author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Vincent Mark CASTILLO v. CLERK OF COURT FOR the 29TH JUDICIAL DISTRICT COURT OF ST. CHARLES PARISH, in Louisiana, et al. Vincent Mark Castillo v. Greg Champaigne, St. Charles Parish Sheriffs Office, et al.
    Nos. 06-CA-662, 06-CA-663.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 30, 2007.

      Vincent Mark Castillo, IPP, St. Rose, LA, PlaintiffiAppellant.
    Don A. Almerico, Attorney at Law, St. James, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|2In these two consolidated cases, Vincent Mark Castillo, makes allegations against Sheriff Greg Champagne of the St Charles Parish Sheriffs’ Office, some of his deputies, and several additional defendants, including the District Attorney of St. Charles Parish, the St. Charles Parish Correctional center and its warden, the 29th Judicial Court, the Clerk of the 29th Judicial Court, the Parish of St. Charles, Judge Emile St. Pierre, plaintiffs defense attorney, the United States Postal Service, and an unnamed mail carrier. For reasons that follow, we affirm the judgment of the trial court.

The first petition was filed on August 26, 2003 in the 29th Judicial District Court as a petition for damages. The petition seeks $150,000.00 in damages and alleges that Sheriff Champagne and his officers “continually harassed and annoyed Vincent Mark Castillo, causing anxiety, mental anguish, & damages.”

|sMr. Castillo filed a petition for damages in federal court pursuant to 28 U.S.C. § 1367(c)(3), making essentially the same claims. In that petition, plaintiff sought $10,000,000.00 in damages. The federal claims were dismissed with prejudice and the state claims were dismissed without prejudice by the federal court. Mr. Castillo brought these state claims in a petition filed in state court on September 13, 2004.

The two matters were consolidated on February 3, 2005. Because one of the judges of the 29th Judicial District Court is a defendant in the suit and the remainder of the judges recused themselves, the Supreme Court appointed an ad hoc judge to hear the matter.

In due course, through various exceptions, defense counsel, the District Attorney of St. Charles Parish, Judge Emile St. Pierre, the 29th Judicial District Court, and the Clerk of the 29th Judicial District Court were dismissed from the lawsuit with prejudice. An exception of no cause of action filed on behalf of the Sheriff and his deputies, and the warden of the St. Charles Parish Correctional Center was denied, and the matter went to a trial on the merits of the claims against these remaining defendants.

The court conducted a two day trial on the merits and rendered judgment in favor of all defendants, dismissing plaintiffs case with prejudice. The trial judge gave extensive written reasons for judgment and findings of fact which are contained in the record.

In making his decision to rule against Mr. Castillo, the trial judge made the following findings of fact;

On August 12, 2002, Sgt. Mike Folse, St. Charles Parish Deputy Sheriff, arrested Plaintiff on four attachments of arrest. The attachments resulted from Plaintiffs failure to attend court for trial on June 27, 1996. Plaintiff had been charged with four traffic offenses, namely, (1) Driving Under Suspension, (2) No Motor Vehicle | ¿Inspection Sticker, (3) Failure to Transfer Registration, and (4) Switch License Plates. Plaintiff was arrested on these attachments and was transported to the St. Charles Parish Correctional Facility. He remained in jail until August 19, 2005; on that date he went to court and was found guilty of contempt on the attachments and was sentenced to 15 days in jail, credit for time served. His trial was reset for September 9, 2002. On that date, the original charges were nolle prossed because the state’s witness failed to appear.

The above findings of fact are consistent with plaintiffs petition and testimony, and the documentation in the record. It appears to this Court, from plaintiffs handwritten petition and his subsequent testimony at trial, that the matter began when plaintiff was stopped by officers for traffic violations in 1995. He was given four citations for driving without a license, no brake tag, switched plate and failure to register his vehicle. Mr. Castillo also stated that he has not had a valid driver’s license since 1990 when it was “suspended for some reason.” He was released on a pre-set bond of $650.00, but did not attend the trial on the traffic violations.

Mr. Castillo stated that he turned himself in to a Jefferson Parish Sheriffs Deputy in 1996 after he discovered there was an attachment out for his arrest as a result of his failure to attend trial on the outstanding citations. Documents contained in the record show that Mr. Castillo was represented by counsel and was arraigned and plead not guilty on March 20, 1996. The matter was set for trial on June 27, 1996. Mr. Castillo did not appear for trial and an attachment was issued on that date. Mr. Castillo admits he knew of the court date, but informed deputies of his intention not to attend when he was released in March. Mr. Castillo maintains it was not necessary for him to appear at trial because the traffic stop was illegal.

In August of 2002, plaintiff was stopped in the parking lot of a truck stop when he was walking around in his underwear opening a vehicle. Officers asked | ¡¿for ID, and discovered the outstanding 1996 attachment through a computer check. At that point Mr. Castillo was arrested on the 1996 attachments resulting from his failure to appear at his original traffic trial. He appeared before the trial court on August 19, 2002, at which time Judge St. Pierre told Mr. Castillo to “plead guilty and we’ll give you credit for time served, you go home today. Otherwise you’re gonna sit in here until your trial.” Mr. Castillo did not plead guilty. The court found him in contempt of court for his failure to appear for his original 1996 traffic trial, and sentenced him to fifteen days in parish prison. Bond was set at $1,000.00 on the original traffic violations, and he was given notice of a trial date of September 9, 2003.

Mr. Castillo alleges that on August 19, 2002 he was “falsely” arrested. Plaintiff asserts that he chose to remain incarcerated until his trial, refusing to “plea or sign out.” He testified at trial that he wished to make a “point” by remaining incarcerated. The record shows that by September 9, 2002, the original traffic charges were dismissed and the court amended his original contempt sentence to suspend the balance. At this point Mr. Castillo was free to leave the correctional center, but refused to do so. As a result, Mr. Castillo was forcibly removed by sheriffs deputies who drove him to Kenner.

Plaintiffs petitions detail his refusal to eat, a hospital stay, his return, by “undetermined parties of the St. Charles Correctional Center,” to a parking lot on West Esplanade and Loyola Avenue in Kenner, Louisiana, presumably after his refusal to leave the correctional center after his 2002 release. The petition lists various actions by officers and prison officials including, “refusal to give Castillo his religious diet tray,” giving him “cake for his whole meal, if anything at all,” placing him in isolation for no reason, and taking away his bible, legal papers, toothbrush, and other personal items while in isolation.

|fiMr. Castillo also alleges in his petition that the “legal mail lady” at the prison refused to send out correspondence relating to his claim stating, “Mr. Castillo, if you want the United States District Court to take you seriously, I suggest you use a real envelope to send them your letter.” Mr. Castillo also makes a claim against the United States Postal Service. He alleges that, “while waiting for a ride” he gave the postal carrier a change of address card that was not honored.

Another of Mr. Castillo’s claims relates to the loss of a right to file an action for an unrelated incident that occurred in Claiborne Parish when he was incarcerated for attempted extortion. Mr. Castillo maintains that while he was incarcerated in St. Charles Parish in 2002, officials refused to give him stamps; therefore, his cause of action against officials in Claiborne Parish prescribed. The specifics of the claim that Mr. Castillo lost cannot be determined from either his petition or his testimony. However, it appears to relate to some mistreatment during his incarceration.

Mr. Castillo also testified that he was pulled over in June of 2002 by St. Charles Sheriffs deputies because “somebody called in your license plate.” His vehicle was searched, but nothing was taken. This was apparently unrelated to the incarceration of 2002 that forms the basis of his complaint.

Mr. Castillo stated that while he was incarcerated in August, 2002, he was on a religious diet consisting of vegetarian food. However, on several occasions he was served meat as well as vegetables. On at least one occasion, his meal consisted only of cake.

In support of another of his claims, Mr. Castillo stated that he put in a change of address with the post office and requested the warden forward his mail when he was released from prison, but the warden refused. Mr. Castillo stated that because his mail was not forwarded he did not receive certain legal mail from the |7federal court causing the dismissal of various defendants in the federal suit he had filed. Mr. Castillo also stated that several parcels sent to him at the jail were held four or five days before delivery. Further, a necessary pleading he attempted to mail to the federal court did not go out because the “mail lady” in the prison did not want to send it out without an envelope. Mr. Castillo explained that he did not have an envelope, so he folded a piece of paper over, addressed and stamped it.

Mr. Castillo stated that he was pulled off the yard and placed in isolation on August 28, 2002 until his release on September 8, 2002. Mr. Castillo asserts that there was no reason for the isolation and no hearing.

No proof was presented at trial to support any of these claims.

Deputy Mike Folse, one of the defendants and a traffic officer in St. Charles Parish testified that on December 3, 1995 he issued several citations to Mr. Castillo, including driving under suspension, failure to transfer registration, switched license plate, and no Motor Vehicle Inspection tag. Attachments were issued in relation to those tickets a few months later.

In August of 2002, Deputy Folse was patrolling near the River Bend Truck Stop on U.S. Highway 61. The deputy explained he had been receiving some complaints from the truck stop about some thefts in the area. Deputy Folse saw Mr. Castillo walking around in what appeared to be boxer shorts and no shirt. He was near a vehicle and when he saw the deputy, Mr. Castillo closed the vehicle door. Deputy Folse walked up to Mr. Castillo and asked for identification, which Mr. Castillo provided. A computer check revealed the outstanding attachments, so Mr. Castillo was arrested. After Deputy Folse established that Mr. Castillo was not taking or concealing any contraband, he secured the vehicle and took Mr. Castillo to the correctional center.

| ^Deputy Folse detailed one other incident that involved Mr. Castillo that occurred before the 1995 incident. A complaint was made to police officials from citizens who reported that a stranger had parked a vehicle on the River Road and engaged some of the neighborhood children in a game of football. Deputy Folse was dispatched to investigate. When Deputy Folse discovered Mr. Castillo did not have a valid driver’s license, he could not allow Mr. Castillo to drive his vehicle. This is apparently the basis for the allegation in Mr. Castillo’s petition that his vehicle was illegally towed.

The court also heard testimony from Roland Ladreyt, the warden of the St. Charles Parish Correctional Facility during Mr. Castillo’s incarceration in 2002. Warden Ladreyt explained the procedures in place for handling inmates’ grievances. In connection with his testimony, documents were introduced chronicling Mr. Castillo’s written grievances and the responses and reactions to them. Those documents show that Mr. Castillo’s complaints were numerous and included being allowed to shave only twice a week, not being able to go into the yard despite “perfect” weather, physical abuse and sexual harassment. Many of the complaints related to food, such as finding a hair in one meal, being poisoned in another, and several regarding the service of pork and other food not included in his “pork-free vegetarian” religious based diet. Mr. Castillo also objected to the labeling of food trays by inmate name, for fear that the food would be poisoned or otherwise desecrated by deputies or other inmates. Other grievances relate to Mr. Castillo’s insistence that he be allowed to retrieve stamps from his personal belongings, although the inventory of items taken from Mr. Castillo at the time of his incarceration did not include stamps.

The answers to these complaints show that Mr. Castillo was informed on several occasions how to request an indigent package including stamps from the 19commissary, how to seek library privileges, and how to be approved for a special religious diet.

Documents also establish that Mr. Castillo requested that deputies escort him to his van so that he could retrieve legal files, mail and other personal documents. Answers to these grievances show that Mr. Castillo was allowed to go through his personal items, although he removed nothing. Further, he was informed that he should enlist the help of family and friends to obtain his legal documents and mail from his van.

The trial court heard testimony from seven other witnesses who refuted Mr. Castillo’s testimony and allegations. These witnesses further corroborated the testimony of Warden Ladreyt and the documentation produced by the defendants.

After hearing the testimony and considering the documentary evidence the trial court found in favor of defendants and dismissed plaintiffs action with prejudice. For reasons that follow, we affirm.

Initially we note that plaintiff concedes that any action for damages arising before 2002 is prescribed and not at issue in this appeal. Plaintiff explained at trial that he testified to the events of that prior period because he considered that testimony essential to the understanding of his claim for damages relating to his 2002 arrest.

On appeal Mr. Castillo presents fifteen assignments for our review. The first four assignments relate to actions of the United States Postal Service and concern issues of the forwarding and delivery of mail. The United States Postal Service is not a party to this action. Further, these are federal claims which were dismissed with prejudice in the federal law suit and are not before this court.

In another assignment plaintiff asserts that, since the criminal charges against him were dismissed, he is entitled to an “appearance fee” for all court ^^appearances. Plaintiff cites no law to support this claim and this Court is unaware of any statute or legal concept that would support plaintiffs claim. Further, there is no indication in the record that Mr. Castillo appeared in court on the day the traffic charges were dismissed.

In four assignments, plaintiff questions the credibility of law enforcement officers in general and Officer Mike Folse in particular. Credibility determinations are within the purview of the finder of fact. A reviewing court does not assess the credibility of witnesses or reweigh the evidence. The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness. State v. Gordon, 06-8 (La.App. 5 Cir. 3/30/06) 928 So.2d 689, 694. It is clear that the trial court found the testimony of Officer Folse, supported by documentation more credible than that of Mr. Castillo.

In one of his assignments, Mr. Castillo asserts there was no reasonable suspicion or probable cause for Officer Folse to confront him in the parking lot of the truck stop. We disagree. Officer Folse, while on a routine patrol, witnessed Mr. Castillo in his boxer shorts and no shirt loitering around a vehicle in the truck stop. The officer testified that thefts of vehicles at the truck stop had been a problem and the owners requested officers to patrol the area.

It is well-established that a police officer may conduct a brief investigatory stop when the officer has a reasonable articulable suspicion of criminal activity. “Reasonable suspicion” is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference. State v. Williams, 05-582 (La.App. 5 Cir. 2/14/06), 924 So.2d 327, 331. Here the officer made a valid h investigatory stop. Upon finding that Mr. Castillo had outstanding attachments, the officer was justified in arresting Mr. Castillo.

It appears from the argument on this assignment that it also relates to the initial stop in 1995 that resulted in the four traffic violations. As we have noted before, the parties have agreed that matter has prescribed and is not before this Court. Mr. Castillo’s assignment shows his confusion over the subject matter of his trial and this appeal. Mr. Castillo was charged with contempt of court for failing to appear after receiving the four citations. The proper time and vehicle to assert defenses to those 1995 citations was at the trial date set in those cases in 1996, and with the arguments presented herein. Rather than present his defenses to the court at that time, Mr. Castillo chose to ignore the trial date. His attachments were for contempt of court by failing to appear, not for the traffic violations. Thus, any argument regarding the validity of the original stop is of no relevance to this Court.

In an omnibus assignment, Mr. Castillo asserts his claims were substantiated and should not have been dismissed by the trial court either before or after the trial. We disagree. The claims made by Mr. Castillo were unsubstantiated. The only proof offered to the court was Mr. Castillo’s self-serving testimony.

Included in this assignment is the allegation that “A. Ramierez” conducted an unlawful search and seizure. It is our understanding that this relates to the traffic stop which occurred in June of 2002, and is unrelated to the subsequent arrest for contempt in August of 2002. As acknowledged by Mr. Castillo at trial, any action on that incident is now prescribed. Further, we note that Mr. Castillo does not allege that there was any seizure as a part of that traffic stop.

Mr. Castillo also asserts the claim for his placement in isolation without a hearing was erroneously dismissed. We disagree. Records produced by the _[i2Correetional center prove otherwise. Testimony and documentary proof offered by defendants disputes Mr. Castillo’s testimony and the well written reasons for judgment filed in the record by the trial judge are supported by the record.

Two of Mr. Castillo’s assignments of error relate to procedural matters. In one assignment, Mr. Castillo argues he should have been granted a continuance of the trial. The record shows that Mr. Castillo made an oral request for continuance on the morning of the trial. His reasons were that, although he knew of the court date, he believed the proceeding to be a status conference and did not understand that the trial would be held. The trial judge denied the request explaining that the parties had a status conference previously, and that he specifically recalled informing Mr. Castillo that the next court date was the trial date.

In further support of his position, Mr. Castillo argues that a hearing should have been conducted to “ascertain the identity of Ray Peters prior to trial.” the relevance of Mr. Peters is not clear from Mr. Castillo’s arguments to this Court. Further, there is no indication in the record that Mr. Castillo moved for a hearing on the matter.

La. C.Cr.P. art. 712 provides that;

A motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.

The decision to grant or deny a continuance lies within the wide discretion of the trial court. State v. Martin, 93-2085 (La.10/17/94), 645 So.2d 190, 197; cert. den. 515 U.S. 1105, 115 S.Ct. 2252, 132 L.Ed.2d 260 (1995). Given the circumstances, we find no abuse of the trial court’s discretion in denying plaintiffs motion for continuance.

The final matter for our consideration is Mr. Castillo’s assertion that he was denied a trial by jury. Both petitions filed by Mr. Castillo contain requests for a 113jury trial. Because he was granted pauper status, no bond was posted. Further, Mr. Castillo did not file a motion to set the matter for trial. On the day of trial, Mr. Castillo again requested a jury. The trial court denied the request, finding that the demand made did not meet the jurisdictional amount required for a jury. It appears that the trial court believed that Mr. Castillo was not in good faith when he represented the amount of damages sustained.

In Riddle v. Bickford, 2000-2408 (La.5/15/01), 785 So.2d 795, the Louisiana Supreme Court explained;

Unlike the criminal context, there is no United States or Louisiana constitutional right to trial by jury in a civil case in Louisiana courts. The right to jury trials in civil cases is not so fundamental to the American system of justice as to be required of state courts by the due process clause of the fourteenth amendment. There is also no constitutional corollary regarding the right to full voir dire examination and peremptory challenges in civil cases. In Louisiana courts, the right to a jury trial in a civil case is provided for by statute, namely La. C.C.P. arts. 1731 through 1814. La. C.C.P. art. 1731(A) provides that “[e]x-cept as limited by Article 1732, the right of trial by jury is recognized.”

(citations omitted)

Id. 785 So.2d at 799

Under any circumstances, it is plaintiffs good faith actions that determine either party’s right to a trial by jury. La. C.C.P. art 4; Rico v. Vangundy, 461 So.2d 458, 461 (La.App. 5 Cir.,1984)

We note that the total amount demanded in damages in the two petitions filed was $10,150,000.00, and the exact specifics of his damages suffered as a result of his claims were not alleged. We believe another factor in the trial court’s decision is the fact that many of the defendants and claims were disposed of before the trial, leaving only the defendants related to the 2002 arrest and incarceration claims.

In his petition Mr. Castillo alleges he was arrested in 2002 “for traffic attachments” from a December 3, 1995 arrest. He further stated that he refused to 114enter a plea or “sign out,” and demanded his “right to remain incarcerated until his trial.” Mr. Castillo further stated in his petition that he chose to remain in the correctional center. It is clear on the face of Mr. Castillo’s petition that he had the option of securing a release from the correctional center, but remained incarcerated by choice. Given the circumstances of this case, we cannot find error in the trial judge’s decision to deny the jury request.

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

AFFIRMED.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    Kenneth RAMOS v. TULANE UNIVERSITY OF LOUISIANA.
    No. 2006-CA-0487.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 31, 2007.

      Leo J. Palazzo, David D. Bravo, Palazzo Law Firm, APLC, Gretna, LA, for Plaintiff/Appellant.
    Gerald A. Melchiode, Frank A. Romeu, Jr., Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| ^laintifflAppellant, Kenneth Ramos (“Mr.Ramos”), appeals the trial court’s judgment granting summary judgment to, and dismissing all tort claims against, Defendant/Appellee, Tulane University of Louisiana (“Tulane”). For the following reasons, we affirm the trial court’s judgment.

Relevant Facts

In January 2001, Tulane contracted with Rocker Electric Company (“Rocker Electric”) for electrical services to be performed by Rocker Electric on Tulane’s facilities. The parties entered into a written Master Service Agreement, executed on or about January 24, 2001 (“the Master Service Agreement”), which specifically provided that Tulane would be considered the statutory employer of Rocker Electric’s employees and its subcontractors who provided work or services under the agreement, in accordance with Louisiana Revised Statutes 23:1031 and 23:1061.

A July 17, 2003 Work Order (“the Work Order”), numbered SC83484, set out the scope and time limitations for Rocker Electric to perform electrical/fire alarm modifications at Tulane’s Tilton Library. This Work Order was ^electronically signed by the parties on July 23, 2003 and incorporates by reference the Master Service Agreement.

In July 2003, Mr. Ramos was working as an electrician’s helper for H. Rocker Electric Company (“Rocker Electric”). Mr. Ramos alleges that on July 17, 2003, while performing work for Rocker at Tulane’s uptown campus, he was asked by a Tulane employee to remove wiring in the ceiling of the Tilton library for purposes of renovation. According to Mr. Ramos, one or more unnamed Tulane employees failed to shut down the electricity in the area where he was working and, as a result, he was electrocuted, causing him to fall off a 20 foot ladder and sustain traumatic brain injuries.

Mr. Ramos filed suit against Tulane asserting numerous allegations of negligence. Tulane moved for summary judgment on the basis that it is not liable to Mr. Ramos in tort because it was Mr. Ramos’ statutory employer pursuant to the terms of the Master Service Agreement. Mr. Ramos opposed the motion asserting that Tulane is not entitled to statutory employer immunity because it did not reserve statutory employer status in the July 17, 2003 Work Order. Mr. Ramos further argued that Tulane is not in the trade, business, or occupation of providing electi'icity. After a hearing on the matter, Judge Rosemary Ledet granted Tulane’s motion without assigning reasons, and dismissed Mr. Ramos’ claims against Tulane with prejudice. Mr. Ramos then filed the instant appeal.

On appeal, Mr. Ramos argues that the trial court erred in granting summary judgment to Tulane for four reasons. First, he argues that there was no written contract in effect on the date of the accident that mandated that he was the statutory employee of Tulane. Second, Mr. Ramos argues that Tulane did not reserve statutory employer status in the work order he was performing at the time of the | ¡¡accident. Third, Mr. Ramos argues that the work order refers to a master service agreement that does not exist. Finally, Mr. Ramos argues that electricity is not Tulane’s trade, business or occupation.

Law & Analysis

A. Summary Judgment Standard

An appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/05/94); 639 So.2d 730, 750. Amotion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to summary judgment as a matter of law.” La.Code Civ. Proc. art. 966(B). The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. La.Code Civ. Proc. art. 966(A)(2).

B. Statutory Employer

Tulane contends that it is Mr. Ramos’ statutory employer and is thus immune from suit in tort. The determination of statutory employer status is a question of law for the court to decide. Trent v. PPG Industries, Inc., 03-1068, p. 7 (La.App. 3 Cir. 2/4/04); 865 So.2d 1041, 1047. Under the Louisiana Workers’ Compensation Act, La. R.S. 23:1061, an employee injured in an accident while in the course and scope of his employment is generally limited to the recovery of workers’ compensation benefits as his exclusive remedy against his employer and may not sue his employer, or any principal, in tort. Griffin v. Wickes Lumber Co., 402-0294, p. 4 (La.App. 1 Cir. 12/02/02); 840 So.2d 591, 594, writ denied, 03-1338 (La.09/13/03); 853 So.2d 640. The Louisiana Workers’ Compensation Act applies both to a direct employer/employee relationship as well as to a statutory employer/employee relationship. The doctrine of “statutory employer” is codified in La. R.S. 23:1061 and was amended in 1997 to provide that when a valid written contract recognizes the existence of a statutory employer relationship, “there shall be a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees that can only be overcome by showing the work performed is not an integral part of or essential to the ability of the principal to generate that principal’s good, products, or services.” La. R.S. 23:1061(A)(3).

The contract between Tulane and Rocker Electric, as noted above, explicitly recognizes Tulane as the statutory employer of Rocker Electric’s employees and subcontractors. Therefore, under La. R.S. 23:1061(A)(3) and the plain language of the Master Service Agreement, Tulane is presumed to be the statutory employer of Mr. Ramos. The burden now shifts to Mr. Ramos to rebut this presumption by demonstrating that the work he was performing at the time he sustained his injuries |Bwas not an integral part of or essential to Tulane’s ability to generate its goods, products, or services.

Mr. Ramos argues that he overcomes the presumption because Tulane is not in the business of supplying electricity. Mr. Ramos makes the conclusory statement that “... providing working electricity to the students and faculty of Tulane ... is clearly not what the legislature intended when it amended section 23:1061 in 1997” because “every business in the state could claim it is in the ‘trade, business or occupation’ of electricity.” However, in Jackson v. St. Paul Ins. Co., 04-0026, p. 8 (La.App. 1 Cir. 12/17/04); 897 So.2d 684, 689, the Louisiana First Circuit noted, after reviewing the history of the statutory employer doctrine, that the legislature has specifically rejected a restrictive analysis in favor of a more liberal interpretation of the words “integral” and “essential.” And, in recent years, Louisiana courts have frequently found that certain work which is ancillary to the statutory employer’s operations is nevertheless essential to the ability of the statutory employer’s operations. See Johnson v. Tennessee Gas Pipeline Co., 99 F.Supp.2d 755 (E.D.La.2000) (finding that contractor’s work of performing catering services onboard an oil and gas compressor facility was integral and essential to the statutory employer’s ability to operate its oil and gas compressor facility); Applegarth v. Transamerican Refining Corp., 00-1547 (La.App. 5 Cir. 2/28/01); 781 So.2d 804, writ denied, 01-0834 (La.5/11/01); 792 So.2d 738 (La.2001) (upholding summary judgment where contractor performed construction at a refinery where the refinery was not engaged in providing construction services); Oliver v. Day Zimmermann, 05-3072, 2006 WL 508047 (E.D.La.2006) (holding that the provision of security services at an oil refinery was essential to the refinery’s operations).

| fiUnder Louisiana Revised Statute section 23:1061(A)(1) “[w]ork shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.” Tulane is in the business of educating its students. Working electricity is an essential part of Tulane’s day-to-day operations. More specifically, electricity is certainly essential to the effective operation of the university’s library, where its students are studying and conducting research at all hours of the day and night. Therefore, pursuant to the definition set out in 23:1061(A)(3), the electrical work performed by Mr. Ramos on the Tilton Library is surely essential to Tulane’s ability to generate its services. Mr. Ramos has not offered any evidence tending to demonstrate that working electricity is not essential to Tulane’s ability to educate its students. See Everett v. Rubicon, Inc., 04-1988, pp. 14-15 (La.App. 1 Cir. 6/14/06); 938 So.2d 1032, 1043. Accordingly, we find that Mr. Ramos has failed to rebut the presumption of statutory employment created by statute and the terms of the Master Service Agreement.

Mr. Ramos’ three additional arguments against the finding of statutory employment are also unpersuasive. First, Mr. Ramos’ statement that the July 17, 2003 Work Order was not electronically signed until July 23, 2003, and therefore, there was no written contract in effect on the date his accident occurred, is incorrect. It is undisputed that the written Master Service Agreement between the parties, which clearly evidences the parties’ intent to designate Tulane as Rocker Electric’s employees’ statutory employer, was signed and in effect at the time of Mr. Ramos’ accident. As Tulane correctly points out, nowhere in the Master Service Agreement is it indicated that the General Terms of the Master Service |7Agreement are in any way affected by the execution date or effectiveness of subsequent work orders. Therefore, regardless of whether the specific Work Order was in effect at the time of Mr. Ramos’ accident, the General Terms of the Master Service Agreement expressed the intent of the parties and continued to govern the relationship between the parties.

Likewise, we find no merit in Mr. Ramos’ argument that Tulane is not his statutory employer because the July 17, 2003 Work Order did not repeat the statutory employer language from the Master Service Agreement. A thorough review of the Master Service Agreement reveals that there is no statutory or contractual requirement that each work order between Tulane and Rocker Electric repeat the statutory employer language. Rather, what the Master Service Agreement requires, in paragraph 23, is that Rocker Electric (Contractor) include the statutory employer language in its contracts with third parties to reflect Tulane’s (Owner) statutory employer status. Since Rocker Electric did not contract with any third parties to perform the work at Tulane pursuant to the Master Service Agreement, this issue is irrelevant to the matter at hand.

Finally, we find that Mr. Ramos’ argument that Tulane is not his statutory employer because the July 17, 2003 Work Order refers to a non-existent “February 2, 2003 Master Service Agreement” is merely a red herring. Deposition testimony and affidavits provided by Tulane employees indicates that the reference to the February 2, 2003 Master Service Agreement was a clerical error and that the only contract in effect between the parties at all relevant times was the January 24, 2001 Master Service Agreement. Mr. Ramos has submitted no evidence to suggest that the January 24, 2001 Master Service Agreement is not the authentic and controlling contract in this matter.

| ^Conclusion

There is no doubt that Mr. Ramos’ accident at Tulane resulted in serious personal injuries and we sympathize with his plight. However, we find that based on the record, Mr. Ramos’ exclusive remedy against Tulane is under the Louisiana Workers’ Compensation Act. The Master Service Agreement between the parties specifically designates Tulane as the statutory employer of Rocker Electric’s employees and subcontractors, creating a rebuttable presumption of statutory employment status. Mr. Ramos has not shown that the work he was performing at the time of his accident was not essential to Tulane’s operations, and thus he has failed to rebut the presumption that he is a statutory employee of Tulane. Based on the forgoing analysis, we find that the trial court did not err in granting the motion for summary judgment. Accordingly, the summary judgment rendered in favor of Tulane is hereby affirmed.

AFFIRMED.

      . Specifically, La.Rev.Stat. 23:1061 provides: A. (1) Subject to the provisions of Paragraphs (2) and (3) of this Subsection, when any principal as defined in R.S. 23: 1032(A)(2), undertakes to execute any work, which is part of his trade, business, or occupation and contracts with any person, in this Section referred to as the contractor, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protection of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under the Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employer under the employer by whom he is immediately employed. For purposes of this Section, work shall be considered part of the principal's trade, business, or occupation if it is an integral part of or essential to tlte ability of the principal to generate that individual principal’s goods, products, or services.

      (2) A statutory employer relationship exists whenever the services to work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee's immediate employer.


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

text:
    II FIRE RECORDS, L.L.C. v. Derren CLOUDEN p/k/a “Mr. Wicked”, Forefront Entertainment L.L.C. and Inner City Productions L.L.C.
    No. 2006-CA-0763.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 31, 2007.

      Dennis D. Spurling, Dennis Spurling PLLC, Houston, TX, for Plaintiff/Appellee, II Fire Records.
    James M. Williams, Gauthier, Houghtal-ing & Williams, L.L.C., Metairie, LA, for Defendant/Appellant, Forefront Entertainment L.L.C.
    (Court composed of Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, Jr.).
   LEON A. CANNIZZARO, JR., Judge.

| jThis case involves an exclusive recording contract between Travis Lyons, doing business as II Fire Productions Co., and Derren Clouden, professionally known as Mr. Wicked. Mr. Lyons assigned the recording contract to II Fire Records, L.L.C. (“II Fire”). Mr. Clouden subsequently signed a recording contract with Forefront Entertainment L.L.C. (“Forefront”) in violation of his contract with II Fire. II Fire then sued Mr. Clouden, Forefront and Inner City Productions, L.L.C., an affiliate of Forefront (“Inner City”). The trial court granted a default judgment against Mr. Clouden for breach of contract, and that judgment has not been appealed. The trial court further granted judgment in favor of II Fire and against Forefront and Inner City, and Forefront and Inner City have appealed the judgment against them.

FACTS AND PROCEDURAL HISTORY

Default Judgment Against Mr. Clouden

Mr. Lyons and Mr. Clouden signed an Individual Recording Artist Agreement (the “II Fire Contract”) pursuant to which Mr. Clouden was employed as a recording artist for the purpose of “making master recordings, from which |2phonograph records will be produced.” Mr. Clouden agreed in the II Fire Contract not to “perform for the purpose of making masters [sic] recordings or phonographs for any purpose or business entity other than Company [II Fire].” The exclusivity provision in the II Fire Contract bound Mr. Clouden not to compete for a five-year period after its termination or expiration. The term of the II Fire Contract was for an initial period of two years, and II Fire had the right to exercise up to three additional options to extend the contract for up to three additional one-year terms.

Under the II Fire Contract, Mr. Cloud-en agreed to record a minimum of one album during the first year of the II Fire Contract and to record a minimum of four side recordings during the second year of the II Fire Contract and during each option term of the II Fire Contract. According to the agreement, Mr. Clouden would receive a percentage of any royalties earned on his recordings, but first the costs and expenses incurred by II Fire in connection with the II Fire Contract would be deducted from the amount of the royalties to be paid to Mr. Clouden.

Prior to the trial against Forefront and Inner City, a default judgment was confirmed against Mr. Clouden, who had been served but failed to appear in any of the proceedings. Mr. Clouden was cast in judgment for $75,000.00. At the hearing on the confirmation of the default, Mr. Lyons testified that he was the chief executive officer of II Fire and that he was the director of a youth group, Central City Youth Against Violence. The II Fire Contract was introduced into evidence, and Mr. Lyons testified that the II Fire Contract was an exclusive recording contract.

Mr. Lyons further testified that Mr. Clouden did not have permission from II Fire to appear in the following videotape and compact disc (“CD”) recordings that were produced and distributed by Forefront and Inner City: (1) a videotape and an | .¡accompanying CD, both entitled “Ghetto Booty,” (2) a videotape and an accompanying CD, both entitled “Generation XXX,” (3) a CD entitled “Ghetto Booty 6,” (4) a CD entitled “Ghetto Booty 7,” (5) a videotape entitled “Southern Freaks 2000,” and (6) a CD entitled “Liquid City.” Each of these CDs and videotapes was introduced into evidence at the hearing on the confirmation of the default judgment.

Also introduced into evidence at the hearing were records of the expenditures that II Fire had made on behalf of Mr. Clouden in connection with the II Fire Contract. The expenditures totaled $49,672.87. Mr. Lyons testified that pursuant to the terms of the II Fire Contract, he expected that II Fire would recoup the expenditures from the royalties earned on the recordings that Mr. Clouden had agreed to make. Mr. Lyons further testified that II Fire had executed a contract with Formaldehyde Records (“Formaldehyde”) for the distribution of the recordings that were to be made by Mr. Clouden. Finally, Mr. Lyons stated that Mr. Cloud-en’s breach of the II Fire Contract caused II Fire to lose “at least about ... 200 to 300 to $500,000.”

After Mr. Lyons testified, his attorney asked the trial court to confirm a default against Mr. Clouden and to render judgment against Mr. Clouden in the amount of $75,000.00. The trial court rendered judgment in that amount. The default judgment has not been appealed, and it is now a final judgment against Mr. Clouden.

The Trial Testimony

Travis Lyons

Mr. Lyons testified at the trial of the action by II Fire against Forefront and Inner City. He reiterated some of his testimony from the hearing on the Lconfirmation of the default against Mr. Clouden, but he also presented additional testimony.

Mr. Lyons testified at length regarding his status in the community as a youth leader and mentor who had won numerous awards for his work with inner city youth. Mr. Lyons also stated that II Fire records sponsored a rally to stop violence. He further claimed that his reputation as a youth leader had been damaged by the types of videos that Mr. Clouden had made for Forefront and Inner City, because the videotapes and CDs contained hard-core adult entertainment.

Additionally, as a result of the work Mr. Clouden did for Forefront and Inner City, the Formaldehyde “distribution deal didn’t happen.” Someone from Formaldehyde advised Mr. Lyons that there was an article in a national music magazine stating that Mr. Wicked had signed a contract with Forefront. Therefore, Formaldehyde contended that II Fire had breached its contract with Formaldehyde. Mr. Lyons also stated that around the time that the article appeared, Mr. Clouden began to fail to appear at shows that had been scheduled by II Fire to promote his career.

Mr. Lyons stated that he had been contacted by Kim Hicks on behalf of Forefront. Forefront wanted to purchase Mr. Clouden’s contract from II Fire. According to Mr. Lyons’ testimony, Ms. Hicks advised him that Mr. Clouden had told her that he did not want to remain under contract with II Fire. Mr. Lyons quoted her a purchase price for the contract of “$20,000, $25,000, half of what I spent on him for the contract.” Ms. Hicks advised Mr. Lyons that her company could not afford to pay that much, and she offered to pay II Fire $4,000.00 for the II Fire Contract. Mr. Lyons testified that II Fire did not agree to sell the II Fire Contract to Forefront for $4,000.00. Despite the lack of an agreement to sell the II | 5Fire Contract to Forefront, Mr. Clouden nevertheless appeared on several videotapes and CDs for Forefront and Inner City without permission from II Fire. Those appearances violated the terms of the II Fire Contract. References to Mr. Clouden appearing as Mr. Wicked were placed on the Forefront website, and there was a reference on the website to the acquisition of Mr. Wicked’s services for “20 gs.”

Mr. Lyons admitted that Ms. Hicks had asked him to send her a copy of the II Fire Contract so that she could determine what its terms and conditions were. He refused, however, to permit Ms. Hicks to review the contract until she had agreed to purchase it.

Mr. Lyons contended that after Mr. Clouden appeared on the pornographic videos, people in the community began to associate Mr. Lyons with the pornographic movie industry. Such an association was the subject of strong community disapproval, because Mr. Lyons worked with youth and children in the community. He was no longer allowed to participate in the youth activities in which he had previously been involved. The loss of his reputation was very damaging to him personally.

Mr. Lyons also testified regarding a copy of a letter that he had received from Mr. Clouden’s lawyer. The letter stated that II Fire had made “no payments whatsoever” to Mr. Clouden despite the fact that he had “performed over 100 live shows and on several occasions recorded in studio.” The letter further stated that II Fire Records “has repeatedly and inexplicably refused Mr. Clouden’s numerous requests for copies of the agreements between himself and II Fire Records.” The letter then terminated “any and all agreements between himself and II Fire Records, effective immediately.” An Acknowledgment and Release Agreement lfiwas enclosed with the letter, and the letter stated that “[i]f we have not received this release document properly executed within ten (10) days of your receipt of this correspondence, be advised that we will seek alternative legal remedies against II Fire Records for rescission of the agreements ... as well as recovery for bad faith mismanagement and breach of fiduciary duties, [and] unjust enrichment. ...” Mr. Lyons denied that he ever received the release document that was enclosed with the letter.

Although II Fire was Mr. Lyons’ first venture into the music business, he testified that he had a lot of experience in that business, particularly the work he did in connection with his brother’s music career. Mr. Lyons also thought that Mr. Clouden was a very talented artist, who would do very well as a rap musician. Finally, however, Mr. Lyons testified that “[n]ot a dime” was earned from II Fire’s contract with Mr. Clouden. When Mr. Lyons was asked whether he had any way to testify with any degree of probability or certainty regarding how much money he could have made with respect to Mr. Clouden, Mr. Lyons agreed that he could not.

Kim Hicks

Ms. Hicks testified that she was employed by Forefront and Inner City and that she was in charge of the day-to-day operations of the companies. She stated that Forefront was a record company and that Inner City was a video production company that primarily produced adult videos. Forefront’s artists created the music for the adult videos produced and marketed by Inner City.

Ms. Hicks testified that her first contact with Mr. Lyons involved a work for hire agreement pursuant to which Mr. Clouden appeared in part of one song on the videotape and accompanying CD entitled “Generation XXX.” Ms. Hicks stated that when she approached Mr. Clouden about working on the song, he told her that 17he had signed a contract with II Fire. Therefore, she was required to get II Fire’s permission to record that one part of the song. II Fire agreed to permit Mr. Clouden to make the recording in exchange for a payment of $300.00. It was not necessary for Ms. Hicks to review the II Fire Contract in connection with the work for hire agreement, because the agreement covered only one specific appearance by Mr. Clouden.

Ms. Hicks testified that Mr. Clouden told her that the II Fire Contract had a term of one year. When Ms. Hicks attempted to enter into negotiations with II Fire to purchase the II Fire Contract, she initially offered to buy it for $4,000.00, but her offer was rejected. Ms. Hicks further testified, however, that when Mr. Lyons rejected her offer, he said that if she “came with $20,000, then we could talk.” Ms. Hicks said that Mr. Lyons wanted her to increase the purchase price for which she had offered to buy the II Fire Contract before he would let her see the contract. Ms. Hicks stated that “I definitely wasn’t going to tell him, yeah, I’ll give you $20,000 for something that I didn’t even know actually existed or hadn’t expired or hadn’t run out.”

Ms. Hicks further stated that when she again contacted Mr. Lyons to see whether he had changed his mind about his refusal to allow her to review the II Fire Contract, he “was more talking about the problems that he had with Wicked and you know all the personal problems he had as opposed to actually selling the contract or just letting me see the contract.” Ms. Hicks then advised Mr. Clouden to try to obtain a copy of the II Fire Contract from Mr. Lyons. When Mr. Lyons refused to provide a copy of the II Fire Contract to Mr. Clouden, Ms. Hicks advised him to hire an attorney to try to get a copy of the II Fire Contract.

IjjMr. Clouden did hire an attorney, who wrote a letter to Mr. Lyons terminating the II Fire Contract. Mr. Clouden gave a copy of the letter from the attorney to Ms. Hicks. Ms. Hicks testified that she then had a conversation with Mr. Lyons about producing a copy of the contract, but he refused to allow her to see it.

Mr. Clouden then signed a contract with Forefront (the “Forefront Contract”). Ms. Hicks testified regarding the circumstances under which the Forefront Contract was signed. She stated the following at the trial:

Wicked bought [sic] us a copy of that letter. I had a conversation with Travis; he refused to produce the contract. I never saw the contract and then the fact that Wicked said he believe [sic] it was for a year. That year was either up or had already come to an end.
So based on those things, and based on us actually getting Wicked to sign the contract with the warranty clause that says that we’re not infringing on anyone else’s right by him signing this agreement. That’s why we went ahead and signed it.

Ms. Hicks further testified that once Forefront and Inner City were served with a lawsuit involving the II Fire Contract, “we stopped all of our work with Wicked until we ... determined ... what the status of the contract was.” Forefront and Inner City then ceased all dealings with Mr. Clouden. Finally, Ms. Hicks testified that after the Forefront Contract was signed but before the lawsuit had been served, very brief recordings of Mr. Cloud-en’s music appeared on some videotapes and CDs for Forefront and Inner City.

Expert Witnesses

One expert witness testified at the trial, and the depositions of two expert witnesses were introduced into evidence. The expert testimony described the | sprocess for manufacturing, producing, and distributing recordings of rap and other types of music.

Kairi I. Brown and John Shaw testified as expert witnesses on behalf of II Fire. Mr. Brown, whose deposition was introduced into evidence, testified that he was a music manager with his own production company. He affirmed that the music industry is “pretty speculative.” Mr. Shaw, whose deposition was also introduced into evidence, testified that he worked in the field of music promotion and distribution in the urban market, particularly distribution and promotion of rap music. Mr. Shaw stated that whether or not a particular artist will be successful in the music industry is “extremely speculative.” He explained that the buying public is “unpredictable” and that “[t]hey’ll pass over a talented artist and buy some garbage that they like because the radio has now convinced them that they like it.”

Harris Green Lee Rea, III testified at the trial as an expert witness on behalf of Forefront and Inner City. He was qualified as an expert regarding the music and recording industry. Mr. Rea was asked whether the efforts made by Forefront in trying to obtain the II Fire Contract and in trying to determine whether Mr. Cloud-en was, in fact, free to contract with Forefront “really exceeded what normally happens in business.” Mr. Rea further stated that it is the industry standard for a recording company to give another company a copy of the contract of an artist who is under contract with the recording company, if the other company is also interested in contracting with the artist. This is done so that the second company can determine what rights it might be able to obtain with respect to the artist.

Mr. Rea testified that all recording artists switch from one recording company to another but that rap artists switch companies more frequently than | inother types of musicians. He further stated that switching from one recording company to another is an accepted industry practice. Mr. Rea said that it is impossible for anyone to predict the amount of sales that would result from a particular distribution agreement. Finally, Mr. Rea testified that “[a]n unknown artist or an unknown label with a very small distributing company would have a minuscule chance of success.”

Other Witnesses

Derrick Gibson, the president and chief executive officer of Forefront and Inner City, testified that he and his wife, Ms. Hicks, had founded both of the companies. He further testified that his wife was primarily responsible for the negotiations involving Mr. Clouden and II Fire. He also said that Mr. Clouden had never signed a contract with Inner City. He had contracted only with Forefront.

Ronald Coleman, a community leader, also testified at the trial. He explained how the association between Mr. Clouden and pornographic movies had adversely affected Mr. Lyons’ standing in the community and his volunteer work with the youth of the community.

Finally, Jeffery Johnson, Sr., a cameraman and “street salesperson” for Forefront and Inner City, testified. His testimony concerned a discrepancy between the testimony of Mr. Lyons and of Ms. Hicks regarding the release date and the sales of the videotape entitled “Generation XXX.”

Trial Court Judgment

The trial court rendered judgment in favor of Forefront and Inner City on the fraud and unfair trade practices claims that had been asserted against them by II Fire. The trial court, however, rendered judgment in the amount of $249,672.82 in favor of II Fire on a claim of conversion.

|nIn the reasons for judgment issued by the trial court judge, the judge stated that she had found that the elements required to be proven to show fraud or to show unfair trade practices under the Louisiana Unfair Trade Practices and Consumer Protection Law had not been proven. The trial court judge did, however, find that II Fire had proven that Forefront and Inner City had committed the tort of conversion. Therefore, II Fire had a claim for unjust enrichment against Forefront and Inner City. In the reasons for judgment, the trial court judge stated that she had based the amount of the damages awarded to II Fire on the testimony and evidence presented by Mr. Lyons. He had presented evidence that he had spent $49,672.82 promoting Mr. Clouden, and he testified that he had lost between $200,000.00 and $500,000.00 in profits as a result of the actions of Mr. Clouden, Forefront, and Inner City.

Appeal

Forefront and Inner City appealed the trial court’s judgment, raising as assignments of error the trial court’s reliance on the theory of unjust enrichment in awarding damages to II Fire and the trial court’s finding that II Fire was impoverished and that Forefront and Inner City were enriched. II Fire did not answer the appeal.

Exception of Prescription

After the appeal was lodged, Forefront and Inner City filed an exception of prescription asserting that conversion is a tort to which a one-year prescriptive period applies. Forefront and Inner City asserted that suit was not filed against |12them within the one-year prescriptive period that began when II Fire discovered that Mr. Clouden had signed the Forefront Contract.

DISCUSSION

Conversion

The judgment against Forefront and Inner City held them liable for the tort of conversion. In Dual Drilling Co. v. Mills Equipment Investments, Inc., 98-0343, 98-0356 (La.12/1/98), 721 So.2d 853, the Louisiana Supreme Court discussed the tort of conversion. The Supreme Court stated:

This action is grounded on the unlawful interference with the ownership or possession of a movable and is frequently termed an action for “conversion” in Louisiana. A conversion is committed when any of the following occurs: 1) possession is acquired in an unauthorized manner; 2) the chattel is removed from one place to another with the intent to exercise control over it; 3) possession of the chattel is transferred without authority; 4) possession is withheld from the owner or possessor; 5) the chattel is altered or destroyed; 6) the chattel is used improperly; or 7) ownership is asserted over the chattel.

98-0343, 98-0356, p. 4, 721 So.2d at 857.

In Quealy v. Paine, Webber, Jackson & Curtis, Inc., 475 So.2d 756 (La.1985), the Louisiana Supreme Court defined the term “conversion.” The Supreme Court stated that “[a] conversion consists of an act in derogation of the plaintiffs possessory rights, and any wrongful exercise or assumption of authority over another’s goods, depriving him of the possession, permanently or for an indefinite time, is a conversion. See also Delort Hardware Co. v. Peoples Bank and Trust Co., 490 So.2d 547, 548 (La.App. 4th Cir.1986).

We have reviewed the evidence in the instant case, and we do not find that either Forefront or Inner City committed the tort of conversion as it has been | ^defined by the Louisiana Supreme Court and by this Court. What was involved in the instant case was the execution of a contract by Mr. Clouden in favor of Forefront in derogation of the contract rights of II Fire. We also find that Forefront acted in a reasonably prudent business manner and in conformity with the recording industry standards in attempting to ascertain whether or not Mr. Clouden was contractually obligated to II Fire. Additionally, there was never a contractual relationship between Mr. Clouden and Inner City. Based on the foregoing, we reverse the trial court’s judgment holding Forefront and Inner City liable for conversion.

Prescription

We have found that Forefront and Inner City were not liable to II Fire on the grounds of conversion. Therefore, we need not decide the issues that were raised in the exception of prescription that was filed.

Assignments of Error

Assignment of Error Number One: The trial court erred in allowing an unjust enrichment claim.

In her reasons for judgment, the trial court judge stated that II Fire was entitled to recover from Forefront and Inner City on the basis of unjust enrichment, because unjust enrichment is one of three causes of action for conversion. In support of her statement, the trial court judge cited Gibbs v. Harris, 35,239 (La.App. 2 Cir. 10/31/01), 799 So.2d 665, a case involving the conversion of a tenant’s personal property by a landlord who removed the property from the rented premises without authorization and placed it in a public storage facility.

The court in Gibbs stated that “[t]he three causes of action for conversion in Louisiana are: 1) the revendicatory action for the recovery of the movable, 2) the | uaction for unjust enrichment, and 3) the delictual action arising from an offense or quasi offense.” 799 So.2d at 670. Relying on the quoted language, the trial court judge determined that damages in the instant case should be awarded on the basis of unjust enrichment.

La. Civil Code art. 2298 establishes that there is a remedy for unjust enrichment. Article 2298 provides in relevant part:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.

(Emphasis added.)

In Baker v. Maclay Properties Co., 94-1529 (La.1/17/95), 648 So.2d 888, 897, the Louisiana Supreme Court enumerated the requirements that must be shown to prove a claim for unjust enrichment. The Supreme Court stated:

The five requirements for a showing of unjust enrichment ... are: (1) there must be an enrichment, (2) there must be an impoverishment, (3) there must be a connection between the enrichment and resulting impoverishment, (4) there must be an absence of “justification” or “cause” for the enrichment and impoverishment, and (5) there must be no other remedy at law available to plaintiff.

See also Quilio & Associates, Inc. v. Plaquemines Parish Gov’t, 05-0803, p. 12 (La.App. 4 Cir. 5/10/06), 931 So.2d 1129, 1137, writ denied, 06-1442 (La.9/29/06), 937 So.2d 850.

In the instant case, it is clear that the fifth requirement for proving unjust enrichment cannot be met, because II Fire had a remedy against Mr. Clouden. In |1Kfact, II Fire has a final judgment against Mr. Clouden. We need not determine whether Forefront and Inner City were unjustly enriched at the expense of II Fire, because II Fire’s remedy was against Mr. Clouden. It is clear that Mr. Clouden was the party who was contractually obligated to II Fire. Had he complied with the II Fire Contract, Forefront and Inner City would not even be involved in this lawsuit. If Mr. Clouden breached his contract with II Fire, then Mr. Clouden, not Forefront and Inner City, is the responsible party. He caused the situation that is the subject of the instant case to exist, and II Fire’s remedy was against him. This assignment of error has merit.

Assignment of Error Number Two: The trial court erred in finding that II Fire was impoverished or that Forefront was enriched as a result of the actions that transpired with Mr. Clouden.

We have determined that II Fire had a remedy other than a suit for unjust enrichment. Therefore, we need not address this assignment of error.

DECREE

The judgment of the trial court is reversed insofar as it rendered judgment against Forefront and Inner City on the claim of conversion in the amount of $249,672.82. The judgment of the trial court is affirmed insofar as it rendered judgment in favor of Forefront and Inner City on the claim of fraud and the claim under the Louisiana Unfair Trade Practices and Consumer Protection Law. All claims against Forefront and Inner City are hereby dismissed. AFFIRMED IN PART AND REVERSED IN PART; CLAIMS DISMISSED.

      . Mr. Lyons testified at the trial that he assigned the II Fire Contract to II Fire, which he solely owned. Therefore, II Fire will be referred to as the contracting party under the II Fire Contract.

      . La. R.S. 51:1401 et seq.


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

text:
    Nicole SCOTT v. DEPARTMENT OF POLICE.
    No. 2006-CA-0956.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 31, 2007.
    Kevin V. Boshea, Metairie, La, For Plaintiff/Appellant.
    James B. Mullaly, Assistant City Attorney, Joseph V. Dirosa, JR., Chief Deputy City Attorney, Penya M. Moses-Fields, City Attorney, New Orleans, LA, for Defendant/Appellee.
    Court Composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., and Judge ROLAND L. BELSOME.
   MAX N. TOBIAS, JR., Judge.

1 ^laintiffiappellant, Officer Nicole Scott, appeals from the summary disposition of her appeal to the New Orleans Civil Service Commission following termination from the New Orleans Police Department. After reviewing the record and applicable law, we affirm the summary disposition.

The basic facts are not in dispute. Officer Scott was hired by the New Orleans Police Department (“NOPD”) on 27 March 2005. On the evening of 26 October 2005, Officer Scott accidentally backed her private vehicle into another police officer’s private vehicle, causing only minor damage. Officer Scott was charged with a hit and run violation, which was later dismissed on 25 January 2006 when she entered a guilty plea to improper backing.

The traffic incident became the subject of a NOPD Public Integrity Bureau (“PIB”) investigation. Officer Scott and PIB Sergeant Errol Foy signed a Notice of NOPD Internal Disciplinary Investigation on 30 January 2006. The Notice stated that Officer Scott had the right to file a written appeal to the Civil Service [2Commission (“the Commission”) within thirty days from the late of the disciplinary letter per Civil Service Rule II, §§ 4— 11.

In connection with the PIB investigation, Officer Scott gave an administrative statement and on 20 March 2006, she was terminated from her position with the NOPD. The reason given was that Officer Scott had “not met the minimum requirements for the position of probationary police recruit (field).”

Officer Scott filed an appeal with the Commission. Before the matter could be heard, the City of New Orleans (“the City”) filed a motion for summary disposition, which was granted by the Commission on 19 June 2006. The reason given was that Officer Scott “was a probationary employee and therefore has no right of appeal.”

Officer Scott appeals from the granting of the summary disposition by the Commission. She argues that she was improperly denied her right of appeal to the Commission and that it erred when granting the summary disposition. She also contends that her dismissal 145 days after commencement of the investigation violates her rights under Louisiana law and that the penalty of termination was overly harsh in light of the transgression and should be reversed. In response, the City maintains that as a probationary employee, Officer Scott has no right of appeal.

The authority of both State and City Civil Service Commissions is derived from Article X of the Louisiana Constitution. The civil service provisions in the state constitution and the rules of the Commission are designed to protect public 1 scareer employees from political discrimination by eliminating the “spoils” system. La. Const. Art. X, § 1 et seq.; Bannister v. Department of Streets, 95-0404, p. 4 (La 1/16/96), 666 So.2d 641, 645. Essentially, civil service laws and rules establish a system under which “non-policy forming” public employees are selected on the basis of merit and can be discharged only for insubordination, incompetency or improper conduct, and not for religious or political reasons. Id.

To further these goals, and in addition to its primary function as a quasi-judicial body, the civil service commission is empowered to generally supervise the civil service system and to establish rules for that system’s administration. Civil service rules thus have the effect of law. La. Const. Art. X, § 10(A)(4).

The Constitution provides that no person who has gained permanent status in the classified civil service shall be subjected to disciplinary action except for cause expressed in writing. La. Const. Art. X, § 8(A). Rule II, § 4.1 of the Rules of the Commission provides that “regular employees in the classified service shall have the right to appeal disciplinary actions to the Commission[.]”

In Banks v. New Orleans Police Department, 01-0859 (La.App. 4 Cir. 9/25/02), 829 So.2d 511, writ denied, 02-2620 (La.12/13/02), 831 So.2d 990, the court, en banc, considered the same issue raised here and stated:

Except in cases of alleged discrimination, the burden of proof on appeal, as to the facts, shall be on the Appointing Authority under Civil Service Rule II, § 4.4 and § 4.8. The appellate court’s review of the findings of fact is governed by the manifest error or clearly erroneous standard in a Civil Service case. Goins v. Department of Police, 570 So.2d 93 (La.App. 4 Cir. 10/30/90).

Id. at p. 3, 829 So.2d at 513-14.

|/The Banks court recognized that a “regular” employee is distinguished from a “probational” employee based on whether the working test period is completed, Id. at pp. 3-4, 829 So.2d at 514, citing Mariani v. Police Dept., 96-0871 (La.App. 4 Cir. 12/27/96), 686 So.2d 1012, writ denied, 97-0276 (La.3/14/97), 689 So.2d 1389. After reviewing the appropriate statutes, we held:

Banks did not complete the one-year working test/probationary period when he was disciplined by the Appointing Authority. Banks’ one-year working test/probationary period began on June 29, 1997 and ended on June 28, 1998. Before June 29, 1998, during his working test/probationary period as Police Officer I, Banks had not achieved regular permanent employee status. Because Banks had not attained regular permanent employee status, he had no right of appeal. Accordingly, the decision of the Civil Service Commission is affirmed. [Emphasis supplied.]

01-0859 at p. 7, 829 So.2d at 517.

The same reasoning applies to the instant case. Officer Scott had not completed her probationary period when terminated and thus, has no right of appeal. Although we may disturbed by the facts of this case and do not believe that termination was an appropriate penalty to be imposed on Officer Scott, we are unable to grant Officer Scott the remedy she seeks, namely an appeal to the Commission. Accordingly, the decision of the Commission is affirmed.

AFFIRMED.

BELSOME, J., Concurs with Reasons.

BELSOME, J.

Concurs with Reasons.

11 This case makes one pause to evaluate the lack of rights and remedies afforded to probationary civil service employees. The Louisiana Constitution presumably carves out an exception for civil service employees who have not yet attained permanent status so that persons not suited to a particular line of work or persons incapable of performing his or her duties may be dismissed without cause. While this is indeed an admirable and reasonable goal, this discretionary power should not be misused in such a way that a dismissal smacks of retaliation.

The evidence indicates that Officer Scott served bravely and honorably during Hurricane Katrina and its aftermath, a time when the city was extremely dangerous and volatile. The incident at issue occurred at the height of this unstable period and involved a highly subjective accounting of what exactly transpired that day. It is worth noting that Officer Scott was terminated only seven days before reaching one year of employment with the New Orleans Police Department. Ultimately, this case is not about whether Officer Scott appropriately handled an “improper backing”; it is about the seven days that separated Officer Scott from being afforded the full panoply of rights and remedies that only permanent civil service employees enjoy.

      . Officer Scott argues that she has a right of appeal because the Notice she signed on 30 January 2006 states that she does. We find, however, that because the statement on which she relies refers to Rule II, § 4.1, she was on notice that as a probationary employee, that statement did not apply to her.


author: DECUIR, Judge.

text:
    Elijah ARVIE v. SAFEWAY INSURANCE COMPANY OF LOUISIANA.
    No. 06-1266.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.
    Rehearing Denied March 21, 2007.

      Gregory J. Laborde, Laborde & La-borde, Lafayette, LA, for Defendant/Appellant: Safeway Insurance Company of Louisiana.
    Anthony F. Salario, Salario Law Firm, Marksville, LA, for Plaintiff/Appellee: Elijah Arvie.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

| ^his is an appeal from a judgment rendered in a case alleging an insurer’s bad-faith failure to settle a claim, thereby exposing its insured to a judgment in excess of the insurance policy liability limit. Judgment was entered in favor of appellee, Elijah Arvie, and against appellant, Safeway Insurance Company of Louisiana (“Safeway”), with damages awarded in the amount of the excess judgment plus $2,000.00 in penalties. Safeway lodged this appeal. For the following reasons, we affirm the judgment.

FACTS

Arvie’s vehicle was involved in an accident while being driven by Timothy Garrett, a permissive user. Garrett leaned down to retrieve an ashtray while executing a turn and subsequently rear-ended a parked vehicle. As a result of the accident, Colby Heath, a guest passenger sustained injuries.

Heath’s counsel requested notice of policy limits from Arvie’s insurer, Safeway. Subsequently, counsel offered to settle for the $10,000.00 policy limits enclosing proof of medicals of nearly $4,000.00 and emergency room records reflecting a diagnosis of a facial laceration, spasms, and concussion. Safeway, declined the offer and countered with an offer of $1,250.00 plus medicals. Counsel for Heath responded that the offer was ridiculous, and cited supporting case law suggesting the obvious value of the claim. Safeway declined to increase its offer and suit was filed which resulted in a judgment in the amount of $15,315.49. Heath sought the $5,315.49 excess judgment against Arvie. Arvie filed this suit against Safeway for bad faith failure to settle the claim seeking the amount of the excess judgment plus penalties. The trial court entered judgment in favor of Arvie. Safeway .lodged this appeal.

I .DISCUSSION

Safeway contends on appeal that the trial court erred in finding it arbitrary and capricious in its handling of this claim and in awarding attorney fees pursuant to La.R.S. 22:1220. We disagree.

Louisiana Revised Statute 22:1220 provides that an insurer “owes to his insured a duty of good faith and fair dealing.” It further provides that “[t]he insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both.” See McGee v. Omni Ins. Co., 02-1012 (La.App. 3 Cir. 3/5/03), 840 So.2d 1248, writs denied, 03-1375, 860 So.2d 1149, 03-1382 (La.12/12/03), 860 So.2d 1449. The supreme court has held that only those acts enumerated in La.R.S. 22:1220(B) constitute a breach of these duties. Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97), 694 So.2d 184.

Louisiana Revised Statute 22:1220(B)(1) provides that, “[mjisrepre-senting pertinent facts or insurance policy provisions relating to any coverages at issue” constitutes a breach. “Misrepresentation can occur when an insurer either makes untrue statements to an insured concerning pertinent facts or fails to divulge pertinent facts to the insured.” McGee, 840 So.2d at 1256.

An insurer’s excess judgment liability is inherently a question of fact. Smith v. Audubon Ins. Co., 95-2057 (La.9/5/96), 679 So.2d 372. A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

The trial court found that Safeway consistently failed to communicate the status of the claim to Arvie on a regular basis and, when it did, failed to communicate the pertinent facts necessary for Arvie to consider in determining what was in his personal interest. Particularly, Safeway failed to inform Arvie of the extent of Lmedical damages and the probability that damages would exceed the policy limits. Moreover, Safeway failed to offer Arvie input into the settlement decision or to disclose that it declined to even negotiate a reasonable settlement offer until after Heath’s offer had expired. After careful review, we find no manifest error in the trial court’s judgment.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to appellant, Safeway Insurance Company of Louisiana.

AFFIRMED.


author: SULLIVAN, Judge.

text:
    INTERDICTION OF Estelle Marie MARCEAUX.
    No. 06-1328.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 14, 2007.

      Joseph C. Giglio, Jr., Lafayette, LA, for Plaintiffs/Appellees: Mona Lynn Lasher, Sharon Ann Landry, Susan Loraine Tra-han, and Robert Lee Marceaux.
    James B. Doyle, Lake Charles, LA, for Defendant/Appellant: Estelle Marie Mar-ceaux.
    Court composed of MICHAEL G. SULLIVAN, GLENN B. GREMILLION, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

_]_1Plaintiffs-appellees, Mona Lynn Lash-er, Sharon Ann Landry, Susan Loraine Trahan, and Robert Lee Marceaux, have filed a motion to dismiss and remand the instant appeal as having been taken from a non-appealable, interlocutory order. For the reasons given herein, we dismiss the appeal and deny the motion to remand.

The plaintiffs filed the instant petition for limited interdiction against the defendant, their mother, regarding the care of her property. In their petition for interdiction, the plaintiffs alleged that their mother is unable to manage her financial affairs because she has given large amounts of money and property to a youth minister named Doug Stewart.

The trial court granted a temporary interdiction. Following contradictory hearings, the trial court denied a preliminary interdiction. Nevertheless, after making reference to an in-chambers discussion, the trial court ordered that all of the defendant’s money and property be placed into an involuntary commercial trust. Further, the trial court decreed that the defendant was enjoined from donating, reimbursing, loaning, or expending anything of value to Doug Stewart, who allegedly convinced the defendant to convey a considerable amount of money to him. When questioned as to whether its ruling would preclude plaintiffs from pursuing their petition for interdiction, the trial court stated that it was only ruling on the matter before the court, which was the request for a preliminary interdiction. Counsel for the defendant agreed to draft the judgment and to secure the documents establishing the trust ordered in the ruling.

Notice of the trial court’s judgment was mailed on the February 22, 2006. On April 20, 2006, the defendant filed a motion for devolutive appeal from the trial court’s ruling, which was granted by the trial court. The appeal was lodged with this | gcourt on October 21, 2006. Thereafter, plaintiffs filed the instant motion to dismiss and remand. In their motion, plaintiffs aver that the subject judgment is a non-appealable, interlocutory judgment and that the matter should be remanded to the trial court for enforcement.

The legislature amended La.Code Civ.P. art.2083 by 2005 La. Acts No. 205. The amended statute took effect on January 1, 2006. This statute now reads:

A. A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.
B. In reviewing a judgment reformed in accordance with a remittitur or addi-tur, the court shall consider the reasonableness of the underlying jury verdict.
C. An interlocutory judgment is ap-pealable only when expressly provided by law.

The statute provides that an interlocutory judgment is appealable only when expressly provided by law. An interlocutory judgment is a judgment that does not determine the merits but only preliminary matters in the course of the action. La. Code Civ.P. art. 1841.

Thus, the threshold issue is whether a ruling denying a preliminary interdiction is an interlocutory judgment. The legal authority for granting a preliminary interdiction is provided in La.Civ.Code art. 391. Comment (d) to this statute provides that the term preliminary interdiction parallels a similar term used in the context of in-junctive relief in La.Code Civ.P. arts. 3601-3613. Therefore, this court’s case law concerning preliminary injunctions applies to preliminary interdictions by analogy to the extent that the terms are “parallel.”

This court has held that a preliminary injunction is ancillary to a permanent injunction and is granted or denied through the use of a summary proceeding. Henry 3Ins. Agency, Inc. v. Desadier, 94-39 (La.App. 3 Cir. 10/5/94), 643 So.2d 374. By its very nature, it is interlocutory since the purpose is to maintain a particular status pending full trial on the merits. Id. Because such a judgment does not determine the merits in the action for an injunction, it is not a final judgment. Id; La. Code Civ.P. art. 1841. This same analysis applies to preliminary interdictions since the term parallels its injunctive counterpart.

Accordingly, a judgment denying a preliminary interdiction is interlocutory, and same is non-appealable unless an appeal is expressly provided for by law. La. Code Civ.P. art. 2083. On this point, the analogy is no longer useful due to the ambiguous language of Comment (d) of La.Civ.Code art. 391, which states:

The terms temporary interdiction and preliminary interdiction parallel similar terms used in the context of injunctive relief. See Code of Civil Procedure Articles 3601-3613.

There are at least two plausible interpretations of the breadth of the comment quoted above, each leading to different outcomes regarding the propriety of an appeal of a preliminary interdiction. However, each interpretation would ultimately lead to the dismissal of the instant appeal as being untimely or taken from a non-appealable judgment.

On one hand, the comment quoted above could be read as requiring that the statutes cited therein be applied to temporary and preliminary interdictions. Under this interpretation, an appeal from a ruling on a preliminary interdiction would be expressly provided by La.Code Civ.P. art. 3612, as implicated by the comment quoted above. Accordingly, parties would have fifteen days from the date of the order or judgment to file a motion for appeal. Id.

|4In the case sub judice, the motion for appeal was filed nearly two months from the date of the judgment which forms the basis for this appeal. Accordingly, under the first interpretation, the appeal would be subject to dismissal due to untimeliness.

On the other hand, Comment (d) of La.Civ.Code art. 391 could be read to analogize the procedural concepts for temporary and preliminary interdiction to their injunctive counterpart, which are more clearly illustrated in the statutes cited therein. Under this interpretation, an appeal in connection with an interdiction would be governed by the provisions of Title VIII, namely La.Code Civ.P. art. 4555, which does not expressly provide for an appeal of a denial of a preliminary interdiction. There being no law expressly providing for an appeal, the ruling would be an interlocutory, non-appealable judgment for the reasons more fully discussed above. Accordingly, the appeal must be dismissed under the interpretation discussed immediately above.

Turning to whether the order to place the defendant’s property in an involuntary trust is appealable, we conclude that the unusual order by the trial court is an interlocutory ruling, as there is no indication that the ruling decided the merits of the petition for interdiction. La.Code Civ.P. art. 1841. There being no law expressly providing for an appeal, the ruling is an interlocutory, non-appealable judgment. La.Code Civ.P. art. 2083.

Turning to the motion to remand, we find the motion is without merit. The plaintiffs requested the matter be remanded to the trial court for enforcement of the subject judgment. However, the trial court retained jurisdiction to execute and give effect to the subject judgment because its effect was not suspended by the instant appeal. La.Code Civ.P. art. 2088(7).

|fiBased on the foregoing reasons, the appeal in the above captioned case is dismissed at defendant’s cost, and the motion to remand is denied.

MOTION TO DISMISS GRANTED. MOTION TO REMAND DENIED.


author: COOKS, Judge.

text:
    Heather HOFFMAN v. TARGET CORPORATION OF MINNESOTA.
    No. 06-1067.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 14, 2007.

      Bob Broussard, D. Patrick Daniel, Jr., Lafayette, Louisiana, for Plaintiff/Appellant, Heather Hoffman.
    John S. Lawrence, Jr., David P. Curlin, Lawrence & Associates, Mandeville, Louisiana, for Defendant/Appellee, Target Corporation of Minnesota.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

1 .STATEMENT OF THE CASE

The Plaintiff, Heather Hoffman, was employed by Target Corporation of Minnesota (Target) in the bakery/deli department. Throughout the day, she was required to retrieve items from the back freezer to be used in her department. On April 4, 2003, while carrying a box of bagels, she slipped and fell on ice present on the freezer floor. She filed a tort action against her employer based on the intentional act exception to the workers’ compensation statute found in La.R.S. 23:1032(B). The trial court granted a summary judgment in favor of Target finding Ms. Hoffman’s exclusive remedy is in workers’ compensation. This appeal followed. For the reasons assigned below, we affirm the decision of the trial court.

LAW AND DISCUSSION

The intentional tort exception to the workers’ compensation statute is found in La.R.S. 23:1032(B) which provides, in relevant part:

Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional tort.

In Guillory v. Olin Corp., 99-567, pp. 4-5 (La.App. 3 Cir. 10/13/99), 745 So.2d 713, 715-16, writ denied, 99-3600 (La.2/18/00), 754 So.2d 968, this court explained the requirements under the intentional act exception found in La.R.S. 23:1032(B):

The statute as enacted limits the availability of tort recovery only to employees whose injuries are caused by genuine intentional acts, anything less than intentional, whether it be gross negligence or violation of a safety rule, remains in workers’ compensation. The Plaintiff must prove the employer’s intent which is defined as: (1) consciously desiring the physical results of the particular conduct, or (2) knowledge that the physical results were “substantially certain” to follow such conduct. Bazley v. Tortorich, 397 So.2d 475 (La.1981).
Although believing that someone may, or even probably will, eventually |3get hurt if a workplace practice is continued, does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by-workers’ compensation. Reeves [v. Structural Preservation Systems, 98-1795 (La.3/12/99),] 731 So.2d [208] at 212. “Substantially certain to follow” requires more than a reasonable probability that an injury will occur and “certain” has been defined to mean “inevitable” or “incapable of failing.” Reeves, 731 So.2d at 213, quoting Jasmin v. HNV Cent. Riverfront Corp. 94-1497 (La.App. 4 Cir. 8/30/91); 642 So.2d 311, 312, writ denied, 94-2445 (La.12/9/94); 647 So.2d 1110.

The plaintiff has the burden of proving the work-related injury resulted from an intentional act. Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La.1984). “Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, or willfully failing to furnish a safe place to work, this still falls short of the kind of actual intention to injure that robs the injury of accidental character.” Reeves, 731 So.2d at 210, quoting Larson, @ A Workmen’s Compensation Law, § 68.13 (1989). “Allegations of failure to provide a safe place to work, deficiently designed machinery and disregard of OSHA safety provisions, failure to correct unsafe working conditions, and failure to provide specifically requested safety equipment are not sufficient to invoke the intentional act exception of Revised Statute 23:1032(B) absent proof (or in the case of summary judgment, disputed issues of fact) of either defendant’s desire to harm plaintiff or defendant’s knowledge that his conduct would nearly inevitably cause injury to plaintiff.” Labbe v. Chemical Waste Management, Inc., 99-1562, p. 5 (La.App. 3 Cir. 3/29/00), 756 So.2d 613, 617.

The jurisprudence has narrowly construed the intentional tort exception to the exclusivity clause in the workers’ compensation statute. In Mouton v. Blue Marlin Specialty Tools, Inc., 01-648 (La.App. 3 Cir. 10/31/01), 799 So.2d 1215, the plaintiff was hired by Blue Marlin to clean and recondition used oilfield pipe and rental | ¿equipment. He sought medical treatment when a piece of metal became lodged in his eye. He also complained of severe headaches, dizziness, breathing difficulty, and chest pains. His physician wrote a note to his supervisors advising that he “avoid Varsol and other solvent exposures to skin or to strong fumes.” The plaintiff gave the note to his employer, but continued to perform the same duties. When he became ill, he sued his employer under the intentional tort exception. This court found the plaintiff failed to carry his burden of proof, stating: “The statute as enacted limits the availability of tort recovery only to employees whose injuries are caused by genuine intentional acts, anything less than intentional, whether it be gross negligence or violation of a safety rule, remains in workers’ compensation.” Mouton, 799 So.2d at 1219. See also, Labbe v. Chemical Waste Management, Inc., 99-1562 (La.App. 3 Cir. 3/29/00), 756 So.2d 613; Reeves v. Structural Preservation Systems, 98-1795 (La.3/1/99), 731 So.2d 208.

Ms. Hoffman contends the ice accumulated on the freezer floor in areas where she and other employees were required to work created an unreasonably dangerous condition. Target had specific knowledge of the dangerous conditions but took no remedial measures to correct the problem other than requiring its employees to break up and remove the ice from the freezer floor. Target did not provide its employees with training regarding how to work on or around ice and did not provide safety equipment while working in the freezer. Ms. Hoffman alleges Target intentionally exposed her to the risk of falling on a daily basis. In support of her position, Ms. Hoffman offered the testimony of several co-employees.

Barbara Jean worked in the bakery/deli department. She testified the back freezer and the bakery freezer had a history of accumulating ice on the freezer floor. Periodically, the ice would be broken up and removed from the freezer by either a | sbakery employee or someone from maintenance. Ms. Jean testified she occasionally slipped on the ice but had never fallen. However, Ms. Jean never mentioned this incident to an employee or supervisor of Target.

Ms. Hoffman submitted the testimony of Tyra Guilbeau, her immediate supervisor. Ms. Guilbeau testified it was common knowledge ice would be present on the freezer floor. However, Ms. Guilbeau stated this would occur when the freezer door was left open.

Kaili Broussard, the bakery executive team leader, testified Target called in a maintenance company to service the freezer on several occasions. Ms. Broussard testified the ice was caused by condensation forming when the freezer doors were left open by the bakery employees. Specifically, condensation would drip from one of the fans in the freezer onto the floor. Once the freezer door was closed the temperature would drop below freezing and the condensation would form ice on the floor. Ms. Broussard knew of the icy conditions and would receive instructions from her supervisor to remove the ice and remind the bakery employees to keep the freezer door closed. She personally met with several employees instructing them about the freezer door.

We have reviewed the testimony presented and conclude Ms. Hoffman will be unable to carry the burden of proving Target consciously desired an injury to occur or was substantially certain its conduct in maintaining the freezer in that condition would cause injury to Ms. Hoffman. It is undisputed ice accumulated on the floor of the freezer was caused by the carelessness of employees leaving the freezer door open. Target attempted to remedy the situation and cautioned the Plaintiff and others about the icy conditions. However, even if Plaintiff demonstrates the presence of ice on the freezer floor created a hazardous condition in violation of safety regulations, | fithe “jurisprudence has made it clear this alone is not sufficient to raise a fact question on the issue of intentional tort.” Mouton, 799 So.2d at 1220. We agree with the trial court that Plaintiff will be unable to support a claim under the intentional act exception to the workers’ compensation statute. Accordingly, we affirm the decision of the trial court granting the summary judgment in favor of Target.

DECREE

Based on the foregoing review of the evidence, we affirm decision of the trial court finding Ms. Hoffman’s exclusive remedy to be in workers’ compensation. All costs of this appeal are assessed to Heather Hoffman.

AFFIRMED.