the obligee.

There is no question that Andrus performed a “substantial part” of that which was required under the settlement agreement. In granting Andrus additional time within which to perform the relatively minor task of leveling the inside levees, the decision of the trial court is not only amply supported by the law, it is eminently fair and just. To dissolve this servitude after its being in existence for over forty years and to deprive the Andrus-farmed acreage of water solely because of the failure to exactly satisfy the requirement to reduce the inside levees to “approximately the same level of the surrounding area,” would be a grave injustice indeed.

For these reasons, we affirm the decision of the trial court and all costs of this appeal are to be assessed against Quibo-deaux.

AFFIRMED.

       Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . The settlement agreement itself is undated, but it was filed in the record of this case on December 6, 1999.

      . Louisiana Civil Code arts. 2729 and 2669 were amended by the 2003 session of the Louisiana Legislature. All referenced to these articles herein are to the articles as the provided at the times pertinent to this action rather than to the amended articles.

      . See Footnote 2.


author: h SULLIVAN, Judge.

text:
    Richard Rodney LAIRD v. CITY OF OAKDALE.
    No. 04-767.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      J. Craig Jones, Jones & Hill, LLC, Oak-dale, LA, for Plaintiff/Appellant Richard Rodney Laird.
    J. Scott Thomas, Attorney at Law, Baton Rouge, LA, for Defendant/Appellee City of Oakdale.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   h SULLIVAN, Judge.

Richard Rodney Laird appeals the dismissal of his suit against the City of Oak-dale (the City) on summary judgment. For the following reasons, we reverse and remand.

Facts and Procedural History

On June 22, 2001, while walking on the sidewalk along Beck Avenue in Oakdale, Louisiana, Mr. Laird fell into a storm drain when the grate covering it collapsed as he stepped on it. Photographs taken before the site had been repaired showed that the grate and one of the two metal bars supporting it had fallen into the drain.

Mr. Laird filed suit against the City on February 7, 2002. On October 3, 2003, the City filed a motion for summary judgment, arguing that Mr. Laird would not be able to prove either that the grate was defective or, alternatively, that the City had actual or constructive knowledge of a defect. The trial court granted summary judgment after a hearing on March 5, 2004, but the court reporter was unable to produce a transcript of the hearing because of a software malfunction. Hence, the trial court’s reasons for granting summary judgment are not in the appellate record.

In support of its motion for summary judgment, the City introduced the affidavit of its public works superintendent, Robert Staehle, and the deposition of Mr. Laird. In his affidavit, Mr. Staehle stated that the storm drain in question was “prefabricated” and “of standard construction”; that the City did not construct or alter it in any way; that the City had not performed any work on that particular storm drain in the year 2001, other than work related to the present incident; that no reports were made to the City about this storm drain in the year prior to the incident in question; and that there was no history of problems with the storm drain prior to this incident. [¡>The City also pointed to Mr. Laird’s deposition testimony that he had walked across that same storm drain about a week prior to the accident, at which time “it seemed to hold [him] pretty steady.”

Mr. Laird opposed the City’s motion with the affidavit of Andrew J. McPhate, a mechanical engineer, and with Mr. Staehle’s deposition. In his affidavit, Mr. McPhate stated that the framework supporting the grate was unreasonably dangerous because it did not have a “perimeter flange” support. As shown in photographs taken shortly after the accident, the grate covering the storm drain was supported only by two rolled steel bars welded to an angle iron. Mr. McPhate explained that this configuration was inevitably subject to catastrophic failure, as corrosion from the exposure to elements would lead to cracking, resulting in one of the bars becoming detached from the angle iron. On the other hand, according to Mr. McPhate, a perimeter flange was not subject to catastrophic failure and could have been constructed from the same angle iron that the metal bars were welded to at little or no additional cost. Mr. McPhate also stated that the absence of a perimeter flange is apparent upon casual inspection, as the improper support system was indicated by “obvious vertical distortion of the grate.” He also noted that another storm drain on the same street, just to the south of the one into which Mr. Laird fell, did have a perimeter flange support.

In his deposition, Mr. Staehle testified that the storm drain in question was constructed sometime in the 1980s, before he became employed by the City. After viewing photographs taken shortly after the accident, he stated that the obvious cause of the accident was one of the welds coming loose. Mr. Staehle acknowledged that a perimeter flange was a superior form of support because it created a cradle for the Lgrate and that he did not know of a another grate in the City that was supported by welded bars. He stated that, sometime in the past five years, residents had complained that the storm drain in question was not draining properly, which led to the construction of another drain about four to five feet south of the one into which Mr. Laird fell. This second drain was built with a perimeter flange.

Mr. Staehle testified that the City does not have a policy for the regular inspection of storm drains, but that his employees have general instructions to alert his department whenever they see a potential hazard with the sidewalks and streets. He stated that his employees perform routine maintenance on the drains, particularly after heavy rains when debris needs to be removed. He assumed that the City would have performed some maintenance on the drain in question at some time before Mr. Laird’s accident. He also would have inspected, but not directly supervised, the construction of the newly-added storm drain. That inspection would have been the last time that Mr. Staehle viewed the drain where Mr. Laird fell.

On appeal, Mr. Laird argues that the trial court erred in granting summary judgment because there are genuine issues of material fact as to whether the storm drain was defective and as to whether the City had actual or constructive notice of a defective condition.

Opinion

Appellate courts review summary judgments de novo, applying the same criteria as the district courts in determining the appropriateness of summary judgment. Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131. In Babin v. Winn-Dixie Louisiana, Inc., 00-78, pp. 3-4 (La.6/30/00), 764 So.2d 37, 39, the supreme court further explained:

|4A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). In 1997, the legislature enacted La.Code Civ.P. art. 966(C)(2), which further clarified the burden of proof in summary judgment proceedings, providing:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Nonetheless, “despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor.” Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050.

Louisiana Revised Statutes 9:2800(C) provides in part:

[N]o person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

Thus, to prevail against the City, Mr. Laird must be able to prove the City’s ownership or custody of property that is defective because it creates an unreasonable |srisk of harm; the City’s actual or constructive knowledge of the defect; the City’s failure to take corrective action within a reasonable time; and causation. See Toston v. Pardon, 03-1747 (La.4/23/04), 874 So.2d 791.

The City supported its motion with Mr. Staehle’s affidavit, in which he stated that the storm drain was “prefabricated” and “of standard construction” and that the City did not construct or alter it in any way. Mr. Laird then produced the expert opinion of a mechanical engineer who stated that the grate covering the storm drain was defective because it was not supported by a perimeter flange and, further, that the actual configuration of its support, ie., two metal bars welded to an angle iron, was inevitably subject to catastrophic failure. In his deposition, Mr. Staehle agreed that the obvious cause of Mr. Laird’s accident was one of the two metal bars coming loose from the angle iron, as shown in photographs taken shortly after the accident.

Assuming without discussion that Mr. Staehle’s affidavit was sufficient to meet the City’s burden of proof as the movant for summary judgment, we find that Mr. Laird has met his burden of showing that a genuine issue of material fact exists as to whether the storm drain’s grate support was defective. The City has shown that it did not alter a “prefabricated” storm drain of “standard construction.” Mr. Laird, however, has presented expert opinion evidence that the storm drain’s original construction was defective due to lack of a proper grate support, ie., a perimeter flange, and that this defect created an unreasonable risk of harm because the grate, after exposure to the elements over time, would inevitably fail catastrophically. Mr. Staehle’s affidavit does not address the design problem identified by Mr. McPhate, and in his deposition, Mr. Staehle recognized that the design proposed by Mr. McPhate is superior to the actual construction of the storm drain. Mr. Staehle halso acknowledged that he was unaware of any other storm drain in the City with this particular configuration and that a storm drain added within five feet of the one in question was constructed with a perimeter flange.

As the supreme court recognized in Willis, 775 So.2d at 1051, “when the party opposing the summary judgment motion submits expert opinion evidence that would be admissible and that is sufficient to allow a reasonable juror to conclude the expert’s opinion on a material fact more likely than not is true, the court should deny the summary judgment motion.” (In Willis, the supreme court concluded that the plaintiff in a products liability action defeated summary judgment by producing an engineer’s affidavit that established the existence of an alternative seatbelt design.) In the present case, we find that Mr. Laird, through expert opinion and lay testimony, has shown that a genuine issue of material fact exists as to whether the storm drain created an unreasonable risk of harm.

In support of its motion on the issue of constructive notice, the City points to Mr. Laird’s deposition testimony, in which he stated that he walked across the same storm drain approximately one week before the accident and that it seemed to support him “pretty steady.” Mr. Laird opposes the motion on this issue with Mr. McPhate’s affidavit, in which he states that the absence of a perimeter flange was obvious upon casual inspection due to “obvious vertical distortion of the grate,” and with Mr. Staehle’s deposition testimony that city workers would have performed maintenance on that particular storm drain before the accident. Mr. Laird also points out that Mr. Staehle testified that the last time he would have observed that storm drain was when he inspected another one constructed nearby.

|7Louisiana Revised Statutes 9:2800(D) provides: “Constructive notice shall mean the existence of facts which infer actual knowledge.” Constructive notice may be shown by facts demonstrating that the defective condition existed for such a period of time that the public body would have discovered and repaired it, had the public body had exercised reasonable care. Truelove v. Bissic, 32,883 and 32,884 (La.App. 2 Cir. 3/1/00), 754 So.2d 377, writ denied, 00-950 (La.5/26/00), 762 So.2d 1109. Lack of plan for periodic inspections does not impute constructive knowledge. Jones v. Hawkins, 98-1259 (La.3/19/99), 731 So.2d 216.

In the present case, Mr. Laird has produced evidence that the storm drain was originally constructed in the 1980s without a perimeter flange and that this condition was obvious upon casual inspection. He has further shown that residents nearby had previously complained about this storm drain’s performance, after which the City determined that the drain was not working properly because a grassy area to the south of the sidewalk (in which the storm drain was located) was higher than the sidewalk. To correct this problem, the City constructed another storm drain— with a perimeter flange — only four to five feet south of the preexisting drain. Mr. Staehle stated in his deposition that he would have inspected the new drain after its construction. That inspection would also have been the last time he viewed the drain into which Mr. Laird fell.

In Johnson v. City of Winnfield, 37,939 (La.App. 2 Cir. 12/10/03), 862 So.2d 433, the plaintiff was injured when a manhole cover suddenly shifted as he stepped on it. The record contained testimony that, although a manhole cover would not “rust out,” it could become unstable if it was dislodged from its outer ring. As in the present case, the city did not have a routine inspection policy, but workers were ^instructed to report any problems they noticed. A maintenance worker testified that he would have inspected this particular manhole approximately two weeks before the accident, after a private contractor had worked on the main sewer line from that location. On that record, the appellate court found no error in the conclusion that the city had actual or constructive knowledge that the manhole cover was unstable.

In the present case, the City investigated a problem with this storm drain, determined that another drain four to five feet to the south of the existing one was needed, and constructed the second drain in the area with a perimeter flange support. According to Mr. Staehle, he would have inspected the newly-constructed drain sometime after its completion. Under these circumstances, we find that a genuine issue of material fact exists as to whether the City should have discovered, either in the investigation of the drainage problems with this drain or in the inspection after the second drain was completed, that the drain into which Mr. Laird fell was not constructed with a perimeter flange.

Decree

For the above reasons, the judgment of the trial court dismissing Plaintiffs suit on summary judgment is reversed, and the case is remanded for proceedings consistent with this opinion. Costs of this appeal are assessed to Defendant-Appellee, the City of Oakdale.

REVERSED AND REMANDED.


author: JjSCOFIELD, Judge.

text:
    Martin PETITJEAN, III, et al. v. CITY OF RAYNE, Louisiana.
    No. 04-768.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Oscar William Boswell, II, Lafayette, LA, for Plaintiffs-Appellants, Martin Pet-itjean, II, Martin Petitjean, III, Desiree Sainte Therese Petitjean Casey, Yvette Sainte Claire Petitjean, Monique D’You-ville Petitjean Benoit, Jeanne Marie Pet-itjean, and Winson J. Petitjean, Jr.
    Larry Thomas Richard, Rayne, LA, for Defendant-Appellee City of Rayne, Louisiana.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.
   JjSCOFIELD, Judge.

The Plaintiff-Appellants, Martin Petitje-an II, Martin Petitjean III, Desiree Sainte Therese Petitjean Casey, Yvette Sainte Claire Petitjean, Monique D’Youville Pet-itjean Benoit, Jeanne Marie Petitjean, and Winson J. Petitjean, Jr. (the Petitjeans), appeal the trial court’s denial of their motion to enforce a provision in a previous judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2000, the Petitjeans filed a suit against the City of Rayne (the City) seeking to have the City remove certain obstructions and encroachments on their right of passage over City property. As a result of that suit, a stipulated judgment was rendered on August 12, 2002, ordering the City to remove a fence from the right of passage; to “clear and grade the designated right of passage as a Ml thirty (30) foot passage for its entire length, without any encroachment whatever from any portion of any fence, gate or other obstruction ...“to provide a fence along the Eastern Boundary of the right of passage”; and preventing the City from interfering with the Petitjeans’ private railroad crossing servitude. That judgment became final on October 22, 2002.

In October 2003, the Petitjeans filed a motion to enforce the judgment, alleging that the City had not cleared and graded the passage way nor removed its fence from therefrom. After a hearing, the trial court rendered judgment ordering the City to move the gate located within the thirty foot right of passage but refused to enforce its previous judgment requiring that the right of passage be cleared and graded. The | gcourt further ordered the costs of the proceedings to be shared between the parties. In a minute entry, the court further explained its ruling:

[T]he gate located within the thirty (30) foot passage must be moved by the City of Rayne in order to comply with the above-quoted language. After a physical inspection of the subject property, the Court finds that once the gate has been moved, any grading and/or clearing of the property by the defendant will not be necessary.

The Petitjeans appeal this ruling asserting that the trial court erred in failing to enforce the original judgment as written and in casting them with costs. For the reasons set forth herein, we reverse.

DISCUSSION

The original judgment in this matter was rendered on August 12, 2002. Nothing in the record indicates that a motion for new trial or an appeal was filed. Therefore, according to the record, the judgment became final on October 22, 2002. On October 3, 2003, more than eleven months after the judgment became final, the Petitjeans moved to enforce the judgment. The trial court took that opportunity to nullify a substantive portion of its earlier judgment.

Once the delays for appeal have expired without action, the judgment is final and definitive. See Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129. Louisiana Code of Civil Procedure article 1951 provides that:

A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
(1) To alter the phraseology of the judgment, but not the substance; or
(2) To correct errors of calculation.

(Emphasis added.)

A final judgment may only be amended to effect a substantive change via application for new trial, action for nullity, or timely appeal. State ex rel. Dep’t of Soc. Servs. v. A.P., 02-2372 (La.App. 1 Cir. 6/20/03), 858 So.2d 498.

La. C.C.P. art.1951 does not permit the trial court to substantively alter a final judgment even if the amendment merely expresses the trial judge’s actual intention. The trial court’s written judgment is controlling, even if the trial judge may have intended otherwise. Stoffer v. Stoffer, 29,458 (La.App. 2 Cir. 5/7/97), 693 So.2d 1229, 1231.

McGee v. Wilkinson, 03-1178, p. 4 (La. App. 1 Cir. 4/2/04), 878 So.2d 552, 554. Improperly made substantive changes to a final judgment are absolutely null. Posey v. Singletary, 37,425 (La.App. 2 Cir. 9/24/03), 855 So.2d 853.

In Gregory v. Interim Personnel of North Louisiana, 30,808 (La.App. 2 Cir. 8/25/98), 717 So.2d 291, a workers’ compensation case, the claimant did not appeal the workers’ compensation tribunal’s original decision, which then became final. When the claimant moved to enforce the judgment, the workers’ compensation judge issued an amended decision granting legal interest on the weekly compensation payments and medical expenses which had been awarded in the original decision. The appellate court found that the second decision providing for legal interest directly affected the rights of the parties and thus constituted a substantive amendment to a final decision, in violation of La.Code Civ.P. art.1951. The appellate court found that the second decision was void as a matter of law. It then vacated that decision and reinstated the original judgment.

Granted, the trial court did have jurisdiction to “give effect” to its prior judgment. La.Code Civ.P. art.2088(7). Accordingly, the court was correct in addressing the motion of the Petitjeans to have the City perform as required by the earlier judgment. While the court had jurisdiction to give effect to that judgment, it did not have the authority to substantively change it.

Louisiana Code of Civil Procedure article 1951 allows a trial court to make post-judgment alterations of phraseology, or to correct errors in calculations. The | ¿court cannot, however, change or alter the substance of the judgment. Here, there can be no doubt that the clearing of the passage way was a substantial, if not pivotal, part of the judgment.

Moreover, there is nothing in the judgment placing any conditions or qualifications on the City’s obligation to clear the passage way. The judgment provided the City no escape clause because of any change which might occur in conditions or circumstances. The City’s duty to clear the passage way was unconditional.

The time for the court to question the wisdom, scope or propriety of a provision in the judgment was before the judgment was signed, or pursuant to a timely post-judgment motion, not after the judgment became final.

In this case, the trial court changed a significant performance required of the City. This constitutes a material alteration of the substance of the original, final judgment. Therefore, it is void as a matter of law.

Consequently, the judgment of the trial court is reversed. Judgment is rendered ordering the City to comply with the August 12, 2002 judgment as written by clearing and grading “the designated right of passage as a full thirty (30) foot passage for its entire length, without any encroachment whatever from any portion of any fence, gate or other obstruction.” Having cast the City in judgment, we further reverse the trial court’s ruling as to costs, and order all costs at both the trial and appellate levels be paid by the City.

REVERSED AND RENDERED.

       Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . That the judgment was the result of a stipulation by the parties does not alter its effectiveness. To the contrary, because both parties agreed and stipulated to its terms and provisions, the judgment is arguably less assailable than had it been rendered after a contested trial.


author: J^SCOFIELD, Judge.

text:
    Richard STERLING v. ASPLUNDH TREE EXPERT CO.
    No. 04-781.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Michael B. Miller, Miller & Miller, Crowley, LA, for Plaintiff/Appellant, Richard Sterling.
    Christopher R. Philipp, Attorney at Law, Lafayette, LA, for Defendant/Appel-lee, Asplundh Tree Expert Co.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.

       Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   J^SCOFIELD, Judge.

This case comes to us after rulings on two post-judgment motions. Claimant, Richard Sterling, appeals the decision of an office of workers’ compensation judge (WCJ) in favor of Defendant, Asplundh Tree Expert Co. (Asplundh), dismissing Claimant’s petition for additional post-judgment penalties and attorney’s fees. Asplundh answered the appeal arguing that the WCJ erred in ruling that Claimant had not forfeited his right to benefits under La.R.S. 23:1208. We affirm the decision of the WCJ.

FACTUAL AND PROCEDURAL HISTORY

Claimant worked for Asplundh for six years before the accident of September 1999, which gave rise to this litigation. Following the accident, Asplundh paid Claimant’s full wages until February 12, 2000. Thereafter, Claimant filed a claim for benefits, penalties and attorney’s fees. The WCJ ruled in favor of Claimant on all issues, and Asplundh took a suspensive appeal to this court which fully affirmed the judgment of the WCJ. Sterling v. Asplundh Tree Expert Co., 03-266 (La.App. 3 Cir. 10/1/03), 856 So.2d 125, writ denied, 03-3017 (La.1/30/04), 865 So.2d 79.

On October 31, 2003, Asplundh applied for writs of certiorari to the supreme court seeking a reversal of one relatively minor aspect of this court’s earlier ruling. In that writ application, Asplundh argued that Claimant’s paid vacation and holidays should not have been included in calculating Claimant’s weekly compensation benefits. If Asplundh’s application for writs had been successful, it would have 12resulted in a reduction of weekly benefits payable to Claimant from $283.85 per week to $270.00 per week.

On January 20, 2004, Claimant filed a motion with the WCJ seeking penalties and attorney’s fees because of Asplundh’s alleged failure to timely pay that part of the earlier judgment which had not been the subject of Asplundh’s writ application. Claimant contends that since only the $13.85 difference in the weekly compensation benefits remained a viable issue, the entire remainder of the judgment became final and was payable within thirty days from this court’s earlier October 1, 2003 ruling. The WCJ denied Claimant’s motion.

Asplundh’s post-trial motion, which is also the subject of this appeal, was filed on February 11, 2004. In that motion, As-plundh complains that included in the medical bills sent to Asplundh by Claimant, pursuant to the earlier decision of this court, were bills pertaining to Claimant’s unrelated hernia operation. Asplundh’s motion contends that the submission of these unrelated medical bills for payment represented a willful, false statement and claim and thus Claimant’s benefits should be forfeited pursuant to La.R.S. 23:1208. This motion was denied by the WCJ.

Claimant appeals the decision of the WCJ, and Asplundh has answered the appeal re-urging its motion.

DISCUSSION

We first address Claimant’s motion wherein he contends that all facets of the earlier judgment, with the exception of the subject matter of Asplundh’s writ application, were payable within thirty days from October 1, 2003, the date of the earlier decision by this court. Claimant contends that once this thirty-day period |3expired, Asplundh had no further recourse to challenge any aspect of the earlier decision other than the subject of the writ application; therefore, as to that portion of the judgment which was not the subject of the writ application, it became final and payable.

Asplundh contends that there is no provision in the law allowing portions of a judgment to become final on a piecemeal basis. According to Appellee, when an application for writs of certiorari to the supreme court is timely made, the entire judgment is suspended until the supreme court disposes of the writ. In support of this contention, Asplundh cites La.Code Civ.P. art. 2166, which provides in pertinent part:

A.... The judgment of a court of appeal becomes final and definitive if neither an application to the court of appeal for rehearing nor an application to the supreme court for a writ of certio-rari is timely filed.
E. If an application for certiorari to the supreme court is timely filed, a judgment of the court of appeal becomes final and definitive when the supreme court denies the application for certiora-ri.

We agree with Appellee that La. R.S. 23:1201(G) pertains to a “final, non-appealable judgment” and that there is nothing in the law suggesting that this provision should somehow be interpreted to mean that only those portions of a judgment which are the precise subject of a writ application would be suspended pending their disposition by the supreme court. Moreover, since this statute is penal in nature, it must be strictly construed by the courts. Fontenot v. Reddell Vidrine Water Dist., 02-439, 02-442, 02-478 (La.1/14/03), 836 So.2d 14; Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41; Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382. Although Claimant’s arguments |4contain some logic, this court cannot read into this penal statute that which is not provided in the wording of the statute itself.

We now turn to Asplundh’s motion to suspend benefits because Claimant submitted to it medical expenses unrelated to the injuries of which Claimant complains in this lawsuit. Asplundh’s motion is based upon La.R.S. 23:1208, which provides in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
B. It shall be unlawful for any person, whether present or absent, directly or indirectly, to aid and abet an employer or claimant, or directly or indirectly, counsel an employer or claimant to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

Asplundh brings to our attention the case of Resweber v. Haroil Const. Co., 94-2708, 94-3138, p. 7 (La.9/5/95), 660 So.2d 7, 12, which provides:

Section 1208 is clear and unambiguous and as such will be applied as written. La.Civ.Code art. 9; La.R.S. 1:4. Section 1208 clearly applies to any willful false statements or representations made “for the purpose of obtaining or defeating any benefit or payment.” Section 1208 has no language limiting it to only certain types of false statements, ie., statements other than those relating to prior injuries. The legislature has imposed no notice requirement in Section 1208, apparently being of the opinion that any claimant should be on notice that false statements made willfully for the purpose of obtaining workers’ compensation benefits will not be tolerated and will result in the forfeiture of those benefits. The only requirements for forfeiture of benefits under Section 1208 are that (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.

IsAsplundh contends that pursuant to the earlier judgment awarding reasonable medical treatment for Claimant’s back injury, Claimant sent to Asplundh a “bundle” of medical bills which included a substantial amount of charges relating to hernia surgery undergone by Claimant. There seems to be no dispute that these charges pertaining to the hernia condition are unrelated to the claims at issue in this lawsuit and that they should not be paid by Asplundh.

It would seem that Asplundh has satisfied the first of the three-prong requirements set forth in Resweber, ie., there has been a “false statement or representation” in the submission to Asplundh of the costs related to the hernia matter.

Asplundh has failed, however, in proving the second prong of Resweber, ie., that the representation was “willfully made” by Claimant or his counsel. The WCJ denied this motion on this ground, stating that there had been no proof that Claimant or his counsel willfully made this false representation. Asplundh argued that certain “white outs” on the medical bills suggest a willful misrepresentation. The WCJ, however, stated that it was clear to her that these white outs were made by the hospital, not by Claimant or his counsel. Indeed, at the hearing before the WCJ on this issue, counsel for Asplundh stated that he was not suggesting that Claimant’s counsel wrongfully misrepresented the medical costs. Furthermore, there is no proof in the record that Claimant, himself, had any personal involvement in submitting these bills to Asplundh. Consequently, there is no proof that either Claimant or his counsel willfully intended to make false statements regarding the medical bills.

| fiFor these reasons, we affirm the WCJ’s denial of both of the motions in question. Court costs are to be divided by the parties.

AFFIRMED.

      . Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . In the previous decision of this court, we affirmed the trial court's award to the Claimant, including $283.85 per week in supplemental earning benefits; costs of payments for reasonable medical treatment related to his back injury; $4,000.00 in penalties; $10,950.00 in attorney's fees; and expenses in the sum of $737.01.

      .Asplundh's writ application to the supreme court was denied on January 30, 2004. The full amount of the judgment was paid by Asplundh within thirty days after this writ denial.

      . In the earlier decision of this court, Claimant’s hernia condition is mentioned, and it is made clear therein that the condition preexisted the injury which is the subject of this lawsuit. See Sterling, 856 So.2d 125.


author: 11 SULLIVAN, Judge.

text:
    In re Cynthia WILEY, individually and on behalf of Lillie M. Wiley.
    No. 04-790.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.
    Diane M. Sweezer, Flournoy & Doggett, Alexandria, LA, for Plaintiff/Appellant, Cynthia Wiley.
    Marc W. Judice, Judice & Adley, Lafayette, LA, for Defendant/Appellee, Dr. Paul E. Miller.
    William W. Stagg, Durio, McGoffin & Stagg, Lafayette, LA, for Defendant/Ap-pellee, PHC Opelousas, L.P. formerly d/b/a Doctors’ Hospital of Opelousas.
    Myron Andrew Walker, Jr., Seale, Smith, et al., Baton Rouge, LA, for Defendant/Appellee, Opelousas General Hospital.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   11 SULLIVAN, Judge.

Cynthia Wiley’s claims against Dr. Paul E. Miller were dismissed because she failed to comply with a judgment ordering her to answer discovery propounded by Dr. Miller. For the following reasons, we reverse.

Facts

This suit arises out of the death of Ms. Wiley’s mother, Lillie M. Wiley, a sixty-seven-year-old diabetic and double amputee, who was a patient of Dr. Miller. Dr. Miller, a nephrologist, supervised Lillie’s dialysis treatment. Ms. Wiley asserts that her mother developed bedsores while hospitalized for treatment and that the condition progressively deteriorated until she passed away. Suit was filed on Ms. Wiley’s behalf by attorney George Flournoy.

Ms. Wiley’s claims against Dr. Miller were dismissed by the trial court because she failed to comply with its order compelling her to respond to discovery propounded by Dr. Miller. This court in a previous opinion, In re: Wiley, 03-793 (La.App. 3 Cir. 12/23/03), 862 So.2d 1243, reversed the dismissal and the matter was remanded to the trial court for an evidentiary hearing to determine whether the dismissal was an abuse of discretion as explained in Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199.

On remand, the trial court held a hearing at which Ms. Wiley and her attorney testified. Ms. Wiley testified at the evi-dentiary hearing and acknowledged that she had previously filed a medical malpractice claim on behalf of her father and was familiar with answering discovery requests. She testified that, after this suit was filed, she discharged Mr. Flournoy because her siblings wanted to use another attorney. She acknowledged that Mr. Flournoy forwarded to her discovery requests | ?,propounded by Dr. Miller with instructions that she should comply with the requests. Ms. Wiley further testified that she and her siblings contacted attorney Norris Greenhouse to handle the claim. She testified that she believed Mr. Greenhouse was going to associate an attorney in New Orleans. There is no motion to enroll filed by Mr. Greenhouse or any other attorney, and there is no court appearance by any attorney other than Mr. Flournoy. However, in Reasons for Judgment dated March 31, 2003, the trial court stated that a hearing scheduled for December 6, 2002, had been rescheduled to January 3, 2003, “following a phone call by an attorney requesting additional time to review the case and possibly enroll as counsel of record for Cynthia Wiley.”

Ms. Wiley had been served with notice of the January 3, 2003 hearing but did not appear. She testified that she started to answer the discovery, then brought everything to Mr. Greenhouse. She also testified that she believed Mr. Greenhouse sent her responses to the attorney in New Orleans who was going to work with him on the case. She did not retain copies of what she forwarded to Mr. Greenhouse, nor did she subpoena him for the hearing.

According to Ms. Wiley, she received a telephone call in January 2003 from her sister telling her to pick up “the papers.” Her testimony indicates that she then met with Mr. Greenhouse who told her “there was nothing they could do with the case.” As a result, she assumed the case “was over” and did not attempt to hire another attorney. Thereafter, Ms. Wiley was served with a judgment dated January 17, 2003, which ordered her to answer Dr. Miller’s discovery requests within fifteen days of her receipt of the judgment or her claims against him would be |3dismissed. She did not contact Mr. Greenhouse when she was served with the motion to dismiss filed by Dr. Miller.

Mr. Flournoy testified that after Ms. Wiley was served with the motion to dismiss she was in his office on another matter. When he asked her about the status of her lawsuit, she explained that she was no longer represented and that her case was going to be dismissed. He offered to get back into the case, and she agreed. He then prepared her responses to all outstanding discovery and forwarded them to counsel. He represented Ms. Wiley at the hearing on Dr. Miller’s motion to dismiss and testified on her behalf.

Following the evidentiary hearing, the trial court rendered judgment dismissing Ms. Wiley’s suit, finding:

Cynthia Wiley had sufficient knowledge to put her on notice that her failure to produce Answers to Interrogatories and Request for Production as ordered by the Court, said Judgment being personally served upon Cynthia Wiley on 23 January 2003, would result in dismissal of her claim against Dr. Paul Miller.
The Court further makes a finding of fact that Cynthia Wiley failed to timely answer discovery in violation of the Court’s Judgment ordering Cynthia Wiley to fully answer discovery and comply with the Court’s Judgment not later than fifteen (15) days of the date of service of the Judgment.

Discussion

In Horton, 635 So.2d 199, the supreme court addressed the propriety of the dismissal of a plaintiffs claims for failure to comply with discovery, observing “[tjhere is a distinction between the sanctions available for failure to comply with discovery and the sanctions available for discovery of court ordered discovery” and that “[t]rial judges must have severe sanctions available to deter litigants from Rflouting discovery orders.” Id. at 203. The court further noted that dismissal is a “draconian” penalty which should only be applied in “extreme circumstances.” Id.

Comparing the Louisiana rule for sanctioning a party who fails to comply with discovery with the Federal rule, the Horton court identified four factors courts consider when determining whether a trial court’s dismissal of a plaintiffs claims is an abuse of discretion:

(1) whether the violation was willful or resulted from inability to comply;
(2) whether less drastic sanctions would be effective;
(3) whether the violations prejudiced the opposing party’s trial preparation; and
(4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney.

The court further observed that “[t]he record must support ‘a finding that the failure was due to ... wilfulness, bad faith, or fault’ ” before dismissal of a plaintiffs claim is appropriate. Id. quoting Allen v. Smith, 390 So.2d 1300, 1302 (La.1980).

The trial court continued a hearing on the motion to compel scheduled for December 6, 2002 on the basis of a telephone call from an attorney that he/she was reviewing the ease; thus, the record corroborates Ms. Wiley’s testimony that she believed an attorney was going to represent her after she discharged Mr. Flournoy. Ms. Wiley did not appear at the January 3, 2003 hearing, which was a hearing on a motion to compel filed by Dr. Miller, even though she was personally served. However, there is no evidence that she knew before the hearing that the attorney who obtained a continuance of the December 6, 2002 hearing was not going to represent her at that hearing.

| KAfter the January 3, 2003 hearing, the trial court ordered Ms. Wiley to answer Dr. Miller’s discovery or her suit would be dismissed. She was served with the judgment ordering her to do so. She did not comply with the judgment, and counsel for Dr. Miller filed a motion to dismiss which was set for hearing on February 28, 2003. In the meantime, Mr. Flournoy re-entered the picture and re-enrolled as Ms. Wiley’s attorney. He got the February 28 hearing on Dr. Miller’s motion to dismiss rescheduled to March 28 and provided the discovery responses to Dr. Miller’s attorney on March 27, 2003.

Ms. Wiley did not appear and was not represented by counsel at one hearing for which she was personally served notice to attend. As discussed above, the record indicates that she believed she was represented by an attorney at that time and that she provided her responses to the discovery to him. It was reasonable for her to believe the attorney would attend the hearing on her behalf. Ms. Wiley also did not answer the requested discovery as ordered by the trial court. However, when she was again represented by Mr. Flournoy, she did provide responses to the requested discovery prior to the hearing on the motion to dismiss.

Horton, 635 So.2d 199, sanctions dismissal of a plaintiffs claims only in extreme circumstances. We do not believe the circumstances here are extreme and find that the dismissal was an abuse of discretion. There must be a finding that the party’s failure to provide the discovery was “due to wilfulness, bad faith, or fault.” There was no such finding by the trial court and the record does not evidence that Ms. Wiley’s actions were in bad faith. While her failure to answer the discovery within fifteen days was “willful”- — she made a conscious decision not to answer the discovery after being served with a judgment ordering her to do so — she was not | ¿represented by counsel and had been told by the attorney she thought was going to represent her that she “did not have a case.” Accordingly, we do not see her failure to do so as “flouting” the court’s orders. Once she was again represented by counsel she complied with the order prior to the hearing at which the trial judge dismissed her claims. Additionally, we note that, prior to dismissing her lawsuit, the trial court did not hold Ms. Wiley in contempt or impose any of the lesser sanctions provided by La.Code Civ.P. art. 1471.

There is no evidence that Dr. Miller’s defense has been prejudiced by Ms. Wiley’s delayed responses. There are other defendants involved in this litigation who also had motions to compel discovery pending at the same time that Dr. Miller’s motion was pending. Those defendants accepted Ms. Wiley’s discovery responses and dismissed their pending motions. Thus, the record indicates that all of the defendants’ discovery is essentially at the same stage.

Disposition

Under the circumstances herein, we find that a sanction less drastic than dismissal would be effective. Accordingly, the judgment of the trial court dismissing Ms. Wiley’s action is reversed. Ms. Wiley is ordered to pay $1,000.00 in attorney fees to counsel for Dr. Miller and all costs associated with the motion to compel and the motion to dismiss filed by Dr. Miller. Costs of this appeal are assessed one-half to Ms. Wiley and one-half to Dr. Miller.

REVERSED, RENDERED IN PART, AND REMANDED.

      . The facts leading to the dismissal of Ms. Wiley's claims are outlined in that opinion.


author: | GREMILLION, Judge. JjTHIBODEAUX, C.J.,

text:
    Joshua TERRELL, Indiv., etc., et al. v. TOWN OF MERRYVILLE, et al.
    No. 04-594.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Rex D. Townsley, Marcus P. LaCombe, The Townsley Law Firm, Lake Charles, LA, for Plaintiff/Appellant, Joshua Paul Terrell, Joshua Terrell, Celeste Terrell.
    James L. Pate, Angela M. Barbera, La-borde & Neuner, Lafayette, LA, for Defendants/Appellees, St. Paul Fire & Marine Insurance Co., Town of Merryville.
    Christopher M. McNabb, Schafer & Schafer, New Orleans, LA, for Defendants/Appellees, Beauregard Parish Fire District # 1, American Alternative Insurance Corp.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, GLENN B. GREMILLION and ELIZABETH A. PICKETT, Judges.
   | GREMILLION, Judge.

The plaintiffs, Joshua and Celeste Terrell, individually and on behalf of their minor child, Joshua Paul, appeal the judgment of the trial court granting summary judgment on behalf of the defendant, St. Paul Fire & Marine Insurance Company, and dismissing their claims against it with prejudice. For the following reasons, we affirm.

FACTS

On June 28, 2002, the Terrells filed suit against the Town of Merryville, the Beauregard Parish Fire District # 1, and American Alternative Insurance Corporation as a result of injuries Joshua suffered while assisting in the clean up of storm debris in Merryville, Louisiana, on October 13, 2001. The Terrells later amended their petition to name St. Paul, Merry-ville’s liability insurer, as an additional defendant. Joshua, a volunteer fireman with the Beauregard Parish Fire District # 1, suffered a broken pelvis and injuries to his back when he fell four feet from the bucket of a backhoe while cutting downed tree limbs. Joshua and other volunteer firemen were at the Merryville Fire Station for a dedication when the town’s mayor, Margaret Krasso, asked for volunteers to clean up debris.

In his original petition and in deposition testimony, Joshua stated that he was assisting with the cleanup in his capacity as a volunteer fireman. St. Paul filed a motion for summary judgment arguing that the liability policy issued by it to Merryville excluded coverage for injuries suffered by volunteer firefighters in the execution of their duties. On December 5, 2003, the Terrells filed a Second Supplemental and Amending Petition for Damages alleging that Joshua “was acting outside the scope and capacity as a volunteer fireman” at the time of his injury. | gFollowing a hearing on the motion, the trial court granted summary judgment in favor of St. Paul finding that the policy exclusion excluded coverage for Joshua’s injuries. This appeal by the Terrells followed.

ISSUES

On appeal, the Terrells argue that the trial court erred in granting summary judgment in this matter by finding that Joshua was performing the duties of a volunteer fireman when injured.

SUMMARY JUDGMENT

The law pertaining to summary judgment is well settled. Summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Thus, appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B), (C).

In their petition, the Terrells state:

2.
On or about Saturday, October 13, 2001, the Mayor of THE TOWN OF MERRYVILLE, Maragret Krasso, requested assistance from Fire Chief Scott Slayter with the BEAUREGARD PARISH FIRE DISTRICT #1 with the clean-up of debris following a storm. Petitioner, JOSHUA TERRELL, in his capacity as a volunteer fireman, was instructed by Chief Slayter to assist THE TOWN OF MERRYVILLE with the removal of a tree limb which had fallen across a utility wire.

(Italics added).

In his deposition, Joshua stated:

Q (Ms. Barbera) Did you feel like you had to obey Mr. Watson, you had to follow his orders?
|oA I just done it because I was there and we was all volunteering. You know, our job. I just didn’t want nobody to come up and say something about not doing their job, nobody else get in trouble from the Mayor, you know.
Q So did you feel like you were doing your job as a volunteer fireman at that point?
A Yes, ma’am.

Furthermore, in claims made by the Ter-rells against Special Risk Insurance, Inc. and Hartford Life and Accident Insurance Company on October 15, 2001, Merryville Fire Chief Scott Slayter indicated that Joshua was engaged in an activity authorized by the Beauregard Parish Fire District # 1 at the time of his injury.

A judicial confession is a declaration made in a judicial proceeding which constitutes full proof against the party making it. La.Civ.Code art. 1853. Such a confession may only be revoked on grounds of error of fact. Id. In C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03-1003, pp. 5-6 (La.12/3/03), 861 So.2d 156, 159-60, the supreme court stated:

The well settled jurisprudence establishes that an admission by a party in a pleading constitutes a judicial confession and is full proof against the party making it. Taboni ex rel. Taboni v. Estate of Longo, 01-2107 (La.2/22/02), 810 So.2d 1142; Starns v. Emmons, 538 So.2d 275 (La.1989); Smith v. Board of Trustees, 398 So.2d 1045 (La.1981); Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979). A judicial confession has the effect of waiving evidence as to the subject of the admission. Crawford v. Deshotels, 359 So.2d 118 (La.1978); Jackson v. Gulf Ins. Co., 250 La. 819, 199 So.2d 886 (1967); Farley v. Frost-Johnson Lumber Co., 133 La. 497, 63 So. 122 (1913). A declaration made by a party’s attorney or mandatory has the same effect as one made by the party himself. La. Civ.Code art. 1853, cmt. (b).
The court of appeal recognized that Sunshine judicially confessed that it had an oral contract with Traína, but reasoned that Sunshine revoked its admission when it filed a subsequent pleading denying any | contractual relationship existed. We disagree. La.Civ.Code art. 1853 explicitly provides that a judicial confession may be revoked only on the ground of error of fact. At no time did Sunshine assert its judicial confession of an oral contract was made in error. To the contrary, Sunshine’s amended answer confirmed Sunshine’s earlier allegation of an oral contract by continuing to allege, in the alternative, that an oral contract existed. Therefore, we must conclude based on the record before us that Sunshine’s judicial confession of an oral contract was never revoked on the ground of error of fact.

In their second amended petition, the Terrells added Paragraph “6b,” which states, “In the alternative, it is alleged that on information and belief, at the time of the petitioner’s injuries, JOSHUA TERRELL, was acting outside the scope and capacity as a volunteer fireman.” They further reiterated and re-alleged all of the allegations set forth in their original and first amending petition. A review of the petition and two amending petitions fails to reveal that the Terrells ever claimed that their prior judicial confession concerning Joshua’s status at the time of his accident, was made in error. Since the judicial confession was never revoked on the ground of error of fact, it stands as asserted in their original petition. Accordingly, we find, as did the trial court, that the Ter-rells judicially confessed that Joshua was acting in his capacity as a volunteer fireman at the time of his accident. Therefore, no evidence was required on this issue and it was withdrawn from consideration. Id. Moreover, since the liability policy issued by St. Paul expressly excludes coverage for injuries suffered by volunteer firemen during the performance of their duties, Merryville’s policy does not provide coverage for Joshua’s injuries.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of the defendant-appellee, St. Paul Fire & Marine | ¡¡Insurance Company, is affirmed. The costs of this appeal are assessed to the plaintiffs-appellants, Joshua and Celeste Terrell.

AFFIRMED.

THIBODEAUX, C.J., dissents and assigns written reasons.

JjTHIBODEAUX, C.J.,

dissenting.

The majority’s reliance on C.T. Traina, Inc. v. Sunshine Plaza Inc., 03-1003 (La.12/3/03), 861 So.2d 156 is misplaced. The majority asserts that “[sjince the judicial confession was never revoked on the ground of error of fact, it stands as asserted in their original petition.” C.T. Traina, Inc. v. Sunshine Plaza Inc. does not stand for the proposition that a judicial confession must be revoked specifically on the ground of error of fact. In other words, there need not be an explicit revocation with the assertion that an error of fact occurred. In C.T. Traina, Inc. v. Sunshine Plaza, the defendant, Sunshine Plaza, never revoked its judicial confession. To the contrary, the supreme court in C.T. Traina explicitly observed that the defendant, Sunshine, always recognized the existence of an oral contract.

In this case, Terrell contradicted his earlier admission of his status as a volunteer fireman in his amending petition. Terrell was operating a chainsaw while standing in a bucket of a city-owned backhoe. His deposition testimony clearly asserted that he was doing this as a community service and would not be paid for that Inactivity. He was not dressed as a volunteer firefighter and was performing the work at the request of the mayor who had requested assistance in cleaning up storm debris. A judicial confession under La. Code Civ.P. art. 1853 has two elements: (1) it must be an expressed articulation of an adverse fact, sufficient to dispense with the need for any further evidence. Jones v. Gillen, 564 So.2d 1274 (La.App. 5 Cir. 1990); (2) the adverse party must have believed the fact was no longer an issue or must have detrimentally relied on it. Alexis v. Met Life, 604 So.2d 581 (La. 1992). Terrell clearly contradicted his earlier admission and there is no showing that the insurer in this case was deceived or misled. Moreover, there is no showing whatsoever that the insurer relied to its detriment on this confession. It is clear that a party must have relied on the declaration to his detriment before it can be a judicial confession. Krepps v. Hindelang, 713 So.2d 519 (La.App. 5 Cir.1998).

The policy excludes the payment of damages “to any volunteer firefighter that results from their duties as volunteer firefighters.” (Emphasis supplied). Mr. Terrell was performing work outside the duties of a volunteer firefighter. Although the duties of a volunteer firefighter is not defined in the policy, common experience tells us that the voluntary cleaning of storm debris at the request of the mayor is not encompassed within the duties of a volunteer firefighter.

Based on the foregoing, I respectfully dissent and would reverse the trial court’s grant of summary judgment.