author: DALEY, Judge.

text:
    Eleanor Malone ELLIS v. LOUISIANA-I GAMING, A Louisiana Partnership in Commendam, d/b/a Boomtown Belle Casino, and Louisiana Gaming Enterprises, Inc.
    No. 05-CA-993.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2006.

      Brian C. Beckwith, Attorney at Law, Gretna, LA, for Plaintiff/Appellant.
    Kelly Cambre Bogart, Jaime M. Cam-bre, Duplass, Zwain, Bourgeois, Morton, Pfíster <& Weinstock, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHAEDY, and CLARENCE E. McMANUS.
   DALEY, Judge.

| aEleanor Malone Ellis appeals the trial court’s dismissal of her suit against Louisiana A-l Gaming, a Louisiana Partnership in Commendam, d/b/a/ Boomtown Belle Casino (Boomtown). Malone’s Petition alleged that on February 26, 2001, she slipped and fell upon exiting the courtesy shuttle bus that was returning her and a companion to their car in the parking lot of the Boomtown Casino complex in Harvey, Louisiana. Boomtown moved for Summary Judgment on December 13, 2004, arguing that Malone could not carry her burden of proof on a general negligence standard, that she could not show that there was a defective condition in the stairs on the bus that caused her to slip and fall, and that the stairs in question did not pose an unreasonable risk of harm. Malone responded with affidavits given by her and her companion. The trial court granted Boomtown’s Motion for Summary Judgment and dismissed Malone’s suit.

On appeal, Malone argues that the trial court applied the incorrect legal standard in granting the Summary Judgment. She also argues that Summary | a Judgment was not permissible, in that there are genuine issues of material fact in dispute.

Defendant, Boomtown, counters that the Motion for Summary Judgment was correctly granted because either plaintiff slipped because the stairs on the bus were wet, which does not constitute a breach of the duty owed by Boomtown under prevailing standards, or plaintiff slipped due to some other condition that she cannot identify, and, thus, cannot carry her burden of proving that Boomtown was negligent. Boomtown contends that plaintiff focuses her appeal on whether the trial judge applied an incorrect standard, which, Boomtown argues, is irrelevant in light of the fact that appellate courts review the grant of Summary Judgments de novo.

STANDARD OF REVIEW

Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. C.C.P. art. 966(B). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086. The decision as to the propriety of a grant of a Motion for Summary Judgment must be made with reference to the substantive law applicable to the case. Sun Belt Constructors, a Div. of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350 (La.App. 5 Cir.1988).

Mohsan v. Roule-Graham, 05-122 (La.App. 5 Cir. 6/28/05), 907 So.2d 804.

I/The plaintiff argues that the trial court applied the wrong legal standard in rendering this Summary Judgment. Plaintiff also argues that genuine issues of material fact remained disputed, precluding Summary Judgment. Plaintiff asserts in brief that the court need not decide at this point whether the appropriate standard of proof is general negligence or the heightened duty similar to that imposed upon common carriers.

At the hearing on this Motion, the trial judge stated:

“... but summary judgments are here. They are with us and there have been some modifications via case law if not legislative action. And my appreciation of the current status of summary judgment is something along these lines, that if you need to, one may look down the road, prospectively as to what the outcome may well be and help the trier of fact at this motion at a motion hearing determine the outcome and therefore what should be done here and now, vis á vis, the summary judgment motion.
I don’t like summary judgments, but they are here. I’ve looked at the case. I thought about the case. I try not to go in these things with a not caring attitude, but I really think in this instance based on the facts as I appreciate them, the case law — And Brain [sic], take whatever writs you need but I’m going to grant the motion for summary judgment....”

The trial court was incorrect in its opinion that one may “look down the road” and grant Summary Judgment if the trial court feels that the plaintiff will ultimately not prevail at trial. The trial court must observe the standards as set forth in C.C.P. art. 966(B) and cases interpreting the code article. For the reasons below, however, this Court finds, after our de novo review, that the Motion for Summary Judgment was correctly granted.

The material facts are not in dispute. It was 9:00 p.m., dark outside, and raining heavily; Malone slipped and fell while alighting from the shuttle bus. In the Accident Report and Incident Report, made contemporaneously with the incident, Malone reported that she slipped because her shoes were wet. Two people disembarked successfully in front of her, one immediately after. There was |Rno report of debris or obstructions on the stairwell, only the condition of rainwater. The report states that the stairs were damp from foot traffic.

Plaintiff argues in her Opposition that Boomtown owed the highest duty of care to her, as a passenger on a common carrier, citing Luckette v. Bart’s On the Lake, Ltd., 602 So.2d 108 (La.App. 4 Cir.1992) and Galland v. New Orleans Public Service, Inc., 877 So.2d 84 (La.1979). Boom-town counters that plaintiff was not a fare paying passenger, and as such, only a general negligence standard applies. They further argue that even if plaintiff were owed the highest duty of care, Boomtown did not breach that duty, citing Shorts v. New Orleans Public Service, Inc., 522 So.2d 1265 (La.App. 4 Cir.1988).

The trial court made no finding whether Boomtown’s shuttle bus is a common carrier or a private business enterprise. Determination of this fact is important, however, because under the heightened duty common carriers owe to their patrons, a passenger has the burden of proof, but once a prima facie case of negligence has been established, the carrier has the burden to proceed with evidence to overcome the prima facie case. In a Summary Judgment context, this would affect the showing plaintiff must make in opposing Boomtown’s Motion for Summary Judgment.

Louisiana law, LSA-R.S. 45:162(5)(a) defines “common carrier” as follows:

“Common carrier by motor vehicle” means any person, other than a contract carrier by bus, the essential nature of whose business comprises engaging in, soliciting, or accepting household goods, passengers, or waste, for transportation for hire, charge, or compensation as an employment or holding himself out as so available to the public generally and indiscriminately for such business, whether or not the business is conducted over a regular route, between fixed termini, within a defined area, or upon a regular or irregular schedule.

1 fiClearly, under this statutory definition, the Boomtown shuttle bus is not a common carrier. They do not offer transportation for hire available to the public generally or indiscriminately.

The court in Kerns v. Hyatt Corporation, 1999 WL 562720 (E.D.La.7/29/99) interpreted this statute to hold that the courtesy shuttle bus operated by the Hyatt hotel, which was provided to transport hotel guests from the hotel to the French Quarter, was not a common carrier. As such, the Hyatt owed only an ordinary standard of care, not a heightened one, to its passengers.

As a practical matter, what this means is Malone must make out more than a prima faeie case of negligence against Boomtown. In the context of a Summary Judgment proceeding, because Malone bears the burden of proving her case at trial and there is no burden shift towards Boomtown to exculpate itself, she must come forward, in opposing a Motion for Summary Judgment, with evidence to support her case. She may not merely raise questions, as she does in her Opposition.

Though Shorts was decided against a common carrier, the factual scenario is instructive to determine if Boomtown breached the ordinary standard of care to Malone. In Shorts, plaintiff slipped and fell while walking toward the front of the bus to alight, on a floor wet from rainwater. The court noted the Galland case, but in reversing the trial court’s judgment, which was favorable to Shorts, the court said, citing Casborn v. New Orleans Public Service, Inc.:

(t)he law does not today make the common carrier absolutely liable for its passengers’ accidental injuries. The basis of liability for another’s injury is breach of some duty owed to the injured person. In ordinary tort cases, the injured person bears the burden of proving “fault” within La.C.C. 2315. In common earner cases, the carrier’s duty to provide safe passage gives the injured party a significant procedural advantage in that the injury itself suggests breach of the carrier’s duty to provide safe passage, the carrier therefore bears the burden of proof that the injury was not a result of the carrier’s breach, |7and in the absence of evidence of the cause of the injury the carrier is liable.... But the proof in this case is that our plaintiffs fall and injury can only have been contributed to by defendant, if at all, by the condition of the bus floor, and that condition was no worse than expectable on a rainy day from other passengers’ tracking and dripping rain water onto the floor. Thus defendant proved that plaintiff was not injured because of a breach by defendant of its duty as a common carrier.

The court found that the presence of water from rain on the floor, a common situation in our subtropical climate, did not constitute a breach of the heightened duty of care owed to Shorts by the common carrier.

In its Motion for Summary Judgment, Boomtown argues that either plaintiff slipped because the stairs were wet, which does not constitute a breach of duty owed by Boomtown under prevailing case law, citing Shorts, or plaintiff slipped due to some other condition that she cannot identify and has not identified. Thus, Boomtown argues, plaintiff cannot carry her burden of proving that Boomtown was negligent. Boomtown submitted plaintiffs deposition, the Boomtown Accident Report filled out by plaintiff, and an Incident Report filed by the Boomtown Casino.

Boomtown points out that on the evening in question, it was raining heavily. The incident happened at around 9:00 p.m. Consequently, after they had finished in the casino, plaintiff and her friend boarded Boomtown’s shuttle bus to return to their car, as Malone stated in her deposition, given February 16, 2004. When they reached the car, Malone fell as she was descending the steps of the bus. At least two passengers disembarked before her with no trouble, as did Malone’s friend immediately behind her. Malone also stated in that same deposition that she did not know what caused her to fall.

In the same deposition, Malone revealed that she was in her early sixties, and was unemployed due to disability. She noted that she had health problems, |sincluding prior back problems, arthritis, female problems, and depression with anxiety. She and her companion, Mrs. Faucheaux, were regular patrons of Boomtown. She had not taken the shuttle bus before and has not taken it since. At her deposition, Malone didn’t recall if her shoes were wet at the time of the incident. She did note that she was holding the hand rail at the time, and that she is normally a slow walker. She described her shoes as flat-soled slip-ons with closed backs.

In the Incident Report, the writer, an employee of Boomtown, recorded that Malone felt that her foot slipped on the step, and that she felt it was because her shoes were wet at the time. The writer noted that she had neglected to take pictures of Malone’s shoes, but described them as well worn slip-ons with smooth soles. The report stated that it had been raining for some time prior to the above incident, and the ground on the exterior of the complex was wet from the rain, and the steps of the shuttle were “damp” from foot traffic.

In the Boomtown Casino Westbank Accident Report filled out by plaintiff, under “cause of accident/illness,” Malone filled out “shoes wet, slipped on last step.”

In opposition to the Motion for Summary Judgment, Malone and Mrs. Fau-eheaux, her companion, entered affidavits, dated March 17, 2005, that stated there was no exterior lighting in the parking lot in the place where the shuttle bus stopped, though there were lights in the general area, that there were no working lights in the shuttle bus to illuminate the stairs. Malone concludes that she slipped on the wet stairs because of the darkened, unfit condition of the stairs, which is opposed to her deposition testimony, the Incident Report, and the Accident Report made at the time of the incident. She also concluded that the material of the stairs |sdid not retard the accumulation of water, nor did the flooring material act in any manner to retard or prevent her from slipping on the wet steps.

Malone’s and Faucheaux’s affidavits, besides being contradictory to Malone’s deposition, offer merely conclusory statements regarding the fighting and the stairs, which are contradictory to Malone’s deposition, the Incident Report, and the Accident Report. They do not establish a breach of duty on the part of Boomtown.

In the Memorandum in Opposition to Motion for Summary Judgment, Malone asserts that several questions of material fact remain, for instance: what was the condition of the exit stairs of the shuttle bus? Were the stairs wet due to the rain shower? Were the stairs unreasonably dangerous due to the wet condition? What was the material covering the exit stairs on the evening in question? Were the stairs slip-resistant or skid resistant? Were the stairs properly fit so that passengers could see the condition of the stairs as they departed the bus? Were the stairs unlit because there were no lights in the stairwell? Were the stairs unfit because the driver failed to turn on the fights? Were the stairs unfit because of a failure to maintain the stairwell fights?

We find that that these are not questions of material fact. These are simply questions that it is plaintiffs duty to answer, not raise, in response to defendant’s Motion for Summary Judgment in order to defeat the Motion for Summary Judgment and prosecute her case. Plaintiff cannot defeat the Motion for Summary Judgment by coming forward with questions, over four years after the incident, about the standards for conditions of the bus; plaintiff must come forward with factual support sufficient to show that she will be able to meet her evidentiary burden of proof at trial. This fist, combined with plaintiffs and Faucheaux’s affidavits, merely raise questions; they do not provide the necessary factual support Insufficient to show that she will meet her evidentiary burden at trial. The fact that plaintiff slipped because her shoes were wet, on a day with significant rainfall, does not indicate liability on the part of Boomtown. Because it was raining heavily, a reasonable person should have known and expected that there would be the presence of some rainfall on the steps. Malone does not allege that there was any abnormal accumulation of rainfall.

Plaintiff also distinguishes Shorts on the fact that she slipped on the stairs while Ms. Shorts slipped in the aisle. This is a distinction without a difference.

Malone tries to raise an issue of material fact by mentioning that it was dark on the bus and there were no stairwell fights. But in her incident report and deposition, she does not claim that there was anything in the stairwell, such as debris or an obstruction, that she failed to see because of the darkness. Malone comes forward with no evidence whether the lighting in the bus stairwell was required, or was in fact insufficient or substandard in some way.

Accordingly, we find that the Motion for Summary Judgment was properly granted. The judgment is affirmed.

AFFIRMED.

      . In her deposition, plaintiff stated that she preferred to be addressed by the name Malone, and is consistently referred to as such throughout the record.

      . 448 So.2d 176 (La.App. 4 Cir.1984), writ denied 452 So.2d 174.


source: Caselaw Access Project

author: McMANUS, Judge.

license: Public Domain

text:
    Kermit ORTOLANO v. BDI MARKETING, Body Dynamics, Inc. and ABC Insurance Company.
    No. 05-CA-989.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2006.
    Jonathan B. Andry, The Andry Law Firm, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Gordon P. Serou, Jr., Sutterfield & Webb, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Sidney W. Degan, III, Suzanne M. Gan-ucheau, Travis L. Bourgeois, Degan, Blanchard & Nash, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   McMANUS, Judge.

\ STATEMENT OF THE CASE

On August 20, 2002, plaintiff, Kermit Ortolano, filed a Petition for Damages against BDI Marketing, Body Dynamics, Inc. and ABC Insurance, as the insurer for BDI and Body Dynamics. Ortolano alleged that on August 20, 2001, he awoke with chest pains and was taken to the hospital and diagnosed as having a heart attack. He was eighteen years old at the time and in excellent health. He had allegedly taken a normal dose of Mini Brands Two-Way Action medication the day before. Ortolano alleged the ingestion of the Mini Brands Two-Way Action was a cause-in-fact of the heart attack and he sustained painful, debilitating injuries to his heart because of the ingestion of the defective product. He was required to seek medical help and was hospitalized for four days, suffered pain, discomfort, aggravation and loss of enjoyment of life. He also alleged he sustained economic loss from his inability to work due to his injuries.

Ortolano’s petition alleged the defendants were liable to him for the distribution and marketing of the product without regard to users’ safety because: 1) the defective product was inferior' in design and marketed to a group other than the drugs intended use, 2) the product was unreasonably dangerous in construction [ opr composition, 3) the product was unreasonably dangerous in design, 4) the product was unreasonably dangerous because of adequate warnings about the drug was not provided to consumers, and 5) any and all other acts of negligence and carelessness.

Defendants filed an Answer on November 14, 2002 and Ortolano then filed a Supplemental and Amended Petition in May 2003 adding Mediplas Innovations, Inc. as a defendant and substituting Gemini Insurance Company for ABC Insurance Company. The supplemental petition alleged that Mediplas was the manufacturer of Mini Thins/Mini-brand Two-Way Action and the product was defective because Mediplas failed to warn individuals of the hazardous and/or toxic nature of the pills. Ortolano alleged that Mediplas had expressly warranted the pills were safe and fit for purposes they were intended, and Ortolano further alleged the pills were not safe and effective because they contained ingredients that caused Ortolano’s heart attack.

All parties engaged in discovery and defendants filed an Answer to the Amended and Supplemental Petition on October 31, 2003. Body Dynamics, Inc. d/b/a BDI Marketing then filed a motion for summary judgment arguing that there was no claim under the Louisiana Products Liability Act, which is Ortolano’s exclusive remedy for liability of manufacturers for damages caused by their products. Mediplas and Gemini Insurance also filed a motion for summary judgment based on the same argument. A hearing was held on these motions for summary judgment on January 6, 2005.

On April 21, 2005, the trial court granted both motions, dismissing all claims filed by Ortolano. The trial court found that Ortolano could not prevail on any of the theories of recovery provided by the Louisiana Products Liability Act. The trial court found that under the Act, Ortolano’s damages had to be proximately 14caused by a characteristic of the product that renders the product unreasonably dangerous when the damage arose from a reasonably anticipated use of the product by the claimant or another person or entity. The trial court acknowledged that Ortolano admitted in his deposition that he took six tablets within fourteen and a half hours and claims he did not exceed the label’s recommended dosage of six tablets in twenty-four hours. Ortolano also admitted that he did not read the entire label but read only the dosage information and warnings. He took approximately two and a half pills every four hours, disregarding the recommended dosage of one half to one tablet every four hours, or not more than six tablets in twenty-four hours. The trial court found that an abuse of dosage is not a reasonably anticipated use, regardless of the motive for taking the medication.

The trial court also found that Ortolano did not present evidence that the product in question failed to provide an adequate warning. Ortolano admitted in his deposition that he did not read the entire label, therefore, the trial court found that he would not have been aware of a “sufficient” warning, even if one had existed. The trial court further found that Ortola-no’s failure to warn claim must fail because it could not have been the proximate cause of his damages. Finally, the trial court found that there were no genuine issues of material fact because Ortolano has failed to establish that he will be able to satisfy his evidentiary burden at trial that the product is unreasonably dangerous in construction or composition in design or by failing to conform to an express warranty of the manufacturer.

On May 4, 2005, the trial court signed a Final Judgment ordering that Ortolano’s lawsuit be dismissed with prejudice, at his cost, since the defendants’ motion for summary judgment had been granted. Ortola-no now appeals the trial court’s judgment alleging the trial court erred in granting defendants’ motions for summary judgment. Ortolano argues there were genuine issues of material fact to |fibe decided by the trier of fact and the court invaded the province of the jury by weighing conflicting evidence and making a factual determination that the defendants did not breach the applicable standard of care. He further argues the trial court failed to view the evidence in the light most favorable to him, the non-movant.

For the reasons which follow, we affirm the judgment of the trial court.

DISCUSSION

Summary judgment should be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law, shall be granted. La. C.C.P. art. 966(C)(1). An appellate court shall conduct a de novo review of the evidence to determine whether summary judgment granted by the trial court is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Prince v. K-Mart Corp., 01-1151 (La.App. 5 Cir. 3/26/02), 815 So.2d 245, 248.

Ortolano’s claims against defendants are governed by the Louisiana Products Liability Act. La. R.S. 9:2800.54 provides that:

A. The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.
B. A product is unreasonably dangerous if and only if:
(1) The product is unreasonably dangerous in construction or composition as provided in R.S. 9:2800.55;
[r(2) The product is unreasonably dangerous in design as provided in R.S. 9:2800.56;
(3) The product is unreasonably dangerous because an adequate warning about the product has not been provided as provided in R.S. 9:2800.57; or
(4) The product is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product as provided in R.S. 9:2800.58.
C. The characteristic of the product that renders it unreasonably dangerous under R.S. 9:2800.55 must exist at the time the product left the control of the manufacturer. The characteristic of the product that renders it unreasonably dangerous under R.S. 9:2800.56 or 9:2800.57 must exist at the time the product left the control of its manufacturer or result from a reasonably anticipated alteration or modification of the product.
D. The claimant has the burden of proving the elements of Subsections A, B, and C of this Section.

In order for Ortolano to recover under this statute, he would have to prove that his damages were proximately caused by a characteristic of the medication that renders it unreasonably dangerous and that his damages arose from a reasonably anticipated use of the medication. Ortola-no must prove that the medication is unreasonably dangerous because of one of the following: (1) it is defective in construction or composition, (2) it is defective in design, (3) it had an inadequate warning, or (4) it failed to conform to express warranty.

First, we find that the medication, Mini Brands Two-Way Action, taken by Ortola-no, was not unreasonably dangerous. The medication was not defective in construction or composition. In order for a product to be unreasonably dangerous in construction or composition, it must deviate in a material way from the manufacturer’s specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer. La. R.S. 9:2800.55. Ortolano has provided no evidence that this medication deviated from the manufacturer’s specifications or performance standards of similar products.

RNext, we find the medication was not unreasonably dangerous in design. La. R.S. 9:2800.56 provides that in order for a product to be unreasonably dangerous in design, there must exist an alternative design for the product that was capable of preventing claimant’s damages, and the likelihood that the product’s design would cause the claimant’s damage and the gravity of the damage outweigh the burden on the manufacturer to adopt the alternative design and the adverse effect of the alternative design on the utility of the product. An adequate warning about a product shall be considered in evaluating the likelihood of damage when the manufacturer has used reasonable care to provide the adequate warning to users of the product. La. R.S. 9:2800.56. Again, Ortolano has failed to provide any evidence that the medication was unreasonably dangerous in design. He has not shown there is an alternative design that would have been capable of preventing his damages.

We also find that Ortolano has failed to prove the medication was unreasonably dangerous due to inadequate warnings. The packaging of the medication stated “[d]o not use • unless a doctor has said you have asthma ...” or if you are taking specific medications. The packaging also stated to “[a]sk a doctor before using this drug if you have • heart disease • high blood pressure • thyroid disease ...” or several other enumerated conditions. The package further stated to “seek medical help right away if symptoms are not relieved within 1 hour or become worse”. These warnings are adequate and have met the standards of the United States Food & Drug Administration. In addition, Ortolano admitted in his deposition that he did not even read the warnings that were present on the packaging.

[sWe also find that the medication was not unreasonably dangerous because of nonconformity to express warranty. Orto-lano presented no evidence that the manufacturer of the medication provided any express warranty about the product.

In addition to finding that the medication was not unreasonably dangerous, we also agree with the trial court and find that Ortolano’s use of the product was not a reasonably anticipated use. The package of medication purchased by Ortolano contained six tablets. The directions on the back label of the package indicated that the user was not to exceed the recommended dose unless directed by a doctor. The label stated the adult dose to be one-half to one tablet every four hours, not more than six tablets in twenty-four hours, or as directed by a doctor. Ortolano stated in his deposition that he took all six tablets in fourteen and a half hours. Even though he did not take more than six tablets in twenty-four hours, we agree with the trial court that he disregarded the instructions and took approximately two and a half pills every four hours instead of one-half to one pill every four hours. Further, the label on the medication plainly indicates it is for asthma relief, stating that it helps breathing without drowsiness. Ortolano does not have asthma and he admitted that he took the medication to lose weight and gain energy. Therefore, we find that Ortolano’s use of this medication was not a reasonably anticipated use.

Thus, we agree with the trial court and find that there are no genuine issues of material fact. We also agree with the trial court and find that defendants are entitled to judgment as a matter of law. Ortolano has failed to prove that defendants are liable for damages to him under the Louisiana Products Liability Act. His damages were not proximately caused by a characteristic of the product that rendered it unreasonably dangerous and his damages were not caused by a treasonably anticipated use of the product by Ortolano. Therefore, defendants are entitled to summary judgment.

Accordingly, the judgment of the trial court granting summary judgment in favor of Body Dynamics, Inc d/b/a BDI Marketing, Mediplas Innovations, Inc., and Gemini Insurance Company, is affirmed and all claims by Ortolano in this matter are dismissed.

AFFIRMED.


author: MARION F. EDWARDS, Judge.

text:
    Blanche Marie ESCHETE v. Della HILDEBRAND, et al.
    No. 06-CA-18.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2006.

      See also 820 So.2d 1122.

      Edward T. Diaz, Attorney at Law, Golden Meadow, Louisiana, for Plaintiff/Appellant.
    Christopher R. Phillip, Law Office of Christopher R. Phillip Lafayette, Louisiana, for Defendants/Appellees.
    John D. Carter, Gerald J. Nielsen, Nielsen Law Firm, L.L.C., Metairie, Louisiana, for Defendants/Appellees.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

12Plaintiff/appellant, Blanche Marie Es-chete (“Eschete”), appeals a judgment of the district court granting an Exception of No Right of Action and No Cause of Action in favor of defendant/appellee, the Town of Grand Isle (“Grand Isle”).

Eschete was an employee of Grand Isle beginning on June 6, 1998. On January 12, 2000, a wax stripping machine that she was operating in the course of her employment malfunctioned and jerked her body, causing injuries. Eschete attempted to continue work, but in June of 2000 ceased employment due to severe pain. Her workers’ compensation claim was handled by Risk Management, but later transferred to Della Hildebrand (“Hildebrand”), who terminated her compensation benefits, based on an allegation of fraud. Eschete disputed the allegation, stating that she had fully disclosed her medical status at the time she applied for the job.

|3In the workers’ compensation proceedings, the court denied the defense of fraud and awarded compensation, plus attorney’s fees for the arbitrary discontinuance of payments. That determination was affirmed on appeal to this Court, although we set aside the portion of the judgment awarding penalties and attorney’s fees.

After the opinion became final, Eschete filed the current petition against Grand Isle, Risk Management, and Hildebrand for damages, alleging that they intended to deprive her of compensation benefits. The petition sought damages for libel and slander, citing portions of the answers filed by Grand Isle as well as portions of the pleadings filed in the appellate courts. Eschete claimed that, until October 2002 when the Louisiana Supreme Court denied writs on our opinion, friends, neighbors, and family were discussing how she had committed a fraud on the town of Grand Isle. Eschete averred that she was obliged to place ads in the local media in an attempt to dispel accusations of fraud and that she still suffers the effects of this action. She contended that the allegations of fraud were made in bad faith and that “[t]he negligent continuing in the allegations of Fraud proves that they were done with Malice aforethought.”

Eschete claimed that Grand Isle and Hildebrand were guilty of gross negligence.

Grand Isle, Hildebrand, and Risk Management filed Peremptory Exceptions of Prescription, which were denied by the trial court based on a supplemental and amending petition. In that pleading, Es-chete averred that her claim was not actionable until the denial of writs by the Louisiana Supreme Court in October 2002.

|,(Subsequently, Grand Isle filed Exceptions of No Right of Action and No Cause of Action, claiming immunity from the claims under LSA-R.S 23:1208.2. Hildebrand and Risk Management joined in the exceptions. Following a hearing, the trial court granted the exceptions as to Grand Isle, finding that Eschete’s exclusive remedy is limited to workers’ compensation.

On appeal, Eschete claims that the allegations of fraud were unnecessary and separate from Grand Isle’s attempt to terminate compensation benefits as a reasonable controversion of the claim. Eschete avers that there is a fundamental question as to whether the government employer may “summarily terminat[e]” the employee’s reputation by falsely accusing her of fraud without a hearing. She urges that such hearings are normally afforded employees “in employment-related matters, especially in terminations for cause,” and in such cases, the municipality doés not enjoy total immunity.

In her petition, Eschete urges that she successfully disproved the allegations of fraud in this Court, where we stated in the original opinion that she did not make false statements and that she had given Grand Isle enough truthful information for it to conduct a further investigation of her former injuries before it hired her. Eschete suggests that this finding, along with the finding of the trial court that Grand Isle was arbitrary and capricious, is the basis for her current libel action.

In reviewing a trial court’s ruling sustaining an exception of no cause of action, the reviewing court conducts de novo review because the exception raises a question of law. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording to the plaintiff the opportunity of presenting evidence at trial. After careful examination of Es-chete’s | fiforty-nine paragraph Petition as well as her supplemental and amending petition, we find that the trial court properly granted the exceptions at issue.

All of the allegations therein regarding statements made by Grand Isle and Hildebrand refer to pleadings, briefs, and argument done within the context of the workers’ compensation proceedings and resultant appeals. Statements made in the course of a judicial proceeding are subject to a qualified privilege if the statements are material to the proceeding, and are made with probable cause and without malice. Additionally, there is a heightened pleading requirement when suing an attorney (and/or clients) for defamation in the context of a judicial proceeding. This heightened standard requires the plaintiff to allege facts in his petition that show malice or an intent to cause direct harm to the plaintiff.

The allegations of fraud, from the time of the denial of the workers’ compensation claim through the denial of writs by the Louisiana Supreme Court, were made in the context of an affirmative defense. See, LSA-C.C. P. art. 1005. Despite her allegation of “malice aforethought,” nowhere in the petition does Eschete allege facts to show malice or intent to cause harm outside of the context of a defense. Eschete concedes as much in paragraph twenty-eight, wherein she states that she was “Defamed, Libeled, and Slandered, in a deliberate fashion, by the Actions and Inactions of the Defendants herein, separately and together, with the Purpose of Depriving Eschete of Worker’s Compensation Benefits.”

In finding that Grand Isle and Hildebrand were not liable for penalties and attorney’s fees, we held:

Having reviewed the record, we cannot say Grand Isle behaved in an arbitrary and capricious manner. Prior to denying payment, it investigated the claim. Based on that ^investigation it determined that claimant had previous back and neck injuries that may have caused her injury in this case. Consequently, it seems Grand Isle did not act arbitrarily or capriciously when it denied benefits after May 1999. Thus, the employer should not be penalized for contesting whether claimant’s need for medical treatment stemmed from the work-related accident.

The penalty for an employer alleging fraud is encompassed in the workers’ compensation statutes and is not intended to “compensate” a plaintiff and, thereby, make him whole, but rather to discourage employers, and employers’ insurers’, indifference toward injured employees. There are no allegations that Grand Isle or Hildebrand made false or libelous statements to any entities extraneous to the compensation proceedings. Therefore, we find no error in the determination by the trial court that the petition states no cause of action.

Under LSA-C.C.P. art. 934, when the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, the action, claim, demand, issue, or theory shall be dismissed. The right to amend a petition is qualified by the restriction that the objection be curable. Where the amendment would be a vain and useless act, such an amendment is not required by LSA-C.C.P. art. 934. On our review of the petition and the applicable law, we find no reason to order an amendment in the present case.

The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. LSA-C.C.P. art. 927(A)(5). Generally, |7an action can only be brought by a person having a real and actual interest which he asserts. LSA-C.C.P. art. 681. The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Because the exception of no cause of action was well-taken, the court correctly granted the exception of no right of action.

For the foregoing reasons, the judgment is affirmed. Eschete is taxed with costs of these proceedings.

AFFIRMED.

      . Town of Grand Isle v. Eschette [sic], 02-96 (La.App. 5 Cir. 5/29/02), 820 So.2d 1122, writ denied, 2002-1810 (La. 10/4/02), 826 So.2d 1131.

      . Gibson v. State, 03-1112 (La.App. 5 Cir. 2/10/04), 866 So.2d 375, writ denied, 2004-0960 (La.4/8/05) 899 So.2d 8.

      . Freeman v. Cooper, 414 So.2d 355 (La.1982); Rogers v. Ash Grove Cement Co., 34,934 (La.App. 2 Cir. 11/2/01), 799 So.2d 841, writ denied, 2001-3187 (La, 2/8/02), 808 So.2d 351.

        . Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127; Rogers v. Ash Grove Cement Co., supra.

      . Town of Grand Isle v. Eschette [sic], 820 So.2d 1122, 1129-30.

      . See, Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382.

      . Hennig v. Alltel Communications, Inc., 05-96 (La.App. 5 Cir. 5/31/05), 903 So.2d 1137.

      . Id.

      . World Trade Center Taxing Dist. v. All Taxpayers, Property Owners 2005-0374 (La.6/29/05),908 So.2d 623.

      . Gibson v. State, supra.


author: EZELL, J.

text:
    STATE of Louisiana v. Dashawn D. HERRON.
    No. KA 06-317.
    Court of Appeal of Louisiana, Third Circuit.
    April 26, 2006.
    Dmitrc Ian Burnes, Burnes & Burnes, Alexandria, LA, for Defendant/Appellant, DaShawn D. Herron.
    William E. Tilley, District Attorney, Leesville, LA, for PlaintifPAppellee, State of Louisiana.
    Court composed of GLEN B. GREMILLION, BILLY H. EZELL, and J. DAVID PAINTER, Judges.
   EZELL, J.

| defendant, Dashawn D. Herron, was originally charged with manslaughter, in violation of La.R.S. 14:31. However on April 7, 2005, Defendant pled guilty to attempted manslaughter, in violation of La.R.S. 14:27 and La.R.S. 14:31. On July 5, 2005, the trial court sentenced Defendant to serve fifteen years at hard labor with credit for time served. Defendant filed a Motion to Reconsider Sentence on July 7, 2005, which was denied the next day without conducting a hearing.

Defendant timely appealed his conviction and sentence. However, Defendant subsequently entered into an agreement with the State whereby Defendant would be allowed to withdraw his guilty plea on the condition that Defendant voluntarily dismiss his appeal. The State agreed to allow Defendant to withdraw his guilty plea because attempted manslaughter was not responsive to the charge of manslaughter. As agreed, Defendant sought and was granted voluntary dismissal of his appeal. Also in accordance with his agreement, Defendant filed a Motion to Vacate and Set Aside Sentence and Withdraw Guilty Plea with the district court. The prosecution deviated from the agreement based on the recent Louisiana Supreme Court decision in State v. Jackson, 04-2863 (La.11/29/05), 916 So.2d 1015 and argued against Defendant’s motion at the January 4, 2006 hearing. The trial court, based on the arguments made at the hearing, denied Defendant’s Motion to Vacate and Set Aside Sentence and Withdraw Guilty Plea and gave Defendant thirty days to file an out-of-time appeal. In compliance with the district court’s order, Defendant filed a Second Motion for Appeal, which the trial court granted.

After the appeal record was lodged, this court issued a rule to show cause directing Defendant to show, via brief, why his appeal should not be dismissed as untimely. Accordingly, Defendant briefed his arguments in support of the timeliness | ?,of his appeal, arguing that the circumstances peculiar to his case merit his being granted the right to appeal.

At the January 4, 2006, Motion to Vacate and Set Aside Sentence and Withdraw Guilty Plea hearing, defense counsel, Dmi-tric Burnes, told the district court, “This court can’t just say, hey, I’ll give you an out-of-time appeal. If they do it, it’s in context of post-conviction relief.” The trial court responded that this court would not treat the grant of out-of-time appeal as post-conviction relief and would, instead, treat Defendant’s appeal as timely filed. Prior to giving Defendant thirty additional days to seek appeal, the district court stated:

Well, if I deny the [Motion to Vacate and Set Aside Sentence and Withdraw Guilty Plea], there’s no appeal pending because Mr. Burnes, pursuant to the understanding and agreement, has dismissed the appeal. Does that mean that the defendant no longer has a right to appeal? I don’t think so. I think — and I granted — I have granted before motions that are untimely and out-of-time for appeals and I have never had one sent back to me that said the court has no authority to do that. This has got to be a post-conviction relief application. I think if there’s good reason for an out-of-time appeal I think jurisprudence is very lengthy that says that the court can do that. If fact, there have been cases where the court of appeals, themselves, have granted an out-of-time appeal where the appeal would certainly still be viable.

A recent decision by this court shows that the district court’s statement was incorrect:

Under La.Code Crim.P. art. 914, a motion for appeal must be made no later than thirty days after either the rendition of the judgment from which the appeal is taken or the ruling on a motion to reconsider sentence filed pursuant to La.Code Crim.P. art. 881.1.

State v. Thomas, 05-619, p. 1 (La.App. 3 Cir. 8/17/05), 909 So.2d 1023, 1024. Defendant’s Second Motion for Appeal was filed on January 27, 2006, which was more than six months after July 8, 2005, the date the district court ruled on Defendant’s Motion to Reconsider Sentence.

Because Defendant failed to file his motion for appeal -within the time provided by La.Code Crim.P. art. 914, his conviction and sentence | ?,became final. Once Defendant’s conviction and sentence became final, he could no longer obtain an appeal by simply filing a'motion for appeal. State v. LaBiche, 96-433 (La.App. 3 Cir. 7/31/96), 680 So.2d 77. Thus, Defendant had to obtain reinstatement of his right to appeal by way of a properly filed application for post-conviction relief. Id.; State v. Dixon, 00-516-(La.App. 3 Cir. 6/7/00), 768 So.2d 99; State v. Counterman, 475 So.2d 336 (La.1985).

Thomas, 909 So.2d at 1024.

Accordingly, Defendant’s appeal is hereby dismissed, and this case is remanded to the trial court for further proceedings. Defendant is to be permitted an opportunity to amend his motion for appeal to comply with the requirements of La.Code Crim.P. arts. 924-930.8, and the State is to be given an opportunity to contest the granting of an out-of-time appeal.

APPEAL DISMISSED AND REMANDED WITH INSTRUCTIONS.


author: DREW, J. BROWN, Chief Judge,

text:
    STATE of Louisiana, Appellee v. Nathan WILLIAMS, Appellant.
    No. 40,866-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 26, 2006.
    Rehearing Denied May 18, 2006.
    Opinion Dissenting from Denial of Rehearing May 18, 2006.

      Louisiana Appellate Project, by Paula Corley Marx, Lafayette, Christopher Albert Aberle, Mandeville, for Appellant.
    Nathan Williams, Paul Joseph Car-mouche, District Attorney, Ron Christopher Stamps, Lea R. Hall, Jr., Assistant District Attorneys, for Appellee.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   DREW, J.

| Nathan Williams was convicted at bench trial of armed robbery while armed with a firearm. Adjudicated as a fifth felony offender, he was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. We affirm the conviction, amend the habitual offender adjudication, and remand for re-sentencing.

FACTS

On August 9, 2003, the night manager at Popeye’s Fried Chicken Restaurant was informed by one of her employees that a man had just told her the store was about to be robbed. The manager approached the man, who denied saying anything about a robbery. At that point a tall, slender man whose face and head were covered with bandanas entered the store, brandishing a gun. He then:

• forced the employees to open a safe and cash register,
• removed the money and put it in a bag, and then
• herded the employees into the cooler.

About five minutes later, the manager emerged from the cooler and called the police.

Shreveport Police Officer Erick Ardoin responded by driving toward an alley behind Popeye’s. A blue Oldsmobile was parked on the street near the alley, and he saw two men walking away from the car. One was carrying a wad of cash. The officer turned on his vehicle’s floodlights and ordered them to stop. The man with the cash threw it at the officer. Both men fled. Ardoin apprehended one of the assailants, Eric Jefferson, whoj^was taken to the police station and questioned, eventually implicating his cousin, Nathan Williams, as his accomplice. Officer Ardoin was shown a photograph of Williams, whom he identified as the other suspect.

DISCUSSION

Was the single photo identification illegally suggestive?

Defendant disputes that Ardoin got a good look at the second suspect. The officer’s testimony is also attacked as being inconsistent concerning the suspect’s clothing.

Officer Ardoin testified that he had a good look at both men and was only shown the photograph of Williams after the other suspect supplied his name and fingered him as the other suspect.

Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64.

If the crime is committed with the use of a firearm, a person can also be charged with La. R.S. 14:64.3, which provides for a sentencing enhancement of an additional five years to be served without benefits and consecutively to the sentence imposed under the provisions of La. R.S. 14:64.

The proper standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Bosley, 29,253 (La.App.2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333. The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

When a defendant claims that he is not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Powell, 27,959 (La.App.2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.5/8/96), 674 So.2d 1018, writs denied, 96-1459 (La.11/15/96), 682 So.2d 760, 98-0282 (La.6/26/98), 719 So.2d 1048.

1¿Even if the procedure used in a photographic identification is suggestive, an identification will be admitted if, under the totality of the circumstances, the identification is found to be reliable. State v. Johnson, 33, 174 (La.App.2d Cir.5/10/00), 759 So.2d 1052, writ denied, 00-1949 (La.9/21/01), 797 So.2d 60, citing State v. Savage, 24,881 (La.App.2d Cir.6/23/93), 621 So.2d 641, writ denied, 93-2850 (La.9/2/94), 642 So.2d 1282. The factors considered in assessing the reliability of the identification include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of his or her prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the length of time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

Defendant’s motion to suppress the photo identification was properly denied by Judge Jeanette G. Garrett after a full hearing on the motions which revealed that Officer Ardoin:

• saw two black males running behind the business, about 20 feet away,
• turned on his two “take-down lights,”
• clearly saw the two robbers for about five seconds in the well-lit area,
• made the photo I.D. less than an hour after the robbery, and
• was not shown the appellant’s photograph by another officer until after the other suspect implicated the appellant.

Judge Michael Pitman presided over the trial, at which the officer’s testimony did not materially conflict with the testimony he gave at the motion to suppress hearing. Ardoin again identified Williams as the same ¡^person he saw running from the scene of the robbery on the night in question.

The officer’s testimony presented no internal contradiction or irreconcilable conflict, and other evidence showed that the abandoned car was registered to the appellant’s mother and his girlfriend worked at the restaurant. A gun matching the description of the gun used by the armed robber was found near the car.

The identification of the appellant by the officer via the photograph and the subsequent in-court identification was sufficient evidence to negate any reasonable probability of misidentification. Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found the state proved, beyond a reasonable doubt, the essential elements necessary to convict the defendant of armed robbery while armed with a firearm.

Was the habitual offender adjudication improper?

Defendant argues, and the state concedes, that the three previous convictions arising from guilty pleas entered on the same day should count as only one conviction under the applicable jurisprudence on the date of the commission of the instant offense. We agree.

The relevant chronology is as follows:

• In State ex rel. Mims v. Butler, 601 So.2d 649 (La.1992), the Louisiana Supreme Court held that convictions entered on the same day were to be counted only as one conviction under the provisions of La. R.S. 15:529.1.
• This record shows that the state listed four prior felonies in the habitual bill of information, three of which arose from guilty | fipleas entered on October 26, 1998, with those three crimes occurring earlier in 1998.
• In State v. Johnson, 2003-2993 (La.10/19/04), 884 So.2d 568, the court overruled State ex rel. Mims v. Butler, supra, finding that the defendant was subject to sentencing as a fourth offender even though two of his prior convictions had been entered on same date.
• La. R.S. 15:529.1 was amended effective August 15, 2005, now requiring that multiple convictions obtained on the same date only count as one conviction, for multiple offender purposes.

Accordingly the habitual offender adjudication is amended to reflect that this appellant is a third felony offender, and we remanded for re-sentencing as a third felony offender.

The trial court failed to advise the defendant of the time delays set forth in La. C. Cr. P. art. 930.8. At re-sentencing, the trial court should do so.

In summary, the evidence presented at both the motion to suppress hearing and the bench trial supports a finding that the photo identification by the officer was not tainted, and the trial court did not err in denying the motion to suppress. We therefore affirm the conviction.

We amend the habitual offender adjudication to reflect that this appellant is a third felony offender, and we remand for re-sentencing as such.

We further remind the learned trial court to fully explain to the defendant at re-sentencing the ramifications of La. C. Cr. P. art 930.8.

I .¿DECREE

The conviction is affirmed. The habitual offender adjudication is amended to categorize the defendant as a third felony offender, and we remand this matter for re-sentencing on that basis.

CONVICTION AFFIRMED, AMENDED IN PART, AND REMANDED.

APPLICATION FOR REHEARING

Before BROWN, C.J., and WILLIAMS, DREW, MOORE, and LOLLEY, JJ.

Rehearing denied.

BROWN, Chief Judge,

dissents from the denial of application for rehearing and assigns reasons.

_JjI would grant the state’s request for a rehearing for the following reasons.

This court’s opinion states that “the three previous convictions arising from guilty pleas entered on the same day should count as only one conviction under the applicable jurisprudence on the date of the commission of the instant offense.” (Emphasis added). The date of commission of the offense was August 9, 2003; however, both the trial and sentencing were in 2005. In 2004, the Johnson case was rendered (State v. Johnson, 03-2993 (La.10/19/04), 884 So.2d 568). The majority opinion applies the rule of State ex rel. Mims v. Butler, supra, which was expressly overturned by Johnson.

In State v. Dorsey, 04-1358 (La.App. 1st Cir.03/24/05), 907 So.2d 154, the defendant’s crime was also committed in 2003, and his sentencing as a habitual offender also occurred after the Johnson decision. The Dorsey court stated:

Although defendant pled guilty to three of the aforementioned predicates on the same date, the offenses occurred on different dates and do not appear to be based on related conduct. According to Johnson, these predicate convictions can be counted separately for sentence enhancement as there is no specific sequence requirement.

Id. at 157.

Trial courts and courts of appeal are bound to follow the last expression of law of the Louisiana Supreme Court. Pelican State Associates, Inc. v. Winder, 253 La. 697, 219 So.2d 500 (La.1969); Clomon v. Monroe City School Board, 557 So.2d 1100 (La.App. 2d Cir.1990); Lucky v. Fricks, 511 So.2d 1315 (La.App. 2d Cir.1987), writ denied, 514 So.2d 455 (La.1987); D’Antoni v. D'Antoni, 432 So.2d 926 (La.App. 4th Cir.1983); Moss v. Guarisco, 409 So.2d 323 (La.App. 1st Cir.1981), writ denied, 412 So.2d 540 (La.1982).

As noted by the Fifth Circuit in Abadie v. Metropolitan Life Insurance Co., 00-344 (La.App. 5th Cir.03/28/01), 784 So.2d 46, 78, a products liability case,

[T]he Louisiana Supreme Court did not create new substantive law in Halphen [v. Johns-Manville Sales Corp., 484 So.2d 110 (La.1986)]. The court in Hal-phen merely compiled and interpreted the law with regards to products liability in Louisiana at that time. Justice Dennis, the author of Halphen, held in Hulin v. Fibreboard Corporation [Berry], 178 F.3d 316 (5th Cir.1999), that Hal-phen applies retroactively. We find his language persuasive. The decisions of a court of last resort are not the law, but only the evidence of what the court thinks is the law. The Supreme Court has held that unless a judicial decision specifies otherwise it is given both retrospective and prospective effect. A prospective — only application of judicial decisions is, in effect, legislating. Under Louisiana’s Constitution, the power to make substantive laws is vested in the legislature. La. Const. Art. Ill, Sect. 1, Art. II, Sect. 2.

The majority opinion confuses jurisprudence with statutory provisions. Statutory laws, such as the amendment to La. R.S. 15:529.1 B, do apply prospectively. I would grant the state’s application for rehearing to further examine this issue.

      . A dead giveaway.

        Construction Materials, Inc. v. American Fidelity Fire Insurance Co., 388 So.2d 365, 367 (La.1980), citing Norton v. Crescent City Ice Manufacturing Co., 178 La. 135, 145 150 So. 855, 858 (1933).

        Succession of Clivens, 426 So.2d 585, 587 (La.1982).


author: PICKETT, Judge.

text:
    Scott BENNETT v. DAIGRE’S AUTOMOTIVE, INC.
    No. 06-63.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.

      George A. Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Plaintiff/Appellee, Scott Bennett.
    John Hatch Hughes, Allen & Gooch, Lafayette, LA, for Defendant/Appellant, Daigre’s Automotive, Inc.
    Court composed of JOHN D. SAUNDERS, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

hThe defendants, Daigre’s Automotive, Inc. (Daigre’s) and Louisiana Insurance Guaranty Association(LIGA), the successor to Daigre’s compensation carrier, Casualty Reciprocal Exchange and Equity Insurance Company (which had been placed into liquidation), appeal a judgment of a workers’ compensation judge (WCJ) awarding the claimant, Scott R. Bennett, penalties and attorney’s fees under La.R.S. 23:1201(G) for non-payment of Supplemental Earnings Benefits (SEB) and $4,000.00 in attorney’s fees. The claimant answered the appeal seeking additional attorney’s fees for the work necessitated by this appeal. We affirm the judgment of the WCJ and award the claimant additional attorney’s fees of $2,500.00 for the work necessitated by this appeal.

SUMMARY OF THE PROCEEDINGS BEFORE THE WCJ

The record is fairly sparse, but we have gleaned the following from the pleadings, the minutes and the transcripts of August 11 and November 28, 2005.

The claimant was a longtime employee of Daigre’s before his accident on January 23, 2002. There appeared to be no problem in the handling of his claim until Daigre’s workers’ compensation carrier went into liquidation, and LIGA came into the picture in August 2004. Without filing any motion or seeking approval from the WCJ handling claimant’s case, LIGA stopped paying Mr. Bennett’s benefits as of January 1, 2005. Several telephone conferences followed, and on August 11, 2005, a hearing was held. At that hearing, the following partial settlement was entered into the record (emphasis ours):

All claims for penalties as a result of any acts and/or omissions from the date of injury through today’s date are settled for Two Thousand Dollars ($2,000.00). All claims for attorney’s fees are waived for all acts and omissions from the date of injury through today’s date. There will be a | sresumption of Mr. Bennett’s SEB benefits from January 1, 2005 through the present and continuing with legal interest from the date due on each ... in the amount of Two Hundred Twenty-four Dollars ($224.00), that being all legal interest on the past-due installments through July 31, 2006. Furthermore, cost will be reimbursed to plaintiff in the total amount of One Thousand Eighty-nine Dollars and Fifty-five Cents ($1,089.55).

On August 31, 2005, a judgment in accordance with the above, dismissing Mr. Bennett’s claims for penalties and attorney’s fees, was rendered. The judgment was silent as to the emphasized portion of the settlement. Thereafter, LIGA failed to bring Mr. Bennett’s SEB up to date. On October 21, 2005, the claimant filed a pleading styled, “Motion for Summary Judgment” seeking to have LIGA comply with the terms of the August 11, 2005 settlement agreement. The motion also prayed for penalties and attorney’s fees for its failure to do so.

At the hearing on the claimant’s motion, on November 21, 2005, the WCJ recognized that the claimant’s motion was improperly captioned and decided to consider it as a motion to enforce the settlement reached on August 11, 2005. After hearing the arguments of counsel, the WCJ entered a judgment in favor of the claimant in accordance with the italicized portion of the August 11, 2005 agreement casting the defendant, Daigre’s, with “a 24% penalty on the unpaid supplemental earnings benefits, based on zero earnings, from January 1, 2005 through November 27, 2005, or $3,000, whichever is greater with legal interest from the date of this judgment.” The WCJ further awarded the claimant “an attorney fee in the amount of $4,000, together with legal interest from the date of this judgment” and all costs. Said attorney fee and costs were also assessed against Daigre’s. This appeal followed.

LAW AND DISCUSSION

| ¡¡There are no disputed factual issues in this case. The issues before this court can be condensed into the following: 1) Was a compromise reached on August 11, 2005? and 2) Does the record, particularly the transcripts of the August 11 and November 28, 2005, support the judgment rendered by the WCJ rendered December 14, 2005.

The defendants spend much time on appeal arguing that the claimant misused summary proceedings and that the WCJ erred in “converting the claimant’s Motion for Summary Judgment into a Motion for Sanctions.” The law is clear:

We should construe pleadings expansively, according to our supreme court, and heed Article 865’s command to construe all pleadings so as to do substantial justice. McClelland v. State Nat. Life Ins., 94-2123 (La.11/18/94); 646 So.2d 309. As long as the facts constituting a claim are alleged, the party may be granted any relief to which he is entitled under the pleadings and the evidence; the “theory of the case” doctrine, under which a party must select a theory of his case or defense and adhere to it throughout the litigation, has been abolished. First South Prod. Credit v. Georgia-Pacific, 585 So.2d 545 (La.1991). Pleadings must be construed reasonably so as to afford litigants their day in court, to arrive at the truth, and to do substantial justice. Kuebler v. Martin, 578 So.2d 113 (La.1991).

Taylor v. Hixson Autoplex of Alexandria, Inc., 00-1096, p. 5 (La.App. 3 Cir. 3/28/01), 781 So.2d 1282, 1285, writ not considered, 01-1539 (La.9/14/01), 796 So.2d 670. The WCJ did what the law demands — he construed the pleadings “so as to do substantial justice.” Accordingly, the defendants’ arguments on this issue are without merit.

On appeal, the defendants also argue that the partial settlement read into the record on August 11, 2005, does not support the WCJ’s ordering the continuing payment of SEB. They further argue that the WCJ erred in that any motion for sanctions was premature inasmuch as the claimant had failed to prove his entitlement to benefits in the first place.

|4We find that the defendants’ arguments on this issue to' be without merit. Additionally, we find this case is almost a twin to the recent Louisiana Supreme Court case of Trahan v. Coca Cola Bottling Co. United, Inc., 04-100 (La.3/2/05), 894 So.2d 1096. In Trahan, an injured worker brought a motion to enforce a settlement agreement orally entered into with the defendant in open court on October 21, 2002. That agreement, like the agreement in this case, was a partial settlement of the injured worker’s claims. The court in Tra-han stated: “The first issue presented in this case is whether the parties entered into-an enforceable compromise settlement in open court on October 21, 2002.” Id. at 1102. The court found that the agreement was not an enforceable compromise settlement under La.R.S. 23:1272 because it was not a lump sum settlement of all of the plaintiffs claims. However,- this did not end the court’s inquiry. The court turned to La.Civ.Code art. 3071 which states (emphasis in second paragraph ours):

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

In Trahan, 894 So.2d at 1105-06, our supreme court stated:

Utilizing Article 3071 in this case does not frustrate the stated policy that it‘ is in the best interest of the injured worker to receive benefit payments on a periodic basis. Claimant in this case has merely agreed to compromise outstanding claims from the date of his injury to the date of the agreement. He reserved his rights to all future compensation and may continue to receive weekly benefits.

| rJn the case sub judice, the claimant gained more protection than did Mr. Tra-han in that the compromise in.our case not only brought Mr. Bennett’s SEB up to date, but agreed to continue it. Trahan continued:

The parties in this case agreed to put an end to the litigation before the hearing officer and recited the terms of the agreement, which were capable of being transcribed from the record of the proceeding, in open court. Our review of the transcript of the proceeding convinces us that a valid compromise was entered into by the parties on October 21, 2002. The hearing officer accepted and approved the compromise, and her statement that “I will sign off on documents once they’re presented” did not serve to make the enforceability of the compromise contingent upon her signature. The Article clearly provides that “[the] agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.” The record is unclear regarding the nature of the documents referred to by the hearing officer, or she may have been contemplating signing a written agreement memorializing the terms recited in open court, which would serve as a more convenient written form, or she may have been contemplating signing a dismissal. In any case, because the requirements for an oral compromise pursuant to La. C.C. art. 3071 were satisfied, it was unnecessary for the hearing officer to sign anything for the agreement to be enforceable. See Colbert, 446 So.2d at 1206 (stating that both forms of compromise, whether written or recited in open court, may be judicially enforced).

Id. at 1106.

The court went on to conclude:

A compromise instrument constitutes the law between the parties and must be interpreted in accordance with the intent of the parties. Ortego v. State, Dept. of Transp. & Dev., 96-1322, p. 7 (La.2/25/97), 689 So.2d 1358, 1363. The compromise instrument is governed by the same general rules of construction that are applicable to contracts. Id. The general rule of construction is provided by La. C.C. art.2046, which states that “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” Further, a compromise extends only to those matters the parties intended to settle and the scope of the transaction cannot be extended by implication. La. C.C. art. 3073; Ortego, 96-1322 at p. 7, 689 So.2d at 1363; Brown v. Drillers, Inc., 93-1019 at p. 7, 630 So.2d at 748. Courts apply this rule of construction in light of the general principle that the instrument must be considered as a whole and in light of attending events and circumstances. Ortego, 96—1322 at p. 7, 689 So.2d at 1363; Brown v. Drillers, Inc., 93-1019 at p. 8, 630 So.2d at 748.
The meaning and intent of the parties to a compromise is ordinarily determined from the four corners of the instrument, and extrinsic evidence is inadmissible to explain or to contradict the terms of the instrument. Ortego, 96-1322 at p. 7, 689 So.2d at 1363....
Having determined that a valid and enforceable compromise was entered into by the parties on October 21, 2002, the next issue we must resolve is whether the compromise constitutes a “final, non-appealable judgment” such that penalties and attorney fees may be awarded pursuant to La. R.S. 23:1201(G).
Our courts of appeal have not necessarily agreed on the proper resolution of this issue. See, e.g., Sedgwick Claims Mgmt. Serv. Inc. v. Cormier, 02-0216 (La.App. 3 Cir. 3/26/03), 841 So.2d 1032, writ denied, 03-1185 (La.6/20/03), 847 So.2d 1234; Richard v. Our Lady of Lourdes Reg’l Med. Ctr., Inc., 02-0571 (La.App. 3 Cir. 10/30/02), 829 So.2d 1147 (both holding that an oral settlement under La. R.S. 23:1272 is a final, non-appealable judgment under La. R.S. 23:1201(G)); Daniel v. Wal-Mart Stores, Inc., 36,451 (La.App. 2 Cir. 12/11/02), 833 So.2d 1047 (oral recitation of settlement followed by a court order for defendant to prepare a written judgment was not sufficiently clear to warrant the imposition of penalties) and Kessel v. Hotel Dieu Hosp., 02-0896 (La.App. 4 Cir. 10/16/02), 830 So.2d 1057 (penalties begin to run from date joint petition for judgment signed by court), writ denied, 02-2770 (La.1/24/03), 836 So.2d 49.
Awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature, and are imposed to deter indifference and undesirable conduct by employers and their insurers toward injured workers. Williams v. Rush Masonry, Inc., 98-2271, pp. 8-9 (La.6/29/99), 737 So.2d 41, 46. While the benefits conferred by the Workers’ Compensation Act are to be liberally construed, penal statutes are to be strictly construed. Id. at p. 9, 737 So.2d at 46. La. R.S. 23:1201(G) is a penal statute which must be strictly construed. Smith v. Quarles Drilling Co., 04-0179, p. 7 (La.10/29/04), 885 So.2d 562, 566.
La. R.S. 23:1201(G) provides for penalties and attorney fees as follows:
G. If any award payable under the terms of a final, non-appealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one |7hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.
Thus, if the compromise entered into by the parties on October 21, 2002, constitutes a “final, non-appealable judgment,” then claimant is eligible for an award of penalties and attorney fees, unless defendant’s failure to pay within thirty days resulted from conditions over which it had no control.
A compromise has the legal efficacy of a judgment that possesses “a force equal to the authority of things adjudged.” La. C.C. art. 3078. See also Ortego, 96-1322 at p. 6, 689 So.2d at 1363; Brown v. Drillers, Inc., 93-1019 at p. 5, 630 So.2d at 747. Additionally, “[a]n appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in the judgment rendered against him.” La. C.C.P. art. 2085. Although the term “confession” is not defined by the Code of Civil Procedure, the jurisprudence has defined it as “an admission by a party, in pleadings or in evidence, of the validity of his opponent’s claim in such a way as to leave no issue to be tried.” La. C.C.P. art.2085 cmt. (c).
We find the compromise entered into by the parties constitutes a confession of judgment such that defendant was not entitled to an appeal. By agreeing to pay certain sums to claimant in exchange for ending the pending litigation and reciting the specific terms of the agreement in open court, defendant confessed judgment in the proceeding. Defendant’s consent amounted to an admission of the validity of the claim against it. Because defendant confessed judgment, it could not appeal the compromise. We therefore conclude that the compromise entered into by the parties on October 21, 2002, included an award payable and constituted a final, non-ap-pealable judgment for purposes of La. R.S. 23:1201(G).

Trahan at 894 So.2d 1106-08.

We have much the same situation in this case as was the case in Trahan. The August 11, 2005 compromise between Mr. Bennett and the defendants constituted |san award payable and non-appeal-able — the agreed upon penalties and the SEB, which was to have been continued from January 1, 2005. When the defendants failed to bring Mr. Bennett up to date within thirty days, they exposed themselves to additional penalties and attorney’s fees.

The appellants claim that Mr. Bennett has never proven his injury and his right to SEB. However, when the parties entered into the compromise (stipulation) on August 11, 2005, the appellants forfeited the right to demand such proof. It is well settled that a stipulation operates as a judicial confession, binding on all parties and the court. Grillette v. Alliance Compressors, 05-982 (La.App. 3 Cir. 2/1/06), 923 So.2d 774, citing La.Civ.Code art. 1853 and Winford v. Conerly Corp., 04-1278 (La.3/11/05), 897 So.2d 560.

Louisiana Revised Statutes 22:1382(A)(2) states in part (emphasis ours): “The association [LIGA] shall: Be deemed the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent.” Louisiana Revised Statutes 22:1379(3)(d) states (emphasis ours):

“Covered claim” shall not include any claim based on or arising from a pre-insolvency obligation of an insolvent insurer, including but not limited to contractual attorneys’ fees and expenses, statutory penalties and attorneys’ fees, court costs, interest and bond premiums, or any other expenses incurred prior to the determination of insolvency.

Accordingly, if we were left to act without restraint, we would assess all penalties and attorney’s fees against LIGA. However, we are bound by the action of our supreme court and the prior action of this court:

LIGA claims it is immune from penalties and attorney fees. La.R.S. 23:1201(E) and La.R.S. 23:1201.2 are punitive in nature and require strict construction. They apply to only “insurers” and “employers.” LIGA is considered an “association.” Strict construction | cidictates that LIGA is an entity not intended to be included within the meaning of the statutes. Bowens v. General Motors Corporation, 608 So.2d 999 (La.1992); Louisiana Insurance Guaranty Association v. Cloud, 627 So.2d 758 (La.App. 2d Cir.1993). We adhere to this jurisprudential rule reluctantly because the record reveals LIGA grossly neglected its duty to ascertain the true status of Pitre’s health and ability to work. Although LIGA’s neglect is indefensible, we are limited by the directive of Bowens, supra, in reversing that portion of the hearing officer’s judgment.

Pitre v. Al Johnson Construction Co., 94-290, pp. 6-7 (La.App. 3 Cir. 10/5/94), 651 So.2d 301, 305. As in Pitre, LIGA’s actions in this case are indefensible. Nevertheless, we are bound the rule of jurisprudence constante and cannot assess penalties and attorney’s fees against LIGA. However, Daigre’s has no such protection.

Accordingly, for the reasons stated, the judgment of the WCJ is affirmed. We award the claimant additional attorney’s fees of $2,500.00 for the work necessitated by this appeal.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    SMIT LAND & MARINE, INC. v. WHC, INC.
    Nos. 05-1254, 05-1255.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.

      Bernard E. Boudreaux, Jr., Murphy J. Foster, III, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, Lloyd Noble Shields, New Orleans, LA, for Defendant/Appellant, WHC, Inc.
    David Arthur Hurlburt, Hurlburt, Privat & Monrose, Lafayette, LA, for Plaintiff/Appellee, Smit Land & Marine, Inc.
    Robert Beattie McNeal, Patricia Elise Weeks, Weeks & Gonzalez, New Orleans, LA, for Defendant/Appellee, Exxon Mobile Pipeline Company.
    L. Katherine A. Theunissen, Mahtook & Lafleur, Lafayette, LA, for Defendant/Ap-pellee, National Union Fire Insurance Co.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

| t Plaintiff-appellee, Smit Land & Marine, Inc. (“Smit”), filed a motion for partial summary judgment regarding its claim for nonpayment of fees allegedly owed to it under its contract with defendant-appellant, WHC, Inc. (“WHC”). The trial court granted the motion and certified the judgment as final pursuant to La. Code Civ.P. art. 1915(B). WHC has appealed the judgment as well as the trial court’s certification of the judgment as final. For the following reasons, the appeal is dismissed, the order certifying the partial summary judgment as final is vacated, and the case is remanded for trial.

I.

ISSUES

1. Did the trial court err in certifying its judgment as final and appealable pursuant to La.Code Civ.P. art. 1915(B)? ■

2. Did the trial court erroneously find that there is no genuine issue of material fact as to Smit’s entitlement to the unpaid fees?

II.

FACTUAL BACKGROUND

In this ongoing litigation, multiple parties are suing and/or being sued for damages resulting from alleged acts of negligence, breach of contract, and intentional tort, arising out of a pipeline construction job. This saga began on August 28, 1998, when Exxon Pipeline Company, now known as ExxonMobil Pipeline Company (“Exxon”), hired general contractor, WHC, to construct approximately forty-six miles of pipeline in an area extending from the vicinity of Anchorage, Louisiana to the vicinity of St. James, Louisiana. This project was referred to as the South Louisiana Pipeline Project (“the project”). On October 15, 1998, WHC hired [?a subcontractor, Smit, to perform directional drilling work for four pipeline crossings for the project. One of those crossings, known as the North Mississippi River Crossing, is the subject of this dispute.

The North Mississippi River Crossing was to be placed under the Mississippi River near Baton Rouge, Louisiana. The subcontract required Smit to bore one hole of a sufficient capacity to house a single bundle of pipelines, consisting of one twenty-four-inch pipeline and two twelve-inch pipelines. The work was to be completed within twenty-five days. The final agreed upon price for the work to be performed by Smit on the North Mississippi River Crossing was $898,388.15.

It is undisputed that this work was not completed in the manner described by the subcontract. Rather, Smit completed the North Mississippi River Crossing by drilling two holes instead of one — one hole was used for the placement of the two twelve-inch pipelines and the other was used for the placement of the one twenty-four-inch pipeline. In addition, this crossing was completed thirty to forty days beyond the original twenty-five-day deadline. Smit explained that these contract variations resulted because it was unprepared for soil conditions it encountered. Smit claimed that this was a result of its reliance on erroneous soil condition information set forth in the geotechnical report provided by Exxon.

The contractor, WHC, also had work obligations under the subcontract. WHC was to provide Smit with equipment and personnel during its “pullback” and “prer-eam” operations of the drilling. According to WHC, these operations required more work than originally expected because of the problems encountered by Smit on the job. Therefore, WHC was necessarily required to provide additional supporting work to Smit beyond what was originally set forth in the subcontract. WHC submitted a claim to Smit in the amount of $621,410.77 for these additional support services and withheld this amount from final payment to Smit.

|sSmit, in turn, sued WHC. It also filed a separate action in the same district court against Exxon and Eustis Engineering Co., Inc. (“Eustis Engineering”), the engineering firm that prepared the allegedly faulty geotechnical report for Exxon. In both suits, Smit sought payment of the unpaid subcontract fee of $621,410.77, as well as $2,013,063.24 in additional costs it claims to have incurred during completion of the North Mississippi River Crossing. Smit sought additional damages for wrongful conversion of funds, unjust enrichment, breach of contract, and unfair trade practices under the Louisiana Unfair Trade Practices Act.

Smit also sought, from WHC only, penalties for its nonpayment of funds pursuant to La.R.S. 9:2784. Smit claimed that months had passed since WHC had received its final payment from Exxon for all work under their principal contract; however, it asserted that WHC had failed to pay it within fourteen days of receiving those funds, in violation of La.R.S. 9:2784. Therefore, Smit asked the court to impose the statute’s maximum penalty of fifteen percent ($93,211.61) of the $621,410.77 being withheld, along with attorney fees.

WHC answered the petition and filed a reconventional demand, naming as defendants, Smit; Exxon; Eustis Engineering; and Smit’s bonding company, National Union Fire Insurance Co. (“National Union”). In its answer, WHC alleged that Smit materially breached the contract, was negligent, and had been paid all sums that it was due. Alternatively, WHC asserted the defenses of “set-off, reduction, abatement or apportionment” in regard to any damages that it might be ordered to pay Has a result of Smit’s claims. WHC also asserted its claim for payment of the $621,410.77 in costs and expenses it claimed to have incurred as a result of the additional work it was required to perform.

Regarding both Exxon and Eustis Engineering, WHC claimed that they were both negligent and liable to it for damages because they provided information that did not accurately portray the soil conditions that would be encountered while drilling for the pipeline crossings. WHC’s claims against Exxon also included breach of contract claims for its failure to provide a defense to, or to indemnify it for, the claims brought by Smit. WHC also asserted its contractual entitlement of a twenty percent markup for all costs for which it may be ordered to pay Smit as a result of the differing site conditions encountered by Smit on the job.

Smit filed a motion for partial summary judgment on February 4, 2004, seeking a judgment on the issue of whether it was owed the subcontract balance of $621,410.77 that was being withheld by WHC. In addition, it asked for summary judgment on the issue of its entitlement to penalties and attorney fees from WHC for late payment, pursuant to La.R.S. 9:2784.

The trial court granted Smit’s motion on the issue of its entitlement to the unpaid balance of its subcontract in the amount of $621,410.77. The trial court stated that no genuine issues of material fact existed that prevented a finding that Smit was entitled to the fee. The trial court, however, declined to grant summary judgment on the issue of the assessment of penalties under La.R.S. 9:2784. The court wrote:

Jurisprudence provides that whether a general contractor has reasonable cause to refuse to make payment to a subcontractor on disputes [sic] amounts is a factual inquiry that has to be made by the district court. U.S. ex rel. Cal’s A/C [&] Elec. [v.] Famous Const. Corp., 220 F.3d 326, 329 (5[th] Cir.2000). Because a factual inquiry is needed, it is precluded from summary judgment on the issue of ^attorney’s fees and penalties. Holiday City Builders, Inc. v. Acadian Aviation Corp., 386 So.2d 1019, 1021 (La.App. 3 Cir.1980).

Smit then moved to have the judgment certified as final and appealable pursuant to La.Code Civ.P. art. 1915(B). WHC opposed the motion. In its Written Reasons, the trial court stated that the judgment met the requirements for certification and that there was no just reason for delaying the certification, reasoning that “the unresolved issues in this case are sufficiently distinguishable from those issues decided on the motion for partial summary judgment.”

WHC filed a suspensive appeal that challenges the certification of the judgment as final and the trial court’s finding that there are no remaining genuine issues of fact regarding whether Smit is entitled to the $621,410.77.

III.

LAW AND ANALYSIS

Certification of Judgment as Final Pursuant to La.Code Civ.P. art. 1915(B)

A partial summary judgment rendered pursuant to La.Code Civ.P. art. 966(E), such as the one at issue, may be immediately appealed during ongoing litigation, but only after it has been properly designated as final by the trial court. See Douglass v. Alton Ochsner Med. Found., 96-2825 (La.6/13/97), 695 So.2d 953. Accordingly, this court’s jurisdiction to decide this appeal hinges on whether that certification was appropriate. Id.

Article 1915(B)(1) of the Code of Civil Procedure pronounces that in order for a partial summary judgment granting relief to be designated as final for appeal purposes, the trial court must expressly certify the judgment as final and determine that there is no just reason for delay:

B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, |fias 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.

A final judgment determines the merits of a controversy in whole or in part. La. Code Civ.P. art. 1841. Therefore, even though Article 1915 dispenses with finality in the sense of completion of the litigation, the partial judgment that is rendered should be sufficiently final; it should dispose of the claim or dispute in regard to which the judgment is rendered. See Van ex rel. White v. Davis, 00-206 (La.App. 1 Cir. 2/16/01), 808 So.2d 478.

The trial court’s decision to certify a partial judgment as final for appeal purposes is to be made on a case-by-case basis, with consideration being given to the judicial administrative interests and equities involved. Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980); see also Banks v. State Farm Ins. Co., 30,868 (La.App. 2 Cir. 3/5/98), 708 So.2d 523. The court may consider the following non-exclusive list of enumerated factors when determining whether a certain partial judgment is one that may be immediately appealable:

1) The relationship between the adjudicated and unadjudicated claims;
2) The possibility that the need for review might or might not be mooted by future developments in the trial court;
3) The possibility that the reviewing court might be obliged to consider the same issue a second time; and
4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La.3/2/05), 894 So.2d 1113 at 1122 (citing Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360, 364 (3rd Cir.1975)).

In this case, the trial court provided express, written reasons for its order that designated the partial summary judgment as final for appeal purposes. Because the trial court provided these explicit reasons for its determination, we are to review the certification applying the abuse of discretion standard of review. See Messinger, 894 So.2d 1113. When applying this standard, great latitude is generally given, and the trial court’s decision is not to be disturbed absent a finding of a clear abuse of discretion. See Rourke v. Coursey, 338 So.2d 1197 (La.App. 3 Cir.1976); see also City of New Orleans v. New Orleans Canal, Inc., 173 So.2d 43 (La.App. 4 Cir.1965).

In its Written Reasons, the trial court explained its decision to certify the judgment as final for appeal purposes, as follows:

The court agrees with Smit that the unresolved issues in this ease are sufficiently distinguishable from those issues decided on the motion for partial summary judgment. The court previously determined that WHC owed to Smit $621,410.77 for work performed and that WHC was not entitled to any type of setoff. The court finds that WHC’s unresolved issues in its reconventional demand are clearly separate issues. Further, the court agrees with Smit that if the judgment is not certified as final, WHC will have succeeded in accomplishing indirectly what it could not do directly; that is, to postpone the final judgment in hopes that it can in the future setoff an unliquidated claim against a liquidated one which this Court has already determined there is no genuine issue of material fact. Finally, WHC’s argument that it is concerned about the solvency of Smit is not a sufficient concern to defeat certification. As argued by Smit, it is also concerned about the solvency of WHC. The court does not find that this concern has any serious bearing on the merits of the certification.

We find that the trial court abused its discretion in certifying the partial judgment as final for appeal purposes for multiple reasons: the existing relationship between the adjudicated and remaining unadjudicated claims in this case, the possibility that | ¿future case rulings may affect this judgment, and the possibility that this court may have to consider this same issue in later appeals. See Curtiss-Wright, 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1.

This case contains cross-claims, as well as third-party claims of breach of contract, negligence, and intentional tort, all of which arise out of the contracts and work involved in the completion of the North Mississippi River Crossing. The trial court’s certified judgment addressed only the slim issues placed before it by Smit— whether the balance of the agreed upon subcontract price being withheld by WHC ($621,410.77) was owed to Smit pursuant to the terms of the subcontract and whether WHC was entitled to a “set-off’ for its unadjudicated claims against Smit under the subcontract. We disagree with the trial court’s position that its judgment on the issue of Smit’s entitlement to the unpaid fee is sufficiently distinguishable from the remaining claims. We find that when this case is considered as a whole, the trial court’s finding of no genuine issue of material fact as to Smit’s entitlement to the $621,410.77 is so interrelated to the remaining unadjudicated claims that it will necessarily be affected by later judgments rendered in this case. For instance, it is possible that this judgment could be rendered moot by a judgment ultimately rendered in favor of WHC on its claim for accrued expenses in the exact amount as that which has already been awarded to Smit. Moreover, subsequent rulings on liability for the remaining claims of damages that have been asserted by both WHC and Smit against Exxon and Eustis Engineering could affect the partial summary judgment that has been rendered by the trial court in favor of Smit. As the trial court recognized in its Written Reasons for its certification of the judgment as final, the $621,410.77 at issue remains a disputed sum.

As was noted by the supreme court in the Messinger, 894 So.2d at 1122, decision:

| ¡Historically, we have a policy against multiple appeals and piecemeal litigation. We also ensure that our courts operate under principles of sound judicial administration to promote judicial efficiency and economy.... Article 1915 ... attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties.

Accordingly, we find that the interests of judicial administration and justice to all of the parties involved outweigh any interest of Smit in having its judgment certified as final so that it may execute on the judgment or immediately exercise the option of having the judgment reviewed on appeal. See Messinger, 894 So.2d 1113. We do not find this to be one of those situations in which the claims of the case are sufficiently unrelated such that the courts’ concerns regarding piecemeal appeals are assuaged. See Curtiss-Wright, 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1. The appeal is hereby dismissed, and the judgment certifying the appeal as final is vacated.

IV.

CONCLUSION

The judgment certifying the motion for partial summary judgment as final pursuant to La.Code Civ.P. art. 1915(B)(1) in favor of Smit Land & Marine, Inc., is vacated. This appeal is dismissed, and the case is remanded to the district court for trial. Costs of this appeal are assessed to plaintiff-appellee, Smit Land & Marine, Inc.

APPEAL DISMISSED; ORDER VACATED AND CASE REMANDED.

      . The two lawsuits were consolidated on July 19, 2002.

      . WHC's claims against Eustis Engineering were severed from its reconventional demand and transferred to the 24th Judicial District Court after a contradictory hearing on Eustis Engineering’s Motion to Dismiss in January, 2003.

      . National Union provided the performance and labor material bonds to guarantee the performance by Smit of the work required by the subcontract.