author: JjLEON A. CANNIZZARO, JR., Judge.

text:
    Rosco CARTER, Individually and on Behalf of his Minor Child, Mandy Carter v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2003-CA-0634.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2004.
    Daniel L. Dysart, Dysart and Tabary, L.L.P., Chalmette, LA, for Third Party Defendant/Appellee, BellSouth Telecommunications, Inc.
    Gregory G. D’Angelo, WM. David Coffey, Special Assistants Attorney General, Panzeca & D’Angelo, Metairie, LA, for Defendant/Appellant, State of Louisiana, Through the Department of Transportation and Development.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.).
   JjLEON A. CANNIZZARO, JR., Judge.

This appeal arises out of a third party demand filed by the defendant, the State of Louisiana, through the Department of Transportation and Development (the “DOTD”) against BellSouth Communications, Inc. BellSouth filed a motion for summary judgment, claiming that it was not liable for any of the damages in this case, and the trial court granted the motion and dismissed BellSouth from the proceedings. The DOTD is appealing the trial court’s decision.

FACTS AND PROCEDURAL HISTORY

This case involves an automobile accident. Sixteen-year-old Mandy Carter was driving west on Bayou Road in St. Bernard Parish, Louisiana, allegedly at the posted forty mile per hour speed limit when she entered a curve in the highway. It was raining, but Ms. Carter did not reduce the speed of her vehicle below the posted limit. The passenger side tires of the vehicle traveled off of the paved surface of the roadway, where there were patched potholes, and onto the adjacent graveled surface. She lost control of the vehicle and was unable to regain control of it, allegedly because of the roadway’s lack of a shoulder and the distance between | ¡¡the paved roadway and the adjoining grassy area. When she lost control of the vehicle, she lost consciousness, and the next thing that she recalled after she regained consciousness was being “crashed against the big old cement block.” The “cement block” referred to by Ms. Carter was determined to be a cement slab on which there was a telephone junction box owned by BellSouth.

The accident caused damage to the vehicle and injuries to Ms. Carter. Roscoe Carter, Ms. Carter’s father, who owned the vehicle being driven by Ms. Carter, filed suit, individually and on behalf of his minor daughter, against the DOTD. Although the petition filed by Mr. Carter claimed that Ms. Carter hit Bellsouth’s telephone junction box, he did not name BellSouth as a defendant. Four years after the original petition was filed, the DOTD was granted leave of court to file a third party demand against BellSouth. The third party demand alleged that the sole cause of Ms. Carter’s accident was Bellsouth’s negligence in constructing the junction box in an unreasonably dangerous place and in other unspecified acts.

Two years after the third party demand was filed, BellSouth filed a motion for summary judgment claiming that the demand should be dismissed, because there was no evidence that the junction box created an unreasonable risk of harm. In support of its motion for summary judgment, Bell-south argued that the box was located beyond the line of public utility poles running along the roadway, that it|swas located on private property, and that there was no evidence that Ms. Carter’s vehicle had hit the junction box.

After a hearing on the motion for summary judgment in which the DOTD argued that numerous material issues of fact had not been resolved, the trial court granted the summary judgment in favor of Bell-south and dismissed the DOTD’s third party demand. The DOTD appealed the trial court’s decision to this Court.

This Court originally dismissed the appeal on the grounds that the judgment was a partial interlocutory judgment that had not been properly certified as a final judgment for purposes of immediate appeal pursuant to La. C.C.P. art. 1915(B). The Louisiana Supreme Court granted the DOTD’s application for supervisory writs and reinstated the DOTD’s appeal. The Supreme Court remanded the matter to this Court for further proceedings, citing Shell Pipeline Corp. v. Kennedy, 2000-3207, p. 4 (La.10/16/01), 799 So.2d 475, 478, in which the Supreme Court stated that “an appeal should not be dismissed unless the ground urged for dismissal is free' from doubt” and discussed an ambiguity with respect to article |41915 and certain summary judgments. The appeal in the instant case is now before us on remand.

DISCUSSION

Standard of Review

In Independent Fire Insurance. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, the Louisiana Supreme Court discussed the standard of review of a summary judgment as follows:

Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). 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 the mover is entitled to judgment as a matter of law.” La. C.C.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.... ” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows: The burden of proof remains with the mov-ant. 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. La. C.C.P. art: 966(C)(2).

99-2181, 99-2257, p. 7, 755 So.2d at 230-31. See also Shelton v. Standard/700 Associates, 2001-0587 (La.10/16/01), 798 So.2d 60.

Assignment of Error

In its sole assignment of error, the DOTD asserts that the trial court erred in holding that there were no unresolved issues of material fact in the third party action between the DOTD and BellSouth. We agree with the DOTD.

In support of its motion for summary judgment, BellSouth cited a portion of the deposition testimony of Ms. Carter where she stated that “[t]he only thing I remember is that block [the cement slab on which the junction box rested] being on[Rthe side of my driver’s door, and that was the reason why I couldn’t get out.” BellSouth also relied on the deposition testimony of the deputy sheriff who investigated the accident. She testified that Ms. Carter’s vehicle came to rest after the accident “quite a few feet, several yards” from the telephone junction box and the slab on which it rested. When she was asked whether she was confident that no part of the vehicle came into contact with the junction box of the slab, she replied, “Right, that is correct.” She also stated that there was no way that she would not have noticed that the vehicle had come into contact with the box or the slab, had it done so. She said that “there is no way that I wouldn’t have noted that,” because it “would have been very, very important.”

In opposition to Bellsouth’s motion for summary judgment, the DOTD alleged that there were several unresolved issues of fact. The DOTD cited Ms. Carter’s unequivocal deposition testimony to the ef-feet that her vehicle did, in fact, strike the telephone junction box when she said that the “car was crashed against the big old cement block.” The DOTD also cited the deposition testimony of Ms. Carter’s aunt who said, “Oh, I would say definitely, yes, that’s what she hit,” when told that Ms. Carter had testified that she did not know whether or not her automobile had made contact with the cement slab.

Material Issue of Fact

In Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606, the Louisiana Supreme Court stated that “[a] fact is ‘material’ when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” 98-2821, p. 6, 744 So.2d at 610. The Supreme Court also stated that “[f|acts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Id. 1 fiThis Court has held that “courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence” in determining what constitutes a genuine issue of material fact. Coto v. J. Ray McDermott, S.A., 99-1866, p. 4 (La.App. 4 Cir. 10/25/00), 772 So.2d 828, 830.

In the instant case we find that there is at least one unresolved material issue of fact, the resolution of which is essential in this case. That issue is whether Ms. Carter’s vehicle hit either the BellSouth junction box or the cement slab upon which it rested. The evidence presented regarding this issue is clearly conflicting. The deputy sheriff who investigated the accident testified in her deposition that she was certain that the vehicle did not hit any part of the BellSouth box or slab, but both Ms. Carter and her aunt testified in their depositions that the vehicle hit either or both of these objects. We cannot resolve this issue of fact, because of the decision in Coto; we cannot make credibility determinations, evaluate testimony, or weigh the evidence when reviewing a motion for summary judgment. A trier of fact must do this.

If a trier of fact determines that Ms. Carter’s vehicle did hit the BellSouth equipment, then other material issues of fact must be resolved. These include, among other things, a determination of whether the equipment was located by BellSouth in such a way that it created an unreasonable risk of harm to motorists. Because there are unresolved issues of material fact in this case, summary judgment is precluded.

CONCLUSION

The judgment of the trial court granting Bellsouth’s motion for summary judgment and dismissing BellSouth from the case is reversed. This case is |7remanded to the trial court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

      . The plaintiff’s petition states that Ms. Carter was unable to recover control of her vehicle "[d]ue to a lack of shoulder and the depth of the distance from the paved surface to the grassy adjoining area....” It is reasonable for us to assume that the reference to the depth of the distance refers to the depth of a drainage ditch located between the edge of the roadway and the adjoining grassy area.

      . As it read prior to the 1999 amendments to La C.C.P. art.1915, La. C.C.P. art. 1915(B) provided in relevant part as follows:
      B.(l)When a court renders a ... partial summary judgment ... as to one or more but less than all of the claims, demands, issues, theories, or parties, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless specifically agreed to by the parties or unless designated as a final judgment by the court after an express determination that there is no just reason for delay.
      (2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties ... shall not constitute a final judgment for the purpose of an immediate appeal....

      . Carter v. State, 2003-2700 (La. 12/19/03), 861 So.2d 577.


source: Caselaw Access Project

author: hMOON LANDRIEU, Judge Pro Tempore.

license: Public Domain

text:
    Jennifer L. REGAN v. LAKELAND MEDICAL CENTER.
    No. 2003-CA-1347.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2004.

      Bridgette D. Kaczmarek, Raymond C. Burkart, Jr., New Orleans, LA, for Plaintiff/Appellant.
    Sidney J. Hardy, C. Devin Fadaol, McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, Metairie, LA.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge Pro Tempore MOON LANDRIEU).
   hMOON LANDRIEU, Judge Pro Tempore.

In this worker’s compensation case, plaintiff-appellant, Jennifer L. Regan (Re-gan) claims that she is entitled to workers’ compensation benefits from Lakeland Medical Center (Lakeland) for a mental injury caused by the sexual harassment inflicted on her by supervisor, John Lo-vern; denial of benefits; the taking of her personal items; the taking of her personal time off and sick time and retaliatory discharge by Lakeland. The workers’ compensation judge granted judgment in favor of Lakeland finding that Regan’s injury was not compensable under the Workers’ Compensation Act. Regan takes this appeal from that judgment. For the following reasons, we affirm the judgment of the workers’ compensation court and award medical benefits for the plaintiffs on the job injury.

STATEMENT OF FACTS

Regan testified that the sexual harassment by her supervisor which caused her mental injury began immediately after her employment as a Social Worker I at Lake-land on November 27, 2000. According to Regan, the acts of sexual ] ¡¡harassment by Lovern included invasions of her personal space, invasions of her office with a passkey, discussions of Lovern’s personal and sex life, unwanted and unsolicited gifts, and e-mails and cards of an explicit sexual nature.

The most disturbing act of alleged sexual harassment occurred on the night July 5, 2001 when Regan went to Lovern’s home at his request to retrieve a painting for her office. Regan testified that while at Lovern’s home, she took two pills given to her by Lovern which he told her were Xanex for anxiety. After taking the pills, Regan testified that she only remembered attending a class along with Lovern offered earlier in the evening at a co-worker’s home, being naked in Lovern’s bed, picking up her clothes off of the floor and getting dressed. Regan testified that when she went to work the next day Lo-vern bragged about their sexual encounter, but that she had no memory of it. She testified that when she told Lovern that she intended to report the incident, he threatened her with the loss of her job and her social worker’s license.

Regan testified that she believed the threat because in the past Lovern had bragged about being friends with several administrators at Lakeland and dating the CFO of Lakeland, who was also in charge of ethical complaints. Regan testified that she did not report the incident for fear of loosing her job and her license, and because she was ashamed, embarrassed, humiliated and had gone through the “worst experience a woman can possibly go through.” She testified that after the alleged rape in an effort to pursue a relationship with her, Lovern told her he loved |3her; sent her an increased number of emails, poems and gifts; threatened suicide on two occasions; and he claimed that he had no reason to live.

Regan testified that after a telephone call on December 19, 2001, in which Lo-vern informed her that he told the woman he was dating, Lakeland’s CFO, about their alleged relationship, she along with several co-workers went to see Lakeland’s Director of Human Resources, Anne Rhodes. When asked on cross-examination if the telephone call of December 19, 2001 was the straw that broke the camel’s back, Regan testified that the situation with Lovern “had been building and building and building,” but that the telephone call on December 19, 2001 was “not the straw.”

Regan testified that during the meeting, Rhodes reviewed the e-mails, cards and poems that she had received “over an extended period of time” from Lovern, and took statements from her and her co-workers. She testified that Rhodes informed her that measures would be taken for her security including an escort to her car, walkie-talkies in the office, and all her telephone calls would be rolled over to a psychiatric tech’s office. Rhodes testified that she did tell Regan that these security measures would be taken, but that she never personally checked to see if they were in place.

On December 20, 2001, the day after her interview with Rhodes, Regan testified that she returned to work and suffered a panic attack. Regan testified that Rhodes witnessed the panic attack and she suggested that Regan take some time off from work and seek psychological treatment and counseling at Lakeland’s Rexpense. Rhodes testified that she requested that Regan seek treatment because she was distraught, and told Regan that Lakeland would cover her medical expenses under FMLA (the Family and Medical Leave Act of 1993).

Regan sought treatment with Dr. Phuong Nguyen, a psychiatrist, on December 27, 2001. In his deposition of December 16, 2002, Dr. Nguyen testified that Regan complained that she was experiencing a lot of depressive anxiety symptoms such as feelings of being overwhelmed, frequent crying spells and panic attacks. Nguyen testified that he diagnosed Regan as having a panic disorder and an adjustment disorder with mixed emotional features, which meant she had symptoms of anxiety and depression. He described her as suffering from hypervigilance, fatigue, and a change in appetite and sleep patterns. Regan testified that she continued treatment with Dr. Nguyen until January 23, 2002 when she was released to return to work on a trial basis.

Regan testified that when she returned to work on January 23, 2002, she received a telephone call from Lovern asking her if she wanted him to continue as her clinical supervisor for her LCSW. She testified that she declined his offer of supervision and went to see Rhodes, the Human Resources Director. Regan testified that after informing Rhodes of Lovern’s telephone call, security was informed and she gave a statement to the New Orleans Police Department. Regan testified that the telephone call completely set her back and caused her to suffer another panic attack while she was being questioned by the police. Regan | ^admitted on cross-examination that Lovern did not threaten to physically attack her during the call, but testified that she was leery of him because of her past experiences with him.

Rhodes testified that she told Regan that she expected her to return to work the next day, because she had a full release to duty. Instead, Regan took two sick days after which she received a letter informing her that she had voluntarily resigned her employment because she had not told her supervisors that she would take two sick days in a row. Rhodes testified that it is Lakeland’s attendance absenteeism policy that if an employee does not call or show for two consecutive days then the employee is considered to have voluntarily resigned. Regan testified that she later received a letter of termination informing her that she had been terminated on January 23, 2002.

The Workers’ Compensation Court granted judgment in favor of Lakeland finding that because Regan’s sexual harassment occurred over a period of time it was “not compensable under workers’ compensation without an ‘unexpected and unforeseen event that occurs suddenly and violently.’ ” The court noted that the telephone call from Lovern was not an “event that was extraordinarily stressful from the point of an ordinary, reasonable person of usual sensibilities” without the prior ongoing sexual harassment and alleged sexual assault.

ASSIGNMENT OF ERROR

In her sole assignment of error, the appellant claims that the trial court erred in finding that she did not suffer a mental injury due to mental stress.

| (¿DISCUSSION

A trial court’s factual findings in a workers’ compensation case are subject to a manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. The appellate review of a factual finding is a two-part test in which the trial court must determine whether there is a reasonable factual basis in the record for the finding of the trial court, and whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120 (La.1987). An appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). An appellate court may not substitute its own evaluations and inferences for the reasonable evaluations of credibility and inferences of fact by the trial court when there exits conflict in the testimony. The trial court’s choice between two permissible views of the evidence cannot be manifestly erroneous or clearly wrong. Id. Therefore, the issue is not whether the workers’ compensation judge was right or wrong, but whether its factual conclusion was reasonable. Edwards v. Fischbach & Moore, Inc., 31,372 (La.App. 2 Cir. 12/9/98), 722 So.2d 344.

In the present case, Regan asserts that her mental injury was caused by the sexual harassment inflicted on her by supervisor, John Lovern.

La.R.S. 23:1021 defines a mental injury as:

Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless |7the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.

In order to recover for a mental injury claim under the Workers’ Compensation Act, a claimant must satisfy both the general requirements of La. R.S. 23:1031 that the “personal injury by accident arise out of and in the course and scope of his employment” and the specific narrow circumstance allowing for recovery under La. R.S. 23:1021(7)(b) that there be clear and convincing evidence that “the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment.” Partin v. Merchants & Farmers Bank, 2001-1560 (La.3/11/02), 810 So.2d 1118. A mere showing that a mental injury was related to incidents occurring over an extended period of time is not enough to justify compensation. Sparks v. Tulane Medical Center Hosp. and Clinic, 546 So.2d 138 (La.1989). In the absence of an identifiable accident, general allegations of inability to work due to stress or tension caused by working conditions will not give rise to a compensable claim. Id. A determination of whether the stress is extraordinary is determined by whether an ordinary, reasonable person of usual sensibilities would find it extraordinary. Edwards, supra.

Regan asserts that the stress that caused her mental injury was the result of four unexpected and unforeseen events: an alleged rape by her supervisor on July 5, 2001, a conversation the next day with her supervisor about the alleged rape, a December 19, 2001 conversation with her supervisor in which he told her that he | Rinformed his girlfriend about their alleged relationship, and a January 23, 2002 telephone call from her former supervisor upon her return to work.

In her application for workers’ compensation benefits, LDOL form 1008, filed on February 2, 2002, Regan listed December 19, 2001 as the date of her injury/illness. On that form in the section entitled “Date, time and place of accident,” she wrote “Ongoing sexual harassment/abuse.”

In her deposition of September 5, 2002, Regan gave January 23, 2002 as the date of the incident that caused her mental injury. During that deposition when counsel for Lakeland asked what harmed her ability to return to work at Lakeland, Re-gan responded that it was the “leering; continuous sexual harassment; the inappropriate comments; being told that I could loose my license and I could loose my job.” On follow-up counsel for Lake-land asked, “Can you tell me what is the first thing that happened that started affecting your ability to work, maybe an exact incident?” Regan responded, “The leering, inappropriate stares and invading my personal space.” Later, Lakeland’s counsel again asked for an incident or an accident that harmed her or injured her so that she could not come back to work. Regan responded that it was the telephone call on January 23, 2002 from her former supervisor, Lovern. When asked, if the telephone call harmed her or upset her so that she could not work, Regan answered correct.

At trial, Regan testified that shortly after she began working at Lakeland in February 2000, she was questioned about Lo-vern’s behavior in an investigation | flbased on a complaint of his sexually harassing the staff. When asked about her response to the questions asked during the investigation, she testified that she informed the investigators that she previously had a conversation with Lovern in which she told him that his continuously staring at her made her feel very uncomfortable. Regan testified that Lovern continued to stare at her after their conversation. She testified that after her clinical supervision began in February of 2001, she had weekly meetings with Lovern during which he would close the door, stare at her, talk about his personal history and things of a sexual nature, tell her that she was beautiful, and that she could be a star in his play. She also testified that Lovern would also come into her locked office with a passkey and discuss his personal life.

Regan is unable to identify a single accident that was the result of a sudden, unexpected, and extraordinary stress related to and arising out of and in the course and scope of her employment that caused her mental injury and prevented her from being able to return to work. Instead, she describes four events that in actuality represent an ongoing pattern of sexual harassment. By Regan’s own admission, the following acts of sexual harassment by Lovern began immediately after her employment in November of 2000 and continued until her termination on January 23, 2002: Lovern leering at her; invasions of her personal space; invasions of her office; discussions of Lovern’s personal and sex life; an alleged rape; telephone | mcalls and the sending of an increasing number of unwanted and unsolicited gifts, e-mails and cards of an explicit sexual nature over an extended period of time.

Regan has not offered clear and convincing evidence that her mental injury was the result of a sudden, unexpected, and extraordinary stress related to her employment that an ordinary, reasonable person of usual sensibilities would find extraordinary, absent the prior ongoing pattern of sexual harassment. Regan’s mental injury fails to meet the narrow circumstances for recovery of a mental injury under the Workers’ Compensation Act. Therefore, we find that the trial court did not err in finding that the claimant did not suffer a mental injury compensable under the Workers’ Compensation Act.

Finally, Regan asks this Court to award her medical expenses for her work-related injury. The fact finder’s determination of an employee’s entitlement to medical benefits is a question of fact, which may not be disturbed by an appellate court unless it is clearly wrong or there is manifest error. Starks v. Universal Life Ins. Co., 95-1003 (La.App. 1 Cir.12/15/95), 666 So.2d 387. An employee’s right to reimbursement for medical expenses is separate and distinct from his right to compensation. An employee can recover medical expenses even though there is no recovery for compensation. Ridlen v. St. Charles Manor Nursing Center, Inc., 94-275 (La.App. 5 Cir.10/12/94), 644 So.2d 244. In order to recover medical expenses, the employee must prove to a reasonable certainty and by a preponderance of the evidence that the expenses are reasonably necessary for treatment of a medical condition caused by a work related injury. Id. See also, Patterson v. Long, 96-0191 (La.App. 1 Cir. 11/8/96), 682 So.2d 1327. An injured employee is not entitled to recover for medical expenses where she fails to substantiate a claim. Starks, supra. An employer has a statutory duty under La. InR.S. 23:1203 to furnish all necessary medical treatment for an employee’s work-related injury. Patterson, supra. An employee may recover reasonable medical expenses, past and future, which she incurs as a result of her injury. Augustus v. St. Mary Parish School Bd., 95-2498 (La.App. 1 Cir. 6/28/96), 676 So.2d 1144. An injured employee is not entitled to an award for future medical expenses, but she reserves the right to claim future expenses when they are incurred. Parfait v. Gulf Island Fabrication, Inc., 97-2104 (La.App. 1 Cir. 1/6/99), 733 So.2d 11. Medical expenses can be included in the judgment when the employee’s allegedly incurred expenses are supported by a bill, unless there is sufficient contradictory evidence or reasonable suspicion that the bill is unrelated to the accident. Augustus, supra.

The Workers’ Compensation Court did not award Regan medical benefits. For the following reasons, we find that the trial court clearly erred in failing to find that Regan was entitled to medical benefits.

Regan suffered a panic attack at work caused by a phone call from her supervisor. Anne Rhodes, Lakeland’s Human Resources Director, testified that she witnessed the resultant panic attack, and requested that Regan seek treatment because she was distraught. Regan testified that Rhodes told her that Lakeland would pay for her medical expenses and that her leave of absence would not count against her sick leave and personal time off. Rhodes testified that she told Regan that her medical expenses would be covered under FMLA. Instead, Regan claims that her fifty-four hours of sick leave and twenty-seven hours of personal time were counted against her leave of absence, and therefore she has received no compensation.

|1gRegan sought treatment after her first panic attack as directed by Lakeland’s Director of Human Resources. Dr. Phuong Nguyen diagnosed Regan as having a panic disorder and an adjustment disorder with mixed emotional features. He testified that Regan’s illness caused problems in her interpersonal and occupational life, and that because of the problems he suggested that she should not continue to work. After being released to return to work on a trial basis, Regan suffered a second panic attack on the day she returned to work after receiving a telephone call from her former supervisor, which was also witnessed by Rhodes. Regan testified that she was assisted during the second panic attack by Dr. Fogarty, the medical director of the unit from whom she continues to receive treatment. Regan testified that as of the Friday preceding the trial, March 14, 2003, none of her medical bills had been paid by Lakeland. Regan testified that she submitted her medical bills to Rhodes twice, the first time by hand and the second time by certified mail. Rhodes testified that she submitted the paperwork for payment of the only two bills submitted to her by Regan.

Regan sought treatment for her panic attacks at the direction of Lakeland’s Human Resources Director. Lakeland has not provided sufficient contradictory evidence that the bills submitted to Rhodes by Regan are unrelated to the treatment she received for her panic attacks on the job. Therefore, the Workers’ Compensation Court clearly erred in not including Regan’s medical expenses in its judgment.

For the foregoing reasons, we affirm the judgment of the Workers’ Compensation Court’s finding that Regan’s mental injury was not compensable under the Workers’ Compensation Act, but remand this case for a determination of Impersonal time off and sick time compensation due to the plaintiff, as well as medical expenses incurred during her leave of absence.

AFFIRMED AND REMANDED.

      . On January 16, 2003, the Office of Workers' Compensation Court (OWC) dismissed the retaliatory discharge and conversion of personal items claims due to a lack of jurisdiction.

      . John Lovern was Regan's supervisor at work and her clinical supervisor to obtain her LCSW (Licensed Clinical Social Worker).

      . Rhodes testified that the panic attack occurred on December 21, 2001.

      . Lovern resigned from Lakeland on December 20, 2001.

      . Anne Rhodes testified that the investigation determined that there was no sexual harassment found against Lovern, but he was given a verbal reprimand by Lakeland’s CEO.


author: JjMOON LANDRIEU, Judge Pro Tempore.

text:
    MERITPLAN INSURANCE COMPANY v. Anthony DeSALVO and Allstate Insurance Company.
    No. 2003-CA-1493.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2004.

      Deborah A. Van Meter, David S. Willen-zik, McGlinchey Stafford, PLLC, New Orleans, LA, for Plaintiff/Appellee.
    Susan M. Rogge, Judy Y. Barrasso, Celeste R. Coco-Ewing, Barrasso Usdin Kup-perman Freeman & Sarver, LLC, New Orleans, LA, and James L. Donovan, Jr., Donovan & Lawler, Metairie, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge Pro Tempore MOON LANDRIEU).
   JjMOON LANDRIEU, Judge Pro Tempore.

In this case involving a vehicular accident with property damage to a financed car, Allstate Insurance Company (“Allstate”) appeals a January 22, 2003 judgment that denied its motion for summary judgment, and granted the plaintiff, Merit-Plan Insurance Company (“MeritPlan”)’s motion for summary judgment. The judgment, against Allstate, awarded $8,782.08 to MeritPlan for property damages. We reverse and render.

Facts

On January 14, 1999, Gilda Barze entered into a secured loan with Fidelity Financial Services of Louisiana, Inc. (“Fidelity”), now Wells Fargo Financial Acceptance, to finance the purchase of an automobile. Pursuant to Ms. Barze’s note and security agreement, Fidelity acquired a security interest in the vehicle. The security agreement required Ms. Barze to purchase and maintain physical damage coverage on the vehicle in compliance with Louisiana law; however, Ms. Barze did not maintain the insurance coverage.

To protect its collateral if Ms. Barze failed to insure the vehicle, Fidelity purchased a collateral protection insurance policy from MeritPlan that named | ^Fidelity as the insured. Ms. Barze was not an insured party under the MeritPlan policy.

On December 19, 1999, Ms. Barze was involved in an accident in which her vehicle was damaged. It is undisputed that the collision was caused by the other driver, Erica Hughes, who was driving a van owned by Anthony DeSalvo. Driving with Mr. DeSalvo’s permission, Ms. Hughes ran a red light and struck Ms. Barze’s car. Mr. DeSalvo’s vehicle was insured by Allstate, which provided coverage for the physical damage to Ms. Barze’s vehicle.

Procedural History

MeritPlan filed a petition for declaratory judgment against Allstate and DeSalvo. Allstate answered, pleading an affirmative defense under the “no pay, no play” provision of the 1997 Omnibus Premium Reduction Act, La. R.S. 32:866(A), claiming that the statute barred MeritPlan’s claim for damages, which did not exceed $10,000. Allstate did not respond to MeritPlan’s two demands.

MeritPlan filed a motion for summary judgment and declaratory relief, and Allstate filed a cross motion for summary judgment. After a hearing, the trial court ruled in favor of MeritPlan, holding that La. R.S. 32:866 does not apply to a third-party secured creditor. In granting Mer-itPlan’s motion for summary judgment, the trial court held that Allstate is liable to MeritPlan for the full amount of $8,782.08 that MeritPlan paid to Fidelity for the damage to its collateral. The trial court denied MeritPlan’s request for attorney’s fees but allocated to Allstate costs in the amount of $325 and legal interest from the date of judicial demand until paid. Allstate’s appeal followed.

Standard of Review

Appellate courts review summary judgment de novo, using the same criteria 13utilized by the trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. Two Feathers Enterprises v. First Nat. Bank of Commerce, 98-0465, p. 3 (La.App. 4 Cir. 10/14/98), 720 So.2d 398, 400. The summary judgment procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2). Pursuant to La. C.C.P. art. 966, the initial burden of proof remains on the mover to show that no genuine issue of material fact exists.

A summary judgment shall be rendered forthwith 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 a material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. However, if the movant will not bear the burden of proof at trial on the matter that is before the court, the movant’s burden does not require him to negate all essential elements of the adverse party’s claim. Rather, he need only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966 C(2).

After the mover has met its initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). When a motion for summary judgment is properly supported, the non-moving party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing [ 4that there is a genuine issue of material fact for trial. La. C.C.P. art. 967; Melancon v. D & M Enterprises, 95-0644 (La.App. 4 Cir. 9/28/95), 662 So.2d 54, 56-57. If the non-moving party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222, p. 4 (La.App. 4 Cir. 9/10/97), 699 So.2d 895, 897.

Issue

At issue in the present case is whether, under La. R.S. 32:866, MeritPlan may recover from Allstate for property damage to Ms. Barze’s vehicle where Ms. Barze failed to obtain insurance. La. R.S. 32:866 provides in pertinent part:

A.(l) There shall be no recovery for the first ten thousand dollars of bodily injury and no recovery for the first ten thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security. (Emphasis added.)
F. (1) Notwithstanding any provision of law to the contrary, no insurer shall lose any rights of subrogation for claims paid under the applicable insurance policy for the recovery of any sum in excess of the first ten thousand dollars of bodily injury and the first ten thousand dollars of property damages. (Emphasis added.)

The interpretation of a statute is a question of law, which may be decided by summary judgment. A.K. Dumin Chrysler-Plymouth, Inc. v. Jones, 2001-0810, p. 3 (La.App. 1 Cir. 5/10/02), 818 So.2d 867, 869.

IsThe language of the statute bars recovery of the first $10,000 of property damage “occasioned by an owner” of an uninsured vehicle based on “any cause or right of action arising out of a motor vehicle accident.”

In the present case, Allstate contends that the trial court erred in holding that MeritPlan’s action was not barred by the statute because of MeritPlan’s status as a subrogee of a third-party secured creditor.

Allstate argues that MeritPlan is barred from recovery under La. R.S. 32:866(A). Allstate maintains that secured creditors can require the owner of the vehicle to show proof of insurance before approving and completing the financing. Fidelity’s loan agreement with Ms. Barze requires Ms. Barze to maintain property damage insurance on the car. Allstate asserts that as the subrogated insurer of Fidelity, Mer-itPlan may have a cause of action against the owner, Ms. Barze, for breach of the terms of Fidelity’s contract, which required Ms. Barze to maintain insurance, as well as in tort for compromising Fidelity’s security interest. In contrast, Allstate avers that insurers such as Allstate have no means to protect themselves from this loss.

MeritPlan contends that the “no pay, no play” statute does not bar recovery by a secured creditor for property damage to the collateral, ie., the vehicle uninsured by the owner. MeritPlan argues that Fidelity acquired a security interest in the vehicle; however, Ms. Barze was the sole title holder, and Fidelity had no ownership interest in the vehicle.

Allstate notes that Fidelity purchased a collateral protection insurance policy from MeritPlan, naming Fidelity as the insured. Ms. Barze was not an insured party under the MeritPlan policy, and her ownership interest in the vehicle was not covered by the policy.

1 i/MeritPlan claims that the damage was occasioned or suffered by Fidelity as a secured creditor that had no obligation to purchase or maintain liability insurance on the vehicle. MeritPlan asserts that neither Fidelity nor its subrogated insurer was an owner or operator of the damaged vehicle, who failed to obtain compulsory motor vehicle liability insurance.

Allstate maintains that the express exemption provided in La. R.S. 32:866(E) for passengers who sustain personal injuries while traveling in uninsured vehicles shows that the legislature intended for this to be the only exemption for the statutory limitation on the recovery of damages. However, MeritPlan avers that the fact that the legislature did not expressly exclude secured creditors like Fidelity, does not mean that the legislature intended to include these parties in the “no pay, no play” rule.

MeritPlan notes that statutes are to be given the effect which makes the least rather than the most change in the existing body of law. Touchard v. Williams, 617 So.2d 885, 892 (La.1993); Monteville v. Terrebonne Parish Consol. Government, 567 So.2d 1097, 1100 (La. 1990). Statutes in derogation of a common or natural right are to be strictly construed and must not be extended beyond their obvious meaning. Touchard, supra. MeritPlan asserts that the term “owner” should be strictly construed.

| ./Allstate contends that the term “owner” was broadly construed in Lewis v. Miller, 02-0667, pp. 4-5 (La.App. 4 Cir. 8/21/02), 826 So.2d 628, 631-32. In that case, the spouse of the vehicle’s title holder was an “owner” who was required to maintain automobile liability coverage. The “no pay, no play” statute limited Mrs. Lewis’s recovery of damages for her personal injuries sustained while using a community-owned uninsured vehicle. It is reasonable to determine that a driver/wife of the owner of a community-property vehicle should be considered as an owner of that vehicle.

Allstate refers to North American Fire & Cas. Co. v. State Farm, Mut. Auto Ins. Co., 03-300, pp. 3-4 (La.App. 3 Cir. 10/1/03), 856 So.2d 1233, 1236-37. In that case, the Third Circuit held that there was no evidence that there was a contract with the tortfeasor, her insurer, or the uninsured driver, giving the creditor the right to recover from a tortfeasor who damaged the vehicle if the uninsured driver was not a fault and failed to maintain compulsory liability insurance. The Third Circuit emphasized that this was the very reason that the secured creditor sought protection from such a case by obtaining its own insurance.

In the present case, Fidelity obtained insurance from MeritPlan for just such a situation. In fact, the reason for MeritPlan’s policy with Fidelity was to pay its insured in case the owner, Ms. Barze, who, although not at fault for the accident, did not insure the vehicle.

This Court follows the Third Circuit’s holding in North American Fire & Cas Co., that the creditor’s insurer does not have a separate cause of action against the tortfeasor. MeritPlan has no claim for recovery against the tortfeasor’s insurer, Allstate. The secured creditor has no cause of action against the tortfeasor and/or | sher insurer, and therefore, Merit-Plan, as subrogee of the creditor’s rights, has no such cause of action.

Accordingly, the trial court’s ruling is reversed, MeritPlan’s motion for summary judgment is denied, Allstate’s motion for summary judgment is granted, and Merit-Plan’s action against Allstate is dismissed.

REVERSED & RENDERED.

      . La.R.S. 32:866(E) provides:
      E. Nothing in this Section shall preclude a passenger in a vehicle from asserting a claim to recover damages for injury, death, or loss which he occasioned, in whole or in part, by the negligence of another person arising out of the operation or use of a motor vehicle. This Subsection shall not apply to a passenger who is also the owner of the uninsured motor vehicle involved in the accident.


author: J^MICHAEL E. KIRBY, Judge.

text:
    CRESCENT CITY PHYSICIANS, INC. v. Jean DESSE, M.D. and General Meyer Avenue Family Clinic, Inc.
    No. 2003-C-2130.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2004.
    Terrel J. Broussard, Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P., New Orleans, LA, for Relator (Jean Desse, M.D. and General Meyer Avenue Family Clinic, Inc.).
    James M. Garner, Timothy B. Francis, Emma E. Daschbach, Sher, Garner, Cahill, Richter, Klein, McAlister & Hilbert, L.L.C., New Orleans, LA, for Respondent (Crescent City Physicians, Inc.).
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge Pro Tempore MOON LANDRIEU).
   J^MICHAEL E. KIRBY, Judge.

The relators, Dr. Jean Desse and General Meyer Avenue Family Clinic (“GMAFC”), seek review of a judgment granting a motion for partial summary judgment as to liability filed by plaintiff, Crescent City Physicians, Inc. (“CCP”).

The instant case arises from a petition for damages and breach of contract filed on April 2, 2003, in Orleans Parish Civil District Court by CCP against the rela-tors. In its petition, CCP alleges that on December 12, 2000, relator Dr. Jean Desse, as sole shareholder, owner and operator of GMAFC, entered into two separate agreements with CCP. The first agreement was an Asset Purchase Agreement in which CCP agreed to purchase substantially all of GMAFC’s assets to facilitate CCP’s participation in managed care systems and programs. The second agreement was an Agreement for Services in which Dr. Desse agreed to deliver certain medical services on behalf of CCP to patients at GMAFC’s General Meyer Avenue location. CCP further alleges that in consideration of Dr. Desse’s services, he agreed to receive a salary in the amount of 45% of net receipts for each | ¡.calendar month during the term of the Agreement for Services. CCP contends that Dr. Desse was overpaid under the Agreement for Services in that he took payments that exceeded the actual amounts earned under the compensation formula in the Agreement for Services.

The Agreement for Services was for a term of two years ending on January 31, 2003, and automatically extended for an additional year unless either party elected not to renew the agreement for the additional year. On November 25, 2002, Dr. Desse elected not to renew the Agreement for Services. CCP contends that under the Asset Purchase Agreement, if Dr. Desse elected not to renew the Agreement for Services, the relator had to return the entire purchase price allocated for the intangible property in the Asset Purchase Agreement. The payment for the intangible property was due on the date Dr. Desse gave notice that the Agreement for Services would not be renewed. CCP filed its petition after Dr. Desse failed to remit the payment for the intangible property or return the alleged overpayments despite amicable demand.

On July 15, 2003, CCP filed its motion for partial summary judgment as to liability only. In support of its motion, CCP filed a memorandum, the Asset Purchase Agreement, the Agreement for Services, correspondence regarding these agreements, a bill of sale between GMAFC and CCP, responses to requests for admissions and a statement of uncontested facts. The relators filed an opposition to the plaintiffs’ motion, along with the affidavit of Dr. Desse.

On November 6, 2003, the trial court rendered its judgment granting CCP’s motion, finding relators liable to CCP for certain overpayments of compensation to Dr. Desse, for the purchase price allocated to intangible property in the Asset 1 ¡^Purchase Agreement plus interest, and costs, expenses and attorneys’ fees related to bringing this action.

In this writ application, the relators complain the trial court erred by enforcing agreements that violate 42 U.S.C. Sections 1320a-7b and 42 U.S.C. Section 1395nn of the Social Security Act, and the trial court erred by granting CCP’s motion for partial summary judgment as to liability even though there are unresolved factual issues in the case.

Summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. Article 966 was amended in 1996, but the burden of proof remains with the mover to show that no genuine issue of material fact exists. If the mover will not bear the burden of proof at trial, his burden on the motion does not require him to negate all essential elements of the plaintiffs claim, but rather to point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966 C(2); Fairbanks v. Tulane University, 98-1228 (La. App. 4 Cir. 3/31/99), 731 So.2d 983. After the mover has met its initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966 C(2); Smith v. General Motors Corp., 31,258 (La.App. 2 Cir. 12/9/98), 722 So.2d 348. If the non-moving party fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir. 9/10/97), 699 So.2d 895. Appellate courts review summary judgments de |4novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.

42 U.S.C. § 1320a-7b(2) provides:

(2) whoever knowingly and willfully offers or pays any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly or covertly, in cash or in kind to any person to induce such person—
(A) to refer an individual to a person for the furnishing or arranging for the furnishing of any item or service for which payment may be made in whole or in part under a Federal health care program, or
(B) to purchase, lease, order, or arrange for or recommend purchasing, leasing, or ordering any good, facility, service, or item for which payment may be made in whole or in part under a Federal health care program, shall be guilty of a felony and upon conviction thereof, shall be fined not more than $25,000 or imprisoned for not more than five years, or both.

42 U.S.C. § 1395nn provides:

Except as provided in subsection (b) of this section, if a physician (or an immediate family member of such physician) has a financial relationship with an entity specified in paragraph (2), then—
(A) the physician may not make a referral to the entity for the furnishing of designated health services for which payment otherwise may be made under this subchapter, and
(B) the entity may not present or cause to be presented a claim under this sub-chapter or bill to any individual, third party payor, or other entity for designated health services furnished pursuant to a referral prohibited under subpara-graph (A).

The relators argue that after entering into the Asset Purchase Agreement and Agreement for Services, Dr. Desse was informed that he would not be provided with shared hospital and clinic coverage at either West Jefferson Hospital or Mea-dowcrest Hospital, and that he was to refer all of his patients, including ^patients covered by Medicare and Medicaid, to Touro Infirmary only. Relators contend that Touro Infirmary is the parent company of CCP. According to the relators, this type of referral arrangement is prohibited under the above-cited portions of the Social Security Act.

Relators argue that summary judgment was inappropriately granted because questions of fact remain as to whether the agreements and financial arrangements between the parties are valid and enforceable. Relators note that although the Social Security self-referral laws have limited exception for employers and employees, questions of fact also remain as to the actual relationship between relators and CCP.

CCP responds to these arguments by stating that the above-cited portions of the Social Security Act do not come into play in this matter because the Agreement for Services did not require Dr. Desse to make referrals. A reading of the Agreement for Services establishes that CCP correctly states that the agreement does not require Dr. Desse to make referrals.

In his affidavit, Dr. Desse stated that after entering into the agreements with CCP, he was “required” to refer patients solely to Touro Infirmary. La. C.C. article 1848 states as follows:

Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent, or a simulation, or to prove that the written act was modified by a subsequent and valid oral agreement.

In this case, there is no evidence presented as to any subsequent oral agreement to modify the Agreement for Services to require referrals. Dr. Desse | (¡alleges that he was required to make referrals, but he has not alleged that he agreed to such an arrangement after the agreement was signed. In its responses to requests for admissions, CCP specifically denies requiring Dr. Desse to make referrals during the term of the agreement. Because there is no evidence of a subsequent oral agreement to modify the Agreement for Services, Dr. Desse’s statement in his affidavit does not properly raise a question of fact on the issue of referrals.

Furthermore, even if there had been a subsequent oral agreement to modify, it would not be binding. Section 16.2 of the Asset Purchase Agreement and Section 22 of the Agreement for Services both require that any amendments must be in writing and signed by the parties. (This finding pretermits a review of whether there is a genuine issue of material fact concerning whether Dr. Desse was an employee of CCP.)

Because the Agreement for Services did not require Dr. Desse to make referrals, the above-cited portions of the Social Security Act were not violated. The argument that the trial court erred by enforcing agreements that violate 42 U.S.C. § 1320a-7b and 42 U.S.C. § 1395nn is without merit.

The relators’ next argument that summary judgment was inappropriately granted because there are unresolved factual issues in this case is also without merit. Relators claim that certain disputed factual issues could be clarified through additional discovery. We conclude, after reviewing the information provided in the writ application and the response thereto, that no genuine issues of fact exist as to relators’ liability to CCP for sums owed pursuant to the Asset Purchase Agreement and the Agreement for Services, and that CCP is entitled to summary judgment.

|7For the reasons stated above, the trial court judgment granting CCP’s motion for summary judgment as to liability is affirmed.

AFFIRMED.


author: 11 MOON LANDRIEU, Judge Pro Tempore.

text:
    STATE of Louisiana v. Kyle M. GIVENS.
    No. 2003-KA-2071.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2004.
    Eddie J. Jordan, Jr., District Attorney, Nick Orechwa, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS JR. and Judge Pro Tempore MOON LANDRIEU).
   11 MOON LANDRIEU, Judge Pro Tempore.

On August 29, 2002, the State filed a bill of information charging the defendant, Kyle M. Givens, with aggravated incest in violation of La. R.S. 14:78.1. At his arraignment on September 9, 2002, he pleaded not guilty. Probable cause was found after a hearing on March 13, 2003; at trial that same day, a six-member jury found the defendant guilty of the responsive verdict of attempted aggravated incest. The State filed a multiple bill charging Mr. Givens as a second felony offender, and after pleading guilty to the multiple bill on June 3, 2003, he was sentenced to serve five years at hard labor without benefit of probation or suspension of sentence. His motion for an appeal was granted.

At trial Dana Givens, the defendant’s wife, testified that she met Mr. Givens in July of 1991; Q.H., her daughter, was then about six months old. Mr. Givens moved in with Dana Givens and her daughter about a month later. They married in December of 2000. Q.H.’s biological father has had no role in her life. Because Mrs. Givens worked at night, the defendant was often at home alone with Q.H. On June 16, 2002, Mrs. Givens noticed her daughter’s bedroom door was closed. When she opened the door, she saw Kyle Givens kneeling at the side of Q.H.’s bed masturbating. Q.H. was stretched out on the bed with a teddy bear over her head. Mr. Givens fell toward the bed as soon as his wife walked into the room. Mrs. I^Givens asked what was going on, and her husband answered, “Nothing’s going on, we was just jumping in the bed. We were playing.” Mrs. Givens then asked her daughter the same question, and she also answered that nothing was going on. Mrs. Givens went to her room to get a belt in order to whip her daughter. Again she asked her husband what he was doing, and he denied doing anything. However, Q.H. ran into the bedroom and stated, “Mama, he’s been molesting me since I was nine years old.” Mr. Givens said that Q.H. was lying. Mrs. Givens immediately called 911. The defendant tried to leave the house, but she stopped him. Under cross-examination, Mrs. Givens stated that her daughter was afraid to tell her of the molestation because the defendant had told Q.H. that she would be whipped by her mother if her mother found out. Mrs. Givens admitted to having a pornographic videotape in the apartment.

Q.H. testified that her date of birth is January 12, 1991; she was twelve years old at the time of trial. She stated that she had always called the defendant “Dad.” She was nine when he first molested her. On June 16, 2002, Q.H. was in her room when the defendant walked in and asked “if he could ... go down on me.” When she answered negatively, he said, “Don’t ask ... for candy or batteries.” He left her room, but he returned later and stuck his tongue out at her. She explained that that was his way of asking for oral sex. When she again refused, he said, “We don’t have to do that. At least let me see you playing with your teddy bear or something like that.” He asked her to put a pillow between her legs and “to do stuff’ with her teddy bear. When her mother came into her room, she tried to avoid telling her mother because her mother is very strict and would whip her. Q.H. stated that she had found the pornographic videotape and showed it to the defendant. He wanted to watch it with her, and although she did not want to do so, she watched it with him.

13Petective Matthew Riles of the Child Abuse Unit testified that when he arrived at 14728 Saigon Drive he found the defendant in the back seat of Officer Tyra Pruitt’s police car. The detective then went into the apartment and spoke to the defendant’s wife and the victim.

The parties stipulated that the victim’s bed comforter was tested for blood and seminal fluid, but neither was found. They also stipulated that garments from the defendant and the victim were also tested for blood and seminal fluid, but none was found.

Dr. Ellie Wetsmann, an expert in forensic pediatrics, testified that she examined the victim, Q. H., and made a report. Dr. Wetsmann recorded that the victim told her the defendant “made ... [her] lick his privacy part. Sometimes he was jacking himself off.” Q.H. told the doctor that the defendant put his hand in her vagina and put his mouth on her “privacy part.” The doctor examined the victim’s genitalia and found her hymen, vagina, and anus were normal. She explained that the hymen is shaped like a donut, and digital penetration does not necessarily cause trauma.

Ms. Patricia Percy, a forensic social worker, testified that she conducted a videotaped interview with Q.H. on June 17, 2002. The tape was played for the jury.

Defense counsel filed a brief requesting a review for errors patent. Counsel complied with the procedures outlined by Anders v. State of Cal., 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as interpreted by this Court in State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). Defense counsel filed a brief complying with State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241. Defense counsel’s detailed review of the procedural history of the case and the facts of the case indicate a thorough review of the record. Defense counsel moved to withdraw because he believes, after a conscientious review of the record, that there is no non-frivolous issue for | ¿appeal. Defense counsel reviewed' available transcripts and found no trial court ruling which arguably supports the appeal. A copy of the brief was forwarded to defendant, and this Court informed him that he had the right to file a brief in his own behalf.

As per State v. Benjamin, this Court performed an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appeal record. The defendant was properly charged by bill of information with a violation of La. R.S. 14:78.1, and the bill was signed by an assistant district attorney. The defendant was present and represented by counsel at his arraignment, motion hearings, jury selection, trial, and sentencing. A review of the trial transcript reveals that the State proved the offense beyond a reasonable doubt.

Counsel complains of two errors patent found in the sentence. First, he maintains that the defendant was sentenced to five years at hard labor without benefit of parole, probation, or suspension of sentence. (Nothing in the substantive statute prohibits the benefits of parole, probation, and suspension of sentence; although the multiple offender law, La. R.S. 15:529.1(G), prohibits the benefits of probation and suspension of sentence, nothing in that statute prohibits parole eligibility). However, at the sentencing hearing, the court sentenced Mr. Givens to five years without probation or suspension of sentence; no mention was made of parole. Thus, there is no error as to parole.

He next notes that the court did not comply with R.S. 14:78.1(E) which provides that the court must' require the offender, if he is able, to pay reasonable costs of counseling for the victim. We note that the defendant pleaded guilty to the multiple bill as part of a plea agreement that he would receive a five-year sentence. Furthermore, the victim’s mother had asked the court.to give the defendant the 15minimum sentence. Whether the issue of counseling costs was addressed by the court is not evident from the transcript. However, given the fact that there was a plea bargain for the sentence, we rely on the presumption of regularity of judgment and find no error patent in the sentence.

Accordingly, the defendant’s- conviction and sentence are affirmed. Appellate counsel’s motion to withdraw is granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED.


author: J^LEON A. CANNIZZARO, JR., Judge. 1 [TOBIAS, J.,

text:
    Randall D. WOODS v. MARINE TRANSPORTATION SERVICES, INC. OF FLORIDA and ABC Insurance Company.
    No. 2003-CA-1830.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 2004.

      Charles J. Ballay, Adrian A. Colon, Jr., Ballay, Braud & Colon, Belle Chasse, LA, for Plaintiff/Appellee, Randall D. Woods.
    J. Fredrick Kessenich, Louis G. Spencer, Emmett, Cobb, Waits & Kessenich, New Orleans, LA, for Defendant/Appellant, Marine, Transportation Services, Inc.
    (Court composed of Judge JAMES F. MeKAY, III, Judge MAX N. TOBIAS, J., Judge LEON A. CANNIZZARO, JR.)
   J^LEON A. CANNIZZARO, JR., Judge.

This case involves an appeal by the defendant, Marine Transportation Services, Inc. (“MTS”), in a maritime personal injury case. MTS is appealing the trial court’s denial of its exception of improper venue.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The plaintiff, Randall D. Woods, was injured aboard the MTV LORI D, an offshore crew and cargo boat, when the vessel, encountered rough seas while en route to a drilling rig in the Gulf of Mexico. MTS owned and operated the M/V LORI D, and Mr. Woods was employed by MTS as a mate aboard the vessel.

Mr. Woods’ injuries occurred when the vessel hit a rogue wave in the area of the Breton Sound off the Louisiana coast. On the day of the incident the vessel was making a trip from a dock in' Venice in Plaquemines Parish, Louisiana to a rig located in the Gulf. The four crewmembers aboard the vessel were Captain Phillip Larry Nelson, Mr. Woods, who was the mate, an engineer, and a deckhand.

Mr. Woods had been resting in his bunk below deck. When the vessel encountered rough water, he left his bunk to find a seat on deck with a. seatbelt. As he was going to find the seat, a rogue wave caused him to fall onto the floor in the |2galley of the vessel. He remained there until the vessel returned to shore where he was taken to a hospital.

Approximately ten months after the incident, Mr. Woods filed suit against MTS alleging that he suffered damages as a result of the injuries he incurred. Almost two months after the suit was filed, MTS filed a declinatory exception of improper venue.

Shortly after the exception of venue was filed, Captain Nelson, who was navigating the vessel when it hit the rogue wave and who was the only person to see where the vessel was when it hit the wave, executed an affidavit that gave a longitude and latitude for the location where the vessel encountered the rogue wave. The vessel’s location when Mr. Woods was injured, according to Captain Nelson’s affidavit, was within state waters, which would support venue in Plaquemines Parish. When Captain Nelson’s deposition was taken several weeks after he executed the affidavit, he testified that the incident occurred at a different location from that given in his affidavit. This location was outside of state waters and would, therefore, make Plaquemines Parish an improper venue for this case. Captain Nelson explained in his deposition that the location of the incident given in his affidavit was incorrect, because in preparing the affidavit he had misread the portion of a navigational chart that had been sent to him at his home by facsimile transmission. He testified that when he later reviewed the full chart, he realized that the latitudinal and longitudinal coordinates given in the affidavit were incorrect.

At the hearing on the exception of improper venue, the trial court refused to allow the introduction of Captain Nelson’s deposition testimony on the issue of venue, because MTS had not timely filed the deposition under the rules applicable Uto Louisiana district courts. The trial court denied the exception of improper venue based on the records, including Captain Nelson’s affidavit, that were timely submitted.

DISCUSSION

Assignments of Error

MTS has made three assignments of error. MTS asserts that the district court erred in the following respects:

1. by finding that venue in Plaque-mines Parish was proper;
2. by using erroneous statements in Captain Nelson’s affidavits as the sole basis for determining that the venue was proper; and
3. by failing to consider the deposition testimony of Captain Nelson, who was the only eyewitness who observed the exact location where the rogue wave occurred.

Failure to Use Captain Nelson’s Deposition Testimony

In the instant case the trial court judge refused to consider the deposition testimony of Captain Nelson, because it was not timely submitted to the trial court. He also refused to grant a continuance of the hearing on the exception of improper venue.

Rule 9.9 of the Rules for Civil (Except for Family, Juvenile or Domestic Relations) Proceedings in District Court provides in relevant part as follows:

(a) When a party files an exception ... that party must concurrently furnish the trial judge and serve on all other parties a supporting memorandum that cites both the relevant facts and applicable law. The memorandum must be served on all other parties so that it is received by the Rother parties at least 15 calendar days before the hearing, unless the court sets a shorter time.
(d) Parties who fail to comply with paragraphs (a) and (b) of this rule may forfeit the privilege of oral argument. If a party fails to timely serve a memorandum, thus necessitating a continuance to give the opposing side a fair chance to respond, the court may order the late-filing party to pay the opposing side’s costs incurred on account of the untimeliness.

Rule 9.9 required MTS to furnish the trial court judge with a memorandum citing the relevant facts regarding venue from Captain Nelson’s deposition and to serve the memorandum on Mr. Woods within the time period set forth in the rule. This was not done, and the trial court judge was authorized by the rule to penalize MTS by refusing to hear its oral argument. The trial court was also authorized to continue the hearing and order MTS to pay Mr. Woods any extra costs he incurred, because MTS did not comply with the time limits established in Rule 9.9.

The trial court was not, however, permitted under Rule 9.9 to simply disregard what might well be relevant testimony on the issue of venue. Therefore, we vacate the trial court’s ruling on the exception and remand this case to the trial court for a new hearing. At the new hearing, the trial court should consider all of the admissible evidence that is presented and make a ruling based on that evidence.

Because we are remanding this case to the trial court for further action in accordance with this opinion, we need not address the assignments of error relating to whether the trial court was correct in determining the venue in this case. The proper venue will depend on the trial court’s factual findings regarding the location of the vessel when Mr. Woods was injured.

CONCLUSION

IfiThe judgment of the trial court on the exception of improper venue is vacated. This case is remanded to the trial court for further proceedings in accordance with this opinion.

VACATED AND REMANDED.

TOBIAS, J., Concurs and Assigns Reasons.

1 [TOBIAS, J.,

concurring with reasons.

I respectfully concur in order to assign additional reasons in support of the majority’s conclusion that the judgment should be vacated.

Under La. C.C.P. art. 930, “evidence may be introduced to support or controvert [the declinatory exception of venue] ... when the grounds thereto do not appear from the petition, the citation, or return thereon.” I read this article to mean that evidence should be formally introduced into the record at a hearing on a declinatory exception, unless the parties clearly agree or stipulate otherwise.

In his original petition filed on 19 December 2002, the plaintiff failed to allege any grounds to establish that Plaquemines Parish was a proper venue. On 3 February 2003, the defendant filed its exception to venue, supplementing same with a memorandum of law in support filed on 10 April 2003, to which was attached the affidavit of Captain Nelson dated 18 March 2003 stating that “The MW LORI D was located at approximately 29 25' North Latitude and 89 10' West Longitude, in Main Pass Block 52, when the MTV LORI D encountered, without warning, a freak wave.” On 11 April 2003, the plaintiff filed his first supplemental and amending petition, alleging that the accident occurred in Plaquemines Parish. On 16 April 2003, the defendant filed another exception of venue, asserting that the wrongful conduct occurred neither in Plaquemines Parish Lnor the territorial waters of Louisiana; a rule to show cause setting the exception for hearing was also filed that same day. On 16 April 2003, the defendant noticed the deposition of Captain Nelson for 22 April 2003. The deposition was in fact held on 22 April 2003, and counsel for plaintiff was present as evidenced by the Plaintiffs Exhibit “B” attached to his 23 June 2003 opposition to the exception of venue.

In his deposition of 22 April 2003, Captain Nelson corrected his affidavit by viewing a full-sized NOAA chart, stating that the location of the accident was 29 24' 4" north latitude and 89 T 4" west longitude. That location is outside Plaquemines Parish and Louisiana territorial waters.

For the trial court to refuse to consider the deposition, which was fully known to the plaintiffs counsel, and in view of the failure of the plaintiff to formally introduce the 18 March 2003 affidavit of Captain Nelson (although attached to a pleading), is an abuse of discretion. Fairness dictates that the trial court consider all relevant evidence on the hearing of a motion when no one is surprised by its existence or its consideration is sought. We are required to vacate the judgment of the trial court. La. C.C.P. art. 2164.

      . The trial court judge had previously continued the hearing, and Mr. Woods objected to any further continuances.


author: JjCLARENCE E. McMANUS, Judge.

text:
    In re TUFTS OIL AND GAS-III, A Delaware Limited Partnership.
    No. 03-CA-1296.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      William W. Hall, William W. Hall & Associates, Metairie, LA, and Jack A. Grant, Grant and Barrow, Gretna, LA, for defendant-plaintiff-in-reconvention and appellant Tufts Oil and Gas-III, a Delaware Limited Partnership.
    Walter C. Thompson, Jr., Jan K. Fran-kowski, Barkley & Thompson, New Orleans, LA, for defendant-appellant Robert G. Tufts.
    James M. Garner, Sher, Garner, Cahill, Richter, Klein, McAlister & Hilbert, and Mark S. Stein, Mitchell J. Hoffman, Lowe, Stein, Hoffman, Allweiss & Hauver, and T. Carey Wicker, III, Capitelli & Wicker, and Thomas M. Flanagan, Jennifer L. Thornton, Stanley, Flanagan & Reuter, New Orleans, LA, for appellees, Linda Tufts Heb-bler and Frederick J. Tufts.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   JjCLARENCE E. McMANUS, Judge.

Tufts Oil & Gas-III, L.P. appeals the district court judgment dismissing its re-conventional demand after maintaining exceptions of no right of action, or alternatively, lack of procedural capacity. At issue is whether the president of Tufts’ corporate general partner possessed authority to file the reconventional demand in the name of the limited partnership. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In these proceedings, disputing siblings assert competing claims for judicial dissolution of certain business entities. The four siblings, Frederick J. Tufts, Linda Tufts Hebbler, Robert G. Tufts, and J. David Tufts, III, are the adult children of Mr. and Mrs. J.D. Tufts, II. Prior to his death in 1993, Mr. Tufts, II was successful in several business ventures he entered with his business partner, Mr. Albert B. Crutcher, Jr. The four Tufts siblings now jointly own a family business holding partnership, Tufts Oil & Gas-III, L.P., referred to as “TOG-III.” TOG-III is organized as a Delaware limited partnership in which each of the four Tufts siblings is a limited partner and owns a 23.75% partnership interest. TOG-III’s general partner is Toraflid Corporation, a Louisiana corporation that owns the remaining 5% partnership interest in TOG-III. Each of the Tufts siblings owns [425% of Toraflid’s outstanding stock and serves as a director on the corporation’s four-member board. The president of Toraflid is David Tufts.

The business holdings of TOG-III include four assets: 50% of Crutcher-Tufts Corporation’s stock, approximately 33% of Natchez Trace Land Corporation’s stock, 38% of Foster Creek Corporation’s stock, and 50% ownership of 6600 Plaza Drive, L.L.C.

Over the years a rift developed among the four Tufts siblings and divided them into two equal factions. On March 10, 2003, Frederick Tufts and Linda Hebbler petitioned the district court for involuntary dissolution of TOG-III. They filed the petition as trustees of the respective family trusts that own their partnership interests in TOG-III. The petition alleged that dissolution of TOG-III was necessary because the shareholders and directors of the general partner, Toraflid Corporation, were deadlocked and TOG-III thus could no longer operate. Robert Tufts and TOG-III answered the petition and opposed the involuntary dissolution. Robert Tufts answered in his own name, as a limited partner of TOG-III and owner of a 23.75% partnership interest. TOG-III appeared through David Tufts, in his capacity as president of Toraflid Corporation, the general partner of TOG-III. Following its answer, TOG-III asserted a recon-ventional demand for judicial dissolution of the four companies comprising the assets of TOG-III. Named as defendants-in-re-convention were Frederick Tufts and Linda Hebbler, as the trustees of their respective family trusts. Additional parties to the reeonventional demand were Crutch-er-Tufts Corporation, Foster Creek Corporation, Natchez Trace Land Corporation, and 6600 Plaza Drive, L.L.C. Alleging that the four companies could no longer operate, the reeonventional demand requested appointment of a judicial liquidator to dissolve the companies. The demand also included an ex parte application for immediate appointment of a temporary liquidator to manage the companies’ affairs pending the trial and | Rappointment of a judicial liquidator. The district court denied the ex parte application for appointment of a temporary liquidator.

In response to the reeonventional demand, Frederick Tufts and Linda Hebbler, as trustees of their family trusts and defendants-in-reconvention, filed exceptions of no right of action, or alternatively, lack of procedural capacity and prematurity. The exceptions alleged that neither TOG-III, nor Toraflid Corporation, nor David Tufts had any authority to seek involuntary dissolution of the four companies comprising TOG-III’s assets. The district court set the exceptions for hearing on August 6, 2003.

At the hearing, Frederick Tufts testified in support of the exceptions, and David Tufts testified in opposition. The witnesses concurred that David Tufts was the president of Toraflid, TOG-III’s general partner, and that Toraflid’s shareholders and directors were deadlocked, as were TOG-III’s limited partners. Beyond that, however, the witnesses agreed on very little. Frederick Tufts testified that no meetings of Toraflid’s shareholders or directors had ever taken place to authorize David Tufts to proceed with the reeonven-tional demand in the name of TOG-III. Nor, according to Frederick Tufts, had TOG-III’s limited partners ever given David Tufts such authority to proceed. During his testimony Frederick Tufts identified a March 20, 2002 memorandum from Linda Hebbler and him to David Tufts and Robert Tufts that specifically objected to the initiation of any litigation on behalf of TOG-III. The parties stipulated that, if Linda Hebbler had testified, she would have given testimony substantially the same as Frederick Tufts.

David Tufts testified that regular or special meetings of Toraflid’s directors had not been conducted for years. Moreover, he considered it futile to call a directors’ meeting before filing the reconventional demand because two of the directors, Frederick Tufts and Linda Hebbler, were the very parties who had petitioned for involuntary dissolution of TOG-III. As such, Frederick Tufts and | fiLinda Hebbler had an interest in the outcome of any such directors’ meeting and would have been disqualified from voting at the meeting, according to David Tufts. The remaining disinterested directors, David and Robert Tufts, thus made the decision to proceed with the reconventional demand. David Tufts, in his capacity as president of Toraf-lid, thereafter filed the reconventional demand on behalf of TOG-III. He testified that he believed his powers as Toraflid’s president included authority to file the re-conventional demand in TOG-III’s name.

Various documents were introduced into evidence during the hearing on the exceptions, including Toraflid’s bylaws, TOG-III’s partnership agreement, and the March 28, 2002 memorandum identified by Frederick Tufts during his testimony. At the conclusion of the hearing, the defendants-in-reconvention withdrew their prematurity exception, and the district court took under advisement the remaining exceptions of no right of action, or alternatively, lack of procedural capacity. On August 12, 2003, the district court signed a judgment maintaining the exceptions and dismissing the reconventional demand. This appeal followed.

DISCUSSION

Appellants, TOG-III and Robert Tufts, claim that the district court erred in maintaining the exceptions and dismissing TOG-III’s reconventional demand because Toraflid Corporation, TOG-III’s corporate general partner, authorized the filing of that reconventional demand. Alternatively, appellants contend that the district court erred in dismissing the reeonventional demand without allowing an opportunity to amend that demand to cure the grounds for any objection to TOG-III’s procedural capacity.

Appellees, Frederick Tufts and Linda Hebbler, as trustees of their respective family trusts, urge us to affirm the district court’s judgment. According to appellees, the district court implicitly found that To-raflid Corporation and TOG-III Dwere deadlocked, and the lower court correctly concluded that David Tufts lacked authority to assert the reconventional demand on TOG-III’s behalf.

We raise Robert Tufts’ status in this appeal as a preliminary issue. The record shows that Robert Tufts answered the original petition in his capacity as a limited partner of TOG-III. A close reading of the reconventional demand, however, reveals that Robert Tufts was not a party to that demand. Rather, the reconventional demand was asserted solely by TOG-III. The record further reflects that Robert Tufts appeared through counsel at the August 6, 2003 hearing on the exceptions and that he joined in the appeal of the district court’s August 12, 2003 judgment. Nevertheless, since the answer to the' original petition defined Robert Tufts’ capacity in this case as a limited partner of TOG-III, and since Robert Tufts was not a party to the reconventional demand, his standing as an appellant is doubtful. But we need not reach the issue of Robert Tufts’ standing to appeal because TOG-III is clearly a proper party appellant and we are thus able to address the merits of this appeal.

Turning then to the merits, we are asked to review the district court’s judgment maintaining the exception of no right of action. Article 681 of the Louisiana Code of Civil Procedure establishes that an action can only be brought by a person having a real and actual interest that he asserts. The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. La.Code Civ. Proc. Art. 927 A(5). The function of that exception is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. The exception of no right of action assumes that the petition states a valid cause of action for some individual and questions whether the plaintiff in the particular case belongs to the class that has a legal interest in the subject matter of the litigation. Industrial Companies, Inc. v. Durbin, 02-0665, pp. 11-12 (La.1/28/03), 837 So.2d 1207, 1216 citing, Louisiana Paddlewheels v. Louisiana Riverboat Gaming Com’n, 94-2015, p. 5 (La.11/30/94), 646 So.2d 885, 888.

Appellant TOG-III argues that its corporate general partner, Toraflid Corporation, has authority to bring claims for liquidation of entities in which TOG-III has an ownership interest. As support, appellant relies on the partnership management article contained in TOG-III’s Agreement of Limited Partnership, which was introduced at the hearing on the exceptions. In particular, appellant refers to Section 5.1 of the partnership agreement. Section 5.1, which details the power and authority of the general partner, provides:

Except as otherwise provided in this Agreement and except as otherwise provided by applicable law, the General Partner shall have full and exclusive power and authority on behalf of the Partnership to manage, control, administer and operate the properties, business and affairs of the Partnership and to do or cause to be done any and all acts deemed by the General Partner to be necessary or appropriate thereto, and the scope of such power and authority shall encompass all matters in any way connected with such business or incident thereto....

Appellant contends that the partnership agreement contains no provision that expressly limits the authority of Toraflid, as general partner, from seeking liquidation of an entity in which TOG-III has an interest.

Appellant next argues that it was unnecessary to obtain authority from Toraflid’s shareholders before filing the reconven-tional demand because none of Toraflid’s assets are to be liquidated. Rather, the reconventional demand seeks liquidation of assets belonging to TOG-III; and thus, according to appellant, the requirement imposed by La. R.S. 12:121 to obtain shareholder authorization before disposing of substantially all of a corporation’s assets does not apply in this case. Appellant urges that TOG-III’s reconventional demand could therefore proceed without pri- or authority from Toraflid’s shareholders.

| ^Appellant finally argues that Toraflid’s bylaws did not require the corporation’s president to have authority from the directors to file the reconventional demand. To the contrary, appellant claims that the bylaws confer broad powers on Toraflid’s president, as evidenced by Article Seven, Section 8 of Toraflid’s bylaws, which were introduced at the hearing on the exceptions:

The President shall be the chief executive officer of the Corporation and, subject to the provisions of these Bylaws, shall have general supervision of the affairs of the Corporation and shall have general and active control of all its business .... He shall have power and general authority to execute bonds, deeds and contracts in the name of the Corporation and to affix the corporate seal thereto; to sign stock certificates; to cause the employment or appointment of such employees and agents of the Corporation as the proper conduct of operations may require and to fix their compensation, subject to the provisions of these Bylaws; ... and in general to exercise all the powers usually appertaining to the office of president of a corporation, except as otherwise provided by statute, the Articles of Incorporation or these Bylaws....

Moreover, appellant contends that the March 28, 2002 memorandum introduced at the hearing on the exceptions has no effect on the president’s broad powers under Toraflid’s bylaws. That memorandum from Frederick Tufts and Linda Hebbler expresses specific opposition to David Tufts, as president of Toraflid, initiating or pursuing legal actions like the reconven-tional demand now at issue. But, appellant counters, that memorandum is meaningless in light of La. R.S. 12:82(G):

Except as otherwise provided in the articles or by-laws, or by resolution of the board of directors, the president, vice-president or manager of any corporation or any foreign corporation doing business in this state, shall have power in the name and behalf of the corporation to authorize the institution, prosecution or defense of any suit and other legal proceedings, and no exception of want of authority shall lie on the part of any other party.

Alternatively, appellant urges that the district court, rather than dismissing the reconventional demand, should have allowed the opportunity to amend the demand to cure any defect in procedural capacity. Appellant bases this alternative hnargument on the characterization of the exception at issue as a dilatory exception of lack of procedural capacity under La. Code Civ. Proc. Art. 926 A(6), as opposed to a peremptory exception of no right of action under La.Code Civ. Proc. Art. 927 A(5). When a dilatory exception is maintained, La.Code Civ. Proc. Art. 933 B provides for amendment of the pleading to remove the grounds of the procedural capacity defect, rather than immediate dismissal as the district court ordered here. Appellant urges us to follow this alternative approach as the Fourth Circuit did on rehearing in Eastlake Trading Co., Inc. v. Iberia Trading Co., Inc., 398 So.2d 1146 (La.App. 4 Cir.1980), writ denied, 401 So.2d 977 (La.1981).

Appellees urge us to affirm the district court’s judgment as correct. They argue that the district court implicitly found that Toraflid and TOG-III were deadlocked and then correctly concluded that the shareholders, directors and limited partners of those two companies did not authorize the reconventional demand, as required by the governing documents for those companies. Thus, according to ap-pellees, David Tufts lacked authority as president of Toraflid, TOG-III’s general partner, to file the reconventional demand in the name of TOG-III, and the district court therefore properly maintained the exceptions and dismissed the reconventional demand. In response to appellant’s alternative argument that an opportunity to amend the reconventional demand should be allowed, appellees note that appellant failed to make that claim in the district court; and they contend that appellant cannot now assert that claim for the first time on appeal.

Appellees rely heavily on Innovative Therapy Products, Inc. v. Roe, No. Civ. A. 98-1506, 1998 WL 405049 (E.D.La., July 17, 1998) as authority for their position on the scope of a corporate president’s authority when the corporation is deadlocked. But Innovative Therapy is an unpublished decision of the United States District Court for the Eastern District of Louisiana, and unpublished |, decisions and opinions should not be cited or used as precedent in materials presented to any court, except in continuing or related litigation. Roberts v. Sewerage and Water Bd. of New Orleans, 92-2048 (La.3/21/94), 684 So.2d 341, 349; See also, Uniform Rules — Courts of Appeal Rule 2-16.3. We therefore decline to consider Innovative Therapy as having any precedential value in this appeal.

In considering this appeal, we first turn to the statutes upon which the reconven-tional demand bases its application for involuntary dissolution. Dissolution of the three corporate entities made party to the reconventional demand is based on La. R.S. 12:143, which provides in pertinent part:

A. The court may entertain a proceeding for involuntary dissolution under its supervision when it is made to appear that: ...
(2) The objects of the corporation have wholly failed, or are entirely abandoned, or their accomplishment is impracticable; or
(3) It is beneficial to the interests of the shareholders that the corporation should be liquidated and dissolved; ...
E. The court may, after trial, appoint a judicial liquidator, and may, ex parte pending trial, appoint a temporary liquidator whose authority shall cease upon appointment of a judicial liquidator, upon dismissal of the petition, or upon appointment of a receiver.

The reconventional demand seeks judicial dissolution of the remaining limited liability company under La. R.S. 12:1335, which states:

On application by or for a member, any court of competent jurisdiction may decree dissolution of a limited liability company whenever it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement.

The courts recognize the drastic nature of involuntary dissolution as a remedy and reluctantly apply that remedy only when the limited and specific statutory grounds for that relief are clearly established. LaFleur v. Guilbeau, 617 So.2d 1362, 1372 (La.App. 3 Cir.1993); Matherne v. Response Instrument Service & Engineering Corp., 533 So.2d 1011, 1015-1016 (La.App. 1 Cir.1988), writ denied, 537 So.2d 1166 (La.1989). The reconventional demand here at issue magnifies the drastic nature of involuntary dissolution. That demand does not apply for dissolution of Toraflid or TOG-III (as does the original petition in this case). Rather, the recon-ventional demand seeks the involuntary dissolution of business entities other than Toraflid, as the corporate general partner, and TOG-III, as a limited partnership. We are strained to find any merit in the contention that David Tufts, in the exercise of his ordinary powers as president of Toraflid, the corporate general partner of TOG-III, had the right to assert a recon-ventional demand applying for the drastic remedy of involuntary dissolution of TOG-III’s assets. And our review of TOG-III’s limited partnership agreement and Toraf-lid’s bylaws convinces us that our conclusion is correct.

As appellant points out, Section 5.1 of TOG-III’s Agreement of Limited Partnership conveys broad authority to the general partner. That authority, while broad, is not unlimited. And as it pertains to the situation in this case, subparagraph (i) of Section 5.1 specifically requires the consent of a majority in interest of the partners before the general partner can dispose of “all or substantially all of the assets of the Partnership.... ” That provision, without more, would seem to defeat any claim that TOG-III, through its corporate general partner, had the right to apply for involuntary dissolution of all partnership assets without the consent of a majority in interest of the TOG-III partners.

As appellant further points out, Article Seven, Section 8 of Toraflid’s bylaws bestows wide-ranged authority on David Tufts as the president of that corporation. But again, that authority is not without its limits; and Article Three, Section 1 of those bylaws makes it clear that Toraflid’s corporate powers are vested in its board of directors and that those powers are exercised under the authority of that board:

113The powers of the Corporation shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed under the direction of, the Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute, the Articles of Incorporation or these Bylaws directed or required to be exercised or doe by the shareholders.

While Toraflid’s bylaws unquestionably empowered David Tufts to conduct the day-to-day operations of the corporation as its president, the filing of a reconventional demand seeking the drastic remedy of involuntary dissolution went well beyond day-to-day operations and exceeded the scope of David Tufts’ authority as corporate president. In our view and based on our understanding of Toraflid’s bylaws, David Tufts, as the corporation’s president, had no right to file the reconventional demand in this case without first obtaining authority from Toraflid’s directors. And, as the record shows, that prior authority was not obtained.

Based on our analysis, we conclude that the district court correctly maintained the peremptory exception of no right of action and dismissed the reconventional demand. Moreover, because the peremptory exception was maintained, it is unnecessary to address appellant’s alternative argument concerning the declinatory exception of lack of procedural capacity.

DECREE

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.