author: PETERS, J.

text:
    Jade M. BARNES v. Paul D. BARNES.
    No. 2007-0027.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.
    Rehearing Denied June 20, 2007.

      Melissa Moreau, Marksville, LA, for Plaintiff/Appellee, Jade McCann Barnes.
    Gregory R. Aymond, Alexandria, LA, for Defendant/Appellant, Paul Dewayne Barnes.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   PETERS, J.

11 This child support matter is before us on appeal filed by Paul Dewayne Barnes from judgments rendered in jointly tried actions he filed against the State of Louisiana, Department of Social Services (department), and in a rule to show cause against his former wife, Jade McCann Barnes. For the following reasons, we affirm in part, reverse in part, and render judgment in his favor setting aside an income assignment order granted by the trial court.

DISCUSSION OF THE RECORD

Paul Dewayne Barnes (Paul) and Jade McCann Barnes (Jade) were divorced by consent decree dated June 22, 2006. Among other things, the consent decree designated Jade as the domiciliary parent of the two children born of the marriage, Alayna and Michael; ordered Paul to pay Jade $359.02 per month as child support and $188.50 per month as daycare expenses; and provided for adjustments in Paul’s monthly child support and daycare payments in the form of a deduction for the time the children spent with him during the summer. The consent judgment did not provide for a specific date of the month on which monthly payments were due, nor did it provide for an income assignment of Paul’s child support.

Barely two months later, on August 30, 2006, the department sought and obtained from the trial court an ex parte order amending the child support decree by requiring that Paul make all support payments to the department through the issuance of an immediate income assignment order. The department attached to its motion seeking ex parte relief an affidavit signed by Jade wherein she asserted under oath | ¡.“that [she] desire[d] the services of the Department of Social Services for the State of Louisiana and that support enforcement services [were] being provided [her] under Louisiana Revised Statute 46:236.1, et seq.” The ex parte order issued by the trial court decreed that “an Immediate Income Assignment pursuant to Louisiana Revised Statutes 46:236.[2]A(2),(3),(4) and (5) be issued for collection of current child support and arrears as reflected in the [judgment of June 22, 2006].”

Paul responded to the department’s action by filing, on September 7, 2006, a petition to annul the August 30 ex parte order. On that same day, Paul filed a separate rule to show cause directed at Jade seeking, among other things, a judgment against her for $252.00 — an amount Paul claimed was due him as reimbursement for Jade’s share of daycare expenses during the months of July and August of 2006, when Paul had custody of the children.

The trial court heard both the petition for annulment filed against the department and Paul’s rule to show cause filed against Jade in a single hearing, held on September 25, 2006. The evidence presented at the hearing established that there exists little or no dispute concerning the underlying facts in the litigation.

With regard to payments made by Paul to Jade, the record established that Paul’s employer paid him on a weekly basis and he generally paid his support obligation on a weekly basis as well. Although the June 22, 2006 consent judgment did not specify when the monthly obligation was to begin, Paul had begun making weekly payments of $82.85 on June 2 and continued to do so through June 23. Thus, for the month of June, Paul had overpaid Jade in the amount of $151.89. On August | ⅞10, 2007, Paul paid Jade $207.13, which satisfied his obligation for that month. At the September 25 hearing, Paul tendered $359.02 to Jade for his September obligation. Additionally, the evidence established that pursuant to the terms of the consent judgment, Jade owed Paul $252.00 as reimbursement for daycare expenses accrued during the summer months.

With regard to the issue of the department’s involvement, the evidence established that despite the assertions in her affidavit in support of the ex parte order, prior to filing the August 30 rule the department had provided no support enforcement services to Jade. In fact, Jade’s involvement with the department arose when she went to the district attorney’s office, not to obtain support enforcement services, but for advice because she was dissatisfied with the lack of a specific payment date in the original consent decree.

Following the September 25 hearing, the trial court rendered judgment denying Paul’s request for annulment of the ex parte order and stay of the income assignment order; granted Paul judgment against Jade for $252.00 as reimbursement for child daycare expenses; and ordered that Paul pay his child support obligation in two equal monthly payments, or alternatively weekly, based on his employer payment policy. The trial court signed a written judgment to this effect on October 30, 2007. Paul appealed the October 30 judgment, asserting that the trial court erred in refusing to grant him relief from its ex parte order and in refusing to hold Jade in contempt of court for not timely reimbursing him for the child daycare expenses.

UOPINION

For the reasons that follow, we find that the trial court erred in failing to grant Paul the relief he demanded in his opposition to the department’s intervention action. The ex parte orders requiring payments directly to the department should have been set aside, and the order effectuating the income assignment should have been stayed.

The department’s involvement in this matter is' based on the fact that Jade collects Medicaid benefits on behalf of the two children. Louisiana Revised Statutes 46:236.1.2(A) authorizes the department to “develop and implement a program of family support” in a number of situations, including the situation where Medicaid benefits are involved. Among other things, the department is authorized to “[ejnforce, collect, and distribute the support obligation owed by any person to his child or children and to his spouse or former spouse with whom the child is living if a support obligation has been established with respect to such spouse or former spouse” and to “[ojbtain and modify family and child support orders.” La.R.S. 46:236.1.2(A)(1) and (4).

There is no dispute that Paul’s support obligation to his children had been established by the June 2006 consent decree. However, it is also undisputed that Paul was current in his obligation to his children, making enforcement or collection services totally unnecessary. Nonetheless, the department argues that providing Medicaid services is equivalent to providing enforcement services and, thus, that Jade’s affidavit and its certification of its petition were both correct. We reject this argument as the distinction is elementary. “Support services” in the sense that the department is supplying Medicaid for the children and “support enforcement services” in the sense that it is supplying enforcement of the support obligation owed Isby the parent to his children are two different things. Thus, because the department was not supplying support enforcement services to Jade when she sought help from the district attorney’s office, it cannot rely on La.R.S. 46:236.1.2(A)(1) to justify its ex parte order.

For the same reason, the department cannot rely on La.R.S. 46:236.1.2(A)(4) as authority for its action. Louisiana Revised Statutes 46:236.2(A)(1) relates to the authority of the department to amend support orders and provides:

The department or district attorney may, by a written motion together with a written certification from the department that support enforcement services are being furnished to the individual, to the caretaker of any individual receiving support benefits, or to the payor of any support benefits for such individual, obtain an order to require any person under an order to support such individual or caretaker to make such support payments payable to the department.

(Emphasis added).

Intervention by the department or the district attorney’s office requires a showing that support enforcement services have actually been provided. State ex rel. Jones v. Mallett, 98-1051 (La.App. 3 Cir. 2/3/99), 737 So.2d 810, writ denied, 99-639 (La.7/2/99), 747 So.2d 14. Mere certification is insufficient. Even if there exists a written certification with the pleadings filed, failure to establish that certification as correct in subsequent proceedings defeats the right of the department to intervene. Id.

Having found that the department had no statutory right to intervene in this support litigation, we also find that the trial court erred in granting the income assignment order. In reaching this conclusion, we begin our analysis with an evaluation of the June 22, 2006 consent decree and the application of La.R.S. 9:303(A) to that judgment. That statute provides:

|fiIn all new child support orders after January 1, 1994, that are not being enforced by the Department of Social Services, the court shall include as part of the order an immediate income assignment unless there is a written agreement between the parties or the court finds good cause not to require an immediate income assignment.

(Emphasis added).

The June 22, 2006 consent decree was not originally being enforced by the department, conforms to the definition of “written agreement” contemplated by La.R.S. 9:303(A), and did not include an immediate income assignment. Thus, the trial court’s approval of that written agreement established that the it found no good cause for an immediate assignment order at the time of the consent judgment, a matter which is within the trial court’s discretion. See La.R.S. 9:303(B)(2)(d). Furthermore, the record contains evidence that Paul had already begun making his payments, was not delinquent in his efforts, and was not likely to become so. The absence of any evidence in the record indicating that Paul is likely to become delinquent constitutes good cause for rejecting an income assignment order. Curtis v. Curtis, 34,317 (La. App. 2 Cir. 11/1/00), 773 So.2d 185. Therefore, the record clearly establishes that La.R.S. 9:303(A) did not mandate the inclusion of an income assignment order in the initial consent decree rendered on June 22, 2006.

The department’s intervention asserted that it sought modification and subsequent enforcement of the June 22, 2006 support decree by an immediate income assignment order “for collection of current child support and arrears.” (Emphasis added). At the hearing on Paul’s motion, the department acknowledged that there existed no change of circumstances between June 22, 2006, and its intervention filed |7on August 23, 2006. Specifically, the department was required to acknowledge that Paul was not in arrears when its intervention was filed.

Louisiana Revised Statutes 46:236.3 provides the department’s authority to seek child support enforcement by income assignment. In that regard, La.R.S. 46:236.3(B)(1) provides:

Upon entry of any court order for the establishment or modification of support, the court shall order an immediate income assignment, which shall be effectuated immediately by providing a written notice to the payor or payors of income, unless there is a written agreement between the parties or the court finds good cause not to require immediate income assignment. This income assignment may be effectuated by providing a written notice to any payor or payors of income, advising the payor to withhold an amount for current support, plus an additional amount, to be determined by the obligee, toward any arrearage.

(Emphasis added).

Louisiana Revised Statutes 46:236.3(B)(2)(b) provides that “good cause” as used in La.R.S. 46:236.3(B)(1) “exists if the court or the department finds that implementing an immediate income assignment would not be in the best interests of the child or finds proof of timely payment of previous support awards within the immediate past twelve consecutive months.” In this matter, the trial court made the following statement concerning implementation of the income assignment order:

Now, efficiency and equity favor income assignment orders. In this particular case the Department of Social Services has deemed Mrs. Barnes to be eligible for their assistance. We’ve talked about medicaid, her being a recipient. If there’s a pattern of late payments or partial payments, not any specific date or concerning contempt. Obviously, Mr. Barnes is not in contempt. What the claimant or what the recipient |sperceives as being partial payments, late payments it can be destructive to that person’s income and planning and use of funds for the children.

To the extent that the trial court’s finding of “partial payments, late payments” may be regarded as a finding of delinquency, it was manifestly erroneous. The evidence clearly reveals that there were no delinquent support payments either as defined by the statute or as required by the consent decree.

In State ex rel. Jones, 704 So.2d at 960, this court opined that “the legislature intended to provide public enforcement of private child support only in cases of delinquency, where one of the types of public support set forth in La.R.S. 46:236.1 [now, R.S. 46:236.1.2] is concerned, or perhaps where the recipient might otherwise be imperilled.” The court added that it was inconceivable that the legislature would have intended to permit the department or the district attorney’s office to utilize their limited resources to intervene in cases of child support where their intervention was not warranted by need or pronounced public policy. Id. The trial court, in its October judgment in the present case, seemingly saw a need to provide, for Jade’s sake, a specific date every month for support payments and avoid payments by the week, to which Jade had objected, but in actual fact its judgment effectuated almost no practical changes in the consent decree. Paul was ordered to make the payments “one-half (½) on the 1st and one-half (1/2/ )[sic] on the 15th of each month or alternatively weekly if the defendant is paid by his employer as such.”

19We find that the order effectuating the income assignment should have been stayed, and we will render judgment accordingly.

We turn now to Paul’s single assignment of error, involving the disposition of his rule to show cause filed against Jade. As observed earlier, he asked primarily for enforcement of the consent decree regarding apportionment of daycare expenses and that Jade be found indebted to him for reimbursement of $252.00 in daycare expenses which he had paid in the summer of 2006. The trial court granted him that relief. His complaint on appeal is that the trial court did not hold Jade in contempt of court for not paying her share of those expenses.

This assignment is without merit. “Contempt, in the setting of delinquent child support requires the trial judge to determine that a party’s disobedience of the court’s support order constitutes a parent’s willful or deliberate refusal to perform an act which was within the power of the parent to perform.” Fink v. Bryant, 01-987, p. 7 (La.11/28/01), 801 So.2d 346, 350. A trial court is vested with great discretion to determine whether a party should be held in contempt for willfully disobeying a trial court judgment. Id. The consent decree’s formula for calculating the parents’ respective shares of fluctuating daycare expenses during the summer months was complicated (so much so, in fact, that Paul sought modification of that formula in his rule to show cause). There was no abuse of the trial court’s discretion in its finding that Jade was not in contempt.

DISPOSITION

For the reasons assigned above, we reverse and set aside the judgment of the trial court maintaining its ex parte order requiring that Paul Dewayne Barnes make his child support payments directly to the State of Louisiana, Department of Social ImServiees. We also reverse and set aside the judgment of the trial court maintaining its ex parte order denying Paul Dewayne Barnes’s petition to stay the trial court’s order effectuating an immediate income assignment. Judgment is rendered staying the latter order. In all other respects, including the denial of the rule for contempt, the judgment is affirmed. We assess all costs of this appeal to the State of Louisiana, Department of Social Services, pursuant to La.R.S. 13:5112(A). We establish the amount of the costs, pursuant to that statute, at $806.00.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . The consent judgment provided that Paul was to pay Jade one-half of the monthly child support obligation during the month of June and relieved him of any payment during July of each year.

      . The Office of the District Attorney for Twelfth Judicial District in Avoyelles Parish represented the department in these proceedings.

      . The parties obviously concluded that the payments were to begin the first of June.

      . By paying weekly, Paul paid Jade $331.40 for the month of June (4 x 82.85). However, because his obligation for the month of June under the consent judgment was for one-half of the normal monthly child support payment, he overpaid Jade for that month by $151.89 [331.40 - (359.02 - 2)].

      .The amount paid in August, together with the overpayment from June, equaled the amount due for August [151.89 + 207.13 = 359.02]. Pursuant to the consent judgment, Paul owed nothing for the month of July.

      . Louisiana Revised Statutes 9:303(B)(1) defines a written agreement as “a written alternative arrangement signed by both parents, reviewed by the court, and entered into the record of the proceedings.”

      . Louisiana Revised Statutes 46:236.3(D)(1) statutorily provides a method for securing an immediate income assignment order "[i]n any case in which the department is providing services and in which an immediate income assignment has not been issued.” In such a situation, "the case shall be subject to an immediate income assignment upon a delinquency of an amount equal to one month's support.” The problem for the department in this case is that, as we previously determined, the department was not providing support enforcement services. Additionally, Paul was not delinquent in an amount equal to one month’s support obligation. See La.R.S. 46:236.3(A)(1).

      . Effective July 2, 2003, former La.R.S. 46:236.1 was repealed, and the new La.R.S. 46:236.1.1, et seq. took its place. Acts 2003, No. 1068. No changes occurred in the definition of delinquent. The June 3, 2003, minutes of the Senate Judiciary "A” Committee considering House Bill No. 1227 reveal that Lisa Woodruff-White, Department of Social Services, Child Support Enforcement, appeared before the committee and explained that the bill added subtitles throughout the various statutes and that the definition of delinquent was also made the same throughout the child support provisions.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Kenneth FORD, et al. v. RAPIDES HEALTHCARE SYSTEM, L.L.C., et al.
    No. 06-1539.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.
    Rehearing Denied June 20, 2007.

      Roderick T. Morris, New Roads, LA, for Plaintiff/Appellant, Kenneth Ford, et al.
    Ann M. Halphen, Adams <& Reese, Baton Rouge, LA, for Defendants/Appellees, Ravinderjit S. Brar, M.D., Fernando Garcia, M.D., Anthony Amigo, M.D.
    David Richard Sobel, Provosty, Sadler & Delaunay, Alexandria, LA, for Defendant/Appellee, Fernando Garcia, M.D.
    Brandon A. Sues, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Defendants/Appellees, Rapides Healthcare System, L.L.C., Ravinderjit S. Brar, M.D.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

hThe plaintiff, Kenneth Ford, appeals the judgment of the trial court in favor of the defendants, Rapides Healthcare System, LLC, d/b/a Avoyelles Hospital, Ravin-derjit Brar, M.D., Fernarndo Garcia, M.D., and Anthony Amigo, M.D., finding that his medical malpractice claim had prescribed. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Ford filed a petition for wrongful death and personal injuries on February 10, 2005, following the death of his asthmatic wife on September 17, 2000, at Avoyelles Hospital. Dr. Brar filed a peremptory exception of prescription in October 2005, urging that Ford’s claim was prescribed on its face as of September 16, 2003. In April 2006, Avoyelles Hospital also filed an peremptory exception of prescription on behalf of all of the defendants. In September 2004, a medical review panel issued an opinion stating that the evidence did not support the conclusion that Dr. Brar or Avoyelles Hospital failed to meet the applicable standard of care.

In May 2006, Dr. Brar filed an Alternative Motion for Summary Judgment. Following a hearing on the exceptions of prescription, the trial court granted the exceptions in favor of the defendants and dismissed Ford’s case with prejudice. The trial court further dismissed and dissolved the medical review panel pursuant to La.R.S. 40:1299.47(B)(2)(b).

| ¿Thereafter, Ford filed a motion for new trial, which was denied in October 2006. He now appeals to this court. Thereafter, Avoyelles Hospital filed a Motion to Strike Plaintiffs-Appellants’ Original Appellate Reply Brief as being untimely pursuant to Uniform Rules Courts of Appeal Rule 2-12.6. This issue is moot as we need not consider Ford’s reply brief in affirming the trial court.

ISSUES

Ford assigns as error:

1. The trial court’s sustaining the defendants’ exception of prescription in that the defendants failed to produce any evidence to support their claim that his case has prescribed on its face and the trial court erred in failing to allow him the opportunity to amend his petition to remove the grounds of defendants’ exception of prescription.

LAW

Wrongful Death Claim

Pursuant to La.Civ.Code art. 3492, a beneficiary named in La.Civ.Code art. 2315.2 is subject to a one year prescriptive period in which to file his claim for wrongful death. “The date of the malpractice victim’s death determines when the prescriptive period commences running, as that is the date the claimants are injured.” Taylor v. Giddens, 618 So.2d 834, 841 (La.1993). In this case, Mary died on September 17, 2000. Ford did not file his complaint with the medical review panel until September 2003, or his wrongful death claim until nearly four-and-a-half years later in February 2005. This claim has prescribed on its face. Ford does not differentiate in his brief between the wrongful death and survival/malpractice claims, but in effort to cover any potential future issues, we affirm the trial court’s findings that Ford’s wrongful death claim has prescribed.

^Survival Action

The supreme court in Carter v. Haygood, 04-0646, p. 9 (La.1/19/05), 892 So.2d 1261, 1267 (citations omitted), recently summarized the law pertaining to prescriptive periods surrounding medical malpractice actions:

[I]f prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. If evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-cleariy wrong standard of review. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

The supreme court continued with a discussion of La.Rev.Stat. 9:5628, which provides the prescriptive period for a medical malpractice action:

First, a one-year prescription period (which parallels the general tort period) is the general rule, which applies to all types of medical malpractice actions. Under this general rule, such actions prescribe one year from the date of alleged act, omission or neglect. This rule applies when the damages are immediately apparent.
Second, in cases involving damages that are not immediately apparent, a discovery exception to the general rule is codified. The discovery exception embodied in Section 5628 is a codification of the fourth category of contra non valen-tón for cases in which the cause of action is not immediately knowable. Under this discovery rule, such actions prescribe one year from the date of discovery of the alleged act, omission or neglect.
Third, an overall limitation is placed on cases otherwise falling within the discovery rule. That overall limitation is the underscored portion of Section 5628, which provides that “in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission or neglect.” La.Rev.Stat. 9:5628 (emphasis supplied.) Translated, this means that “the contra non valentem type of exception to prescription embodied in the discovery rule is expressly made inapplicable after three years from the alleged injury causing act, omission or neglect.” “Superimposed upon [the discovery rule], however, is an overall limitation upon the discovery rule’s operation to a period of three years from the date of the alleged act, omission, or |4neglect.”
A straightforward reading of this statute clearly demonstrates the statute sets forth two prescriptive limits within which to bring a medical malpractice action, namely one year from the date of alleged act or one year from the date of discovery with a three-year limitation from the date of the alleged act, omission or neglect to bring such a claim.

Id. at 1267-68 (citations omitted)(alteration in original).

Actual knowledge is not required; constructive notice, or adequate information that would incite curiosity or attention in a reasonable person is sufficient to alert a person that he may have a claim or inquiry. See Anderson v. Beauregard Mem’l Hosp., 97-1222 (La.App. 3 Cir. 3/6/98), 709 So.2d 283; LeCompte v. State of LA-Dept. Of Health and Human Res.South La. Med. Ctr., 97-1878 (La.App. 1 Cir. 9/25/98), 723 So.2d 474. In this case, Ford bore the burden of proving that his claims had not prescribed. Having reviewed the record, we find the trial court did not manifestly err in holding that Ford’s survival action has prescribed. It is clear from Ford’s own petition and his testimony at trial, that he had sufficient facts to excite his attention and put him on notice of a malpractice claim. The trial court summarized Ford’s own statements and observations the night of Mary’s death as follows:

And the Court of Appeal says hey, all the facts you knew relating to the alleged malpractice happened that night and you were there. Now, there’s nothing in that case about the gagging, throwing up, I can’t get it in her, let her die, people running back and forth, somebody saying let her die and the sister-in-law starting to screaming and hollering, there’s nothing in these cerebral palsy cases really that excites attention. And in the Mortan Versus Compcare where it says the appropriate inquiry is whether the plaintiff had sufficient information to insight curiosity, hey, what’s going in there. To excite attention, that was done. Attention was excited. He was upset, his sister-in-law was screaming. Ought to put a reasonably minded person on guard and call for an inquiry. He said I |Rwant an autopsy. I want an autopsy.

Ford’s own petition and testimony reveals the multitude of facts that should have excited his curiosity: He claims that he heard Dr. Brar tell employees to let his wife die, that if she would not consent to be intubated she would “see her God,” that he heard his wife gagging and vomiting, that his wife was “blowed up like a basketball swollen an discolored,” and that he requested an autopsy. We agree with the trial court that Ford had the requisite sufficient facts for a reasonable person’s attention to be excited in that the one year prescriptive period began running on September 17, 2000.

The crux of Ford’s claim is that contra non valentem should apply to these facts to suspend prescription. There are four instances in which contra non valentem may be applied to prevent prescription from tolling, the fourth one being urged by Ford. The fourth exception that prevents prescription from running is “where the cause of action is not known or reasonably knowable by the plaintiff.” Carter, 892 So.2d at 1268. Ford claims that the cause of action was not known or reasonably knowable by him, thus both the wrongful death and survival actions should have been suspended. Ford maintains (in his original petition) that he only became aware that he had a malpractice claim some time in the summer of 2003, when someone told him of an alleged incident involving Dr. Brar in which a “stick” was left in a patient’s head. Ford claims that upon hearing about the incident, he became suspicious about his wife’s death. Ford argues that the trial court relied on whether Ford knew or should have known of the damage without addressing his knowledge of the relationship between the damage and the alleged tort since he is not |fia medical doctor and neither the doctors nor hospital admitted malpractice. We disagree. Moreover, Ford had the same knowledge and information before he heard about the “stick” incident as he did afterward. The connection between Ford’s hearing about the “stick” incident and his realization that he may have a medical malpractice claim is insufficient to suspend prescription. Accordingly, this assignment of error is without merit.

Amending the Petition

Lastly, Ford urges that the trial court erred in failing to allow him an opportunity to amend the petition to remove the grounds of the defendants’ exceptions of prescription. Ford urges that he has “legitimate facts” that would have defeated prescription. However, based on our previous findings and our review of the record and Ford’s brief, we are aware of no new “legitimate facts” that, if added, would cure the fact that Ford’s claims have prescribed.

CONCLUSION

The judgment of the trial court granting the defendants-appellees, Rapides Healthcare System, LLC, d/b/a Avoyelles Hospital, Ravinderjit Brar, M.D., Fernarndo Garcia, M.D., and Anthony Amigo, M.D., exceptions of prescription is affirmed. All costs of this appeal are assessed against the plaintiff-appellant, Kenneth Ford.

AFFIRMED.

      . Ford is a plaintiff individually, and on behalf of his late wife, Mary Ford, and on behalf of their minor children, Brandon Presley and Kendra Smith; and Kevius Smith and Jarvis Presley, individually, and on behalf of their deceased mother, Mary Ford.

      . We note that the trial court had been distinguishing the instant facts from cases involving medical malpractice claims in which babies were born with cerebral palsy.


author: SAUNDERS, Judge.

text:
    Kirk Richard SPELL v. MALLETT, INC., et al.
    No. CA 2006-1477.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      Daniel M. Landry, III, Lafayette, LA for PlaintiffyAppellant, Kirk Richard Spell.
    Brad George Theard, Metairie, LA, for Secondary Intervenor/Appellant, Employers Self-Insurers Fund.
    John Lee Van Norman, III, Lake Charles, LA, for Defendant/Appellee, Mal-lett, Inc.
    Mary McCrory Hamilton, Voorhies & Labbe, Lafayette, LA, for Defendant/Ap-pellee, Atlantic Casualty Ins. Co., Mallett Buildings, Mallett, Inc.
    Keith Carlson, Dequincy, LA, In Proper Person.
    Kyle Carlson, Ragley, LA, In Proper Person.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   SAUNDERS, Judge.

11 This is a personal injury action where a construction worker was injured when he fell from a ladder while in the course and scope of his employment as a carpenter. The plaintiff filed a petition for damages and supplemented that petition twice. At the end of all supplementation of the petition, the plaintiffs suit was against his employer, his co-employees, and his employer’s insurance company. The workers’ compensation carrier of the employer intervened in the suit and alleged that it was entitled to reimbursement from employer’s insurance company for benefits it had paid to the plaintiff.

Employer’s insurance company filed a Motion for Summary Judgment alleging there was no genuine issue of material fact that would allow the plaintiff to recover under their policy of insurance issued to employer and it was entitled to a judgment as a matter of law dismissing it from the case. The trial court granted this motion.

The plaintiff filed this appeal alleging that the trial court committed an error of law in granting the Motion for Summary Judgment that released employer’s insurance company from the case. Intervenor joined the plaintiffs appeal. We affirm the trial court’s judgment granting the motion and assess all costs of this appeal to the plaintiff and intervenor.

FACTS AND PROCEDURAL HISTORY:

On November 6, 2004, the plaintiff-appellant, Kirk Richard Spell (hereinafter “Spell”), was employed by Mallett, Inc. d/b/a Mallett Buildings (hereinafter “Mal-lett”). Spell was on location in Abbeville, Louisiana, constructing a pole barn when he fell from a ladder while attempting to remove inadequately supported trusses.

12Initially the work performed by Spell on the pole barn was in connection with a business relationship with Keith Carlson (hereinafter “Keith”). The exact nature of the business relationship between Spell and Keith was not clear; however, Spell did perform carpentry work as the framing foreman on the pole barn for a few days.

After not working on the barn for two days, Spell came back to work on the barn and was doing so when Chester Lee Mal-lett (hereinafter “Chester”), representing Mallett, arrived on the scene of the job. Chester went to the job because his inspector had been there during the week and told him there was a problem with the construction. The problem was that the barn had inadequately supported trusses.

At that point, Chester “took over” and ordered that the trusses be taken down. Chester gave Keith and his men, including Spell, the option coming to work for Mal-lett because Keith was not in charge anymore. All of the men, including Spell, said that they would stay to work for Mallett and take down the trusses.

While Spell was working for Mallett, through his hiring by Chester, the ladder he was working on began to move and he fell to the ground. Spell suffered a broken back which required extensive surgery and placement of surgical hardware in his back.

As a result of the injuries Spell sustained, he initially filed a Petition for Damages against Mallett. In his first supplementation of that petition, Spell added Mallett’s Commercial General Liability Carrier, Atlantic Casualty Insurance Company (hereinafter “Atlantic”). Additionally, pursuant to a second supplementation of the petition, Spell added Keith and Kyle Carlson (collectively hereinafter “Carlson Brothers”) alleging that they were subcontractors of Mallett and that Spell’s accident was due to the improper installation of trusses installed by Carlson Brothers. In that second supplementation, Spell also alleged that Atlantic | sprovided coverage to the Carlson Brothers in connection with the claims asserted against them.

Employers Self-Insured Fund (hereinafter “ESF”), the workers’ compensation carrier for Mallett, filed an intervention. In its petition for intervention ESF sought to recover the workers’ compensation benefits it had paid to Spell and for any future compensation benefits owed to Spell.

Atlantic filed a Motion for Summary Judgment alleging there was no genuine issue of material fact that precluded a finding that Spell, as an employee of Mal-lett, was excluded from coverage under its policy and, as such, Atlantic was entitled to a judgment as a matter of law dismissing it from the case. The trial court granted Atlantic’s motion.

Spell filed a devolutive appeal, but did not include any specific assignments of error in its brief. ESF joined Spell’s appeal and filed a brief alleging one assignment of error, contending that the trial court erroneously granted Atlantic’s motion. We affirm the trial court’s judgment. Costs of this appeal are assessed to Spell and ESF.

ASSIGNMENT OF ERROR:

1. Did the trial court err in granting a Motion for Summary Judgment in favor of Atlantic, thereby dismissing it from this litigation?

ASSIGNMENT OF ERROR # 1:

ESF contends that the trial court erred in dismissing Atlantic from this litigation by granting its motion for summary judgment. This contention lacks merit.

We note that Spell’s brief contained no assignment of error and merely contained argument that there were genuine issues of material fact as to the status of all parties as well as genuine issues of material fact as to the interpretation of the Atlantic policy. Because ESF’s brief did properly contain an assignment of error and pits assignment raised nearly the identical issue as the argument put forth by Spell in his brief, we will not directly address Spell’s contentions.

Appellate courts conduct a de novo review of rulings on motions for summary judgment.

It is well established that a summary judgment shall be rendered 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. Palma, Inc., v. Crane Servs. Inc., 03-614 (La. App. 3 Cir. 11/5/03), 858 So.2d 772, 774 quoting Shelton v. Standard 700/Associates, 01-587, p. 5 (La.10/16/01), 798 So.2d 60, 64-65; La.Code Civ.P. art. 966.

This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ.P. art. 966(A)(2).

In 1997, the legislature enacted La.Code Civ.P. art 966(C)(2) which further clarified the burden of proof in summary judgment proceedings as follows:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense but rather point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

This amendment parallels the language of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The amended article places the initial burden of proof on the mover of the motion for summary judgment. If the mover meets this initial burden, the burden of proof then shifts to the nonmoving party that has the burden of proof on this particular issue at trial. This nonmoving party then |Rmust put forth evidence that shows he or she will be able to meet that burden at trial. If the nonmoving party cannot, then the motion for summary judgment should be granted. Marist & Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 6.8 (1999).

Relevant provisions in the policy at issue, including relevant classifications, definitions and the endorsement, are as follows:

DESCRIPTION OF BUSINESS AND LOCATION OF PREMISES
Classification
Carpentry — construction of residential property not exceeding three stories in height.
ENDORSEMENT # 2
[T]he following classification has been added to the policy.
Class: Contractors' — subcontracted work-in connection with building construction, reconstruction, repair or erection — one or two family dwellings; ... SECTION II — WHO IS AN INSURED
1. If you are designated in the Declarations as:
d. An organization other than a partnership, joint venture or limited liability company, you are an insured ....
SECTION V — DEFINITIONS
3. ‘Bodily injury’ means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.
EXCLUSION OF INJURY TO EMPLOYEES
CONTRACTORS AND EMPLOYEES OF CONTRACTORS
Exclusion e. Employer’s Liability of Coverage A. Bodily Injury and Property Damage Liability (Section 1 — Coverages) is replaced by the following:
This insurance does not apply to:
(i) ‘bodily injury’ to ‘employee’ of any insured arising out of or in the course of:
(a) Employment by any insured; or |fi(b) Performing duties related to the conduct of any insured’s business;
With respect to this endorsement only, the definition of ‘Employee’ in the DEFINITIONS (Section V) of CG 00 01 is replaced by the following:
‘Employee’ shall include, but is not limited to, any person or persons hired, loaned, leased, contracted, or volunteering for the purpose of providing services to or on behalf of any insured, whether or not paid for such services and whether or not an independent contractor.
As used in the endorsement contractor shall include but is not limited to any independent contractor or subcontractor of any insured and any developer or general contractor.
(Italic emphasis added)

“If the words of a contract are clear, explicit, and lead to no absurd results, it must be interpreted by reference to the ‘four corners’ of the document and no further interpretation can occur in search of the parties’ intent.” Hebert v. Ins. Center, Inc., 97-298 p. 4 (La.App. 3 Cir. 1/7/98), 706 So.2d 1007, 1011, writ denied 98-353 (La.3/27/98), 716 So.2d 888; La.Civ.Code art. 2046.

Here, Atlantic is the mover of the motion for summary judgment. Atlantic contends that it carried its initial burden by pointing out that the policy of insurance issued to Mallett contains an endorsement that precludes Spell from recovering for his injuries.

The trial court agreed with Atlantic and found that Atlantic had carried its initial burden. The trial court found that the clear, explicit language in the policy precludes Spell from recovering from Atlantic for his injuries. We agree with the trial court’s findings regarding the language of the policy.

Our reading of the relevant provisions of the policy is that this insurance does not apply to Spell for his injuries. Under SECTION II — WHO IS AN INSURED, 17Mallett is clearly an insured as it is listed in the declarations page as such. Under DESCRIPTION OF BUSINESS AND LOCATION OF PREMISES, Mallett is covered by the policy in conducting carpentry business that includes construction of residential property not exceeding three stories in height. Mallett purchased ENDORSEMENT #2 so that its business covered under the policy also includes contractor and subcontracted work in connection with building construction, reconstruction, repair or erection of one or two family dwellings.

Under SECTION V — DEFINITIONS, Spell’s injuries are clearly bodily injuries. Under the EXCLUSION OF INJURY TO EMPLOYEES CONTRACTORS AND EMPLOYEES OF CONTRACTORS, Spell fits under the endorsement’s expansive definition of an employee, and it is clear from the record that Spell became an employee of Mallett when Chester, on behalf of Mallett, came to the construction site and “took over.”

We find that if we were to plug in the relative terms and classifications, the clear, explicit language of the policy would read that this insurance does not apply to Spell’s injuries he suffered when falling from a ladder when removing inadequately supported trusses while employed by Mal-lett. As such, we find that Atlantic carried its initial burden of proving that there is a lack of support for an essential element of Spell’s case against Atlantic.

As stated above, once Atlantic carries its initial burden, the burden of proof then switches to Spell or ESF to show that they can meet the burden of proving that they can recover from Atlantic’s policy at trial. If neither Spell nor ESF can carry that burden, there are no genuine issues of material fact and Atlantic is entitled to a judgment as a matter of law dismissing it from this case. We find nothing in the record to show that either party, Spell or ESF, met this burden.

|sESF argues that there are numerous genuine issues of material fact that precluded the trial court from ruling that Atlantic should be dismissed from the suit. ESF adopts the argument put forth by Spell in his brief to support this contention. Although Spell’s brief contains no assignment of error, it does contain some argument that there are numerous issues of fact related to the parties’ employment status. While there may be some issues of fact related to what status is given to each party, this is not a fact that is material to the outcome of Atlantic’s motion. Regardless of what status is afforded to the parties, Spell is precluded from recovery from Atlantic due to the clear and explicit expansive definition of an employee under the policy.

Whether Mallett, Keith and/or Carlson Brothers and Spell are independent contractors, subcontractors, contractors, or co-employees is irrelevant. Under the policy, Spell is still “any person or persons hired, loaned, leased, contracted, or volunteering for the purpose of providing services to or on behalf of any insured, whether or not paid for such services and whether or not an independent contractor.” As such, he is precluded from recovery under the policy for his bodily injuries.

ESF further argues against Atlantic’s dismissal from the suit by asserting that the language of Atlantic’s policy provides coverage either to Keith and/or Carlson Brothers as an additional insured. We find that even if Keith and/or Carlson Brothers are additional insureds under the policy, Spell is still precluded from recovering under the policy as an employee of any insured, namely Mallett. As an employee of Mallett, Spell would still be “providing services to or on behalf of any insured.” (Emphasis added). Therefore, regardless if Keith and/or Carlson Brothers are insureds under the policy, under the clear and explicit language of the policy, Atlantic is still entitled to a judgment as a matter of law dismissing it from the suit.

|flFinally, ESF argues that the exclusionary language contained in the policy was overly broad, to such an extent that it would preclude coverage of any sort to an additional insured under the terms of the policy. This contention lacks merit.

It is clear from our reading of the policy that Mallett paid the additional premium to get protection from suits brought by third parties against Mallett for the negligence of Mallett’s subcontractors or the negligence of the employees of Mallett’s subcontractors. The purpose of the additional coverage purchased by Mallett was not to provide coverage to any additional insureds. To read the language of Atlantic’s policy as ESF contents leads to an absurd result. If we were to read the policy as ESF contends, Mallett would pay money to Atlantic to provide an additional avenue of recovery for Mallett’s employees or the employees of its subcontractors other than the workers’ compensation insurance Mallett already purchases from ESF. A reading of the policy that reaches this result is unreasonable and without merit.

CONCLUSION:

ESF, in its sole assignment of error, contends that the trial court erroneously dismissed Atlantic from the suit based upon Atlantic’s Motion for Summary Judgment. We affirm the judgment of the trial court. The costs of this appeal are assessed to Spell and ESF.

AFFIRMED.


author: PAINTER, Judge.

text:
    William DeSOTO, Estella DeSoto, and Dickie Bernard v. Gerald S. HUMPHREYS, Illinois National Insurance Company, and United Services Automobile Association.
    No. CW2006-959.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      Sidney W. Degan, III, Travis L. Bourgeois, Brian W. Harrell, Degan, Blanchard & Nash, New Orleans, LA, for Defendant-Applicant, Trinity Universal Insurance Company.
    Gary J. Delahoussaye, Briney & Foret, Lafayette, LA, for Defendants, Gerald S. Humphreys and Illinois National Insurance Company.
    Gordon L. James, Hudson, Potts & Bernstein, L.L.P., Monroe, LA, for Defendant, First Insurance Funding Corporation.
    John C. Pickels, Alexandria, LA, for Defendant, United Services Automobile Association.
    Darrel D. Ryland, J.B. Treuting, Wesley Elmer, Marksville, LA, for Plaintiffs-Respondents, William DeSoto, Estella DeSo-to, and Dickie Bernard.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

h Trinity Universal Insurance Company (Trinity) filed this writ application seeking review of the trial court’s judgment denying its motion for summary judgment. This court denied the writ, finding no error in the trial court’s ruling. Trinity sought writs from the Louisiana Supreme Court, which were granted. The Louisiana Supreme Court remanded the matter to this court for briefing, oral argument, and opinion. After due consideration, for the reasons set forth below, we grant the writ, make it peremptory, and render summary judgment dismissing Plaintiffs’ claims against Trinity.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of an automobile accident that occurred on December 5, 2003. William DeSoto (DeSoto) was the owner and operator of a 1992 Toyota in which Dickie Bernard (Bernard) was a guest passenger. Gerald S. Humphreys (Humphreys) was operating a 2001 Chevrolet which was owned by Christopher Tackett. The DeSoto vehicle was stopped at a red light when it was rear-ended by the Humphreys vehicle. Plaintiffs, William DeSoto, Estella DeSoto, and Dickie Bernard, sued Trinity as the insurer of Elevated Tank Applicator (Elevated Tank) and Humphreys. In the course of these proceedings, Trinity filed a motion for summary judgment claiming that there was no coverage for the subject accident because the policy was cancelled for nonpayment of premiums four months before the accident. The trial court denied Trinity’s motion for summary judgment, and Trinity timely sought supervisory writs from this court. Finding no error in the trial court’s ruling, on October 3, 2006, this court denied Trinity’s writ application. Trinity then sought writs from the Louisiana Supreme Court. On February 2, 2007, the supreme court granted writs and remanded the matter to this court for briefing, argument, and bopinion. For the reasons that follow, we find that Trinity is entitled to the presumption contained in La.R.S. 9:3550(G)(3)(c). Accordingly, we grant the writ and enter summary judgment in favor of Trinity.

DISCUSSION

We conduct a de novo review of a trial court’s grant or denial of a motion for summary judgment. In Clement v. Reeves, 05-616, pp. 3-4 (La.App. 3 Cir. 6/28/06), 935 So.2d 279, 281, we stated the following:

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultímate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Louisiana Code of Civil Procedure art. 966(C)(2) provides:

(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, motion, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Here, Trinity bears the burden of proving that the policy has been cancelled for nonpayment of premiums prior to the date of loss. Under the facts of this case, we find that Trinity is aided in this burden by the presumption contained in La.R.S. 9:3550(G)(3)(c), which states:

The receipt of such notice of cancellation and statement by the insurer shall create a conclusive presumption that the facts stated in said notice and statement are correct, that the insurer is entitled to rely on such facts and that the cancellation of the insurance | ^contract or contracts is concurred in and authorized by the insured. No liability of any nature whatsoever either in favor of the insured, any governmental agency, holder of a security interest in the insured property, or third party shall be imposed upon the insurer as a result of any misstatement of fact contained in said notice of cancellation or statement furnished by the insurance premium finance company to the insurer, or as a result of failure by the insured, any governmental agency, holder of a security interest in the insured property, or third party to receive the notice of cancellation required by Paragraph (2) of this Subsection, or as a result of failure of the insurance premium finance company to comply with any of the requirements of this Subsection. Upon mailing of any unearned premium and unearned commission to the insurance premium finance company as soon as practicable following such cancellation, the insurer shall be fully discharged from all liability under the insurance contract or contracts for any loss occurring subsequent to the effective date of cancellation.

(Emphasis added).

Elevated Tank entered into a contract with First Insurance Funding Corporation (FIFO) for the payment of its insurance premiums to Trinity. Trinity contends that Elevated Tank failed to pay FIFO and was placed in default. On August 4, 2003, FIFO provided notice to Trinity and Elevated Tank that the insurance policy would be cancelled on August 14, 2003, if the premiums were not paid. FIFO contends that no payments were made and issued a notice of cancellation dated August 18, 2003, effective for that date. Despite the discrepancy in dates, Trinity contends that FIFO provided proper notice to Elevated Tank of its intent to cancel the policy for non-payment of premiums and then provided proper notice of cancellation of the policy. Consequently, Trinity avers that it cannot be held liable for the accident in accordance with the express language of La.R.S. 9:3550(G)(3)(c). With respect to its motion for summary judgment, Trinity argued that no genuine issue of material fact exists because the occurrence for which Plaintiffs brought this suit allegedly took place on December 5, 2003, and thus occurred after the cancellation of the Trinity policy and that because the Trinity policy was cancelled prior to the accident, it cannot provide | coverage to the claimants in this lawsuit. Additionally, Trinity argues that even if the trial court properly found that FIFO did not comply with all the requirements of cancellation, that would have no effect on Trinity because once it received notice from FIFO, Trinity was relieved of any liability in this case.

In opposition, Plaintiffs argue that Trinity bears the burden of proving that the policy was properly cancelled. Plaintiffs point to several facts in an attempt to show that the policy was not properly can-celled. For example, Plaintiffs assert that the notice of intent to cancel shows that it was sent on August 4, 2003, but the payment history shows that it was sent on August 5, 2003 and that the notice of intent states the effective cancellation date would be August 14, 2003, but the notice of cancellation and the payment history both show the cancellation date to be August 18, 2003. Plaintiffs contend that the inconsistencies in the cancellation dates render the cancellation invalid.

Plaintiffs rely on LaFleur v. Safeway Ins. Co., 99-191 (La.App. 3 Cir. 6/2/99), 741 So.2d 759, wherein this court found that the Safeway policy at issue had not been properly cancelled under La.R.S. 9:3550 because Safeway did not strictly adhere to the cancellation requirements contained therein. Safeway’s notice of intent of cancellation was dated September 30, 1997, but was not mailed until October 1, 1997. Additionally, the cancellation notice stated that cancellation was effective October 11, 1997, despite the fact that the notice of cancellation gave a cancellation date of October 10, 1997. This court explained:

Louisiana courts require strict adherence to these statutory requirements when a finance company exercises it power of attorney to cancel an insurance policy. Britten v. Reavis, 503 So.2d 1149 (La.App. 3 Cir.), writ denied, 506 So.2d 1232 (La.1987); Eaglin v. Champion Ins. Co., 558 So.2d 284 (La.App. 3 Cir.1990). In Britten, 503 So.2d at 1153—1154, we found the steps in La.R.S. 9:3550(G) to be mandatory, stating that: “Strict adherence to the statutory procedure for exercising the power of attorney and effecting cancellation of a policy by a finance |scompany is necessary because that is the only way the effective date of cancellation can be accurately determined.”

Id. at 762.

However, we find that this case is not controlled by LaFleur because that case came before us after a full trial on the merits. Thus, we were constrained by the manifest error standard of review. This case is before us on the denial of a motion for summary judgment, and, as stated above, we review this matter de novo. Moreover, LaFleur did not address the specific area of the statute that deals with the insurer’s liability where the premium finance company fails to comply with statutory procedures. This is the pivotal issue now before us.

We cite with approval the language of the first circuit in Stephens v. LeBlanc, 03-1460, pp. 5-6 (La.App. 1 Cir. 5/14/04), 879 So.2d 262, 265-266:

Although the trial court may have been correct in finding that, at the very least, LIFCO failed to send the requisite notice to the specifically named agent, the trial court committed legal error by not applying La. R.S. 9:3550 G(3)(c).
Under section G(3)(c), and in spite of LIFCO’s procedural failures, the insurer, defendant U.S. Agencies, is entitled to the “conclusive presumption” provided by statute upon its receipt of the notice of cancellation and certifying statement. Section G(3)(c) further provides that the insurer cannot be held liable “in favor of the insured,” Mr. Le-Blanc, “as a result of any misstatement of fact contained in said notice of cancellation or statement furnished by the insurance premium finance company to the insurer, ... or as a result of failure of the insurance premium finance company to comply with any of the requirements of this Subsection.” The statutory directive is clear. Although LIFCO may have made mistakes, under the specific facts here, the legislature has determined that the insurer cannot be held liable for the coverage based only on the procedural failures of the insurance premium finance company asserted by Mr. LeBlanc. Thus, the policy was properly cancelled by the insurer prior to the accident.

Under the statute, Trinity was entitled to rely on the facts stated in the notice of cancellation sent by FFIC. Thus, we agree with Trinity’s assertion that it cannot be held liable for the alleged improper cancellation effected by FIFO under the express | ^language of the statute. We find that Trinity met its burden of proof and that Plaintiffs have done nothing to rebut the presumption. Therefore, there is no genuine issue of material fact that would preclude the grant of summary judgment in favor of Trinity.

DECREE

For the foregoing reasons, we find in favor of Trinity on its motion for summary judgment. We hereby grant Trinity’s writ application, make it peremptory, and render judgment in favor of Trinity, dismissing Plaintiffs’ claims against Trinity. Costs of this proceeding are assessed equally to Plaintiffs-Respondents, William DeSoto, E stella DeSoto, and Dickie Bernard, and to Defendant/Third Party Plaintiff-Respondent-United Services Automobile Association.

WRIT GRANTED AND MADE PEREMPTORY; SUMMARY JUDGMENT RENDERED.


text:
    Lt. Rickey JONES v. CITY OF NATCHITOCHES POLICE DEPT., et al.
    No. CA 2006-1387.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      William Preston Crews, Jr., Natchitoch-es, LA, for Defendants/Appellees City of Natchitoches City of Natchitoches Police Dept.
    Charles Raymond Whitehead, Jr., Whitehead Law Offices, Natchitoches, LA, for Plaintiff/Appellant Lt. Rickey Jones.
    Court composed of JOHN D. SAUNDERS, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

| Appellant, a police officer, was terminated from employment after an incident where he went to a car dealership, where he was also employed, to conduct non-police business while he was on-duty and in uniform. The police department conducted an investigation of the incident, and subsequently, a hearing regarding the allegations against him. Appellant was placed on administrative leave with pay, and was terminated by letter several days later. He appealed his termination to the civil service board, and after a hearing on the matter, the board upheld his termination. He then appealed the board’s decision to the judicial district court, which affirmed the decision of the board, finding its members in good faith in upholding Appellant’s termination. Appellant now appeals, alleging that he was not afforded the procedural requirements of due process and that the trial court committed legal error in upholding Appellant’s termination. We reverse.

FACTS AND PROCEDURAL HISTORY

Appellant, Lieutenant Rickey D. Jones, a twenty year veteran of the City of Natchitoches Police Department, was terminated from his employment with the police department on May 19, 2005. In addition -to working as a police officer, Appellant was also employed as a car salesman at Natchitoches Ford-Lincoln Mercury (dealership). On the afternoon of March 11, 2005, while on duty and in uniform, Appellant went to the dealership to pick up his paycheck. While he was waiting on the check to be issued, Appellant ran into Ms. Barbara MaCaulay, a customer whom he had helped at the dealership the previous day, and they began talking.

The City of Natchitoches Police Department received an anonymous complaint that Appellant was in uniform conducting non-police business at the dealership. The police department then called upon Lieutenant of Internal Affairs, Micky Dove, to | ¡.conduct an investigation of the incident. Upon conclusion of the investigation, Chief Holmes advised Appellant of the allegations against him in letter dated April 22, 2005, and pre-termination hearing before the Natchitoches Municipal Fire & Police Civil Service Board (Board) was set for April 28, 2005; however, the hearing was re-scheduled and was held on May 4, 2005. Appellant was placed on administrative leave with pay on May 6, 2005, and on May 19, 2005, he was terminated by letter. Appellant appealed his termination to the Board, and the hearing on the appeal was held on September 7, 2005. At the conclusion of the hearing, the Board upheld its termination of Appellant by a vote of three to one. Appellant subsequently appealed the Board’s decision to the Tenth Judicial District Court, which affirmed the Board’s decision, finding that “[t]here was sufficient evidence upon which the Board could have based its decision for legal cause.” The court further stated that the Board members’ good faith in upholding Appellant’s termination was reflected in their discussions in the transcript. Appellant now appeals.

ASSIGNMENTS OF ERROR:

1) The trial court committed error of law when it affirmed the decision of the City of Natchitoches Municipal Fire & Police Civil Service Board, finding that there was a valid Loudemnill decision.

2) The trial court committed error of law when it upheld the Board’s ruling that the pre-termination hearing conducted on May 4, 2005, met the requirements of Loudermill and Louisiana case law concerning scope and depth of a pre-termi-nation hearing.

The trial court committed error of law when it affirmed the defective notice of termination dated May 19, 2005, and defective notice of termination dated May 20, 2005, with no prior pre-disciplinary hearing.

|o3) The trial court committed error of law when it found that the decision of the Natchitoches Municipal Fire & Police Civil Service Board was correct and the appointing authority established by a preponderance of the evidence that the decision to terminate was correct.

4) The trial court committed error of law when it affirmed the Board’s ruling that based upon statements made by Chief of Police Melvin Holmes to the Board at the hearing that he has no alternative method of discipline and that he could not punish Lt. Jones by reprimand or suspension since Lt. Jones had received a ninety day suspension some ten years prior to the date of the instant litigation, contrary to established case law and the provisions of La.R.S. 33:2500(B).

STANDARD OF REVIEW

A trial court’s factual determinations are subject to the manifest error standard of review and may not be overturned unless they are found to be “manifestly erroneous” or “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). “Nevertheless, when the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required, whenever possible, to redetermine the facts de novo from the entire record and render a judgment on the merits.” Ferrell v. Fireman’s Fund Ins. Co., 94-1252, p. 4 (La.2/20/95), 650 So.2d 742, 745.

LAW AND ANALYSIS

Assignment of Error Nos. 1 & 2:

In his brief, Appellant argues that the trial court committed an error of law when it affirmed the decision of the Board, finding that there was a valid Loudermill hearing, as well as valid notice of said hearing. The trial court ruled that Appellant correctly cited Riggins v. Department of Sanitation, 617 So.2d 112 (La.App. 4 Cir.), 4writ denied, 619 So.2d 1064 (La. 1993), which relied on Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), to hold that prior to a pre-disciplinary hearing, the employee is entitled to: (1) oral or written notice of the charges against him; (2) an explanation of the employer’s evidence; and (3) an opportunity to present his side of the story. However, as the trial court pointed out, neither the Loudermill case, nor the Riggins case states the extent of the information that must be given to the employee. In a Fourth Circuit case, Knight v. Department of Police, 619 So.2d 1116 (La.App. 4 Cir.), writ denied, 625 So.2d 1058 (La.1993), cited by Appellant, the court held that the employer complied with Loudermill by allowing the employee to listen to a tape that formed the basis of the allegations, thereby indicating that an informal exchange of information satisfied the requirements of due process.

In the instant case, Appellant was confronted at the dealership by the Lieutenant of Internal Affairs in charge of the investigation, Micky Dove. He was present during the conversation between Lt. Dove and the owner of the dealership about the incident. Appellant was subsequently notified of the investigation being conducted and was interviewed about the incident on March 22, 2005, in the presence of both his attorney and the owner of the dealership. A letter written by Chief Holmes, dated April 22, 2005, notified Appellant of a pre-disciplinary hearing scheduled on April 28, as well as the nature of the allegation against him and the policies he allegedly violated. The trial court found that it was clear that Appellant knew the nature of the charges against him, the persons allegedly involved, and the policies allegedly violated before the pre-disciplinary hearing, which occurred on May 4, 2005. We agree.

Appellant additionally argues that the pre-disciplinary hearing, itself, was defective. In Loudermill, 470 U.S. at 545, 105 S.Ct. at 1495, the Supreme Court | (¡stated,

We have pointed out that “[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings.” Boddie v. Connecticut, 401 U.S., [371] at 378, 91 S.Ct., [780] at 786[, 28 L.Ed.2d 113 (1971) ]. See Cafeteria Workers v. McElroy, 367 U.S. 886, 894-895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). In general, “something less” than a full evidentiary hearing is sufficient prior to adverse administrative action. Matthews[Matthews] v. Eldridge, 424 U.S., [319] at 343, 96 S.Ct., [893] at 907[, 47 L.Ed.2d 18 (1976) ].

The trial court pointed out that the transcript of the hearing shows that Chief Holmes outlined the charges against Appellant and gave him the opportunity to explain or dispel his alleged actions. However, at the hearing, Appellant’s counsel simply denied everything on Appellant’s behalf and said nothing further. Nothing more was required. A subsequent hearing was scheduled for May 6, 2006; however, counsel for Appellant waived appearance for both himself and Appellant, and asked that he be sent a copy of any written decisions that were made by the Board. Thus, the trial court found that the hearing was not defective, as Appellant was present when Chief Holmes presented claims and evidence against him, and he was given an opportunity to give his side of the story. We agree with the trial court’s finding that the hearing was not defective, as we find that Appellant was afforded the essential requirements of due process as enumerated in both Riggins and Loudermill.

Assignment of Errors Nos. 3 & 4:

Appellant contends that the trial court committed an error of law when it held that the appointing authority, the police department, established by a preponderance of the evidence that the decision to terminate Appellant was correct. Appellant contends that Chief Holmes’ testimony at the court hearing established that he was of the opinion that he was required by law to terminate Appellant and could not impose |fia suspension or other disciplinary action short of termination for his alleged conduct. Chief Holmes testified as follows:

DEPONENT:
Civil Service rules mandate certain action. Mr. Jones — Lieutenant Jones had been suspended in excess of 90 days. That wasn’t an option.
But going a little further into this decision that we’re making, if you look at the documents and in reviewing his personnel file, you’ll find that he had been suspended in excess of 90 days. That leaves no choice as far as a letter of reprimand or suspension. You don’t have that choice. That option is gone.... After he’s suspended 90 days, there is no more suspension of any kind.
MR. CUNNINGHAM:
You can’t suspend a man more than once.
THE DEPONENT:
More than 90 days except for according to the rules of civil procedure law.
MR. WILLIAMS:
After he’s suspended, 90 days, there is no more suspension of any kind.
THE DEPONENT:
Correct. Now, if you look at the last page of the letter dated Mayl9th, it says, “Subsequent to your suspension letter of 90 days dated the 27th of April, once your suspension period has been completed, and you have returned to full status, should any other infractions or violations occur that would be to a degree of either a severe reprimand and/or suspension, you shall be terminated.” S-H-A-L-L' — shall be terminated.
That’s saying if any violation arise [sic] to a certain level or certain degree we have no choice but to do that.

Appellant asserts that Chief Holmes based his decision to terminate him upon a previous ninety day suspension he received on May 5, 1995. Chief Holmes represented to the Board that the laws of the state required him to terminate Appellant. However, the provisions of La.R.S. 33:2500(B) do not, in fact, prohibit Chief Holmes 17from imposing suspension or other disciplinary action upon Appellant in the instant case. Louisiana Revised Statutes 33:2500(B) states:

Unless the cause or condition justifies an employee being permanently removed from the service, disciplinary action may extend to suspension without pay for a period not exceeding the aggregate of ninety days in any period of twelve consecutive months, reduction in pay to the rate prevailing for the next lower class, reduction or demotion to a position of any lower class and to the rate of pay prevailing therefor, or such other less drastic action that may be appropriate under the circumstances. Nothing contained herein shall prevent any employee who is physically unable to perform the duties of his position from exercising his rights of voluntary retirement under any applicable law.

(Emphasis added). The statute does not allow suspensions exceeding ninety days within any period of twelve consecutive months, which did not occur in the instant case. Appellant had not been suspended since 1995, more than ten years prior to the incident at issue. Therefore, termination was not the only option for disciplinary action, and Appellant could have been suspended for up to ninety days for his actions, as his previous suspension had not occurred in the past twelve months. It is clear that Chief Holmes mistakenly believed, and mistakenly represented to the Board, that the only appropriate remedy for Appellant’s actions was termination. The Board took Chief Holmes’ mistaken understanding of the law without argument and, in turn, terminated Appellant. The Board’s reliance on Chief Holmes’ testimony is reflected in the discussion between the members in transcript of the hearing. After oral argument, Mr. Cunningham, a member of the Board stated, “the fact that he [Appellant] was suspended previously for 90 days meant that he was eligible only for one course of action, and that is dismissal. I am sorry for that. But I see no reason to overturn the Chiefs decision, and I can’t vote to do so.” Another Board member, Mr, Hebert stated, “I agree with Mr Cunningham.... I can tell you as a former chief that |sthe last thing you want to do is terminate employment. ... It’s so sad. But you have rules, and you have to obey those rules because the public is who you work for.” One more Board member concurred with Mr. Cunningham’s decision to uphold the termination, and one did not, resulting in a three to one vote in favor of affirming Appellant’s termination. Based on this evidence, we cannot determine whether the Board would have imposed a lesser disciplinary action upon Appellant had they not relied on the testimony of Chief Holmes’ mistaken understanding of the law.

On appeal from the decision of the Board, the trial court, in its reasons for judgment, states only, “it is apparent that the City felt that it had no choice but to terminate his employment considering that he had previously received a ninety day suspension.” The trial court goes on to state that its review of the Board’s decision is limited to the determination of whether it was made in good faith and for legal cause. Therefore, the trial court only ruled on the good faith of the Board. We find, however, that the trial court committed an error of law in relying on Chief Holmes’ testimony. Appellant is entitled to a hearing before the Board based on the law, and his hearing was compromised by Chief Holmes’ misrepresentation of law, as applied to the situation. The Board had the same misunderstanding, and therefore, it was an error of law for the court to affirm a decision made at a hearing, which was clearly compromised by a misunderstanding of the applicable law. See Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).

Having determined that the trial court committed an error of law, we must perform a de novo review of the record to determine whether the disciplinary action taken by the Board was' appropriate. In Lafayette v. Fire and Police Civil Service Board., 512 So.2d 533, 535 (La.App. 3 Cir. 1987), the court stated:

The burden of proving legal cause before the | ciCommission shall be on the appointing authority. City of Kenner v. Pritchett, [432 So.2d 971 (La.App. 4 Cir. 1983) ]; and Reboul v. Department of Police, [420 So.2d 491 (La.App. 4 Cir. 1982)]. Thus, the appointing authority must demonstrate, by a preponderance of the evidence that the conduct did in fact impair the efficiency and orderly operation of the public service. Newman v. Department of Fire, 425 So.2d 753 (La.1983). If this is proven, then cause is established and there is no constitutional protection for that employee if he is so informed in writing of the cause for his disciplinary action. City of Kenner v. Pritchett, supra.

Therefore, in the instant case, the Natchitoches Police Department had the burden of proving that Appellant impaired the efficiency and orderly operation of the police force by disobeying orders and going to the dealership in uniform while on duty. Id. Appellant points out, however, that nowhere in Appellant’s termination letter do Appellees assert that the orderly operation of the police force was compromised or impaired by Appellant’s actions.

Appellant testified that he went to the dealership to collect his check while he was on duty because he was allowed to take unscheduled breaks and he had not taken a break that day. Work had slowed down, and he did not intend to spend a long time at the dealership. He further asserts that he was equipped with a hand-held radio as well a cell phone, and was therefore, in communication with the radio dispatcher at the police station at all times regardless of his location. Moreover, Appellant testified that it was not uncommon for any of the officers to pick up checks from their other employers while on-duty. In fact, Appellant testified that when he and Chief Holmes had worked as security at Natchi-toches Health Department together, he used to picked up both his and the Chiefs check while he was on-duty.

Ms. MaCaulay’s testimony corroborated Appellant’s testimony that they coincidentally ran into one another at the dealership and began visiting while they | inwere waiting to speak to a finance manager. Additionally, she testified that when she requested that Appellant show her the car on the lot again, he explained that he couldn’t show her the car, stating, “Well, I’m on duty, you know.”

Although Appellant was under orders not to go to the dealership to conduct non-police business while on duty, and at the time of the incident, and Appellant was working as a shift commander, and Chief Holmes testified that he was needed to supervise the other officers on the shift, we find the Board’s termination of Appellant excessive. The case law establishes that dismissal is the most extreme form of action that can be taken against a classified state employee. Dep’t of Pub. Safety and Corr. Office of the State Police v. Mensman, 95-1950 (La.4/8/96), 671 So.2d 319, Jones v. Dep’t. of Pub. Works, 573 So.2d 567 (La.App. 5 Cir.), writ denied, 577 So.2d 12 (La.1991). Although it is clear that an on-duty police officer who disobeys orders and engages in non-police business may impair the efficient and orderly operation of the police department to some extent, we do not find that the actions in this case did so to such an extent as to warrant the termination of a twenty-year veteran of the police force. The record reflects that after his 1995 suspension, Appellant was promoted to sergeant and subsequently to lieutenant and has received no letters of reprimand or any type of discipline since the 1995 suspension. Moreover, his personnel record reflects that at no point in time has he ever received an unsatisfactory rating. If this case were remanded to the Board for determination of appropriate disciplinary action, it would impose a lesser disciplinary action upon.

“An appellate court will generally not adjudicate issues not ruled upon by the trial court, but when the appellate court has all of the facts and testimony and is able to h pronounce with certainty on the case, that appellate court should render such judgment on appeal as the trial court should have rendered at trial.” Kilbourne v. Hosea, 19 So.2d 279, 281 (La. App. 1 Cir.1944). In this case, the record is complete, and therefore, in the interest of judicial efficiency, we will render a decision in the case in lieu of remanding it. We find that based on the evidence in the record, Appellant’s actions do not amount to those befitting a termination, and therefore, find the disciplinary action imposed on Appellant by the Board to be excessive. Accordingly, we reverse the decision of the trial court, and reinstate Appellant to his former position as lieutenant with the City of Natchitoches Police Department. Additionally, we find that Appellant is entitled to receive back pay and benefits from the date of his termination. We further impose a ninety-day suspension, without pay, upon Appellant for his actions. We feel that this suspension is appropriate, as there was testimony in the record that Appellant blatantly disobeyed orders, having been repeatedly warned against going to the dealership while on duty, as well as evidence of the furtherance of a business deal between himself and Ms. MaCaulay.

CONCLUSION

After our review of the record, we find that Appellant, Lt. Rickey D. Jones, was afforded the essential requirements of due process enunciated in Riggins and Louder-mill, as he was notified of the allegations against him, he had an explanation of the evidence against him, and he had an opportunity to present his side of the story at the pre-termination hearing. However, we find that the trial court committed an error of law in upholding the Natchitoches Municipal Fire & Police Civil Service Board’s termination of Appellant, as it was based on the mistaken belief of Chief |12Holmes that termination was the sole disciplinary action that could be taken against Appellant. After a de novo review of the record, we find the Board’s termination of Appellant to be excessive, and reverse the decision of the trial court in affirming the Board’s decision. Accordingly, we reinstate Appellant to the position of Lieutenant with the City of Natchi-toches Police Department and additionally order the back payment of Appellant’s wages from the date of his termination. We further order the imposition of a ninety-day suspension, without pay, upon Appellant for his actions, as we feel it is supported by the record. All costs of this appeal are assessed to Appellees.

REVERSED AND RENDERED.


author: EZELL, Judge.

text:
    John MATHEWS v. BLACK TIE, L.L.C.
    No. CA 2006-1581.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.
    Douglas K. Hall, D.K. Hall Law Firm, L.L.C., Lake Charles, LA, for Defendant/Appellant, Black Tie, L.L.C.
    R. Michael McHale, Lake Charles, LA, for Plaintiff/Appellee, John Mathews.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   EZELL, Judge.

Bln this matter, Black Tie Cleaners appeals the decision of the trial court awarding $150 to John Mathews. For the following reasons, we affirm the decision of the trial court.

Mr. Mathews claims that on March 21, 2006, he brought twenty-nine articles of clothing to Black Tie to be cleaned. He claims that he only received nineteen items back from Black Tie. The trial court ruled in favor of Mr. Mathews, awarding him $150 for the ten missing items of clothing. From this decision, Black Tie appeals.

Black Tie asserts four assignments of error on appeal. It claims that the trial court erred in rendering a verdict contrary to the law and evidence; that Mr. Mathews failed to prove his case by clear and convincing evidence; that the trial court erred in not rendering a judgment notwithstanding the verdict (JNOV); and that the trial court incorrectly rendered judgment based on one piece of evidence. Because the record contains no motion for a JNOV or directed verdict, we need not address this assertion. See La.Code of Civ. P. art. 1811. Because the remaining assignments of error deal with the factual findings of the trial court, we shall address them together.

Black Tie claims that Mr. Mathews had to prove his case by clear and convincing evidence. This is incorrect. In Louisiana civil cases, the plaintiff has the burden of proving each and every essential element of his claim by a preponderance of the evidence. Gustafson v. Koch, 460 So.2d 655 (La.App. 1 Cir.1984).

A court of appeal should not set aside the factual findings of a trial court absent manifest error or unless the findings are clearly wrong. Stobart v. State of Louisiana, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was reasonable. Id. The appellate court will not disturb |2the decision below if credible evidence providing a reasonable factual basis for the trial court’s conclusion was presented. Boulos v. Morrison, 503 So.2d 1 (La.1987). We have previously emphasized the principle that “if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Stobart, 617 So.2d at 882-83; Siverd v. Permanent Gen. Ins. Co., 05-973 (La.2/22/06), 922 So.2d 497.

After hearing from both parties and examining all the evidence before it, the trial court decided that it believed Mr. Mathews and that he had, by a slim margin, met his burden of proof. There is nothing in the record which indicates that the finding of the trial court is unreasonable. Accordingly, the decision of the trial court is affirmed.

Mr. Mathews asks this court for an increase in the amount of damages and for attorney fees for this appeal. However, because he failed to answer Black Tie’s appeal, he is entitled to neither.

The decision of the trial court is hereby affirmed. Costs of this appeal are assessed against Black Tie.

AFFIRMED.


author: PICKETT, Judge.

text:
    Jeanne M. OLSON v. RAPIDES PARISH SHERIFF, Etc., et al.
    No. 2007-57.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2007.

      David Payne Spence, Alexandria, LA, for Defendant/Appellant, Jeff L. Melder.
    John Wyeth Scott, Alexandria, LA, for Plaintiff/Appellee, Jeanne M. Olson.
    Dannie P. Garrett III, Baton Rouge, LA, for Amicus Curiae, Police Jury Association of Louisiana.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

bThe defendant, Jeff L. Melder, appeals a judgment of the trial court granting a motion for summary judgment filed by the plaintiff, Jeanne Olson, annulling a tax sale conducted on May 3, 2000, which purported to transfer title of property owned by Olson to Louisiana Tax-1, who subsequently quitclaimed the property to Meld-er. We annul and set aside the judgment of the trial court and remand the case for further proceedings.

FACTS

The plaintiff, Jeanne M. Olson, purchased a piece of residential real estate, including improvements, described as 1908 Marigold Street, Alexandria, Louisiana, on February 18, 1999, for $89,594.44. When the property taxes for 1999 were not paid, the property was advertised and sold at a tax sale on May 3, 2000, to Louisiana Tax-1, Inc. More than 3 years after the sale, Ms. Olson contacted Louisiana Tax-1 in an attempt to regain her property. As a result of that contact, Louisiana Tax-1 prepared a contract, which it sent, eerti-fied-mail, return receipt requested, to Ms. Olson on September 8, 2003. The letter was returned as “Unclaimed” on September 24, 2003. Thereafter, on October 3, 2003, Louisiana Tax-1 transferred its ownership in the property to Jeff L. Melder, by execution of a “quitclaim” deed. This suit was filed October 14, 2003, naming William E. Hilton, the Rapides Parish Sheriff and Tax Collector, as the defendant. By a Supplemental and Amending Petition, Jeff L. Melder and Carolyn Ry-land, Clerk of Court for Rapides Parish, were added as defendants. Subsequently, the Sheriff was dismissed.

Both Ms. Olson and Mr. Melder filed Motions for Summary Judgment. The trial court ruled in favor of Ms. Olson, granting her motion for summary judgment |2and annulling the tax sale. Mr. Melders motion was dismissed. This appeal followed.

LAW AND DISCUSSION

The law applicable to summary judgments and to the appellate review thereof is well settled:

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); Yarbrough v. Federal Land Bank of Jackson, 31,815 (La. App.2d Cir. 03/31/99), 731 So.2d 482. The motion should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, 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(B); Leckie v. Auger Timber Co., 30,103 (La.App.2d Cir. 01/21/98), 707 So.2d 459. The burden of proof remains with the mover. However, if the party moving for summary judgment will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, then that party need not negate all essential elements of the adverse party’s claim, action, or defense but may simply point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense; thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy the evidentiary burden of proof at trial, there is no genuine issue of material fact. See, La. C.C.P. art. 966(C)(2). When a motion is made and supported, as required by La. C.C.P. art. 966, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967.
Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Kennedy v. Holder, 33,346 (La.App.2d Cir. 05/10/00), 760 So.2d 587.

3Semien v. EADS Aeroframe Servs., LLC, 04-760, pp. 1-2 (La.App. 3 Cir. 2/2/05), 893 So.2d 215, 216-17 (quoting Sidwell v. Horseshoe Entm’t Ltd. P’ship, 35, 718, pp. 2-4 (La.App. 2 Cir. 2/27/02), 811 So.2d 229, 230-31)(first emphasis added).

The laws dealing with tax sales and applicable to this case can be found in the La. Const, art. 7, § 25(A)(1) and La.R.S. 47:2184. Louisiana Constitution Article 7, § 25(A)(1) states as follows:

There shall be no forfeiture of property for nonpayment of taxes. However, at the expiration of the year in which the taxes are due, the collector, without suit, and after giving notice to the delinquent in the manner provided by law, shall advertise for sale the property on which the taxes are due. The advertisement shall be published in the official journal of the parish or municipality, or, if there is no official journal, as provided by law for sheriffs’ sales, in the manner provided for judicial sales. On the day of sale, the collector shall sell the portion of the property which the debtor points out. If the debtor does not point out sufficient property, the collector shall sell immediately the least quantity of property which any bidder will buy for the amount of the taxes, interest, and costs. The sale shall be without appraisement. A tax deed by a tax collector shall be prima facie evidence that a valid sale was made.

Louisiana Revised Statutes 47:2184 states:

The tax sale shall convey, and the purchaser shall take, the whole of the property assessed to the delinquent taxpayer if it is the least quantity sufficient to satisfy the aggregate of all taxes, interest, penalties, and costs. If the property is divisible in kind and a part of the whole is sufficient to satisfy such aggregate charges, the collector shall require the bid or bids to be for such lesser portion of the whole property as will satisfy such charges and shall not entertain a bid in excess thereof. In determining if the property is divisible in kind the description of the property on the assessment rolls shall be binding on the tax collector. The tax collector shall not be required and shall be prohibited from dividing the property into smaller quantities than that contained in the description of the property contained on the assessment rolls. If the tax collector determines from the description of the property contained on the assessment rolls that it is not divisible in kind he shall then proceed to sell such lesser undivided interest of the whole property as will satisfy such charges and shall not entertain a bid in excess thereof. The tax sale shall convey and the purchaser shall take the entirety of the property intended to be assessed and sold as it was owned by the delinquent taxpayer regardless of any error in the dimensions or | ¿description of the property as assessed and sold. The tax collector in the advertisement or deed of sale may give the full description according to original titles.

Considering the foregoing section of the Constitution, the Revised Statute and the record, as a whole, our independent review of the record convinces us that the granting of the plaintiffs motion for summary judgment was an error. We find a number of genuine issues of material fact that preclude the plaintiff being entitled to judgment as a matter of law.

First, we cannot conclude from the record whether Mr. Melder is the proper defendant. His claim to the property is via quitclaim deed from Louisiana Tax-1. Louisiana Tax-1 claims title from a tax sale deed executed May 5, 2000, by Harry Yermaelen, Chief Deputy Tax Collector for Rapides Parish. However, we also find an affidavit executed by Mr. Vermaelen on April 18, 2006, wherein he states: “This property has also been adjudicated at public tax sales in 2001, 2002, [and] 2003.” That same affidavit also states: “At the tax sale of May 3, 2000, and also at the public tax sale in 2001, 2002 and 2003, action did not take place to sell any lesser portion of the property nor to sell any undivided interest.”

If the property was resold for taxes in 2001, 2002, and 2003, as Mr. Yermaelen’s affidavit states, who bought the property? Mr. Melder holds his title via a quitclaim deed; hence his interest is no more than the interest Louisiana Tax-1 had at the time it executed the quitclaim. If three other parties bought the property for taxes in 2001, 2002, and 2003, respectively, then Louisiana Tax-1 had no interest to convey. To be entitled to a judgment “as a matter of law” one must bring suit against the proper party. The record does not establish that Mr. Melder is the proper party defendant.

| ^Additionally, the record fails to establish the value of Ms. Olson’s property. While an appraisal is not required by law, if one is to, at least, attempt to comply with the mandate of La. Const, art. 7, § 25(A)(1) that “the collector shall sell immediately the least quantity of property which any bidder will buy for the amount of the taxes, interest, and costs” and the portion of La.R.S. 47:2184 which states: “he shall then proceed to sell such lesser undivided interest of the whole property as will satisfy such charges,” a bidder must have some knowledge of the value of the property offered for sale. The record contains no such information, not even the tax assessment for the years, 2000, 2001, 2002, or 2003. While that information my have been made available to the bidders, there simply is no evidence in the record of the information being presented.

Finally, although La. Const, art. 7, § 25(A)(1) (emphasis ours) provides that “the collector shall sell immediately the least quantity of property which any bidder will buy for the amount of the taxes, interest, and costs,” the record does not reflect that anything other than 100% interest in the property was the least quantity of property which any bidder would buy. The tax sale deed states “100% interest bid, being the least bid sufficient to pay the taxes interest and costs,” and not that a 100% interest bid was “the least quantity of property which any bidder will buy ” for the amount of the taxes, interest, and costs.

Whether Mr. Melder is, indeed the proper party defendant; whether the property in question was sold to other parties in 2001, 2002, and 2003; whether the value of the property was made known to the bidders at the tax sale(s); and whether 100% interest in the property was the least quantity of property which any bidder [ fiWould have bought for the amount of the taxes, interest, and costs due, are all genuine issue of material fact which preclude the granting of summary judgment in this case.

Accordingly, the judgment of the trial court granting Ms. Olson’s motion for summary judgment and denying Mr. Melder’s motion for summary judgment is annulled and set aside. The case is remanded for further proceedings, not inconsistent with this opinion. Each side is to bear his/her own costs of this appeal.

ANNULLED AND SET ASIDE; REMANDED.