text:
    Nathaniel M. ROBINSON v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Brian Baldwin and State Farm Mutual Automobile Insurance Company.
    No. 07-CA-379.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2007.
    Stephen M. Smith, Attorney at Law, Baton Rouge, LA, for Plaintiff/Appellant.
    Joseph M. Messina, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

| ^Plaintiff, Nathaniel Robinson, appeals from the trial court judgment granting the exception of prescription filed by Defendants, Brian Baldwin and State Farm Mutual Automobile Insurance Company as both the insured of Baldwin and the uninsured carrier of Robinson. For the reasons which follow, we reverse and remand.

According to the petition, Plaintiff was in an automobile accident with Defendant Baldwin in which Baldwin rear-ended Plaintiff. The accident occurred on December 3, 2004. Plaintiffs lawsuit against Defendants was filed on May 18, 2006. Defendants filed a peremptory exception of prescription to the lawsuit. Plaintiff opposed the exception, relying on La. R.S. 9:5822 and 5824, statutes enacted following hurricanes Katrina and Rita extending prescriptive periods. Following a hearing on August 30, 2006, the trial court rendered judgment on |sSeptember 18, 2006, sustaining the exception of prescription. It is from this judgment that Plaintiff appeals.

La. R.S. 9:5822, extending all prescriptive periods provides:

A. All prescriptions, including libera-tive, acquisitive, and the prescription of nonuse, and all peremptive periods shall be subject to a limited suspension and/or extension during the time period of August 26, 2005, through January 3, 2006; however, the suspension and/or extension of these periods shall be limited and shall apply only if these periods would have otherwise lapsed during the time period of August 26, 2005, through January 3, 2006. This limited suspension and/or extension shall terminate on January 3, 2006, and any right, claim, or action which would have expired during the time period of August 26, 2005, through January 3, 2006, shall lapse on January 4, 2006.
B. The provisions of Subsection A shall not apply to any matter concerning the prescription of nonuse applicable to mineral servitudes, mineral royalty interests, and executive rights and shall be governed by the Louisiana Mineral Code and are not subject to the suspension provisions in this Section.

La. R.S. 9:5824, further extending prescriptive periods in certain parishes and for certain reasons, provides:

A. The legislature finds that Hurricanes Katrina and Rita created a statewide emergency which affected the entire judicial system in this state and all legal communities, and prohibited the court system from functioning as required by law. The legislature acknowledges that the proper functioning of this state’s judicial system is essential to the administration of justice for all citizens. The legislature also recognizes that the courts in Cameron, Orleans, Plaque-mines, St. Bernard, Jefferson, and Vermilion, the legal communities, and the citizens were so severely devastated and although the courts may be open on a limited basis, the massive destruction of these areas continues to endanger and infringe upon the normal functioning of the judicial system, the ability of persons to avail themselves of the judicial system and the ability of litigants or others to have access to the courts or to meet schedules or time deadlines imposed by court order or rule or statute. The majority of residents and attorneys domiciled in these 14areas have been displaced and numerous client files, witnesses, evidence, records and documents have been lost, damaged, or destroyed. The legislature hereby declares that there is a compelling governmental interest in protecting the rights, claims, or actions of parties and the attorneys who represent them by granting additional time and access to these courts provided in this Section.
B. (1) Notwithstanding the provisions of R.S. 9:5822 or 5823, a party who is domiciled within the parishes of Cameron, Orleans, Plaquemines, St. Bernard, Jefferson, or Vermilion, or whose cause of action arose within such parishes or whose attorney is domiciled within or has a law office within such parishes, may seek in any court of competent jurisdiction in this state a limited suspension and/or extension of prescription or peremption periods or other legal deadlines, beyond the termination dates provided in R.S. 9:5822 and 5823, by contradictory motion or declaratory judgment. The party seeking an additional suspension and/or extension, in accordance with the provisions of this Section, shall bear the burden of proving by a preponderance of the evidence that the motion was filed at the earliest time practicable and but for the catastrophic effects of Hurricane Katrina or Rita, the legal deadline would have been timely met. If the court grants the motion, the prescription or peremptive period or other legal deadline shall be suspended or extended for a period not to exceed thirty days from the date of the granting of the motion. This limited suspension or extension shall terminate on June 1, 2006, and any right, claim, or action which would have expired during the time period of January 4, 2006, through May 31, 2006, shall lapse on June 1, 2006.
(2) The failure to file the motion authorized in Paragraph (1) of this Subsection shall not preclude a party from using the basis of the motion as a defense to an exception of prescription. (Emphasis added.)

Plaintiff argues the trial court erred in not finding, based on these two statutes, that his case was timely filed. He contends that La. R.S. 9:5822 gave him until at least through January 3, 2006 to file his suit. Thereafter, under La. R.S. 9:5824, because Plaintiff was domiciled in Jefferson Parish, the accident occurred in Jefferson Parish and Plaintiffs counsel’s office was in Orleans Parish, prescription was further extended to June 1, 2006, provided Plaintiff, following a | incontradictory hearing, “prov[ed] by a preponderance of the evidence that the [case] was filed at the earliest time practicable and but for the catastrophic effects of Hurricane Katrina or Rita, the legal deadline would have been timely met.”

The Defendants argued in the trial court that Plaintiff was not entitled to the extension of prescription granted by La. R.S. 9:5824 because he had not filed a contradictory motion or action for declaratory judgment requesting the extension. The trial court accepted Defendants’ argument and granted the exception of prescription upon finding:

La. R.S. 9:5824 allowed plaintiff to seek future suspension of prescriptive periods only by filing a contradictory motion asking the Court to allow a further suspension. Here, that motion was not filed. Therefore, this Court grants the Exception of Prescription.

Both Defendants and the trial court overlooked the last part of the statute which provides that the failure to file the motion authorized by the statute “shall not preclude a party from using the basis of the motion as a defense to an exception of prescription.” No finding was made by the trial court as to whether Plaintiff filed suit “at the earliest time practicable and but for the catastrophic effects of Hurricane Katrina or Rita, the legal deadline would have been timely met.” Therefore, we find the trial court erred, as a matter of law, in granting the exception based solely on the grounds that Plaintiff did not file a contradictory motion requesting the extension of prescription granted under the terms of La. R.S. 9:5824.

Accordingly, we reverse the trial court judgment, granting the exception of prescription, and remand the case to the trial court for a contradictory hearing to determine whether Plaintiff can meet his burden, as prescribed in La. R.S. 9:5824, by a preponderance of the evidence that the case “was filed at the earliest time Impracticable and but for the catastrophic effects of Hurricane Katrina or Rita, the legal deadline would have been timely met.”

REVERSED AND REMANDED.


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    Joseph A. ALMERICO v. HARAHAN MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD.
    No. 07-CA-502.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2007.
    Brandon J. Venegas, Attorney at Law, Metairie, Louisiana, for Plaintiff/Appellant.

      Thomas P. Anzelmo, Sr., Kyle P. Kirsch, Andre J. Lagarde, McCranie, Sistruck, Anzelmo, Hardy, Maxwell & McDaniel, Attorneys at Law, Metairie, Louisiana, for Intervenor/Appellee.
    David I. Courcelle, Courcelle & Burkhal-ter, Attorney at Law, Metairie, Louisiana, for Appellee/Respondent.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

| ¡¿Plaintiff, Joseph A. Almerico, appeals the December 21, 2006 judgment of the trial court which itself was rendered on appeal from a judgment of the Harahan Municipal Fire and Police Civil Service Board affirming the actions of the appointing authority, Harahan Police Chief Peter L. Dale, in terminating plaintiffs employment.

The procedural history of this case was set forth in our prior opinion, Almerico v. Dale, 05-861 (La.App. 5 Cir. 3/28/06), 927 So.2d 1190, 1191-2, and was adopted by the trial court in this proceeding. The trial court stated, as follows:

On March 7, 2005, Almerico filed a Petition for Temporary Restraining Order, Preliminary and Permanent Injunction, Declaratory Injunction and Damages against Peter L. Dale, Chief of Police for the City of Harahan, The Harahan Police Department and the City of Hara-han. In August 2004, Almerico began sick leave for a work-related adjustment disorder, as diagnosed by his psychiatrist. Almerico alleges that he complied with the Civil Services Rules by providing a doctor’s certificate for his request for sick leave. On September 30, 2004, Chief Dale “decommissioned” Almerico for alleged safety reasons. On December 30, 2004, Chief Dale issued a General Order addressing the sick leave directed to his department and enumerating ten special regulations. Numerous conditions were included on the General Order, however, both parties argued that the only conditions at issue pertained to directive (1) ordering that the employee is required to provide medical documentation within seven days of returning to work; (8) the chief has the right to order medical documentation at any time irrespective to the number of days or number of times the employee has been absent; and (10) the chief has the right to order any employee to any physician [of] his or her choice, for full medical preview and examination of the employee’s illness.
On February 11, 2005, Chief Dale instructed the City of Harahan to not pay Almerico and on February 18, 2005, he wrote a letter to Almerico enclosing a copy of General Order and ordering Al-merico to be examined by Dr. Howard Osofsky, a psychiatrist, bringing with him his medical records. On May 4, 2005, Almerico was terminated for disobeying the February 18th order regarding a medical exam. In Almerico’s original petition to the court, he sought an injunction and declaratory judgment declaring that the General Order with respect to sick leave was null and void as violative of LSA-R.S. 33:2557. On June 9, 2005, the district court issued a judgment which declared most portions of the General Order to be without effect, except for directives 1, 8, and 10. The district court held those items were consistent with the enforcement of Civil Service Board Rules, and ordered Al-merico to authorize production of his medical records under seal, including notes, to the independent psychiatrist, and to submit to an examination. Al-merico appealed the district court’s ruling and urged that the Civil Service Board, not Chief Dale, has the right to promulgate sick leave rules. This issue was presented to the Fifth Circuit Court of Appeal and on March 28, 20006, the Court stated that the directives in question were encompassed within the Chiefs day-to-day authority and the Harahan Civil Service Rules granted discretion to the chief in determining the authenticity of an employee’s illness. Therefore, the Fifth Circuit held that the Chief Dale’s order to report to an IME and produce medical records was not in conflict with the Civil Service Board’s right to regulate sick leave, or its rules and the judgment of the district court was affirmed. On September 15, 2006, the Louisiana Supreme Court denied plaintiff Almerico’s writ of certiora-ri and/or review.

Almerico then filed in the district court, seeking review of the Civil Service Board’s finding that Chief Dale acted in good faith and with legal cause in terminating him for his failure to comply with the February 18th order, which was issued prior to a ruling from the district court (and this Court) on his petition for declaratory relief.

A civil service employee is afforded protection in disciplinary actions, taken without cause, pursuant to La. Const. Art. 10 Sec. 8(A). Adams v. Jefferson Parish Department of Community Action Programs, 02-1090 (La.App. 5 Cir. 4/29/2003), 845 So.2d 1147; Lewis v. Jefferson Parish Dept. of Public Works, 99-16 (La.App. 5 Cir. 5/19/99), 761 So.2d 558, writ denied, 99-2906 (La.1/14/00), 753 So.2d 215. |5A dismissal of a civil servant “for cause” is synonymous with legal cause. Adams, supra; Lewis, supra. Legal cause for disciplinary action exists if the facts found by the commission disclose that the conduct of the employee impairs the efficiency of the public service. Bruno v. Jefferson Parish Library Dept., 04-504 (La.App. 5 Cir. 11/30/04), 890 So.2d 604. Adams, supra.

A public employee may apply to the Board for a review of discharge or disciplinary action, at which time the appointing authority bears the burden of proving legal cause. Adams, supra. The Personnel Board has a duty to decide, independently from the facts presented, whether the appointing authority has good and lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. La. R.S. 33:2561, Bruno, supra.

On appeal, this Court should apply the clearly wrong or manifest error rule. Adams, supra. An appellate court review of an administrative disciplinary decision is limited to a determination of whether the decision was made in good faith for legal cause; unless the record contains insufficient evidence to support the administrative decision or shows that the decision was clearly wrong, the decision must be affirmed. Adams, supra.

The Board upheld the termination by a vote of 3-2 after a hearing was held on June 14 and June 15. The trial court reviewed that decision, and affirmed the decision of the Board.

Our review of the record before us finds that the record supports the decision of the Board, and of the trial court.

At the two day Board hearing, the testimony established that the appointing authority issued an order to Almerico to appear for an examination before Dr. Osof-sky, and to sign a HIPPA release form. Almerico stated that he signed the form, albeit untimely, but that he did not show up for the medical examination ^because his records had not been sent to Dr. Osof-sky. After the appointing authority conducted an internal affairs investigation and determined that Almerico failed to obey a direct order, Almerico was fired for insubordination.

At the hearing, Chief Dale testified that the Department depends on chain of command, and an employee does not have the right to decide whether they want to follow orders or not. Failure to follow orders can cause an erosion of the ability to provide public service. Almerico was third in command, and thus in the highest position of command under Dale and he was responsible for supervising 80% of the force. For him to blatantly disobey an order impairs his ability to supervise.

Almerico argues that the validity of the sick leave policy, specifically those that gave Chief Dale the authority to order him to go to the medical examination, had not been finally litigated, and therefore his failure to follow the rule was not insubordination. However, his request for TRO had been denied, his motion for preliminary injunction had been withdrawn, and the issue was presented before the court on petition for declaratory judgment. There was nothing at that time staying the order issued to Almerico.

In brief to this Court, Almerico first alleges that the June 9, 2005 judgment, which contained the provisos that his medical records could be ordered only under protective seal, somehow invalidated the order that he appear for medical examination. At the hearing, Dr. Osofsky stated that he would have preferred the opportunity to review the records prior to his examination, but he could still have conducted the examination and then reviewed the records, had Almerico kept the appointment. At the Board hearing, Almeri-co stated that he checked to see if his records had been delivered to Dr. Osof-sky’s office, and on finding that they hadn’t her felt relieved. He also admitted that he did not provide any notice of his intent not to go to the examination appointment. The evidence presented clearly shows 17that Almerico was terminated for failing to appear for the examination, and not for failure to sign the release, which he stated he did sign.

Almerico next argues that the provision allowing the appointing authority to order an employee to submit to a medical examination divested him of earned right to sick leave. We disagree. This provision is not a substantive change to any sick leave rights that Almerico may have accrued.

Finally, Almerico alleges that both the board and the trial court erred in failing to consider whether Chief Dale was in good faith in terminating his employment. The trial court, in its reasons for judgment upholding the Board’s decision stated that

This Court is under the opinion that the contested February 18th order was not completely invalidated and that certain portions, more specifically the order to attend an IME, were effectively amended and should have been complied with. The Civil Service Board as well as the Internal Affairs Investigation both viewed Almerico’s action in failing to attend the medical exam with or without medical records as a direct violation of an order. This fact cannot be ignored and the alleged subjective actions of Chief Dale and Almerico are of no moment.
While the Court sympathizes with the result therein; the standard on review on appeal does not amount to a review of the findings of fact absent manifest error nor does the totality of the circumstances permit this Court to consider what course of actions should have been taken and were made with good faith. The question on appeal is whether there was legal cause for the Civil service Board to render its decision. Adhering to the manifest error standard, the Court must view the Board’s finding or fact and credibility of testimony with regard to a direct violation of the General Order and February 18th letter as sufficient grounds for termination.

Here the Board determined that the appointing authority had good cause to terminate Almerieo for his actions in disobeying a direct order charging him to submit to an IME. They further determined that termination was commensurate with his insubordination, that being his refusal to follow the order. Our review shows that the record contains sufficient evidence to support the disciplinary | sdecision, and reflects that the decision was not manifestly erroneous or clearly wrong.

For the above discussed reasons, the decision of the trial court affirming the ruling of the Civil Service Board is affirmed.

AFFIRMED.


author: THOMAS F. DALEY, Judge.

text:
    Carmen HAMILTON v. COMPASS GROUP USA/MORRISON.
    No. 07-CA-501.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2007.

      James E. Vinturella, Lewis & Caplan, New Orleans, Louisiana, for Plaintiff/Ap-pellee.
    Richard S. Vale, Corey Fitzpatrick, Blue Williams, L.L.P. Metairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and CLARENCE E. McMANUS.
   THOMAS F. DALEY, Judge.

|2In this workers’ compensation suit, defendant, Compass/Morrison Cafeteria, appeals the trial court’s finding that claimant, Carmen Hamilton, suffered a compensable workplace accident. They argue that the alleged accident was unwitnessed and uncorroborated. Second, defendant appeals the trial court’s award of penalties and attorney’s fees under LSA-R.S. 23:1201(F). The trial court, in its judgment, specifically stated that he based his judgment upon the credibility of the witnesses. After thorough review of the record and applicable law, we affirm.

The record reveals that Carmen Hamilton was employed on February 21, 2005, the date of the alleged workplace accident, by Compass/Morrison Cafeteria at Kenner Regional Hospital as a hostess. She was 58 years old. Compass provided in-patient food service to the hospital. Hamilton’s job as hostess was to load the patient food trays on to a large metal cart and deliver them to the patients in their rooms. Hamilton testified that the carts were very heavy. Hamilton testified that as she was delivering lunch trays, she heard a “pop” in her back and [¡¿hen felt excruciating pain going down into both of her legs. She stated that she finished delivering the trays, and then found Ms. Roseanne Lee, her supervisor, and told her of the incident. Hamilton then left to see her doctor, Dr. Blasini. However, there was no appointment available, so Hamilton returned to Dr. Blasini’s office the next day, where she was “fit in” to the appointment schedule.

Hamilton testified that she completed the 10th grade. She had worked at Kenner Regional Hospital for four months. Prior to that, she was employed by Compass at Doctors’ Hospital in the same position. Other past jobs included janitorial work at a high school.

Ms. Roseanne Lee agreed that Mrs. Hamilton found her on that day and told her that her back was hurting her and that she had to see her doctor. She testified that she specifically asked Hamilton if she hurt her back at work, to which Hamilton replied “no” and said that she had prior back problems. Ms. Lee, therefore, did not fill out the customary accident/injury report. Based upon this discrepancy, Compass denied coverage and has paid claimant no workers’ compensation benefits or medical benefits.

Hamilton was initially treated by Dr. Blasini, who diagnosed acute disc herniation. She gave Hamilton a shot for pain, prescribed bed rest, and gave Hamilton a doctor’s excuse that said she should not work, which Hamilton’s husband brought to Ms. Lee. Dr. Blasini also recommended an MRI.

In Dr. Blasini’s office notes of the initial visit on February 22, 2005, there is no notation that Hamilton told her she hurt herself at work. In every other office visit note, however, Dr. Blasini reports that Hamilton hurt her back at work. Likewise, the treatment notes from the physical therapist and MRI appointment all note that Hamilton reported hurting her back at work.

^Hamilton testified that she had been in an auto accident about two years before this incident, but had hurt her neck, not her back. She also described a prior workers’ compensation claim for sinus problems. The records of these incidents, plus Hamilton’s prior medical records, were subpoenaed by Compass during the discovery process. Hamilton also testified that she underwent a pre-employment physical prior to working at Kenner Regional, which she passed, or she would not have been cleared to work.

Hamilton testified that she has not returned to work since the injury, and no doctor has told her she can return to work.

Ms. Roseanne Lee, who was the Director of Food and Nutrition at Kenner Regional Hospital and Hamilton’s direct supervisor, testified next. She said that Hamilton was a good employee. She remembered Hamilton reporting to her that her back hurt and that she needed to leave to try to see her doctor. She testified that she specifically asked Hamilton if she hurt herself at work, to which she remembered Hamilton replied “no.” Lee also testified that Hamilton said she had previous back problems.

Lee testified that in the seven years she had been a food service director, she might have had ten (10) total claims of employee injuries. She testified that she did not follow her usual reporting procedure because Hamilton denied having a work injury. She admitted receiving the doctor’s excuse from Hamilton’s husband. She also said that no one else in her employ had ever reported a back injury while pushing the cart. On cross, Lee admitted that the cart was large and heavy, and that other employees had complained about the weight of the cart.

Lee testified that she knew that Hamilton had passed her pre-employment physical. She could not explain why those records had not been produced to claimant in discovery as requested. She admitted that Hamilton’s personnel |Rrecords, which contained the results of the pre-employment physical, had been located in her office and were under her control until she left that employment in September of 2005. Lee she denied ever being asked by defense counsel to produce them. She also admitted that no one else at the hospital could have completed the necessary accident form, and that Hamilton could not have completed it herself.

On cross, Lee was not aware that Dr. Blasini’s office notes from Hamilton’s second appointment clearly referenced a work-related accident. She also admitted, on cross examination, that she was not aware that Hamilton reported a work-related injury to every doctor she saw in connection with this case. She testified that she was also not aware of Hamilton’s statement to Sylvia Lopez, the insurance adjustor, which described a work-related accident on this date.

DISCUSSION

The Third Circuit, in Monceaux v. R & R Construction, Inc., had occasion to address both the standard of review and a claimant’s burden of proof in workers’ compensation cases involving unwitnessed accidents. In that case, the court said:

In Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the Supreme Court discussed the standard of review in workers’ compensation cases:
In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). * * * Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and | inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98,105.
* * *
Recently, this court addressed a claimant’s burden in proving the [sic] he/she suffered a work-related accident:
In order to recover workers’ compensation benefits, an injured employee must prove by a preponderance of the evidence that he suffered a “personal injury by accident arising out of and in the course of his employment.” La.R.S. 23:1031(A). An “accident” is defined as an “unexpected or unfor-seen [sic] actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).

The Louisiana Supreme Court, in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992), expounded on what proof will satisfy an employee’s burden in proving a work-related injury:

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson v. Roadway Express, Inc., 588 So.2d 350 (La. 1991). Corroboration may also be provided by medical evidence. West, supra.
The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babeo Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La. 1988) (collecting cases).

Monceaux, 05-533, pp. 6-8 (La.App. 3 Cir. 12/30/05), 919 So.2d 795, 798-800 (emphasis added).

17Compass relies upon the following discrepancies to support their denial of Hamilton’s claims. First, they note that there were no witnesses to the accident. Second, they note that in the recorded statement Hamilton gave to Ms. Lopez, Compass’s adjustor, on March 2005, she couldn’t remember exactly what time the accident happened, whereas at trial, Hamilton stated that the accident happened between 12:00 p.m. and 12:30 p.m. because it occurred while she was delivering lunch trays, and they usually started delivering lunch around 12:00 p.m. (On cross examination, Hamilton again stated that she was not sure of the exact time the accident happened.) Third, they point to Ms. Lee’s testimony wherein she specifically recalled Hamilton denying that a workplace accident or injury occurred. Fourth, they note that nowhere in Dr. Blasini’s office notes for February 22, 2005, Hamilton’s first visit the day after the alleged injury, does it state that Hamilton sustained a work-related injury.

As discussed above, a worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. The fact that the accident was unwitnessed does not, in and of itself, defeat Hamilton’s claim.

Our review of the testimony and evidence shows that the discrepancies upon which Compass relied to deny Hamilton’s claim are minor and do not cast serious doubt upon Hamilton’s version of the event. Hamilton has claimed that she sustained her injury while delivering the lunch trays, which she stated took place at the same time each day, between 12:00 p.m. and 12:30 p.m. Ms. Lee, Hamilton’s supervisor, confirmed that Hamilton reported her back pain to her that day following delivery of the lunch trays. Hamilton’s inability to remember the exact |stime the incident occurred is not a discrepancy that casts doubt on her version of events.

Further, Hamilton’s testimony is corroborated by circumstances following the alleged incident. All of her treating physicians and the MRI report confirm that Hamilton told them she hurt her back at work. Compass points to the absence of that fact in Dr. Blasini’s office notes from claimant’s first visit on February 22, 2005. It is true that the doctor’s notes do not state that Hamilton reported a work-related accident, but that omission was explained by the fact that on that day, Hamilton did not have an appointment and was fit into a full appointment schedule. We find, as did the trial court presumably did, that this is minor discrepancy in the doctor’s record keeping does not seriously challenge the credibility of claimant’s version of events, given the consistency of the rest of the reports.

Finally, defendant argues that Lee’s version of the events contradicts Hamilton’s; specifically, that Lee testified that Hamilton specifically told her it was not a work-related injury, but was a pre-existing back complaint. Hamilton was emphatic in her testimony that she told Lee that she had hurt her back at work. The trial court was required to assess the credibility of the witnesses. In the judgment, the trial court specifically stated that he observed the witnesses’ demeanors, and found Hamilton to be a credible witness, but he found Lee was hot.

As noted above, when findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. After considering the testimony and evidence, and the standard of review, this Court declines to overturn the trial court’s finding of facts based upon these credibility determinations. We find no |flmanifest error in the trial court’s ruling that Carmen Hamilton sustained a work-related, compensable injury.

Next, defendant appeals the trial court’s assessment of penalties and attorney’s fees, under LSA-R.S. 23:1201(F), for failure to reasonably controvert the claim.

Recently, the Second Circuit, in Lee v. Heritage Manor of Bossier City, 41,828 (La.App. 2 Cir. 3/14/07), 954 So.2d 276, 283-284, writ denied, 07-0736 (La.5/18/07), 957 So.2d 157, discussed the application of this statute:

La. R.S. 23:1201(F) provides for the assessment of a penalty and reasonable attorney fees against the employer or insurer for the failure to timely commence or timely continue paying benefits unless the claim is reasonably controverted or if the nonpayment results from conditions over which the employer or insurer had no control. The meaning of “reasonably controverted” in the context of this statute was addressed in Brown v. Texas-LA Cartage Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890:
In general, one can surmise from the plain meaning of the words making up the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.
Awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41; Sharbo-no v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Williams, supra.

The determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact, and the trial court’s finding shall not |inbe disturbed absent manifest error. The crucial inquiry in making this determination is whether the employer had an objective reason to deny benefits. Bertrand v. Dow Chemical Co., 05-1246 (La.App. 1 Cir. 12/20/06), 951 So.2d 263, unit denied, 07-0098 (La.3/9/07), 949 So.2d 453.

In denying the claim, the record shows that Compass relied upon Ms. Lee’s version of the incident, which differed from Hamilton’s, and also relied upon the omission in Dr. Blasini’s office note from February 22, 2005 that a work-related accident took place. Defendant subpoenaed Hamilton’s past medical records and records of her auto accident, none of which revealed any previous treatment for back problems. Defendant further failed to produce to Hamilton during discovery her own personnel records, which contained the results of her pre-employment physical, which Ms. Lee admitted she passed and presumably which would have supported Hamilton’s claim that she had no prior back problems. This appears to be the sum of other factual and/or medical information considered by defendants in denying Hamilton’s claim.

In Bertrand, supra, the court reversed a ruling that found the employer had no valid legal reason to deny workers’ compensation benefits to the claimant, where the doctor’s notes and the claimant’s statement supported the employer’s belief that the claimant’s disability resulted from a gradual deterioration secondary to a prior injury instead of the new accident. In the instant case, Hamilton’s statement to the adjustor was consistent with her testimony and reports to all her physicians and other treating health care professionals. Further, the defendant in this case has produced no conflicting medical information that contradicts Hamilton’s assertion that she hurt her back at work rather than suffered from a previous back condition.

|„We find no manifest error in the trial court’s conclusion that defendant failed to reasonably controvert the claim, and affirm the award of penalties and attorney’s fees.

Hamilton has answered the appeal, requesting additional attorney’s fees for defending this appeal. We agree. A workers’ compensation claimant who timely answers the appeal is entitled to increased attorney fees and penalties to reflect additional time incurred in defending against an employer/insurer’s unsuccessful appeal, especially where the claimant makes a clear showing of the employer’s arbitrary and capricious refusal to pay the claim. Hucke v. New Orleans Glass, 03-1709 (La.App. 4 Cir. 2/11/04), 868 So.2d 166, vnit denied, 04-0662 (La.4/30/04), 872 So.2d 497. We award counsel for Hamilton $2,000.00 in attorney’s fees for the defense of this appeal.

AFFIRMED.

      . 05-533 (La.App. 3 Cir. 12/30/05), 919 So.2d 795, writ denied 06-0585 (La.5/5/06), 927 So.2d 325, 06-0636 (La.5/5/06), 927 So.2d 317.


author: SUSAN M. CHEHARDY, Judge.

text:
    Samuel BURFICT v. MAFIA / “BAD” MASONS.
    No. 07-CA-466.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2007.

      Samuel Burfict, I.P.P., Harvey, Louisiana, for Plaintiff/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

1 ¡.This is an appeal by a pro se plaintiff. We dismiss the appeal for lack of jurisdiction due to the absence of an appealable judgment in the record, and remand the matter to the district court.

Samuel Burfict initiated this lawsuit on March 2, 2006, with a Petition/Motion for an Emergency Restraining Order in the district court. The petition did not specifically designate any individuals as defendants.

The record does not indicate the petition was ever served on anyone.

According to the record, no further pleadings were filed until April 18, 2007, when Mr. Burfict filed a Motion to Set for Trial on the Merits. In it he listed the defendants as “General Rosa (Citadel Military Akademy — South Carolina),” and “Hanscom Air Force Base -» Mafia/Masons/NORAD/CIA/Satan (Bedford, Massachusetts) Intelligence Dept.” He also wrote in, “Waive service of the ‘above’ Defendants. SB” The court set the trial date for May 11, 2007. The minute entry for May 11, 2007 states, “This matter was continued without date — due to no service.”

On May 17, 2007, Mr. Burfict filed a Motion to Reset for Trial on Merits, in which he designated the defendants as “U.S. President Bush,” “Mr. Ban Ki-Moon |a(U.N. Secretary General),” “Mrs. Carol (Burfict) Mills,” and “General Rosa (Citadel Military Academy).” The court set the trial for June 22, 2007.

The record contains returns on service of the Notice of Trial, made by certified mail, return receipt requested, on President Bush, General Rosa, and Ban Ki-Moon; the returns indicated the documents had been served at The White House, the Citadel Military Academy, and the United Nations headquarters. However, the return on service for Carol Burfict Mills indicates service on her was unsuccessful.

The minute entry for June 22, 2007 states, “No service on Carol Burfict Mills. The parties served did not appear for the hearing. Judge Regan informed Mr. Bur-fict that the court was not able to go forward.”

On June 25, 2007, Mr. Burfict filed a Motion and Order for an Appeal. The district judge signed the order of appeal on the same date.

On appeal Mr. Burfict has filed a number of pleadings (all handwritten), consisting of a motion for oral argument, two miscellaneous motions (including a motion to elevate the appeal directly to the U.S. Supreme Court), an original brief, and five supplemental briefs.

In reviewing the record, however, we find no judgment that can be appealed, nor any judgment on the merits of Mr. Bur-fict’s claims that would be reviewable under our supervisory jurisdiction.

A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final. La.Code of Civil Procedure article (La. C.C.P. art.) 1841. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. Id. A judgment that determines the merits in whole or in part is a final judgment. Id.

|4A judgment cannot determine rights or award relief to persons or entities who are not parties to the litigation. Ruttley v. Lee, 99-1130 (La.App. 5 Cir. 5/17/00), 761 So.2d 777, 788, writ denied, 2000-1781 (La.9/22/00), 768 So.2d 1287. A judgment rendered against a party who has not been served and who has not appeared is an absolute nullity. Citibank (South Dakota) N.A. v. Keaty, 599 So.2d 500, 501-502 (La.App. 3 Cir.1992); La. C.C.P. art. 2002 A(2).

A final judgment is appealable in all causes in which appeals are given by law, and an interlocutory judgment is appeal-able only when expressly provided by law. La.C.C.P. art. 2083. Every final judgment shall be signed by the judge. La.C.C.P. art. 1911. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the judgment is signed. Id. No appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B). Id.

An appeal can be dismissed at any time for lack of jurisdiction of the appellate court. La.C.C.P. art. 2162. In this case, the district court made no ruling that could be considered an appealable judgment. Hence, the appeal was not properly taken, and must be dismissed.

In an abundance of caution, we have also considered whether there is any ruling that could be interpreted as an interlocutory ruling (that is, a ruling that could be challenged in a writ application). Interlocutory rulings are subject to review under our supervisory jurisdiction, pursuant to La.C.C.P. art. 2201 and the Uniform Rules of Louisiana Courts of Appeal.

The only action of the district court that might be interpreted as a ruling, however, was the court’s refusal to allow a trial to go forward on June 22, 2007, because Carol Burfict Mills had not been served and none of the parties served appeared in court. We find no error in that ruling. There is nothing to show that | sany party was ever served with the original petition in the matter. Hence, issue could not be joined and the case was not ripe for trial.

We have included two Appendixes with this opinion. Appendix I sets out additional information regarding Mr. Burfict’s claims, demands, and pleadings. Appendix II sets out the text of the Code of Civil Procedure articles cited in this opinion.

For the foregoing reasons, we dismiss the appeal and remand the case to the district court.

APPEAL DISMISSED; CASE REMANDED.

APPENDIX I

ADDITIONAL INFORMATION REGARDING PLAINTIFF’S CLAIMS, DEMANDS, AND PLEADINGS

h Mr. Burfiet also calls himself by the names “Sir Ramses (T) Po-Lovo-Bota-Omni, O.L.D.,” “Sir (Kommodore) Tuta-nanku (R) Po-Lovo-Bota-Omni,” “Tuta-nanku-Ramses Po-Lovo-Bota-Omni (R-T Po).” He lists his titles as “The Omni-Chief-Supreme: Papal/Judge/Esquire (Lawyer)/Scales (Kommander) Pharaoh/Etc. (U.S./Int’l).”

Mr. Burfiet alleged he is on a mission “for Heaven/the United Nations/the U.S. military/etc .... to eliminate all sin and evil in the U.S./international (all poverty, crime, death, illiteracy, sickness, accidents, etc.).” He sought an emergency restraining order to “prevent mission harassment/delays” and to prevent “sinful/unnecessary communications” from “the Burfiet Family (U.S./Int’l)” and “all other beings (U.S./Int’l).” He alleged the “beings” are “controlled (mind and body) by the evil conspirators computers and satellites,” and that the “Mafia/ ‘Bad’ Masons control these evil computers/satellites.”

Mr. Burfiet attached to his Petition/Motion copies of various letters and other written communications between him and other persons. Among his assertions are the following:

The conspirators are trying to kill and bankrupt me and my group members around the “Globe.” I am this mission’s chief-commander.... The Mafia and the 12Masons (both secret societys) manage the evil conspiracy in this society (Earth/etc.) from three main military stations:
(1) NORAD stations ...
(2) NATO stations (Belgium, Turkey, Iceland, Germany and Norway)
(3)The secret Mt. Olympus station on Cyprus Island.
New Orleans Louisiana is the Mafia and Masons “secret” International (sin) capí-tol; this was reason for the recent Destruction from Hurricanes “Katrina” and “Rita.”
Note: “Sinful Behavior” produces electromagnetic waves that have an affinity for the electric field/magnetic field, Internationally; It destroys the weather, property, people, etc.; It cannot be tolerated again; Never!

Mr. Burfiet also attached a copy of a May 31, 2005 order issued by the New Hampshire Court of Probate, which dismissed a petition that sought to have Mr. Burfiet involuntarily hospitalized for mental illness. The order stated, “Evidence of potentially serious likelihood of danger does not meet clear and convincing standard.” Attached to a later pleading is a copy of an August 19, 2003 order from Civil District Court, Parish of Orleans, which ordered that Samuel Burfiet be released from involuntary confinement “effective immediately.”

On June 12, 2007, Mr. Burfiet filed a pleading titled, “A Motion to Inklude More Specific Information,” in which he stated,

I am the “lead” Lord-Angel-King from Heaven # 3.
I am the Chief-Supreme Papal/Judge.
I am the Chief-Supreme Physician/Doktor/Surgeon.
I am the Pharaoh (Kommander) of “all” skales [inklude the justice-scales] and “all” serpents [inklude the medikal serpent.].

Attached were various documents, which he designated as follows:

(I) Packet # 1 — A general epistle (letter) for the judge(s) and motion/order Legal Dokuments (Law Order, Medikal Probate Order, Restraining Order), etc.
(II) Packet # 2 — My autobiography-epistle and the mission-explanation letter.
13(111) Packet # 3 — General info about I (Kommodore Samuel Burfict).
(IV) Packet # 4 — General info about this Holy Military-Legal-Medikal Mission.

Included in Packet # 3 were papers indicating that Mr. Burfict served in the U.S. Air Force from 1986 to 1990, and was placed on the Permanent Disability Retired List on July 31, 1990 for the diagnosis of paranoid schizophrenia. In a document in Packet #4, Mr. Burfict states, “[T]he evil forces that occupy this universe attacked my body with the schizoaffective disorder.” He also states that for the past 17 years he has traveled throughout the United States on his mission, and as he traveled he was “still under severe attack/stress from the evil forces, completing extended-stays in approximately 17 private hospitals’ psychiatric wards.”

APPENDIX II

CODE OF CIVIL PROCEDURE ARTICLES CITED IN OPINION

WEST’S LOUISIANA STATUTES UNANNOTATED LOUISIANA CODE OF CIVIL PROCEDURE ACTS 1960, NO. 15

BOOK II. ORDINARY PROCEEDINGS

TITLE VI. JUDGMENTS

CHAPTER 1. GENERAL DISPOSITIONS

Art. 1841. Judgments, interlocutory and final

_jjA judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.

A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.

A judgment that determines the merits in whole or in part is a final judgment. WEST’S LOUISIANA STATUTES UNANNOTATED LOUISIANA CODE OF CIVIL PROCEDURE ACTS 1960, NO. 15

BOOK II. ORDINARY PROCEEDINGS

TITLE VI. JUDGMENTS

CHAPTER 1. GENERAL DISPOSITIONS

Art.2083. Judgments appealable

A. A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.

B. In reviewing a judgment reformed in accordance with a remittitur or additur, the court shall consider the reasonableness of the underlying jury verdict.

|2C. An interlocutory judgment is ap-pealable only when expressly provided by law.

WEST’S LOUISIANA STATUTES UNANNOTATED LOUISIANA CODE OF CIVIL PROCEDURE ACTS 1960, NO. 15

BOOK II. ORDINARY PROCEEDINGS

TITLE VI. JUDGMENTS

CHAPTER 3. RENDITION

Art.1911. Final judgment; partial final judgment; signing; appeals

Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled. No appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been designated a final judgment under Article 1915(B). An appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated.

WEST’S LOUISIANA STATUTES UNANNOTATED LOUISIANA CODE OF CIVIL PROCEDURE ACTS 1960, NO. 15

BOOK III. PROCEEDINGS IN APPELLATE COURTS

TITLE I. APPELLATE PROCEDURE

CHAPTER 8. PROCEDURE IN APPELLATE COURT

Art. 2162. Dismissal by consent of parties, or because of lack of jurisdiction or right to appeal, or abandonment; transfer

An appeal can be dismissed at any time by consent of all parties, or for lack of jurisdiction of the appellate court, or because there is no right to appeal, or if, under the rules of the appellate court, the appeal has been abandoned.

If an appeal is taken to an appellate court which has no jurisdiction over it, the court may transfer the appeal to the proper court, upon such terms and conditions as it may prescribe. If an appeal is transferred to the supreme court in error, the supreme court may transfer or retransfer it to the proper court.

I,.WEST’S LOUISIANA STATUTES UNANNOTATED LOUISIANA CODE OF CIVIL PROCEDURE ACTS 1960, NO. 15

BOOK III. PROCEEDINGS IN APPELLATE COURTS

TITLE II. SUPERVISORY PROCEDURE

Art. 2201. Supervisory writs

Supervisory writs may be applied for and granted in accordance with the constitution and rules of the supreme court and other courts exercising appellate jurisdiction.


text:
    Shane J. GUIDRY and Holly Guidry v. Jerome WINDER and Lexington Insurance Company.
    No. 07-CA-441.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2007.

      Robert A. Vosbein, Jr., Attorney at Law, Harvey, Louisiana, for Plaintiff/Appellee.
    Peter D. Coleman, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   CLARENCE E. McMANUS, Judge.

[^Defendant, Jerome Winder, appeals a judgment of the district court denying his exceptions of nonjoinder of a necessary party, no cause of action and vagueness. For the following reasons, we grant the motion to dismiss this appeal filed by plaintiffs, reserving to defendant his right to file an application for supervisory writs within thirty days of date of this opinion.

Plaintiffs filed suit on December 8, 2003, against Jerome Winder and Lexington Insurance Company for damages as a result of alleged burglaries of their home which they contend were committed by Winder’s minor child and other persons. On April 24, 2006, Winder filed a Motion for Peremptory Exceptions of Nonjoinder and No Cause of Action and Dilatory Exception of Vagueness and Ambiguity. The trial court denied Winder’s Motion for Exceptions on March 6, 2007, and Winder appealed.

After the appeal was lodged in this Court, plaintiffs filed a motion to dismiss, alleging that the judgment sought to be appealed was an interlocutory judgment.

Defendant Winder filed a motion to strike appellees’ brief alleging that the verbiage used is insulting and inflammatory in nature, and that it refers to the |sminor by name, contrary to Uniform Rules of the Louisiana Courts of Appeal, Rule 2-12.4 and Rule 5-2.

MOTION TO DISMISS

A judgment that determines the merits in whole or in part is a final judgment. LSA-C.C.P. art. 1841. A final judgment is appealable in all causes in which appeals are given by law. LSA-C.C.P. art. 2083. That article was recently amended to provide that an interlocutory judgment is appealable only when expressly provided by law. According to C.C.P. art. 1915(B)(1)(2), in part:

B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal....

The judgment before us is not final. It does not dispose of all of the claims and issues in plaintiffs action, and it has not been designated as final for purposes of . appeal by the trial court.

Accordingly, we grant the motion filed by plaintiffs and dismiss this appeal. Defendant has thirty days from the date of this opinion within which to file an application for supervisory writs.

MOTION TO STRIKE

Uniform Rules, Courts of Appeal, Rule 12.4 provides in pertinent part that

The language used in the brief shall be courteous, free from vile, obscene, obnoxious, or offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class of persons or association of persons, or any court, or judge or other officer thereof, or of any institution. Any violation of this Rule Ushall subject the author, or authors, of the brief to punishment for contempt of court, and to having such brief returned.

The language, as set forth in the brief, does not fit the parameters as described above, instead it sets forth the allegations that plaintiff has made against defendant, and therefore the motion to strike made on this ground is without merit.

Defendant also alleges that appel-lees’ brief should be stricken for violation of Uniform Rules, Courts of Appeal, Rule 5-2. That rule is applicable to suits brought pursuant to the Children’s Code, including child in need of care/child in need of supervision, termination of parental rights and adoption, and is not applicable to this tort action. Accordingly, defendant’s motion to strike is denied.

MOTION TO STRIKE DENIED; MOTION TO DISMISS GRANTED; APPEAL DISMISSED.


author: MAX N. TOBIAS, JR., Judge.

text:
    MARSHALL INVESTMENTS CORPORATION v. CARBONE PROPERTIES OF AUDUBON, LLC.
    No. 2007-CA-1505.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 5, 2007.
    Writ Denied Dec. 12, 2007.

      M. David Kurtz, Brian M. Ballay, Edward H. Arnold III, Baker Donelson Bear-man Caldwell & Berkowitz, PC, New Orleans, LA, for PlaintiffAppellee.
    Stephen I. Dwyer, Mark G. Duncan, Michelle Mayne Davis, Dwyer & Cambre, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS JR., Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   MAX N. TOBIAS, JR., Judge.

hOn the motion of the defendant/appellant, Carbone Properties of Audubon, L.L.C. (“CPOA”), we granted within our discretion an expedited appeal of the trial court’s denial of CPOA’s motion for a writ of preliminary injunction seeking to arrest the seizure and sale of CPOA’s property at 929-31 Canal Street, New Orleans, Louisiana, commonly known as the Audubon Building (“the mortgaged property”), pursuant to executory proceedings (Louisiana Code of Civil Procedure, Book V, Title II, Chapters 1-5, art. 2631 et seq.) filed by the plaintiff/appellee/ mortgageeAender, Marshall Investments Corporation (“Marshall”). The trial court issued its order granting executory proceedings on 6 September 2007. CPOA filed its petition to arrest the seizure and sale on 15 October 2007. A hearing was held on CPOA’s request for a writ of preliminary injunction on 25 October 2007, and the trial court rendered its judgment denying the writ on 31 October 2007. CPOA’s devolutive appeal was lodged in this court on 20 November 2007. The |asale of the mortgaged property by the Orleans Parish Civil Sheriff is presently scheduled for 13 December 2007.

On appeal, CPOA assigns two errors, to-wit: (1) Marshall waived its right to execu-tory process when it instituted suit in the United States District Court for the Eastern District of Louisiana, and (2) the trial court erred in holding that Marshall’s pursuit of claims against CPOA in the United States District Court were compulsory counterclaims under the Federal Rules of Civil Procedure and as such waived Marshall’s right to use executory process.

A brief history of the facts is in order. Marshall made a loan to CPOA for conversion of the mortgaged property into a hotel prior to Hurricane Katrina’s devastation of New Orleans on 29 August 2005. The loan by Marshall to CPOA was secured by a mortgage (containing a confession of judgment) and promissory note on the mortgaged property and was guaranteed by R.P. Carbone Company, Ross P. Carbone, Ann C. Carbone, Vincent Carbone, and Wendy F. Carbone (collectively, “the guarantors”). The guarantors did not actually physically endorse the promissory note associated with the mortgage; we presume that they signed a continuing guaranty guaranteeing the payment of CPOA’s debt, but the document(s) guaranteeing payment are not part of the record on appeal. Pri- or to Hurricane Katrina, the loan went into default. Following the devastation caused by Hurricane Katrina, according to CPOA, Marshall began to have concerns about the 1 aviability of the hotel project. Disagreements between Marshall and CPOA developed and CPOA did not make payments on their debt to Marshall. As a result, Marshall filed a suit on the unpaid indebtedness against the guarantors in the United States District Court for the Eastern District of Louisiana, but did not name CPOA as a party defendant. Thereafter, CPOA intervened in Marshall’s federal suit joining with the other parties defendant. Marshall thereupon filed an answer to CPOA’s intervention, including therein a counterclaim, suing upon the mortgage and promissory note of CPOA by ordinary process. Thereafter, as the proceedings in federal court proceeded, Marshall, because it was not being paid on the debt, commenced executory proceedings in the Orleans Parish Civil District Court.

In its petition to arrest the seizure and sale, CPOA asserted that by filing an answer to CPOA’s petition of intervention in the federal proceedings and suing therein on the note by ordinary process Marshall waived its right to thereafter proceed by executory process. Effectively, CPOA asserts that under La. C.C.P. art. 2644, Marshall is attempting to proceed via exe-cutiva, once they elected to proceed in the federal action via ordinaria, but are not permitted to do so by law.

|4In a long line of cases dating back to the early nineteenth century, Louisiana courts have consistently held that a party who commences a foreclosure action by ordinary proceedings cannot thereafter convert the proceedings to executory proceedings. See, for example, Gurlie v. Co-quet, 3 Mart. (N.S.) 498 (1825); Carlin v. Gordy, 32 La. Ann. 1285 (1880); Board of Missions of Methodist Episcopal South v. C.D. Craighead Co., 130 La. 1076, 58 So. 888 (1912). This jurisprudence is now codified in La. C.C.P. art. 2644.

But CPOA fails to note the jurisprudence that prohibits a federal court from entertaining a petition seeking executory process. See, for example, Gillson v. Ven-dóme Petroleum Corp., 35 F.Supp. 815, 819 (E.D.La.1940), citing Fleitas v. Rich ardson, 147 U.S. 538, 13 S.Ct. 429, 37 L.Ed. 272 (1893) (Louisiana executory process is a “civil suit inter partes” and a proceeding in nature of “bill in equity for foreclosure of a mortgage,” and such suit of a civil nature does not come within exception of FRCP,. Rule 81, of permitting state law affecting practice and procedure to be given effect in federal court); Federal Deposit Ins. Corp. v. Saxena, 1994 WL 202364 (E.D.La.1994); BancBoston Mortgage Corp. v. Wilson, 1988 WL 76229 (E.D.La.1988); Meadow Brook National Bank v. Lafayette Royale Apartments, Inc., 187 So.2d 793 (La.App. 3rd Cir.1966).

We find that once CPOA intervened in the federal proceedings as a party defendant siding with the guarantors, Marshall was required to assert its counterclaim against CPOA asserting CPOA’s liability under the mortgage and promissory note by ordinary process (being prohibited from proceeding by executory process in federal court) under Federal Rules of Civil Procedure, Rule 13, mandating a compulsory counterclaim that if not asserted in the federal ^proceedings would thereafter be barred. That is, CPOA’s intervention required Marshall to sue by ordinary process on the mortgage and promissory note for the failure to do so would waive their rights thereafter to ever sue on the mortgage and promissory note. Thus Marshall’s claim against CPOA would be barred by the doctrine of res judicata. La. R.S. 13:4231, et seq.

In light of the Federal Rules of Civil Procedure, we find that Marshall’s assertion of its claims under the mortgage and promissory note in federal court was involuntary (lest they lose its right to ever assert a claim on the mortgage and promissory note) and thus it did not waive or lose its rights to proceed by executory process in state court. Further, initially, Marshall only sued the guarantors and did not directly sue upon the mortgage and promissory note; it did not initially sue CPOA. Only CPOA’s intervention resulted in CPOA becoming a party to the federal suit. Accordingly, we find that both of CPOA’s assignments of error are without merit and the trial court did not err by denying the writ of preliminary injunction.

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

AFFIRMED.

      . In addition to asking for an expedited appeal, CPOA requested that this court grant a stay pending a decision on this appeal. By order of this court issued on 28 November 2007, we denied the stay primarily because it would operate as a suspensive appeal without CPOA being required to post a suspensive appeal bond.

      . Although not an issue in this appeal, we note that the petition of Marshall and the documentation submitted and attached to the petition as required by law satisfied all of the procedural requirements for Marshall to obtain the order for seizure and sale, which it in fact did on 6 September 2007.

      . La. C.C.P. art. 2644 states:
      The plaintiff in an executory proceeding may convert it into an ordinary proceeding by amending his petition so as to pray that the defendant be cited and for judgment against him on the obligation secured by the mortgage or privilege.
      The plaintiff in an ordinary proceeding may not convert it into an executory proceeding. [Emphasis added.]

      . In pertinent part, FRCP, Rule 13 reads:
      (a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon the claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.


author: TERRI F. LOVE, Judge.

text:
    Dennis LOPEZ and Carolyn Lopez v. US SPRINT COMMUNICATIONS COMPANY, ABC Construction Company and XYZ Corporation.
    No. 2007-CA-0052.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 5, 2007.

      Patrick H. Hufft, J. Thomas Beasley, Hufft & Hufft, APLC, New Orleans, LA, for Plaintiff/Appellant.
    Jacqueline G. Griffith, Charles O. Taylor, Carl L. Aspelund, Chehardy Sherman Ellis Murray Recile Griffith Stakelum & Hayes, LLP, Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   TERRI F. LOVE, Judge.

¡ t This appeal arises out the March 2002 injury of Mr. Dennis Lopez while in the course and scope of his employment with Sharp Electric, Inc. Mr. Lopez was performing electrical work pursuant to a subcontract agreement that Sharp Electric, Inc. entered into with Winter Construction Company to provide electrical and fire protection work. Winter Construction Company entered into an agreement with U.S. Sprint Communications Company to act as a general contractor on a construction project on a building owned by U.S. Sprint Communications Company. U.S. Sprint Communications Company filed a motion for summary judgment, asserting that it was immune from tort liability, which the trial court granted. We find no genuine issues of material fact and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiffs/appellants, Dennis and Carolyn Lopez, alleged that Dennis Lopez (“Mr. Lopez”), was injured when he was employed by Sharp Electric, Inc. (“Sharp”) and working on the renovation of a building owned by U.S. Sprint Communications (“Sprint”), located at 3100 Eads Street in New Orleans, Louisiana. Mr. Lopez was performing electrical and fire protection work pursuant to a contract that Sharp entered into with Winter Construction Company |2(“Winter”). Mr. Lopez was climbing down a ladder, the only means of egress from the second floor, when he stepped back and fell into a large hole and suffered injuries.

Sprint moved for summary judgment on the grounds that it was immune from tort liability to the plaintiffs. Sprint maintained that it had entered into a general contract with Winter to renovate the building. Winter, in turn, entered into a subcontract with Sharp, Mr. Lopez’s direct employer, to perform fire protection and electric work, which was contemplated by the contract between Sprint and Winter. The trial court granted the motion for summary judgment.

STANDARD OF REVIEW

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ. Proc. art. 966(A)(2).

The mover bears the initial burden of proof to show that no genuine issue of material fact exists. Id. A fact is material if it is essential to a plaintiffs cause of action under the applicable theory of recovery, without which the plaintiff could not prevail. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La. App. 4th Cir.1992). However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ. Proc. art. 966(C)(2). Once the mover has met |3his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

Appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Champagne v. Ward, 03-3211, p. 4 (La.1/19/05), 893 So.2d 773, 776. In Coto v. J. Ray McDermott, 99-1866 (La.App. 4 Cir. 10/25/00), 772 So.2d 828, this Court discussed the standard for reviewing an appeal of a motion for summary judgment. This Court stated that “[i]n determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Id., 99-1866 at p. 4, 772 So.2d at 830.

Based on the foregoing, this Court must conduct a de novo review to determine whether the trial court committed error in granting summary judgment in favor of Sprint. In conducting the review, this Court must construe any factual inferences drawn from the evidence in favor of the plaintiffs, who are opposing the motion for summary judgment.

IMMUNITY FROM TORT LIABILITY

Winter filed a motion for summary judgment, claiming that it should be afforded the protections of the exclusive remedy provision of the Workers’ Compensation Act in that Winter was the statutory employer of Mr. Lopez. The district court subsequently released Winter from the suit. Likewise, Sprint claimed immunity from liability from tort in a filed motion for summary judgment and argued that the exclusive remedy to plaintiffs is under the workers’ compensation laws of Louisiana. This motion for summary judgment was also granted.

l4The plaintiffs argue that the district court committed reversible error in granting Sprint’s motion for summary judgment. The plaintiffs deny that Mr. Lopez was a statutory employee of Sprint, and argue that summary judgment should have therefore been denied.

The plaintiffs also aver that the district court misapplied the theory of immunity from tort liability. We focus on the issue of whether there was a genuine issue of material fact concerning Sprint’s liability to the plaintiffs in tort.

In its motion for summary judgment and supporting memorandum, Sprint argued that the terms of the contract of construction entered into with Winter require Winter to provide defense and indemnification to Sprint for the claims of the plaintiffs. Section 3.18.1 of the amended contract between Sprint and Winter reads as follows:

To the fullest extent permitted by law, the Contractor will indemnify and defend Owner, Architect, and their respective consultants, agents and employees (Indemnitees) from all claims costs, damages, losses, expenses, liability, proceedings, suits, judgments, and reasonable attorneys’ fees (Damages), arising out of or resulting from performance or nonperformance of the Work or the Contract attributable to:
1. bodily injury,
2. physical injury to destruction of tangible property, including loss of use of that property,
3. working on or near a clean agent fire suppression system, and
4. personal and advertising injury liability
To the extent caused in whole or in part by acts or omissions, including breach of the Contract by Contractor, subcontractor(s), anyone directly or indirectly employed by them, or anyone for whose acts or omissions they may be liable, regardless of whether or not the Damages are caused in part by an Indemnitee.... The Contractor’s liability under this Paragraph shall be limited to the insurance coverage provided by the contractor pursuant to this agreement (Emphasis added).

IsThe Louisiana workers’ compensation legislation reflects a compromise between the competing interests of employers and employees: the employer gives up the defense it would otherwise enjoy in cases where it is not at fault, while the employee surrenders his or her right to full damages, accepting instead a more modest claim for essentials, payable regardless of fault and with a minimum of delay. Id. Specifically, the workers’ compensation law of Louisiana is included in La.Rev. Stat. § 23:1032, and provides:

A. (l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease.
(b) This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine.
(2) For purposes of this Section, the word “principal” shall be defined as any person who undertakes to execute any work which is a part of his trade, business, or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.

|fiLa.Rev.Stat. § 23:1032. Thus, if Sprint is considered Mr. Lopez’s statutory employer, Sprint’s responsibility will be limited to workers’ compensation benefits and it is immune from tort liability.

The law of statutory employer immunity in Louisiana is governed by La.Rev.Stat. § 23:1061(A), which states:

A. (1) Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any “principal” as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the “contractor”, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
(2) A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.
(3) Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the 17employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. When the contract recognizes a statutory employer relationship, there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees, whether direct or statutory employees. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.
B. When the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor. (Emphasis added).

La.Rev.Stat. § 23:1061(A).

The corollary statutory provision, La. Rev.Stat. 23:1032, defines “principal” as “any person who undertakes to execute any work which is a part of his trade, business, or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof.” (Emphasis added). The statute further provides that the rights and remedies granted to an employee or his dependent under the Act shall be “exclusive of all claims, including any claims that might arise against his employer, or any principal.” La.Rev.Stat. 23:1032.

Plaintiffs aver that because Sprint is not obligated to two contracts, it may not be afforded the statutory employer defense. While, given the relationship among the parties, Sprint’s reliance on the “two-contract” statutory employment defense is misplaced, but the “two-contract” defense is not the sole statutory employer defense to tort liability.

| R“In response to a tort action, Section 1061 encompasses two alternative threshold bases for the statutory employer defense: (1) contracting by a principal with another for the execution of work which is part of the principal’s trade, business or occupation; or (2) contracting by a principal with another to perform all or any part of the work which the principal is contractually obligated to perform.” Thomas v. State, Dept, of Transp. and Development, 27,203, p. 4 (La.App. 2 Cir. 10/12/95), 662 So.2d 788, 792 {citing Freeman v. Moss Well Serv. Inc., 24,501, (La. App.2d Cir.2/24/93), 614 So.2d 784, 786). The latter situation ... is commonly referred to as the “two-contract” defense. Id.

“The purpose behind the ‘two contract’ theory is to establish a compensation obligation on the part of a principal who contractually obligates itself to a third party for the performance of work and who then subcontracts with intermediaries whose employees perform all or any part of the work.” Thomas, 27,203, p. 4, 662 So.2d 788, 792. “In return for its compensation obligation, such a principal is then insulated from tort liability.” Id. Further, the “two contract” statutory employment defense contemplates relationships among at least three parties: a general contractor, hired by a third party to perform a specific task; a subcontractor, hired by that general contractor; and an employee of the subcontractor. Thomas, 27,203, p. 4, 662 So.2d at 792 {citing Freeman v. Moss Well Serv. Inc., 24,501, (La. App.2d Cir.2/24/93), 614 So.2d 784, 786). In Allen v. Ernest N. Mortal — N.O. Exhibition Hall Authority, 02-1072, p. 8 (La.4/9/03), 842 So.2d 373, 379, the Louisiana Supreme Court discussed the “two contract” theory of the statutory employer defense. The Court stated:

The “two contract” defense applies when: (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and |¡)(3) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part of the work performed. Id.; Beddingfield v. Standard Construction Company, 560 So.2d 490, 491-492 (La. App. 1 Cir.1990); Aetna Casualty and Surety Company v. Schwegmann West-side Expressway, Inc., 516 So.2d 412, 413 (La.App. 1 Cir.1987). (Emphasis added).

Sprint entered into one contract with Winter, to act as a general contractor on the subject job. Winter was obligated to two contracts-Winter contracted with Sprint and with the employer of Mr. Lopez, Sharp, to fulfill its contractual obligation to Sprint. Given that, Sprint does not occupy the position of a principal contractually obligated to a third party to perform the work. Thus, application of the “two-contract” statutory employer defense is precluded under the instant facts given the relationship of the parties.

Alternatively, Sprint claims exemption from liability on the grounds that the renovation project lies within Sprint’s “trade, business, or occupation.” Thus, Sprint claims to be Mr. Lopez’s statutory employer and only potentially liable for workers’ compensation payments while enjoying immunity from liability in tort. The plaintiffs argue that the work being performed by Mr. Lopez was not part of Sprint’s trade, business or occupation.

“A ‘principal’ (or statutory employer) for purposes of the Act is any person who undertakes to carry out any work which is a part of his trade, business or occupation by means of a contract with another (the ‘trade, business or occupation’ defense).” Allen, 02-1072, p. 7-8, 842 So.2d at 378. The law presumes the contract to be within the trade, business or occupation of the principal. Id. Further, a principal who contracts with another to perform work that is part of the principal’s “trade, business or occupation,” is liable to pay workers’ compensation |10benefits to any employee of the contractor who is injured while performing such work. Thomas, 27,203, p. 4, 662 So.2d at 792 (citing La.Rev.Stat. 23:1061). In such instances, the principal is referred to as a statutory employer, and “[bjecause of the exclusiveness of the compensation remedy, statutory employers have also been afforded immunity from tort liability for work-related injuries suffered by the employees of their various contractors even though these statutory employers never actually pay any worker’s compensation benefits.” Thomas, 27,203, p. 3, 662 So.2d at 792 (citing La.Rev.Stat. 23:1032).

In Jackson v. St. Paul Insurance Company, 04-0026, p. 8 (La.App. 1st Cir.12/17/04), 897 So.2d 684, 689, writ denied, 05-0156 (La.3/24/05), 896 So.2d 1042, the court analyzed whether or not construction of a new building or facility would qualify as an integral part of the principal’s trade, business, or occupation as follows in light of the amendments to the Louisiana statutory employer law as follows:

[A] determination of the scope of the analysis alone does not answer the question of whether construction of a new building or facility would qualify as an integral or essential part of the principal’s trade, business or occupation. Although new construction was found not to be part of the principal’s work in most pre-1997 cases, the words of the statute have changed. After the 1997 changes to both sections 1061 A(l) and A(3), the principal’s “trade, business, or occupation” is now defined as work which is “an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.” (Emphasis added.) A building or facility is obviously “essential to the ability of [Gulf Liquids] to generate [its] goods, products, or services.” La. R.S. 23:1061 A(3). Without a building or facility, it would be virtually impossible for Gulf Liquids to process the chemicals and produce its products for transportation and sale.... Thus, after applying the relevant law to this case, we find that the construction of the new fractionation plant was part of Gulf Liquids’ “trade, business, or occupation,” and In qualified Gulf Liquids as a statutory employer entitled to the “exclusive remedy protections of La. R.S. 23:1032....” La. R.S. 23:1061 A(l).

Jackson, 04-0026, p. 8, 897 So.2d at 689.

In the matter sub judice, Sprint has shown an absence of factual support for the plaintiffs’ claim of tort liability and has established immunity pursuant to the statutory employer defense. After conducting a de novo review, we find that the following facts are not in dispute. Sprint occupies the place of the third-party hiring a general contractor, Winter. Sprint was the owner of the building on which the renovation was to be performed as part of Sprint’s business. Sprint entered into a general contract with Winter to renovate the building located at 3100 Eads Street in New Orleans, Louisiana. Winter hired Sharp as an electrical contractor. Sharp was the direct employer of Mr. Lopez. Under these particular facts and circumstances, Sprint is not hable to the plaintiffs in tort.

The burden of proof thus shifted to the plaintiffs to show that a genuine issue of material fact remained concerning whether Sprint was hable in tort. The plaintiffs have failed to demonstrate that the renovation work was not an integral part of or essential to the ability of Sprint to generate Sprint’s goods, products or services. The plaintiffs are not entitled to rest on the allegations of their petition to overcome the motion for summary judgment and have failed to establish that they can meet their burden of proof. We, therefore, find that the district court did not err in its conclusion that Sprint is entitled to summary judgment as a matter of law.

DECREE

For the aforementioned reasons, we find that Sprint is not liable to the plaintiffs. There are no genuine issues of material fact and the district court 112properly granted Sprint’s motion for summary judgment. We affirm the ruling of the district court.

AFFIRMED.


author: DREW, J.

text:
    ELECTRIC SUPPLY COMPANY, INC., Plaintiff-Appellant v. GREAT AMERICAN INSURANCE COMPANY, INC., et al., Defendant-Appellee.
    No. 42,727-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 12, 2007.

      Downer, Hammond & Wilhite, L.L.C., by Kevin W. Hammond, Shreveport, for Appellant, Electric Supply Company, Inc.
    Hayter & Odom, L.L.C., by Mark Watkins Odom, Shreveport, for Appellees, Great American Insurance Company and Don M. Barron Contractor, Inc.
    Before GASKINS, PEATROSS and DREW, JJ.
   DREW, J.

hDon Barron Contractor, Inc., entered into a recorded public works contract with the Webster Parish School Board (“Board”) for the construction of a school in Sibley, Louisiana. Great American Insurance Company acted as the surety on the contract. Barron subcontracted with EDCO, Inc., to perform electrical work on the construction project.

Between March and December of 2000, Electric Supply Company supplied electrical materials and goods to EDCO in the performance of its subcontract. The total charge to EDCO on its open account was $79,432.00.

On January 23, 2001, Electric Supply recorded a “Claimant’s Statement of Amount Due From Contractor Pursuant to the Public Works Act” in the mortgage records of Webster Parish. Electric Supply asserted that it was owed $73,085.45. The next day, it mailed a copy of this Statement of Claim to the School Board, Barron, and EDCO; it was received by all three on January 25.

When the claim was not paid, Electric Supply filed suit against Great American, Barron, and EDCO. Great American and Barron motioned to cancel Electric Supply’s lien on the ground that Electric Supply did not comply with La. R.S. 38:2242(F) when it failed to send notice of nonpayment to Barron and the School Board prior to filing the lien. The trial court granted the motion and ordered that Electric Supply’s lien be extinguished and removed from the Webster Parish mortgage records. Electric Supply was ordered to pay costs and attorney fees.

1 .DISCUSSION

The only issue on this appeal is whether La. R.S. 38:2242(F) requires that notice of nonpayment be given to the general contractor and owner before a materi-alman files his lien or privilege. It is helpful to begin our examination of this issue by considering the development of the Public Works Act. Unlike their counterparts on private building projects, workers and suppliers engaged by public agencies cannot protect themselves with liens against public property because liens are not enforceable against publicly-owned property. State Through Div. of Admin, v. Mclnnis Bros. Const., 97-0742 (La.10/21/97), 701 So.2d 937; WP America, Inc. v. Design Build Development Services, Inc., 41,652 (La.App. 2d Cir.1/31/07), 951 So.2d 461. As noted by the supreme court in Wilkin v. Dev Con Builders, Inc., 561 So.2d 66, 70 (La.1990):

Because of the need to protect those performing labor and furnishing materials for public works, the Legislature in 1918 passed Act 224, the precursor to current public works statutes, La. R.S. 38:2241 et seq., granting rights to laborers and materialmen involved in public works. The public contract law did not grant its beneficiaries a lien on the public work itself, but gave them, in effect, a “privilege against the unexpended fund in the possession of the authorities with whom the original contract ha[d] been entered into.”

Citations omitted.

In support of their argument that Electrical Supply was required to give notice of nonpayment before filing its claim, Barron and Great American cite La. R.S. 38:2242, which states in relevant part and with our emphasis added:

B. Any claimant may after the maturity of his claim and within forty-five days after the recordation of acceptance of the work 1 sby the governing authority or of notice of default of the contractor or subcontractor, file a sworn statement of the amount due him with the governing authority having the work done and record it in the office of the recorder of mortgages for the parish in which the work is done.
F. In addition to the other provisions of this Section, if the materialman has not been paid by the subcontractor and has not sent notice of nonpayment to the general contractor and the oumer, then the materialman shall lose his right to file a privilege or lien on the immovable property. The return receipt indicating that certified mail was properly addressed to the last known address of the general contractor and the owner and deposited in the U.S. mail on or before seventy-five days from the last day of the month in which the material was delivered, regardless of whether the certified mail was actually delivered, refused, or unclaimed satisfies the notice provision hereof or no later than the statutory lien period, whichever comes first. The provisions of this Subsection shall apply only to disputes arising out of recorded contracts.

In examining La. R.S. 38:2242, we are mindful of the admonition that in general, lien statutes are stricti juris and should thus be strictly construed. Guich-ard Drilling Co. v. Alpine Energy Services, Inc., 94-1275 (La.7/3/95), 657 So.2d 1307. “[Pjublic contract laws are to be strictly construed such that the privileges granted are not extended beyond the statutes.” Wilkin, 561 So.2d at 71. See also Mclnnis Bros. Const., supra.

The first sentence of Subsection (F) is clear: “In addition to the other provisions of this Section, if the materialman has not ... sent notice of nonpayment [by the subcontractor] to the general contractor and the owner, then the materialman shall lose his right to file a privilege or lien on the immovable property.” Subsection (F) requires that the materialman must send notice of nonpayment to preserve his right to file a privilege or lien. The reason for this requirement is obvious. A contractor or owner is not | ¿always going to be aware of the materialman from whom a subcontractor has obtained materials that the subcontractor has used on a public works project, so forcing the claimant material-man first to give notice to the general contractor and owner places those parties in the position of being able to withhold payment to the subcontractor so as to avoid ultimately having to make a double payment.

Subsection (F), which was added in 1999, places a notice requirement upon material-men that is in addition to the requirements applicable to all claimants that are found in Subsection (B); hence, Subsection (F) begins with, “In addition to the other provisions of this Section.... ”

Electric Supply counters that the second sentence in Subsection (F) sets forth the period in which notice can be given. However, the second sentence in Subsection (F) apparently only explains how the notice provision can be satisfied, and the latest date on which the notice can be given assuming a lien or privilege has not yet been filed. In fact, according to this second sentence, the notice period could expire before the end of the 45-day period to make a claim that is set out in Subsection (B): “deposited in the U.S. mail on or before seventy-five days from the last day of the month in which the material was delivered ... satisfies the notice provision hereof or no later than the statutory lien period, whichever comes first.”

An additional notice provision for claimants who have contractual privity with a subcontractor, but not with a contractor, is set forth in La. R.S. 38:2247, which states, with our emphasis:

Nothing in this Part shall be construed to deprive any claimant, as defined in this Part and who has complied with the | ^notice and recordation requirements of R.S. 38:2242(B), of his right of action on the bond furnished pursuant to this Part, provided that said action must be brought against the surety or the contractor or both within one year from the registry of acceptance of the work or of notice of default of the contractor; except that before any claimant having a direct contractual relationship with a subcontractor but no contractual relationship with the contractor shall have a right of action against the contractor or the surety on the bond furnished by the contractor, he shall in addition to the notice and re-cordation required in R.S. 88:22Jp2(B) give written notice to said contractor within forty-five days from the recordation of the notice of acceptance by the owner of the work or notice by the owner of default, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor or service was done or performed. Such notice shall be served by mailing the same by registered or certified mail, postage prepaid, in an envelope addressed to the contractor at any place he maintains an office in the state of Louisiana.

We note that the above-referenced notice is not the same as the notice required of materialmen found in Subsection (F) of La. R.S. 38:2242. The notice of nonpayment in Subsection (F) is to be given to the owner and contractor to preserve the right to file a claim, while the notice referenced in La. R.S. 38:2247 is to be given to the contractor to preserve the right of action against the contractor or the surety. In addition, the notice required in Subsection (F) would be untimely if it was given before a claim was filed but after 75 days had elapsed since the last day of the month in which material was delivered, even if the 45-day statutory lien period had not elapsed. The notice requirement found in La. R.S. 38:2247 references only the 45-day statutory lien period provided in La. R.S. 38:2242(B).

CONCLUSION

We hold that La. R.S. 38:2242(F) requires that notice of nonpayment be given to the general contractor and owner before a materialman files his Rlien or privilege. Accordingly, we find no error in the trial court’s judgment granting the motion to cancel the hen. At appellant’s costs, the judgment is AFFIRMED.