author: | ¡.PER CURIAM.

text:
    EL CHICO RESTAURANTS OF LOUISIANA, INC. v. LOUISIANA GAMING CONTROL BOARD.
    No. 2001 CA 0205.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Rehearing Denied March 10, 2003.

      Paul R. Baier, Baton Rouge, for Plaintiff/Appellee, El Chico Restaurants of Louisiana, Inc.
    Thomas A. Warner, III, Baton Rouge, for DefendanVAppellant, Louisiana Gaming Control Board.
    Before: CARTER, C.J., PARRO, and CLAIBORNE, JJ.

      . Hon. Ian W. Claiborne, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | ¡.PER CURIAM.

The appeals of these consolidated cases challenge a district court judgment reversing two orders of the Louisiana Gaming Control Board (the Board).

FACTUAL AND PROCEDURAL HISTORY

These consolidated cases involve the Type-2 video gaming licenses held by El Chico Restaurants of Louisiana, Inc. (El Chico). In January 1998, ownership of El Chico’s parent company, El Chico Restaurants, Inc., changed. The Louisiana State Police, Video Gaming Division (the Division), was informed of the change in ownership and instructed El Chico that, in order to maintain its video gaming licenses, certain individuals and entities were required to complete and return certain forms (collectively referred to as the application packets).

Application packets requested from those individuals and entities were returned to the Division incomplete. Instead of supplying some requested information, formal objections were entered. El Chico also submitted renewal application packets for the purpose of preserving any and all rights to request annual renewal of the licenses for the period of 1999-2000. The renewal packets contained the same objections supplied in the application packets.

Based on the incomplete applications, notices of revocation were issued in connection with each of El Chico’s licenses. El Chico requested an administrative hearing, which was held before a hearing officer. At the hearing, El Chico raised two issues: 1) whether the Division’s application packets were void for failure to comply with statutorily mandated rulemaking procedures; and 2) whether the Division’s application packets exceed the scope of statutory authorization regarding suitability inquiries. In written reasons, the hearing officer determined that those issues should be addressed to the Board in a proceeding for a declaratory order and stayed a ruling on the revocation of El Chico’s licenses.

In accordance with the hearing officer’s ruling, El Chico instituted a new proceeding before the Board by filing a petition for declaratory order. In that proceeding, El Chico sought to have the Board declare the Division’s application packets invalid as not having been adopted in compliance with law and for exceeding 13the scope of the statutory authority regarding suitability inquiries. After considering the matter in an open meeting, the Board issued its declaratory order on February 21, 2000, declaring the issue of whether the application packets are invalid for failure to comply with rulemaking procedures to be moot due to the Board’s adoption of LAC 42:III.120. The Board further declared that the application packets did not exceed the scope of the statutory authority of the Board to determine the suitability of an applicant. El Chico appealed the declaratory order to the district court.

El Chico then filed a motion in the original proceeding before the hearing officer, seeking to have the hearing officer maintain the stay on the revocation of its licenses, pending its appeal of the declaratory order. The hearing officer denied the motion and issued an order revoking El Chi-co’s Type-2 video gaming licenses and denying El Chico’s renewal applications. In written reasons that accompanied that order, the hearing officer determined that El Chico’s arguments regarding the validity of the application packets were disposed of by the Board’s declaratory order. The hearing officer based his decisions to revoke El Chico’s licenses and deny its renewal applications on El Chico’s refusal to complete the application packets supplied by the Division. El Chico appealed the hearing officer’s decision to the Board. By order dated July 25, 2000, the Board affirmed the hearing officer’s decision. El Chico appealed the Board’s revocation order to the district court.

The district court consolidated the two matters and, after a hearing, reversed the Board’s declaratory order, as well as the Board’s revocation order. The Board appeals.

THIS COURT’S PREVIOUS ORDER

In a previous unpublished opinion, this court questioned the existence of a justiciable controversy in this matter based on the Board’s assertions that on January 3, |42Q00, El Chico merged with another corporation and ceased to exist. The Board had further asserted that El Chico’s video gaming licenses were personal and nontransferable, and expired by operation of law. Because the record contained no corroborative proof of such a merger, this court was unable to make a determination regarding the existence of a justiciable controversy. Rather than undertake consideration of the merits of the appeals of these cases, which because of a change in corporate circumstances may have assumed the import of a mere academic discussion, this cqurt stayed the Board’s appeals and remanded these cases to the district court. The district court was instructed to remand this matter to the Board for the limited purpose of receiving evidence on the issue of the alleged corporate merger. The transcript of the eviden-tiary hearing was ordered to be submitted to this court as a supplement to the appellate record. Additionally, the parties were ordered to file briefs addressing the single issue of whether a justiciable controversy exists.

The stay of these appeals has been lifted, and this court has received a supplemental record and the briefs of the parties as ordered.

JUSTICIABLE CONTROVERSY

The first issue to be considered in any case is whether the case is properly before the court and whether there is a basis for jurisdiction. Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Board, 99-0863, p. 3 (La.App. 1st Cir.12/20/00), 774 So.2d 1193, 1196, affirmed in part, vacated in part, 2001-0185 (La.10/16/01), 797 So.2d 656. Louisiana courts are without jurisdiction to issue or review advisory opinions and may review only matters that are justiciable. Duplantis v. Louisiana Board of Ethics, 2000-1750, p. 11 (La.3/23/01), 782 So.2d 582, 589. The Louisiana Supreme Court has defined a “justiciable controversy” as:

an existing actual or substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of a conclusive character.

Duplantis, 782 So.2d at 589, quoting Abbott v. Parker, 259 La. 279, 308, 249 So.2d 908, 918 (1971).

lsThe parties have supplemented the record in this case with several joint stipulations, including a stipulation that on January 3, 2000, El Chico and certain other corporations merged with and into El Chi-co Restaurants of America, Inc. The ultimate question to be answered is whether, upon merger of the corporations, El Chi-co’s gaming licenses automatically transferred and vested in El Chico Restaurants of America, Inc., or expired by operation of law. If the licenses did expire, then there were no licenses to be revoked by the Board, and no justiciable controversy existed at the time the district court ruled on this matter.

Resolution of this issue involves the interpretation of the Louisiana Gaming Control Law in connection with principles of general corporate law. Generally speaking, upon a merger of corporations, the separate existences of the constituent or merging corporations cease to exist, except that of the surviving business. LSA-R.S. 12:115B; 8 Del.C. § 259(a). The surviving corporation then possesses the rights and privileges of the former corporations that are merged or consolidated. LSA-R.S. 12:115C; 8 Del.C. § 259(a). Moreover, the property and assets of the constituent corporations are deemed to be transferred to the surviving corporation without further act. LSA-R.S. 12:116D; 8 Del.C. § 259(a). Thus, El Chico argues, when it merged with El Chico Restaurants of America, Inc., its video gaming licenses were vested in El Chico Restaurants of America, Inc.

Louisiana’s Gaming Control Law provides that video gaming licenses are personal to the licensee to whom they are issued and are not transferable. LSA-R.S. 27:311G. Thus, the Board argues, the licenses were not transferred to El Chico Restaurants of America, Inc. via the corporate merger and expired by operation of law.

It is well established that where two statutory provisions are in conflict, the statute that is more specific must prevail as an exception to the general statute. Smith v. Cajun Insulation, Inc., 392 So.2d 398, 402 (La.1980). Louisiana has enacted a statutory scheme specifically aimed at strictly regulating the gaming industry, in furtherance of the public policy of the state concerning gaming. See LSA-R.S. 27:2A. Thus, the provisions of the Louisiana Gaming Control Law override general corporate law to the extent general corporate law is inconsistent with the provisions of the Louisiana Gaming Control Law, or the purposes behind it. Cf. Crist v. Benton Casing Service, 572 So.2d 99, 102 (La.App. 1st Cir.1990), writ denied, 573 So.2d 1143 (La.1991).

The plain language of the Louisiana Gaming Control Law indicates that video gaming licenses are personal and nontransferable. See LSA-R.S. 27:311G. Therefore, El Chico’s video gaming licenses were not transferable to El Chico Restaurants of America, Inc. via corporate merger, notwithstanding principles of general corporations law. El Chico’s assertions that the merger effected no change in control and did not alter any of the suitability facts previously submitted to the Division have no bearing on this determination. El Chico ceased to exist on January 3, 2000, the effective date of the merger. See LSA-R.S. 12:116B; 8 Del.C. § 259(a). El Chico’s video gaming licenses, therefore, expired by operation of law.

We note that the Louisiana Gaming Control Law makes allowances for the continued operation of video gaming devices where there has been sale or transfer of an establishment holding gaming licenses. The applicable version of LSA-R.S. 27:306E provided, in pertinent part:

(1) When a licensed establishment which requires an alcoholic beverage license as a condition of the receipt of a video draw poker device license is sold, the video gaming devices shall be allowed to continue to operate if the new owner applies for a state Class “A” license within five days of purchasing the business, and upon issuance of a state Class “A” license, the new owner applies for a video draw poker license within five days.
|7(2) The video draw poker devices shall be allowed to be continued in operation under the old license until the issuance of a video draw poker license in the name of the owner, until any of the following occur:
(a) A determination by the division that the new applicant is unsuitable.
(b) Denial of the new license application.
(c) The passage of one hundred eighty days from submission of the application to the division.

However, LSA-R.S. 27:306 does not provide for the transfer of a video gaming license. It merely provides a mechanism for the continued operation of video gaming devices when the new owner follows the procedures set forth therein for obtaining its own license. In this ease, the applicability of LSA-R.S. 27:306 is not at issue, as the stipulations of the parties indicate that El Chico Restaurants of America, Inc. did not follow the statute’s procedures.

The corporate merger took place on January 3, 2000, prior to the district court’s review of the Board’s rulings. We therefore conclude that no justiciable controversy existed at that time, and the district court’s judgment is void for lack of subject matter jurisdiction. See LSA-C.C.P. art. 3; Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Bd., 2001-0185, p. 10 (La.10/16/01), 797 So.2d 656, 663. Accordingly, the district court’s judgment must be vacated. See Metro Riverboat Associates, Inc., 797 So.2d at 663.

Because the district court was without appellate jurisdiction, we have no appellate jurisdiction to review the merits of these cases. This court has jurisdiction merely for the purpose of correcting the error of the lower court in entertaining the appeals. Metro Riverboat Associates, Inc., 797 So.2d at 663. Because the district court’s judgment was void for lack of jurisdiction, this court has nothing to review, and this appeal is dismissed. See Metro Riverboat Associates, Inc., 797 So.2d at 663.

CONCLUSION

For the reasons set forth herein, the judgment of the district court is vacated for lack of jurisdiction, and these appeals are dismissed. Costs of these appeals, in the total amount of $1,451.21, are assessed equally between the parties.

JUDGMENT VACATED; APPEALS DISMISSED.

      . LAC 42:111.120, effective February 20, 2000, specifies the forms an applicant is required to complete by reference to the form's name and identification number. See Louisiana Register, Vol. 26, No. 2.

      . In proceedings before the district court, the parties referred to a third case filed by El Chico in the Nineteenth Judicial District Court under docket number 463,013. The third case is described as a suit for declaratory judgment urging constitutional right-of-privacy objections to the application packets. The district court denied a motion to consolidate that case with the two that form the basis for these appeals. That case and the issues raised therein are not part of the present appeals.

      . The merging corporations included El Chi-co Restaurants of Louisiana, Inc. (referred to herein as "El Chico”), El Chico Corporation of Alabama, El Chico Restaurant No. 20, Inc., El Chico Corporation of Florida, El Chico Restaurants of Indiana, Inc., El Chico Restaurants of Kentucky, Inc., El Chico Restaurants of Missouri, Inc., El Chico Corporation of Oklahoma, Inc., and Southwest Cafes of Tennessee, Inc.

      . In its brief, El Chico relies primarily on Louisiana corporations law. However, the Board has questioned the applicability of Louisiana corporations law as El Chico and the newly formed El Chico Restaurants of America, Inc. are Delaware corporations. We find that, as they relate to corporate merger, Louisiana and Delaware laws are substantially similar. Therefore, under either state’s law, our analysis is the same.

      . The statute was amended by 2001 La. Acts, No. 535, § 1 and No. 889, § 1.


source: Caselaw Access Project

author: 1 ¡WHIPPLE, J.

license: Public Domain

text:
    Shirley M. AVANTS and Jim W. Miley v. John Neely KENNEDY, Secretary, Department of Revenue and Taxation, State of Louisiana, and Elmer Litchfield, Sheriff of East Baton Rouge Parish.
    No. 2002 CA 0830.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Writ Denied April 4, 2003.

      Stan P. Baudin, Patrick W. Pendley, Plaquemine, Steven R. Duke, Andre P. LaPlace, Baton Rouge, Counsel for plaintiffs/appellees, Shirley M. Avants, et al.
    Otha C. Nelson, Jr., Baton Rouge, Counsel for defendant/appellant, John Neely Kennedy, Secretary of the Department of Revenue and Taxation, et al.
    Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

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

   1 ¡WHIPPLE, J.

In this appeal, the Louisiana Department of Revenue and Taxation (“the Department”) challenges the trial court’s award of attorney fees to the four attorneys who represented plaintiffs herein, which award was based upon the “fund doctrine” or “common fund doctrine,” as recognized in In re Interstate Trust & Banking Company, 235 La. 825, 106 So.2d 276 (1958)(on rehearing). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Appellees (hereinafter referred to as “the Attorneys”) are attorneys who were awarded a fee for their efforts in the establishment of a fund for the refund of state sales and/or use taxes paid on the purchase of manufactured and mobile homes, for the benefit of plaintiffs and other non-party purchasers of these homes. The trial court awarded the Attorneys a fee of 28% of the remainder of the common fund, after payment of the claims of the named plaintiffs in several suits, and the Department now challenges that award. Because the principal claim at issue herein is the entitlement of the Attorneys to this fee, a recounting of the chronology of circumstances and events culminating in the establishment of the fund is necessary to understand the basis of their claim for such a fee.

On December 20, 1996, the Attorneys filed a petition for declaratory judgment in this matter on behalf of Shirley M. Avants and Jim W. Miley, seeking a declaration that the Louisiana taxing scheme imposed upon owners and purchasers of new and/or used manufactured and mobile home dwellings violated certain provisions of the Louisiana Constitution, as well as seeking a refund of taxes paid under protest, costs and attorney fees. Therein, they averred that the sale of a mobile or manufactured home was subject to sales tax in Louisiana, pursuant to LSA-R.S. 47:S02(A) and 303(B), which define “tangible personal property” to include “trailer” and “house trailer.” Additionally, the petition | «averred that once a mobile home was secured to a location or on a piece of property, it was then placed on the parish tax assessor’s ad valorem or property tax rolls and classified as an “improvement for residential purposes,” thereby subjecting the owner to property taxes on the improvement. Thus, plaintiffs contended, the imposition of a sales tax upon the sale of a mobile home subjected the owner to double taxation, in violation of due process and equal protection, and they sought a refund of the taxes they had paid under protest, together with costs and attorney’s fees. While the original petition in this matter named only two plaintiffs, the Attorneys amended the petition numerous times, to name in excess of 1,700 plaintiffs in the suit.

In addition to the instant matter, the Attorneys also filed in the Nineteenth Judicial District Court two additional suits on behalf of numerous plaintiffs, seeking declaratory and other relief under the same theories advanced in this matter. See Rossi v. Bridges, Secretary, Department of Revenue, State of Louisiana, Docket Number 478,526, Division “M,” 19th Judicial District Court, (Rossi) and Stevens v. Crawford, Secretary, Department of Revenue, State of Louisiana, Docket Number 466,122, Division “M,” 19th Judicial District Court (Stevens).

In addition to the three suits for declaratory judgment, the Attorneys also filed a petition with the Board of Tax Appeals styled “Class Action Petition and Claim Against the State to Recover Taxes Erroneously Paid Into the Louisiana State Treasury,” which was on the behalf of Jim Miley and “all others similarly situated.” Jim W. Miley, Individually and on Behalf of All Others Similarly Situated v. John N. Kennedy, Secretary, Department of Revenue and Taxation, State of Louisiana, B.T.A. Docket Number 4695, Board of Tax Appeals (Miley). Through this action, the Attorneys sought to recover sales and use taxes paid for |4the purchase of new manufactured or mobile homes that had not been paid under protest.

The only ease that was fully litigated was the instant suit. Following trial on the merits, the trial court rendered judgment: finding that at the time of purchase, the manufactured or mobile homes purchased by plaintiffs were immovables, and, accordingly, no sales or use taxes were owed by plaintiffs; and declaring that the sales and use tax statutes that subject such sales of new and used manufactured and mobile homes to sales and use taxes are illegal, discriminatory and unconstitutional in that they violate the equal protection clause of the Louisiana Constitution. Accordingly, the trial court ordered that plaintiffs, except for Jim W. Miley, be refunded all sales and use taxes remitted under protest and that all sales and use taxes collected by the Department from future purchases and sales of manufactured and mobile homes be escrowed by the Department through its official agent for collection, the Louisiana Department of Public Safety, Office of Motor Vehicles.

From this judgment, the Department sought to appeal directly to the Supreme Court, challenging the trial court’s declaration that the taxing scheme for manufactured and mobile homes was illegal and unconstitutional. The Supreme Court rendered an order transferring the matter to this court. The Court noted that the trial court had made an initial finding that the plaintiffs’ manufactured or mobile homes were immovables under Louisiana law at the time of sale, and, as a result, the sales and use taxes were not due or owed by plaintiffs. Thus, the Supreme Court concluded, the trial court had been premature in reaching the constitutionality question and any further statements by the trial court concerning the constitutionality of the statute were dicta. Avants v. Kennedy, 2000 CA 0046 (La.2/2/00), 752 So.2d 150. Accordingly, the matter was transferred to this court for consideration.

|sOn July 17, 2000, after the matter was transferred to this court, the parties filed a joint motion to continue the briefing schedule, representing that they had entered into settlement negotiations, but that a settlement could not be confected prior to the date by which plaintiffs’ brief was due. This court rendered an order on July 17, 2000, granting the requested continuance of the briefing schedule.

Thereafter, on August 18, 2000, the Attorneys filed a motion on behalf of plaintiffs to remand the case to the trial court on suggesting that the parties had compromised their dispute, or, in the alternative, to once again continue the briefing schedule. By order dated December 1, 2000, this court denied plaintiffs’ motion to remand the case on suggestion of compromise, noting that a motion to remand based on settlement proceedings should be filed as a joint motion. Avants v. Kennedy, 2000 CA 0277 (La.App. 1st Cir.12/1/00).

On December 20, 2000, the Attorneys then filed a motion to continue the briefing schedule contending that a motion to enforce the alleged settlement agreement had been filed by plaintiffs in the trial court and was set for hearing on January 29, 2001. By order dated December 21, 2000, this court continued the briefing schedule in this matter pending further order of this court. Avants v. Kennedy, 2000 CA 0277 (La.App. 1st Cir.12/21/00).

Subsequently, on February 6, 2001, this court, ex proprio motu, issued a show cause order, ordering the parties to show cause by briefs why the instant appeal should or should not be dismissed, based on the information that had been furnished to this court suggesting that the parties had settled their dispute. After briefs were filed, this court, noting that the Department alleged that the trial court had meanwhile entered a judgment enforcing the alleged settlement agreement between the parties, ordered that the appeal be held in abeyance pending either a confirmation from the parties or the trial court that the settlement agreement had been deemed enforceable by the trial court or that an order granting an appeal from | t;any judgment by the trial court enforcing or refusing to enforce the settlement had been entered. Avants v. Kennedy, 2000 CA 0277 (La.App. 1st Cir.3/28/01) (unpublished opinion).

In a separate, related appeal in this matter, the Department had appealed the May 24, 2000 judgment of the trial court, ordering the Department to deposit into an escrow account all taxes collected on the sale of mobile homes after October 22, 1999. This court issued a similar order in that appeal, holding the appeal in abeyance pending some type of resolution of the question of whether the parties had settled the matter. Avants v. Kennedy, 2000 CA 1500 (La.App. 1st Cir.3/28/01) (unpublished opinion).

At the trial court level, the trial court had in fact issued a judgment on February 5, 2001, granting the Attorneys’ motion to enforce the settlement agreement and ordering the Department to deliver to plaintiffs in the instant matter the sum of $5,167,194.00 from the escrow account maintained by the Department pursuant to prior order of the court. The Department suspensively appealed the February 5, 2001 judgment, and the appeal was lodged with this court under docket number 2001 CA 0773.

While these matters were pending on appeal, the Louisiana Legislature enacted Act No. 1212 during the 2001 Regular Session, which established a special custodial fund in the state treasury to be known as the “Manufactured and Mobile Homes Settlement Fund” (“the Settlement Fund”), to be funded by the state sales and use taxes on manufactured and mobile homes collected by the Department after October 22, 1999, which the Department had previously been ordered to hold in escrow. The Act further required the Department to pay from this fund the amount necessary to satisfy the February 5, 2001 judgment rendered in favor of plaintiffs in the instant matter in the amount of $5,167,194.00, plus interest from the date of judgment. In light of Act No. 1212, the Department dismissed all of its|7appeals in the instant matter (2000 CA 0277, 2000 CA 1500 and 2001 CA 0773), on the grounds that the passage of Act 1212 rendered the appeals moot.

Additionally, with regard to the Stevens, Rossi and Miley cases, Act No. 1212 also provided that the Department shall refund to the plaintiffs in those actions the amount of sales or use taxes paid by them. Finally, Act No. 1212 also provided a formula by which other non-party taxpayers, who paid state sales or use tax on the purchase of either a new or used manufactured or mobile home between January 1, 1998 and the effective date of the Act, could receive a refund of at least a portion of those taxes paid.

The Attorneys then filed a rule to show cause, seeking an accounting of all funds escrowed by the Department and a transfer of those funds into the registry of the clerk of court of the trial court. By order dated September 12, 2001, the trial court ordered the Department to transfer all remaining state sales taxes escrowed pursuant to the Stevens, Rossi and present matters into the registry of the clerk of court of the Nineteenth Judicial District Court, thereby allowing those funds to earn interest.

Subsequently, on November 6, 2001, the Attorneys filed a motion for attorneys’ fees and costs, contending that they should be awarded 35% of the Settlement Fund because their efforts resulted in the creation, preservation, protection and increase of a substantial common fund for the benefit of many non-party taxpayers. While the Attorneys acknowledge that they were paid attorney fees by the named plaintiffs in these matters, their clients, they sought attorney fees relative to the remaining funds in the Settlement Fund which would enure to the benefit of the non-party taxpayers having an interest in the Settlement Fund.

Without conducting a contradictory hearing on the issue of attorney fees, the trial court rendered an order on November 6, 2001, the same date the motion was | ¿filed, awarding the Attorneys an attorney fee of 35% of the Settlement Fund as well as reimbursement of costs.

However, the Attorneys subsequently filed another motion for attorney fees on November 19, 2001, and, in response to that motion, the trial court signed a show cause order, and set the matter for hearing on December 17, 2001. Following a contradictory hearing, the trial court rendered judgment dated February 1, 2002, awarding the Attorneys a fee of 28% of the Settlement Fund and reimbursement of costs in the amount of $11,933.32.

From this judgment, the Department appeals, assigning five errors through which it challenges the trial court’s award of a 28% attorney fee from the Settlement Fund. The Attorneys answered the appeal, requesting that this court amend the judgment to award them the requested 35% of the common fund, rather than the 28% award ordered by the trial court.

VALIDITY AND LEGAL EFFECT OF THE FEBRUARY 1, 2002 JUDGMENT

As noted above, the trial court herein rendered two separate judgments awarding the Attorneys a fee from the Settlement Fund: the November 6, 2001 judgment, awarding the Attorneys 35% of the Settlement Fund and costs of $2,261.59; and the February 1, 2002 judgment, awarding the Attorneys 28% of the Settlement Fund and costs in the amount of $11,933.32. The Department appealed only the February 1, 2002 judgment.

As a reviewing court, we are obligated to recognize our lack of jurisdiction if it exists. Accordingly, we must first address the validity and legal effect, if any, of the February 1, 2002 judgment, as a decision on this issue may affect our jurisdiction to entertain the Department’s appeal. Starnes v. Asplundh Tree Expert Company, 94-1647, p 4 (La.App. 1st Cir.10/6/95), 670 So.2d 1242,1245.

| flPursuant to LSA-C.C.P. art. 1951, a final judgment may be amended by the trial court at any time on its own motion or pursuant to the motion of any party to alter the phraseology, but not the substance, of a judgment or to correct errors in calculation. Starnes, 94-1647 at p. 5, 670 So.2d at 1245. Thus, under article 1951, a judgment may be amended where the amendment takes nothing from or adds nothing to the original judgment. Where an amendment to a judgment adds to, subtracts from, or in any way affects the substance of the judgment, such judgment may not be amended under LSA-C.C.P. art.1951. Starnes, 94-1647 at p. 5, 670 So.2d at 1246.

The proper vehicle for a substantive change in a judgment is a timely motion for a new trial or a timely appeal. LaBove v. Theriot, 597 So.2d 1007, 1010 (La.1992); Starnes, 94-1647 at p. 5, 670 So.2d at 1246. The Louisiana Supreme Court has also recognized that, on its own motion and with the consent of the parties, the trial court may amend a judgment substantively. LaBove, 597 So.2d at 1010; Villaume v. Villaume, 363 So.2d 448, 451 (La.1978). An amended judgment rendered without recourse to the above procedures is an absolute nullity. LaBove, 597 So.2d at 1010; Starnes, 94-1647 at p. 5, 670 So.2d at 1246. Moreover, a motion for appeal from an invalid judgment is considered untimely, and this court lacks jurisdiction to hear an untimely appeal. Starnes, 94-1647 at p. 6, 670 So.2d at 1246.

In the instant case, although the February 1, 2002 judgment is not labeled as an amended judgment, it is clear that it attempts to substantively alter the attorney fee previously awarded in the November 6, 2001 judgment. However, no timely motion for new trial was filed, nor does the record show that both parties consented to the changes. Nonetheless, because we determine for the reasons that follow that the original November 6, 2001 judgment was an absolute nullity, we conclude that Imthe subsequent February 1, 2002 judgment is a valid judgment, now subject to review.

Pursuant to LSA-C.C.P. art. 963, if an order applied for by written motion is one to which the mover is clearly entitled without supporting proof, the court may grant the order ex parte and without a contradictory hearing. However, if the mover is not clearly entitled to the relief sought or if the relief sought requires supporting proof, the motion shall be served on and tried contradictorily with the adverse party. LSA-C.C.P. art. 963; Conner v. Conner, 481 So.2d 639, 641 (La.App. 1st Cir. 1985).

Article 1312 of the Louisiana Code of Civil Procedure provides that, except in certain enumerated exceptions, “every pleading subsequent to the original petition shall be served on the adverse party as provided by Article 1313 or 1314, whichever is applicable.” As set forth in LSA-C.C.P. art. 1313, if a pleading requires no appearance or answer, it may be served by the sheriff or by mail to the adverse party or his counsel of record. However, as provided in LSA-C.C.P. art. 1314, a pleading which is required to be served, but which may not be mailed or delivered under Article 1313 (because it requires an appearance or answer), shall be served by the sheriff. Johnson v. Johnson, 94-0018, p. 4 (La.App. 1st Cir.11/10/94), 645 So.2d 1260, 1261-1262.

Summary proceedings may be used for trial and disposition of an incidental question arising in the course of judicial proceedings, including the award of and the determination of reasonableness of attorney fees, by the filing of a rule to show cause. LSA-C.C.P. art. 2592. However, while citation is not essential in a summary proceeding, a judgment rendered against a defendant who has not been served with process and has not entered a general appearance is an absolute nullity. LSA-C.C.P. art. 2594; Barrios v. Barrios, 95-1390, pp. 6-7 (La.App. 1st Cir.2/23/96), 694 So.2d 290, 294, writ denied, 96-0743 (La.5/3/96), 672 So.2d 691.

InThe motion for attorney fees filed herein was one in which the Attorneys were not “clearly entitled” to the relief sought, in that it involved a legal question as to the applicability of the common fund doctrine. Moreover, the relief sought required supporting proof and documentation. As such, the motion had to be served on and tried contradictorily with the adverse party. LSA-C.C.P. art. 963; Conner, 481 So.2d at 641. The record before us demonstrates that the original judgment of November 6, 2001, awarding attorney fees, which was signed the same day the motion was filed with the court, was rendered without the motion being served on or tried contradictorily with the Department. Thus, the resulting judgment was an absolute nullity. Barrios, 95-1390 at p. 7, 694 So.2d at 294.

Pursuant to LSA-C.C.P. art.2005, a judgment rendered against a defendant who has not been served with process as required by law is an absolute nullity. See Johnson, 94-0018 at p. 5, 645 So.2d at 1262. Accordingly, because we conclude the November 6, 2001 judgment was an absolute nullity, without any legal effect, we likewise conclude that the February 1, 2002 judgment, while substantively different from the earlier judgment, did not constitute an unauthorized amendment to a prior final judgment. As such, the February 1, 2002 judgment on appeal is a valid judgment, and this court has jurisdiction to entertain the Department’s appeal of that judgment.

PROPRIETY OF FILING MOTION FOR ATTORNEY FEES

(Assignment of Error No. 1)

In its first assignment of error, the Department contends that pursuant to LSA-C.C.P. art. 1878, the Attorneys procedurally were required to file a petition to assert their claim for attorney fees, rather than asserting this claim through a motion. The Department argues that because plaintiffs herein sought declaratory relief in the original and amended petitions, the Attorneys were bound to adhere to the procedural requirements of the declaratory judgment provisions, and 11?specifically to the requirements of LSA-C.C.P. art. 1878. The Department further contends that because LSA-C.C.P. art. 1878 requires that a claim for “further relief’ on a declaratory judgment “shall be by petition,” the Attorneys could not raise the issue of attorney fees through a motion. Accordingly, the Department contends that the trial court erred in failing to dismiss the Attorneys’ motion for attorney fees on the grounds that the motion was an invalid mechanism to raise the issue of attorney fees and costs.

In rejecting the Department’s argument, we note that the petitions filed by the Attorneys herein requested not only declaratory relief, but also a refund of taxes paid under protest, costs and attorney fees. Thus, if the pleadings set forth the supplementary relief sought, the issue of entitlement to such relief is properly before the court. See Fortenberry v. Dixie Brewing Company, Inc., 368 So.2d 1240, 1241 (La.App. 4th Cir.1979). Accordingly, we conclude that the Attorneys’ claim for an attorney fee award was properly raised and properly considered by the trial court. This assignment of error lacks merit.

NECESSITY OF NOTICE TO NON-PARTY CLAIMANTS

(Assignment of Error No. 2)

In this related assignment of error, the Department contends that pursuant to LSA-C.C.P. art. 1878, the Attorneys were further required to give notice of their claim for attorney fees to the non-party taxpayers who were entitled to a refund from the Settlement Fund. Louisiana Code of Civil Procedure article 1878 provides as follows:

Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefore shall be by petition to a court having jurisdiction to grant the relief. If the application is considered sufficient, the court, on reasonable notice, shall require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith. (Emphasis added).

| 13Citing this article, the Department argues that the non-party taxpayers with an interest in the Settlement Fund had a right to defend them interest in refuting the attorney fee award and, correspondingly, that the Attorneys were required to provide reasonable notice to these individuals to allow them the opportunity to defend their interests. Accordingly, the Department requests that this court reverse the trial court’s judgment awarding attorney fees and costs and remand the case to the trial court to require the Attorneys to provide reasonable notice to any adverse party having an interest in the Settlement Fund.

However, as noted by the Attorneys, this issue regarding notice was never raised by the Department in the trial court below and, thus, should not be considered by this court on appeal. See Uniform Rules, Courts of Appeal, Rule 1-3; Salassi v. State, Department of Public Safety and Corrections, Administrative Hearing Section, 96-0321, p. 6 (La.App. 1st Cir.11/15/96), 684 So.2d 1014, 1018. Nonetheless, we simply note that, by its clear wording, LSA-C.C.P. art. 1878 requires notice only to an “adverse party.” The term “party” refers to one who has filed a claim, who has been named in a suit, or who, although unnamed, has been allowed to enter a general appearance and seek certain relief. Cormier v. Roberson, 96-1107, p. 4 (La.App. 1st Cir.3/27/97), 691 So.2d 807, 809. The non-party taxpayers who may benefit from the creation of the Settlement Fund were not parties to this matter. As such, the Attorneys were not required to provide them with notice pursuant to LSA-C.C.P. art. 1878. See generally Zurichr-American Insurance Company v. State Worker’s Compensation Second Injury Board, 600 So.2d 883, 885 (LaApp. 1st Cir.1992).

luAWARD OF ATTORNEY FEES PURSUANT TO THE FUND DOCTRINE

(Assignment of Error No. 3)

In its third assignment of error, the Department contends that the trial court erred in finding that the Attorneys were entitled to recover an attorney fee from the Settlement Fund pursuant to the “fund doctrine” or “common fund doctrine.”

Generally the right of an attorney to remuneration for services is dependent upon a contract, either express or implied. Louisiana State Mineral Board v. Abadie, 164 So.2d 159, 166 (La.App. 1st Cir.1964). An exception to this rule is recognized, however, in those instances where an attorney alone and at his own expense has successfully maintained an action for the preservation, protection, increase or creation of a fund in which persons other than his own clients may share or from which they may benefit. Kirkpatrick v. Young, 456 So.2d 622, 625 (La.1984); In re Interstate Trust & Banking Company, 235 La. at 842, 106 So.2d at 282 (on rehearing); Abadie, 164 So.2d at 166. In such instances, equity requires that all who benefit must pay the costs and expenses incident thereto, including attorney’s fees. Abadie, 164 So.2d at 166. The exception allowing for the award of an attorney fee even in the absence of a contract has been termed the “fund doctrine” or “common fund doctrine.”

In In re Interstate Trust and Banking Company, a fund amounting to more than $700,000.00 had been created and brought into existence due solely to the efforts of the attorneys therein. The attorneys represented some of the bank’s depositors and creditors in opposing certain tableaus of distribution in a liquidation matter, because of a failure to provide for the payment of interest on unpaid balances that had been frozen. As a result of their efforts, a judgment was rendered ordering the payment of legal interest of all depositors and creditors, including those who failed to oppose the distribution. In re Interstate Trust & Banking Company, 235 La. at 828-829, 106 So.2d at 277.

|1sIn holding that the attorneys were entitled to a reasonable fee to be paid out of the interest fund, the Supreme Court noted that, except for the services of the attorneys, none of the depositors would have received any interest on any of their frozen deposits. Consequently, all depositors as a class benefited and were enriched by these attorneys’ efforts. Thus, the court determined that under these facts and circumstances, the attorneys had brought themselves within the scope of the “fund doctrine” and, as such, were entitled to recover a reasonable fee for their services. In re Interstate Trust & Banking Company, 235 La. at 842-843, 106 So.2d at 282 (on rehearing).

Similarly, in Abadie, this court applied the fund doctrine to award an attorney fee to an attorney, whose services resulted in the lease of a tract of land owned by approximately 4,000 co-owners for mineral development and the establishment of a fund held in the registry of the district court, consisting of bonuses and royalties collected for the benefit of all co-owners. Abadie, 164 So.2d at 161-165. The attorney’s efforts resulted in aggregate bonuses of $660,000.00, accumulated royalties of approximately $1,000,000.00 and continuing royalties accruing at a rate of approximately $240,000.00 per year. Abadie, 164 So.2d at 169.

In awarding the attorney a percentage of the pro rata share of the aggregate bonuses of each co-owner, this court thoroughly detailed the tremendous efforts of the attorney in seeing the lease of the property and resulting bonuses and royalties to fruition. The attorney had been retained by one of the co-owners to explore the possibility of leasing the tract for mineral development. However, because of the vast number of co-owners living throughout the state and nation, it became apparent that granting an effective mineral lease on the property was only a remote possibility, if not an absolute impossibility. Abadie, 164 So.2d at 161.

|1fiThus, the attorney sought to have special legislation enacted to authorize the granting of a valid mineral lease of property owned by large numbers of co-owners. Largely through his efforts, the Legislature enacted Act No. 513 of the Regular Session of 1952, LSA-R.S. 30:181-30:188. This legislation provided that property owned in indivisión by 500 or more persons could be leased for mineral development at the request of fifty or more co-owners. Abadie, 164 So.2d at 162.

The attorney then initiated the procedure for leasing of the land as prescribed by Act No. 513, prepared a special lease form to be used for such a lease, defended a constitutional attack on Act No. 513 before the district court and the Louisiana Supreme Court, engaged in extended dealings with the State Mineral Board to ensure optimum lease of the property, and instituted mandamus proceedings to compel the Board’s deposit of accumulated bonuses and royalties into the registry of the district court for eventual disbursement. Abadie, 164 So.2d at 162-165.

Concluding that the fund in question existed because of the perseverance and determination of the attorney which made possible the leasing of the subject property and that his efforts undisputedly redounded to the benefit of all co-owners, this court invoked the fund doctrine to render an award of 17% of the aggregate bonuses. Abadie, 164 So.2d at 164,169-170.

Turning to the instant case, we likewise conclude that the fund doctrine is applicable under the facts and circumstances of this case. As detailed in the facts and procedural history above, the efforts of the Attorneys herein clearly resulted in the creation, preservation, protection and increase in the Settlement Fund, for the benefit of all taxpayer beneficiaries. In addition to filing the instant suit (as well as the Rossi and Stevens suits) on behalf of numerous taxpayers who paid the taxes at issue under protest, the Attorneys also instituted an action with the Louisiana Board of Tax Appeals in an attempt to recover taxes paid by individuals where such payments were not made under protest (the Miley suit). In direct response to |17these suits, the Legislature enacted Act No. 1212, which not only provided for a refund of the taxes paid to the named plaintiffs in these suits, but also provided for a refund for the benefit of non-party taxpayers. Clearly, but for the actions of the Attorneys, no fund would have been created for the non-party beneficiaries to receive a refund of state sales taxes paid on manufactured and mobile home purchases. Accordingly, we find no error by the trial court in its conclusion that the fund doctrine was applicable herein and entitled the Attorneys to an attorney fee from the Settlement Fund. See In re Interstate Trust & Banking Company, 235 La. at 842-843, 106 So.2d at 282 (on rehearing), and Abadie, 164 So.2d at 169-170.

REASONABLENESS OF ATTORNEY FEE AWARD

(Assignment of Error No. 5; Answer to Appeal)

With regard to the amount of the fee awarded, 28% of the Settlement Fund, the Department argues that the award, which amounts to a fee in excess of $7,000,000.00, is abusively high. The Attorneys, on the other hand, have answered 11sthe appeal, requesting that this court increase the award to 35% of the Settlement Fund.

The award of attorney fees from a common fund requires a court to exercise broad discretion by applying a reasonableness standard in setting the fee. In determining the amount to be awarded as reasonable attorney fees, the court should consider the extent and nature of the services rendered by the attorneys; the labor, time and trouble involved; the results achieved; the character and importance of the matter; the amount of money involved; the learning, skill, and experience exercised; and the difficulty of the legal problems. The court may also consider the terms of the contracts for compensation which the attorneys had with their original clients. In re Interstate Trust & Banking Company, 235 La. at 844, 106 So.2d at 282.

In the instant case, the Attorneys expended in excess of 2,500 documented hours and pursued this matter over a course of six years. John Perry, a practicing attorney in the Baton Rouge area with twenty-four years of experience, testified as to the talent and skill exercised by the Attorneys in this matter and further noted that the Attorneys had actively involved all three branches of government in their pursuit of this matter. The Attorneys participated in numerous appeals and extended settlement negotiations. Moreover, the Settlement Fund created involves millions of dollars which will be returned to Louisiana taxpayers.

Given the vast amount of work performed by the Attorneys over the course of six years as well as the skill, ingenuity and diligence resulting in the creation, preservation and increase of the Settlement Fund, we are unable to say the trial court abused its discretion in awarding the Attorneys a fee of 28% of the | iaSettlement Fund. Accordingly, we decline to either increase or decrease this award on appeal.

CONCLUSION

For the above and foregoing reasons, the February 1, 2002 judgment of the trial court, awarding the Attorneys an attorney fee of 28% of the Settlement Fund and costs, is affirmed. Costs of this appeal in the amount of $10,244.61 are assessed against the State of Louisiana, through the Department of Revenue and Taxation.

AFFIRMED.

        . We further note that this litigation was not a class action wherein notice would have been statutorily mandated by LSA-C.C.P. art. 594(A)(2).

      . Relying upon two out-of-state cases, Hagge v. Iowa Department of Revenue and Finance, 539 N.W.2d 148, 152 (Iowa 1995), and Oklahoma Tax Commission v. Rieles, 885 P.2d 1336 (Okla.1994), the Department additionally argues that the fund doctrine cannot be applied to tax refund cases. We find no merit to this argument. In the Hagge and Rides cases, while the attorneys involved were successful in securing entitlement to a refund on behalf of certain non-party taxpayers, the courts disallowed recovery of attorney fees because no common fund had been created from which those refunds were to be paid. Hagge, 539 N.W.2d at 149, 153-154; Rides, 885 P.2d at 1338, 1341. In both cases, the courts further held that before a money pool may be subjected to a common fund attorney fee assessment, the created or preserved fund must be brought under the direct supervision and control of the court. Hagge, 539 N.W.2d at 153-154; Rides, 885 P.2d at 1339-1340.
      The court in Hagge opined that the common fund doctrine would likely have limited application in government cases, because the money from which any benefits or damages are paid generally remains in the public treasury until paid to each individual beneficiary, rather than a separate fund being created. Hagge, 539 N.W.2d at 153. However, in the instant case, that is precisely what happened. Because a common fund was created herein and was brought under the direct supervision and control of the trial court, the present case is readily distinguishable from these cases relied upon by the Department.

      . Because we affirm the trial court's award of an attorney fee pursuant to the fund doctrine, we pretermit discussion of the Department’s fourth assignment of error, in which it argues that the trial court erred in alternatively concluding that the award was warranted under the doctrine of negotiorum gestio.

      . While the Attorneys had entered into contracts with their clients for a fee of 35% of the amount recovered, we note that those named plaintiffs were refunded the entire amount of taxes they paid, whereas the non-party taxpayers will receive a refund pursuant to the formula set forth in Act No. 1212.


author: | gJAMES, Judge Pro Tem.

text:
    Jody C. DEAN v. SOUTHMARK CONSTRUCTION and Louisiana Workers’ Compensation Corporation.
    No. 2002 CA 0028.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 20, 2002.
    Rehearing Denied March 10, 2003.

      Paul R. Matzen, Baton Rouge, for Plaintiff-Appellee Jody C. Dean.
    Maria A, Finley, Baton Rouge, for Defendants-Appellants SouthMark Construction and Louisiana Workers’ Compensation Corporation.
    Before: PARRO, JAMES, and PATTERSON, JJ.

      . Judge A. Clayton James, retired, is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

      . Michael A. Patterson is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

   | gJAMES, Judge Pro Tem.

Defendants, SouthMark Construction (SouthMark) and Louisiana Workers’ Compensation Corporation (LWCC), appeal the judgment of a workers’ compensation judge (WCJ) finding that plaintiff, Jody Dean, was injured in the course and scope of his employment as a statutory employee of SouthMark.

FACTUAL AND PROCEDURAL BACKGROUND

On September 21, 1999, SouthMark entered into a subcontractor agreement with Bob Markle in which SouthMark was the general contractor and Markle was the subcontractor. SouthMark was in the business of constructing houses, and Mar-kle was hired to build the frames for several houses SouthMark was building. The subcontractor agreement provided that Markle would furnish all the labor, materials, tools, and equipment necessary to complete the job. According to South-Mark’s vice-president and accountant, Renee Wallace, Markle did not have workers’ compensation insurance at that time. Therefore, each week SouthMark withheld from Markle’s paycheck the amount that it was required to pay to its workers’ compensation insurer for employing an uninsured framer.

In late October of 1999, Markle contacted plaintiff, Jody Dean, about coming to work for him on the SouthMark jobs. Dean advised Markle that he did not have transportation at that time, and according to Dean, Markle agreed to provide him with transportation to and from work each day. Dean testified that his hours were from 7:00 a.m. until 3:30 p.m. and that Markle agreed to pay him for those hours even if he was late picking him up for work in the morning.

pOn the morning of November 19, 1999, Markle was driving himself and Dean to one of the SouthMark work sites where they were going to finish up work that had almost been completed the day before. The two of them were going to finish building the form for the slab foundation, and Dean testified that they would need a maul or sledgehammer in order to drive the stobs (stakes) into the ground to form the boundary of the foundation. The rest of Markle’s crew and his tool trailer were at another job site, and Dean testified that he and Markle did not have a maul or sledgehammer either with them in the truck or at the job site to which they were heading.

When Markle entered the subdivision where the job site was located, he drove past the job site and proceeded to another job site about one-eighth of a mile away where Markle’s uncle, Marvin Graham, was in the process of building a home. This job site was not a SouthMark site. Dean testified that Markle did not tell him why they were stopping at Graham’s work site. However, he explained that Graham had a tool trailer on the site, and he believed Markle was going to borrow a maul from Graham.

When they arrived at Graham’s site, Markle exited the vehicle and began talking to some of the workers who were standing around a fire. After a few minutes, Dean got cold and got out of the truck to stand by the fire to warm himself. “While he was standing by the fire, he was struck in the head by a hammer thrown by a person working on the roof of the house. The hammer knocked Dean unconscious, and he sustained a fractured skull and had to be taken to the hospital.

Dean filed a disputed claim with the Office of Workers’ Compensation Administration against SouthMark and its workers’ compensation insurer, LWCC, on November 30, 1999, alleging he was 1¿entitled to benefits because he was in the course and scope of his employment as a statutory employee of SouthMark when he was injured. After a trial on the merits, the WCJ found in favor of Dean, and from this judgment defendants SouthMark and LWCC appeal.

LAW AND ANALYSIS

The only issue on appeal is whether Dean was in the course and scope of his employment as a statutory employee of SouthMark when he was struck in the head with the hammer on November 19, 1999. Under La. R.S. 23:1061(A)(1), a principal is considered to be the statutory employer of his contractor’s employee if that employee is performing work which is part of the principal’s “trade, business, or occupation.” The statute further provides that “work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.” La. R.S. 23:1061(A)(1).

Dean was not injured on the premises of the SouthMark construction site, and in fact, he was still on his way to the South-Mark site and had not yet arrived there when he was injured. However, the WCJ determined that Dean was in the course and scope of his employment for South-Mark at the time of the accident based on her finding that Dean was performing work which was an integral part of or essential to the ability of SouthMark to generate its goods, products, or services.

Either a maul or a sledgehammer was necessary in order to finish building the form for the slab foundation at the South-Mark work site, and the WCJ found that Markle had gone to Graham’s work site for the purpose of borrowing one. She concluded that stopping at another work site in order to borrow a tool was in furtherance of Dean’s employment for SouthMark so | Ras to make him SouthMark’s statutory employee for workers’ compensation purposes.

In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the WCJ’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1st Cir.11/7/97), 704 So.2d 8, 10, citing Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706, 710. After thoroughly reviewing the entire record, we conclude that the finding of the WCJ was manifestly and legally erroneous. Although we feel sympathy for Jody Dean, he was not a statutory employee of SouthMark at the time of his accident because he was not performing work which was an integral part of or essential to the ability of SouthMark to generate its goods, products, or services. See La. R.S. 23:1061(A)(1).

The liability of a statutory employer is not as broad as that of a direct employer. Although Dean was in the company of his direct employer, Markle, at the time of his injury, he had not yet arrived at the SouthMark site and was not performing any work for SouthMark at the time. Dean alleges that Markle had agreed to provide him with transportation to and from work each day, but SouthMark was not a party to that agreement and was not responsible for providing Dean with transportation. SouthMark’s business was that of constructing homes, and the transportation of Dean to and from work was not an integral part of SouthMark’s business. See Dupre v. Exxon Pipeline Company, 93-1528 (La.App. 3d Cir.6/1/94), 638 So.2d 1118, 1120-1121, writ denied, 94-2200 (La.11/18/94), 646 So.2d 379. Borrowing a tool from another job site was also not an integral part of SouthMark’s business, especially considering the fact that Markle was required by contract to furnish all materials, tools, and equipment necessary |fito complete the job. Accordingly, South-Mark cannot be deemed the statutory employer of Dean for workers’ compensation purposes for this injury, which occurred before Dean arrived at the SouthMark construction site and before he even began performing any work for SouthMark that day.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the WCJ finding that plaintiff, Jody Dean, was injured in the course and scope of his employment as a statutory employee of defendant, South-Mark Construction. Costs of the trial and appeal are assessed to Jody Dean.

REVERSED.

      .La. R.S. 23:1310.5(F) requires that the published court of appeal opinion identify the office of workers' compensation district from which the appeal was taken and the name of the WCJ who rendered the judgment. The WCJ was Honorable Pamela A. Moses-Lara-more of the Office of Workers’ Compensation Administration, District 5.