author: CLARENCE E. McMANUS, Judge Ad Hoc.

text:
    Alvin BARROW v. Loraine B. BROWNELL and Allstate Insurance Company.
    No. 2005-CA-1627.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Anthony T. Marshall, Anthony T. Marshall & Associates, Gonzales, Counsel for Plaintiff/Appellant.

      C. Shannon Hardy, Penny & Hardy Law Firm, Lafayette, Counsel for Defendants/Appellees.
    Panel composed of Judges Ad Hoc THOMAS F. DALEY, CLARENCE E. MCMANUS and WALTER J. ROTHSCHILD.
   CLARENCE E. McMANUS, Judge Ad Hoc.

2Plaintiff, Alvin Barrow, appeals from a decision of the trial court granting summary judgment in favor of defendants, Loraine B. Brownell and Allstate Insurance Company, dismissing all of his claims against them. For the reasons that follow, we affirm the decision of the trial court.

Plaintiff filed suit alleging that he was an invited manual laborer at defendant Ms. Brownell’s home. On January 4, 2002, he was seriously injured when he fell off a ladder while in the process of taking down Christmas lights. He alleged that his injuries were caused by Ms. Brownell’s “negligence in failing to maintain premises and/or ladder in safe condition; failing to maintain a proper lookout, creating and fostering and unreasonable risk of harm, and other acts of negligence and/or strict liability.” Allstate Insurance Company was the homeowner’s liability insurance carrier at the time of the accident.

Defendants filed a motion for summary judgment alleging that that there were no material facts at issue. They contend that the undisputed facts showed that the accident was caused solely by plaintiffs negligence, and that there was absolutely no evidence to show that Ms. Brownell caused and/or contributed to plaintiffs accident. Defendants attached plaintiffs deposition testimony in support of their motion for summary judgment. Thus defendants presented the material facts, as set forth by the plaintiff himself, in support of their motion for summary judgment.

Plaintiff, in his deposition, stated that he started working for the Brownells in 1985, as a general handyman. Dr. Brownell died in 1988, and plaintiff 3continued to work for Ms. Brownell, maintaining the property, cutting grass and performing other tasks. For the last seventeen years, his jobs included hanging and removing the Christmas lights used to decorate the Brownell house. He always performed these tasks alone, and used the same ladder.

Ms. Brownell had requested that he remove the lights several times prior to the accident. He told her that the weather was “cold,” but she told him to do it anyway. He admitted in his deposition that he did not tell her he thought the weather conditions were dangerous. Plaintiff removed all but one of the strings of light, working his way from the side of the house to the front. He went up and down the ladder many times during the course of this job and he continuously moved the ladder alone. While he was removing the lights, Ms. Brownell was inside the house, and she did not assist in any way.

At the front of the house, plaintiff placed the ladder on the walkway so that he could remove the lights on the roof by the porch. The bottom of the ladder had rubber pads. He tested the ladder several times by shaking it, to make sure that it was safe. The ladder was leaning against the roof, with five rungs above the roof line.

He climbed the ladder and the got off of it and onto the roof. After removing the lights, he got back on to descend. He placed his left foot on a rung even with the roof top, and then put his left arm on the top of the ladder. He put his other foot on the rung. Then he placed his other arm on the top of the ladder, and leaned forward, placing his weight on the ladder. The bottom of the ladder slid outward, causing both he and the ladder to fall.

The pictures of the ladder attached to plaintiffs deposition show a bend in the ladder, but plaintiff admitted that the bend was caused by him falling on the ladder, and that it did not exist prior to the accident.

4In the deposition, plaintiff stated that he tested the ladder and found it to be safe, and that if he had thought it was not safe he would have found another way to get to the lights. He also admitted that he did not ask for assistance at any time while taking the lights down. Ms. Brownell did not tell him how to perform the requested task; it was solely his decision as to how and where to place the ladder. He further admitted that he told Ms. Brownell that the weather was cold, but he did not tell her that he thought that it was unsafe. Furthermore, he did not explain how the weather being cold caused the ladder to slip.

After consideration, the trial court granted summary judgment, finding that

There is not a material question of fact that Mrs. Brownell in this case did not have any duty and did not breach any duty; and that Mr. Barrow in fact is the sole person who decided when, where, and how to do this job. And as a result of the manner in which he did the job, there was an accident. But that accident is in no way related to any negligence before the court for Mrs. Brow-nell.

In this appeal, plaintiff alleges that the trial court erred in finding that there were no questions of material fact. He contends that the issue of Ms. Brownell’s negligence, in telling him to do the job under dangerous conditions, is in dispute. He alleges his cause of action arises under LSA-C.C. arts. 2315, 2316, and 2317.1.

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

The burden of proof is on the moving party. La. C.C.P. art. 966(C)(2). However, if the moving party will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the moving [^party’s burden on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, the adverse party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial. Failure to do so shows that there is no genuine issue of material fact. Id.

This Court’s review of a grant or denial of a motion for summary judgment is de novo. Thus, we ask the same questions as the district court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Government, 04-0066 (La.7/6/04), 880 So.2d 1; Jones v. Estate of Santiago, 03-1424, (La.4/14/04), 870 So.2d 1002.

In Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750-751 the Louisiana Supreme Court said:

A “genuine issue” is a “triable issue.” More precisely, “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment -is the means for disposing of such meretricious disputes.” In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. “Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact.”
A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. (Citations omitted).

The mere fact that an accident occurs, absent a res ipsa loquitur situation, does not give rise to even a presumption of negligence. Fault is determined by asking the question: How would a reasonably prudent individual have acted or |fiwhat precautions would he have taken under the same or similar circumstances? Negligent conduct is determined in the light of the facts and environmental circumstances of each case. Pitre v. Employers Liability Assur. Corp., 234 So.2d 847 (La.App. 1 Cir. Apr 13,1970), writ denied 256 La. 617, 237 So.2d 398 (La. Jun 29, 1970).

LSA-C.C. art. 2315A provides that “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” LSA-C.C. art. 2316 states that “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

La. C.C. arts. 2815 and 2316 make all persons responsible for damages caused by their negligence. In order to determine whether liability exists under the facts of a particular case, a duty-risk analysis is used. The relevant inquiries are:

(1) Did the defendant(s) owe a duty to the plaintiff?
(2) Were the requisite duties breached?
(3) Was the conduct of which the plaintiff complains a cause-in-fact of the resulting harm?
(4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached?
(5) Were actual damages sustained?

Moory v. Allstate Ins. Co., 04-0319 (La. App. 1 Cir. 2/11/05), 906 So.2d 474, writ denied, 05-0668 (La.4/29/05), 901 So.2d 1076, citing Mathieu v. Imperial Toy Corp., 94-0952, (La.11/30/94), 646 So.2d 318, 321-322. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Id.

Our initial inquiry is whether Ms. Brownell owed a duty to plaintiff in this case. Whether a duty is owed is a question of law. Creel v. Southern Natural Gas Co., 03-2761 (La.App. 1 Cir. 10/14/05), 917 So.2d 491.

As the trial court stated, plaintiff alone decided when, where and how to do this job, and that his accident happened as a result of the manner in which he did |7the job. Ms. Brownell did not breach any duty, and the accident was not related to any negligence on the part of Ms. Brow-nell.

LSA-C.C. art. 2317.1 provides that:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

A defect is a condition that creates an unreasonable risk of harm to persons on the premises. Lee v. Magnolia Garden Apartments, 96-1828 (La.App. 1 Cir. 5/9/97), 694 So.2d 1142, writ denied, 97-1544 (La.9/26/97), 701 So.2d 990. In this case, plaintiffs only allegation of a defect is that it was cold outside. This is insufficient to establish a defective condition in the property.

In brief to this court, plaintiff argues that there was a question of fact because he was “basically forced to take down Christmas lights from the defendant’s. home despite the fact that he did not think that the conditions were safe ...” However, plaintiff fails to provide evidence to show how the weather conditions contributed to the accident. To the contrary, plaintiff himself testified that he checked the ladder several times before making his assent, and that if he had thought the ladder was unsafe, he would have found another way to finish the job. We therefore find that the trial court did not err in granting summary judgment.

For the above discussed reasons, the decision of the trial court granting summary judgment in favor of defendants, and dismissing plaintiffs claims against them, is affirmed. All costs are assessed to plaintiffiappellant.

AFFIRMED.


source: Caselaw Access Project

author: HUGHES, J.

license: Public Domain

text:
    Floyd HITCHEN v. SOUTHLAND STEEL.
    No. 2005 CA 1708.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Kent B. Payne, Baton Rouge, Counsel for Plaintiff/Appellee Floyd Hitchen, Jr.
    Frank E. Brown, III, Baton Rouge, Counsel for Defendants/Appellants South-land Steel Fabricators, Inc. and Louisiana Worker’s Compensation Corporation.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   HUGHES, J.

2An employer and its workers’ compensation insurer appeal a judgment awarding an injured employee supplemental earnings benefits. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Floyd Hitchen, Jr., was employed by Southland Steel Fabricators, Inc. (South-land) as a laborer. In August 2002, Mr. Hitchen injured his back while lifting a heavy load of steel. Mr. Hitchen sought medical treatment for his injury and received medical and indemnity benefits from Southland.

Mr. Hitchen attempted to return to work at Southland; however, due to the pain he experienced when performing his duties, such as turning steel beams, he was unable to continue. In May 2003, a functional capacity evaluation (FCE) was performed on Mr. Hitchen to determine his capabilities. Thereafter, Southland sent Mr. Hitchen’s physician a list of janitorial duties it proposed to assign to Mr. Hitch-en. These duties included cleaning the shop restroom. Mr. Hitehen’s physician approved the janitorial duties as long as they were within the restrictions outlined in the FCE. On June 12, 2003, Southland sent a certified letter to Mr. Hitchen requesting that he return to work and attached the list outlining his new janitorial duties. However, Mr. Hitchen never received the letter or the list of his new duties. Catherine Lombardo, Southland’s controller, ultimately reached Mr. Hitchen by phone on June 17, 2003 and told him to report to work on June 18; however, she did not tell Mr. Hitchen what his duties would be.

Mr. Hitchen reported for work at South-land shortly before 7:00 a.m. on June 18, 2003. That morning, when Mr. Hitchen was punching the time clock, his supervisor, Mr. Wyre, smiled at him and told him he had to clean |athe restrooms, and other employees began laughing. Mr. Hitchen, believing that Mr. Wyre was joking with him, as he usually did, also laughed.

The particular events that transpired after this exchange are somewhat disputed. Mr. Hitchen testified that he jokingly responded to Mr. Wyre that he knew that his duties were not going to include cleaning the restrooms. He further testified that had he thought Mr. Wyre were serious, he certainly would have cleaned the restrooms. However, because he thought it was merely a joke, he did not; rather, he waited around for his actual work assignment. No other duties were assigned to Mr. Hitchen. He stated that Mr. Wyre later came back and told him that Catherine Lombardo had said he could go home.

Mr. Wyre testified that when he told Mr. Hitchen to clean the restrooms, Mr. Hitchen replied, ‘What?” and laughed. Mr. Wyre stated that Mr. Hitchen never actually refused to clean the restrooms; however, he did not proceed to clean them either.. Mr. Wyre testified that he then went into the office and reported to his boss, Joey Lombardo, that Mr. Hitchen apparently was not going to clean the restrooms. After returning from the office, Mr. Wyre discovered that Mr. Hitchen was gone.

The following day, Catherine Lombardo sent a letter to Mr. Hitchen stating that Southland regretted Mr. Hitchen’s decision not to return to work. The letter specifically provided: “You were offered a job well within your medical capabilities, confirmed by the doctor, and you stated to Joey Lombardo, plant manager, on Wednesday, June 18, 2003, that you couldn’t sweep and that you weren’t going to clean restrooms.” However, it is worthy of note that neither Catherine Lombardo nor Joey Lombardo testified at the trial of this matter. Indeed, the undisputed testimony of Mr. Hitchen 4and Mr. Wyre at trial established that no such conversation between Mr. Hitchen and Joey Lombardo took place that morning.

On July 8, 2003, Mr. Hitchen filed a claim for workers’ compensation benefits against Southland and its workers compensation insurer, Louisiana Workers’ Compensation Corporation (LWCC). Following a trial on December 2, 2004, the workers’ compensation judge (WCJ), noting Mr. Wyre’s constant smiling and jovial nature on the stand, concluded that a mis-communication between the parties had occurred, and that Mr. Hitchen believed the command to clean the restrooms was just a joke at his expense and not a duty of a legitimately offered job.

On February 10, 2005, the WCJ signed a judgment awarding Mr. Hitchen supplemental earnings benefits in the amount of $240 per week beginning June 18, 2003, and continuing until reduced or terminated, with judicial interest on each payment from the date the payment was due until paid. The judgment further provided that Southland and LWCC had not been arbitrary or capricious; hence, Mr. Hitchen was not entitled to an award for attorney fees and penalties. From this judgment, Southland and LWCC appeal, contesting Mr. Hitchen’s entitlement to supplemental earnings benefits and judicial interest. Specifically, they assert that the WCJ erred in finding that a suitable job within his physical capabilities had not been offered to Mr. Hitchen.

STANDARD OF REVIEW

In a workers’ compensation case, as in other civil cases, the appellate court’s review of factual findings is governed by the manifest error or clearly wrong standard. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. In applying the manifest | serror-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a factfin-der’s choice between them can never be manifestly erroneous or clearly wrong. Thus, if the findings of the trier of fact are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks, 96-2840 at pp. 7-8, 696 So.2d at 556. Further, when factual findings are based upon determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

DISCUSSION

The purpose of supplemental earnings benefits is to compensate an injured employee for the wage earning capacity he has lost as a result of his accident. Banks, 96-2840 at p. 8, 696 So.2d at 556. An employee is entitled to receive supplemental earnings benefits if he sustains a work-related injury that results in his inability to earn ninety percent or more of his average pre-injury wages. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury-resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, 96-2840 at p. 8, 696 So.2d at 556. This analysis is necessarily a facts and circumstances one in which the court is to be mindful of the jurisprudential tenet that workers’ compensation laws are to be liberally construed in favor of coverage. Banks, 96-2840 at pp. 8-9, 696 So.2d at 556.

6Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for supplemental earnings benefits or to establish the employee’s earning capacity, must prove by a preponderance of the evidence that the employee is physically able to perform a certain job and (1) that the job was offered or tendered to the employee by the employer or any other employer, or (2) that the job was available to the employee in his or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i); Banks, 96-2840 at p. 9, 696 So.2d at 556.

In the present case, the parties do not dispute that Mr. Hitchen suffered an injury that has resulted in his inability to earn ninety percent or more of his pre-injury wages. Rather, the contested issue is whether the WCJ was manifestly erroneous in concluding that Southland failed to meet its burden of proving that it had offered Mr. Hitchen a suitable job that he could physically perform. The record in this matter provides a reasonable basis for the WCJ to conclude that Mr. Hitchen was never actually offered an objectively defined position due to a miscommunication between the parties. The record herein supports the WCJ’s finding that Mr. Hitchen reasonably believed Mr. Wyre’s command to clean the restrooms was a joke and not a legitimate job duty. Apparently, the WCJ credited Mr. Hitchen’s testimony that he was told to go home without being given any further instructions or explanations. Mr. Hitchen was never given the list detailing his new janitorial duties, nor were these duties clearly communicated to him or understood by him prior to his leaving Southland on the morning of June 18, 2003.

We conclude that the WCJ’s factual findings concerning Southland’s offer of a suitable job to Mr. Hitchen so as to defeat his claim for 7supplemental earnings benefits had evidentiary support and was not clearly wrong

CONCLUSION

For the foregoing reasons, the judgment is affirmed. Southland Steel Fabricators, Inc. and Louisiana Workers’ Compensation Corporation are cast with all costs of this appeal.

AFFIRMED.

      . Southland and LWCC also appealed from "any allowable court costs of any proceedings until the appeal.” However, no such costs are referenced in the judgment appealed from.


text:
    SOUTHEAST WIRELESS NETWORK, INC., Slaydon Investment, Inc., and Celia Katz, Individually and in her Capacity as Independent Executrix for the Succession of Samuel B. Katz v. U.S. TELEMETRY CORPORATION, U.S. Telemetry Network, Inc., K. Steven Roberts, Thomas L. Siebert, Donald M. Clarke, S. Andrew Banks, Charles M. Bruce and James K. Gable.
    No. 2005-CA-1536.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Charles R. Moore, S. Layne Lee, Patrick N. Broyles, Moore, Walters, Thompson, Papillion & Cullins, Baton Rouge, Counsel for Plaintiffs/Appellants.
    Paul H. Spaht, Kantrow, Spaht Weaver & Blitzer, Baton Rouge, Counsel for Defendants/Appellees.
    Michael D. Hunt, Jane A. Robert, Phelps Dunbar, Baton Rouge, Counsel for Defendants/Appellees.
    Panel composed of Ad Hoc Judges EDWARD A. DUFRESNE, Jr., THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.
   EDWARD A. DUFRESNE, JR., Chief Judge, Ad Hoc.

2This is an appeal by Southeast Wireless Network, Inc., et al., plaintiffs-appellants, from a judgment sustaining an exception of lack of personal jurisdiction urged by James K. Gable and Charles M. Bruce, defendants-appellees. For the following reasons we vacate that judgment and remand the matter for further proceedings.

The underlying facts are as follows. U.S. Telemetry Corporation (USTC), a defendant, is a Delaware corporation having its principal place of business in Louisiana. This corporation developed a plan whereby it would design equipment to transfer data via the 217-218 MHZ radio spectrum. Plaintiffs, all Louisiana residents and corporations, owned at the time licenses for the radio bands, and they were eventually persuaded by the 3corporation to transfer these licenses in exchange for stock. It is alleged by plaintiffs that at the time of the transfer USTC was in precarious financial condition and had additional market and operational problems, and that these facts were never revealed to them in violation of Louisiana’s Blue Sky law, La. R.S. 51:701 et seq. All of the negotiations and stock transfers were done in Louisiana. Suit was brought against USTC and various other corporations and individuals allegedly involved in the above transactions.

James K. Gable and Charles M. Bruce were members of the board of directors of USTC, and are being sued on grounds that they knew or should have known of alleged fraudulent inducements and activities of the corporation directed toward plaintiffs which caused these latter parties to suffer substantial financial losses. Both Gable and Bruce urged exceptions of lack of jurisdiction over their persons on grounds that they had insufficient contacts with Louisiana to subject them to the jurisdiction of its courts. These exceptions were granted and plaintiffs now appeal.

Personal jurisdiction in Louisiana over non-residents has been governed since 1987 by La. R.S. 18:3201 B, the Long-Arm Statute, which pertinently provides that “a court of this state may exercise personal jurisdiction over a non-resident on any basis consistent with the constitution of this state and of the Constitution of the United States.” In Petroleum Helicopters, Inc. v. Avco Corporation, 513 So.2d 1188 (La.1987) the court stated that under this amendment to the long-arm statute jurisdiction is now coextensive with federal constitutional due process requirements. In a subsequent case, de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, at 106-107, the court elaborated on the analysis of long-arm jurisdiction as follows:

Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, the requirement of meaningful contacts is satisfied if the defendant has purposefully 4directed his activities at ' residents of the forum, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), and the litigation results from alleged injuries that arise out of or relate to those activities. Burger King Corp. v. Rudzewicz, supra, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), supra. By requiring that a defendant must have purposefully availed himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws, the requirement ensures that he will not be haled into a jurisdiction solely as a result of a random, fortuitous or attenuated contact, or by the unilateral activity of another party or a third person. Asahi Metal Industry Co. v. Superior Court of California, supra, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); Burger King Corp., 471 U.S. at 475, 105 S.Ct. at 2183; Keeton v. Hustler Magazine, supra; World-Wide Volkswagen Corp. v. Woodson, supra, 444 U.S. 286, 100 S.Ct. 559, 62 L.Edüd 490 (1980). Thus, where the defendant deliberately engaged in significant activities within a state, or has created continuing obligations between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by the benefits and protections of the forum’s laws it is presumptively not unreasonable to require the defendant to submit to the burdens of litigation in that forum as well. Burnham v. Superior Court of California, 495 U.S. 604, 110 S.Ct. 2105, 2124-25,109 L.Ed.2d 631 (1990) (Brennen, J., concurring); Asahi Metal Industry Co., 480 U.S. at 109, 107 S.Ct. at 1030; Burger King Corp., 471 U.S. at 476, 105 S.Ct. at 2184; World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567.
Once it has been decided that a defendant purposefully established such minimum contacts within the forum state, a presumption arises that jurisdiction is reasonable and the burden of proof and persuasion shifts to the defendant opposing jurisdiction to present “a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Burger King Corp., 471 U.S. at 477, 105 S.Ct. at 2185. See also Haisten v. Grass Valley Medical Reimbursement Fund, Inc.[Ltd.], 784 F.2d 1392 (9th Cir.1986). Most such considerations usually may be accommodated through means short of finding jurisdiction unconstitutional, such as choice of law rules. Burger King Corp., 471 U.S. at 477, 105 S.Ct. at 2185; Burnham v. Superior Court, 110 S.Ct. at 2125. Nevertheless, minimum requirements inherent in the concept of fair play and substantial justice may defeat the inference of reasonableness of jurisdiction even if the defendant has purposefully engaged in forum activities reflected by sufficient minimum contacts. Asahi Metal Industry Co., 480 U.S. at 113, 107 S.Ct. at 1033; Burger King Corp., 471 U.S. at 478, 105 S.Ct. at 2185; World-Wide Volkswagen, supra. Jurisdictional rules may not be employed in such a way as to make litigation so gravely difficult and inconvenient that a party is unfairly placed at a severe disadvantage in comparison to his opponent. Burger King Corp., 471 U.S. at 478, 105 S.Ct. at 2185.
In attempting to overcome the prima facie case that jurisdiction is reasonable, the defendant may present evidence and argument as to certain considerations that the Supreme Court has indicated are relevant in deciding whether maintenance of a suit comports with traditional notions of fail' play and substantial justice. The relationship between the defendant and the forum must be such that it is reasonable to require the defendant to defend the particular suit which 5is brought there. International Shoe Co. v. State, 326 U.S. 310 at 317, 66 S.Ct. 154 at 158, 90 L.Ed. 95 (1945). Implicit in this emphasis on reasonableness is the understanding that the burden on the defendant, while always a primary concern, will in an appropriate case be considered in light of other relevant factors, including the forum state’s interest in adjudicating the dispute, the plaintiffs interest in obtaining convenient and effective relief, at least where that interest is not adequately protected by the plaintiffs power to choose the forum, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several states in furthering fundamental substantive social policies. Asahi Metal Industry Co., 480 U.S. at 113, 107 S.Ct. at 1033; Burger King Corp., 471 U.S. at 477, 105 S.Ct. at 2184; World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. at 564. These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. Burger King Corp., 471 U.S. at 477, 105 S.Ct. at 2184; Madara v. Hall, 916 F.2d 1510, 1519 (11th Cir.1990).

In the present case there is no question that the corporation directed its activities to residents of Louisiana and that this litigation results from alleged injuries related to those activities. It had its principal place of business in this state, solicited stock sales and acquired plaintiffs’ assets in exchange for stock, and the allegations are that these transactions were in violation of the state’s blue sky laws.

As to the individual board members, there are a number of states whose long-arm statutes provide that sitting on the board of directors of a corporation having its principal place of business in the forum state is a sufficient contact to constitutionally support personal jurisdiction over a non-resident director. See Simmons v. Templeton, 96-0592 (La.App. 4th Cir.11/27/96), 684 So.2d 529. Implicit in these statutes is the principle that because such directors have manifestly availed themselves of the privilege of conducting business in the forum and being protected by its laws, it is not unreasonable to require them to submit to litigation in the forum as well. We can find no instance in which such a provision has been found to violate the due process clause of the U.S. Constitution. Because Louisiana’s long-arm statute is coextensive with that clause, it follows that exerting jurisdiction over the corporate directors of USTC, a corporation having its 6principal place of business in this state, is within that statute’s ambit and is reasonable. Plaintiffs have thus made a prima facie case for personal jurisdiction over these defendants.

As shown above, once jurisdiction has been found to be reasonable, the burden shifts to the defendant to show that assertion of jurisdiction would be unreasonable in light of traditional notions of fair play and substantial justice, de Reyes v. Marine Management and Consulting, Ltd., supra; Alonso v. Line, 2002-2644 (La.5/20/03), 846 So.2d 745. Although there is admittedly some burden associated with these directors having to defend this suit in Louisiana, we do not see that burden as outweighing other considerations at issue here. Clearly the state of Louisiana has a substantial interest in seeing to it that its blue-sky laws are enforced and it is the proper forum to adjudicate issues arising from activities which occurred in this state. Further, it is not clear how plaintiffs could litigate their complaints against these defendants in any other forum because no other forum would have any realistic interest in this dispute which arose entirely from activities in Louisiana. Finally, the interstate judicial system has an interest in obtaining efficient resolution of controversies, a result which can only reasonably be accomplished by allowing a Louisiana court to resolve the case as to all parties involved in the underlying dispute. Simmons v. Templeton, supra. We thus conclude that personal jurisdiction is proper as to Gable and Bruce.

Appellees have argued extensively that the “fiduciary shield” doctrine precludes the exercise of personal jurisdiction over them. This doctrine protects nonresident corporate officers or directors acting in their official capacity from the exercise of jurisdiction over them simply because the forum has jurisdiction over their corporation. Escoto v. U.S. Lending Corp., 95-2692 (La.App. 4th Cir.5/22/96), 675 So.2d 741. They argue that their | affidavits and other papers show that they were at all times acting in their official capacity as directors, and therefore they are not subject to personal jurisdiction in Louisiana. We disagree with this assertion.

As shown above, the due process clause of the U.S. Constitution is not offended by a forum asserting personal jurisdiction based on a person being a director of a foreign corporation with its principal place of business in the forum, even where that person has only acted in his official capacity. Accepting such a corporate position is deemed to constitute a manifest decision to avail oneself of the protection of the laws of the forum, and therefore it is not unreasonable to subject such directors to personal jurisdiction in the forum notwithstanding that their actions may have been only in their official capacity. See Simmons v. Templeton, supra.

For the foregoing reasons the judgment of the district court sustaining the exceptions of lack of personal jurisdiction over the defendants James Gable and Charles Bruce is hereby reversed, and the matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.


author: JAMES L. CANNELLA, Judge Ad Hoc.

text:
    Lenora JACKSON v. Gloriastine DILLARD, Menard Dillard and State Farm Insurance Company.
    No. 2005-CA-1136.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Henry B. King, Baton Rouge, for Appellant.
    Elizabeth B. Powell, Richard S. Thomas, Thomas Law Firm, L.C., Baton Rouge, for Appellee.
    Panel composed of Ad Hoc Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY and FREDERICK HOMBERG WICKER.
   JAMES L. CANNELLA, Judge Ad Hoc.

1The Plaintiff, Lenora Jackson, appeals from a summary judgment granted to Defendant, Menard Dillard, in an automobile accident case. We reverse and remand.

On February 9, 2004, the Plaintiff was traveling southbound on Plank Road in Baton Rouge, Louisiana, a two-lane road, when she was struck head-on by a car driven by the Defendant, Gloriastine Dillard. The Defendant was traveling northbound on Plank Road in a car owned by her son, Menard Dillard (Dillard). Allegedly, she pulled out from behind another vehicle into the southbound lane heading directly toward the Plaintiffs vehicle. The Plaintiff claims that she stopped her car in the roadway waiting to see where the Dillard vehicle was going. The Defendant then drove head-on into the Plaintiffs vehicle.

The Plaintiff filed suit for damages on September 8, 2004 against the Defendant, Dillard, and his insurer, State Farm Mutual Insurance Company 3(erroneously named State Farm Insurance Company). The Plaintiff asserted that Dillard was negligent for, inter alia, permitting the reckless and negligent operation of the vehicle by “the defendant”, and permitting the car to be operated by an “incapable and unskilled” operator. Dillard filed an answer denying the allegations. On January 18, 2005, he filed a motion for summary judgment, with affidavits. In his affidavit, Dillard asserted inter alia that he had no knowledge of any medical condition or alleged problems with his mother’s medical condition at the time of the accident that would impair her driving. He asserted that his mother had driven the car without incident in the past. In the Defendant’s affidavit, she stated inter alia that she was not employed by or on a mission for her son at the time of the accident. In the Plaintiffs opposition affidavit, she disputed Dillard’s allegations relative to his lack of knowledge of his mother’s medical condition, stating that he informed her otherwise at the scene of the accident.

On February 28, 2005, Dillard filed a motion to strike the Plaintiffs affidavit, asserting that the statements relating to his alleged knowledge of any medical condition impairing his mother’s driving were hearsay. On March 17, 2005, the trial judge granted both motions, finding that the Plaintiffs affidavit contained allegations that would be inadmissible hearsay at trial.

On appeal, the Plaintiff asserts that the trial judge erred. She contends that the statements in the affidavit were not hearsay, and that those statements raise material issues of disputed fact relative to Dillard’s liability which precluded summary judgment.

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. MSOF Corp. v. Exxon Corp., 2004-0988 (La.App. 1st Cir.12/22/05), 934 So.2d 708, 714; Craig v. Bantek West, Inc., 2004-0229 (La.App. 1st Cir.9/17/04), 885 So.2d 1241, 1244-45;4 Western Sizzlin Steakhouse v. McDuffie, 2002-0935 (La.App. 1st Cir.3/28/03), 844 So.2d 355, 357, writ denied, 2003-1147 (La.6/20/03), 847 So.2d 1236. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966 A(2); MSOF Corp. v. Exxon Corp., 2004-0988 (La.App. 1st Cir.12/22/05), 934 So.2d 708, 714.

The motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on. file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B; MSOF Corp., supra.

In a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. C.C.P. art. 966 C(2); MSOF Corp., supra. Instead, the mover need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. MSOF Corp., supra. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966 C(2); Robles v. ExxonMobile, 02-0854 (La.App. 1st Cir.3/28/03), 844 So.2d 339, 341.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La.C.E. art. 801 C. Hearsay is not admissible except as Isprovided by the Code of Evidence or other legislation. La.C.E. art. 802. Therefore, in order to be admissible, a statement must either be defined as non-hearsay under La.C.E. art. 801 D, or must qualify as an exception to the hearsay rule. In Buckbee v. United Gas Pipe Line Co., Inc., 561 So.2d 76, 80 (La.1990), the Louisiana Supreme Court stated:

In its broadest sweep, the hearsay rule excludes all testimony regarding statements made out-of-court by declarants who at the time of making the statements were not under oath, not in the presence of the trier of fact, and thus not subject to cross-examination. By excluding testimony which fails these three requirements, the hearsay rule increases the reliability of in-court testimony, and seeks to admit only that testimony which the fact-finder can evaluate for the witness’s perception, memory, narration and sincerity. 4 J. Weinstein & M. Berger, Weinstein’s Evidence 800-1 to 800-5 (1988).

The Plaintiff argues that her statements are not hearsay under La.C.E. art. 801 D(2). La.C.E. art. 801 D does not set out exclusions to the hearsay rule, but describes statements that are not hearsay. La.C.E. art. 801 D(2) states that the following are not hearsay:

(2) Personal, adoptive, and authorized admissions. The statement is offered against a party and is:
(a) His own statement, in either his individual or a representative capacity;
(b) A statement of which he has manifested his adoption or belief in its truth; or
(c) A statement by a person authorized by him to make a statement concerning the subject. [Emphasis added.]

In the Plaintiffs affidavit, she contends that:

4. There is no truth to any allegation that defendant Menard Dillard is unaware of any medical condition that would inhibit his mother’s ability to drive said vehicle safely and without incident. Thru (sic) defendants’ own words he has indicated to me that he was fully aware of his mother’s medical condition and had discussed same with defendant Gloriastine Dillard in the past and that her condition was one which has lasted for quite some time.
65. There is no truth to any allegation that defendant Menard Dillard is unaware of any medical condition that would inhibit his mother’s ability to drive said vehicle safely and without incident as he has given the investigating officer his mother’s residential address and his own residential address as one and the same.
6. There is no truth to any allegation that defendant Menard Dillard had no knowledge whatsoever of any details associated with the accident beforehand, other than an accident occurred thereafter. Defendant Menard Dillard was present on the scene and spoke with me while I waited for medical assistance.

The statements in the affidavit attempt to show that Dillard had knowledge that his mother should not have been driving. As he is a Defendant in the case, he is, thus, a party for all purposes. Thus, the statements relative to what he allegedly told the Plaintiff are not hearsay under La.C.E. art. 801 D(2).

Dillard argues, nevertheless, that the affidavit is insufficient to meet the requirements of La. C.C.P. art. 966, because it was not made on personal knowledge. We disagree. The Plaintiff indicates in the affidavit that Dillard told her that his mother had a medical condition that impaired her driving while at the scene of the accident. Thus, we find that she had sufficient personal knowledge to satisfy the affidavit requirement.

Accordingly, the summary judgment is hereby reversed and denied. The case is remanded for further proceedings.

REVERSED AND REMANDED.


author: PETTIGREW, J.

text:
    Terry GIAUQUE, Melissa Bertrand and Darla R. Larson Individually and on Behalf of the Minor Child Allie Larson v. CLEAN HARBORS PLAQUEMINE, L.L.C. and Michael A. Sullivan.
    No. 2005 CA 0799.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Kenneth H. Hooks, III, Richard J. Dodson, Stephen M. Irving, Baton Rouge, for Plaintiffs-Appellees Terry Giauque, et al.
    F. Barry Marionneaux, Plaquemine, Eric E. Jarrell, Len A. Brignac, New Orleans, for Defendants-Appellants Clean Harbors Plaquemine., L.L.C. and Michael A. Sullivan.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

12Plaintiffs in this environmental action are Louisiana citizens who challenge the validity of authorizations and orders issued by various environmental agencies with respect to the operation of a hazardous waste injection well situated near Plaque-mine, in Iberville Parish, Louisiana. Following a hearing, the trial court granted petitioners’ request for a preliminary injunction. From this judgment, defendants now appeal.

FACTS

Alleging numerous on-going violations of the Louisiana Environmental Quality Act (“LEQA”)(La. R.S. 30:2001 et seq.), and specifically, La. R.S. 30:2202(C), plaintiffs, Terry Giauque, Melissa Bertrand, and Darla Larson, individually and on behalf of the minor child, Allie Larson (collectively, “plaintiffs”) filed the instant litigation in the 18th Judicial District Court for the Parish of Iberville, State of Louisiana, on November 17, 2003, pursuant to the citizen suit provisions of the LEQA. See La. R.S. 30:2026. Plaintiffs identify themselves as citizens of the State of Louisiana who own property near the village of Bayou Sorrel, Louisiana, and/or use and enjoy the Bayou Sorrel area for recreational and aesthetic purposes in the vicinity of a Class I underground injection well. Named as defendants in this matter are the present owner/operator of the injection well site, Clean Harbors Plaquemine, L.L.C. (“Clean Harbors”), identified as a for-profit corporation authorized to do and doing business in Louisiana, and Michael A. Sullivan (“Mr. Sullivan”). Plaintiffs allege that Mr. Sullivan was the manager of the well site for various owners from 1978 until 2003, with the exception of intervals between late-1980 to 1983. Plaintiffs further allege that inasmuch as the violations took place in the village of Bayou Sorrel situated in Iberville Parish, subject-matter jurisdiction as well as venue are proper in the 18th Judicial District.

Pursuant to the allegations contained in the plaintiffs’ petition, the hazardous waste injection well that forms the basis of this litigation was created in or about 1976, when an abandoned oil and gas well located in Iberville Parish was converted for use as an 3injection well. Defendant Glean Harbors later acquired the well site from Safety-Kleen Corp. (formerly known as Rollins Environmental Services) in 2002.

Plaintiffs allege that since 2002, Clean Harbors has violated, and continues to violate, La. R.S. 30:2202(0) by injecting hazardous waste into its underground well that plaintiffs’ claim was determined by the Louisiana Department of Natural Resources, Division of State Lands (“LDNR”) in November 1983, to be “located within the banks or boundaries of a body of surface water known as Lake Bayou Pigeon.” Plaintiffs further allege that after acquiring the well site, defendants Clean Harbors and Mr. Sullivan made false and misleading statements to the Louisiana Department of Environmental Quality (“LDEQ”) regarding the existence of five long-abandoned hazardous waste pits, failed to disclose to LDEQ that said pits were not properly closed, allowed discharges from the pits resulting in surface and ground water contamination, and failed to report evidence of ground water contamination, or that the abandoned pits had, since approximately 1983, ceased being within the area enclosed by the containment levee.

ACTION OF THE TRIAL COURT

On December 17, 2003, defendants removed this action to federal court asserting diversity of citizenship as a basis for the federal court’s jurisdiction. In removing the suit, defendants asserted that Mr. Sullivan had been fraudulently joined in the suit for the purpose of defeating diversity jurisdiction. In support of this assertion, defendants first argued that the plaintiffs’ claim against Mr. Sullivan were prescribed because the allegations put forth against him by plaintiffs occurred more than a year prior to the institution of suit. Defendants further argued that the plaintiffs’ claims could not be asserted against Mr. Sullivan in his individual capacity because the acts the plaintiffs’ complained that Mr. Sullivan performed were in the capacity of an employee of the company and he was no longer employed by Clean Harbors. Plaintiffs thereafter filed a 4motion to remand the matter to state court that was granted by the federal court on April 8, 2004.

In the interim, defendants, on January 12, 2004, filed various declinatory exceptions raising objections of improper venue; lack of personal jurisdiction; and a lack of subject matter jurisdiction together with dilatory exceptions raising objections of prematurity; want of amicable demand; unauthorized use of summary proceedings; non-conformity of the petition; vagueness or ambiguity of the petition; lack of procedural capacity; and improper cumulation of actions, in the 18th Judicial District Court together with a memorandum in support thereof. Plaintiffs were thereafter directed to show cause why their claims should not be dismissed. After taking the matter under advisement, the trial court issued a ruling on August 10, 2004, wherein it adopted the reasons put forth by the plaintiffs and denied defendants’ exceptions. A second judgment denying the exceptions was signed by the trial court on September 10, 2004.

Defendants subsequently applied for supervisory writs, and moved to stay proceedings in the trial court pending a determination of their writ application. The motion to stay was denied by the trial court and a panel of this court. This court later denied defendants’ request for supervisory writs as later did the Louisiana Supreme Court.

On September 8, 2004, plaintiffs filed a petition seeking a preliminary injunction that would restrain Clean Harbors from continuing to dispose of hazardous waste at its injection well located at Bayou Sorrel, .Louisiana, together with an assessment of civil penalties for noncompliance with La. R.S. 30:2202, all as provided for in La. R.S. 30:2026. The trial court subsequently held a two-day hearing on plaintiffs’ request for a preliminary injunction that included testimony from both fact and expert witnesses. At the conclusion of the hearing, the court requested that the parties submit post-hearing briefs and took the matter under advisement.

5On January 14, 2005, the trial court issued its “JUDGMENT OF COURT” that granted plaintiffs’ request for a preliminary injunction and restrained Clean Harbors “from disposing of hazardous waste in the injection well ... in violation of [La.] R.S. 30:2202(0.” Also on that date, the trial court issued its “RULING OF COURT” that granted plaintiffs’ request for a preliminary injunction, and for the reasons stated in plaintiffs’ “Memoranda [sic] in Support of said Petition” that the court expressly adopted as its own.

On January 18, 2005, defendants filed a motion to stay the effect of the preliminary injunction pending a determination of defendants’ appeal. Following a telephone conference with counsel, the trial court issued its “COURTS’ [sic] REASONS FOR RULING” wherein the court noted that the facility had been doing business for the past twenty-five years, and citing the irreparable harm Clean Harbors would sustain should the court’s ruling be determined to be erroneous, granted defendants’ motion for a stay of the preliminary injunction. The court further noted that said order did not stay any other proceedings and was not intended as a delay tactic. The decision by the trial court to stay the preliminary injunction is not an issue in this appeal. The primary issue put forth in the instant appeal is the trial court’s decision to grant plaintiffs petition for a preliminary injunction against defendants for allegedly violating La. R.S. 30:2202(C).

ISSUES PRESENTED ON APPEAL

In connection with their appeal in this matter, defendants have set forth the following issues for consideration by this court:

1. Whether the district court lacked jurisdiction, and whether plaintiffs’ lawsuit was filed in the wrong venue;
2. Whether the trial court violated the articles of the Louisiana Constitution regarding the separation of powers;
3. Whether the location and operation of defendants’ injection well violates La. R.S. 30:2202(0;
4. Whether the wellhead or casing of defendants’ injection well is located within a wetland in violation of La. R.S. 30:2202(0;
5. Whether the wellhead or casing of defendants’ injection well is located within a surface water body in violation of La. R.S. 30:2202(0;
66. Whether La. R.S. 30:2202(0 applies to an injection well that may be located within a former surface water body; and
7. Whether La. R.S. 30:2202(C) can be applied retroactively to defendants’ injection well, which was in continuous operation for years prior to the effective date of the statute.

STANDARD OF REVIEW

Louisiana Code of Civil Procedure article 3612(B) provides that “[a]n appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction.” A party aggrieved by a judgment either granting or denying a preliminary injunction is entitled to an appeal. Country Club of Louisiana Property Owners Association, Inc. v. Dormer, 96-0898, p. 2 n. 1 (La.App. 1 Cir. 2/14/97), 691 So.2d 142, 144 n. 1.

We are however mindful that appellate review of a trial court’s issuance of a preliminary injunction is limited. The issuance of a preliminary injunction addresses itself to the sound discretion of the trial court and will not be disturbed on review unless a clear abuse of discretion has been shown. Lassalle v. Daniels, 96-0176, p. 5 (La.App. 1 Cir. 5/10/96), 673 So.2d 704, 708, writ denied, 96-1463 (La.9/20/96), 679 So.2d 435, cert. denied, 519 U.S. 1117, 117 S.Ct. 963, 136 L.Ed.2d 848 (1997).

LAW AND ANALYSIS

The writ of injunction, a harsh, drastic, and extraordinary remedy, should only issue in those instances where the moving party is threatened with irreparable loss or injury, and is without an adequate remedy at law. Conway v. Stratton, 434 So.2d 1197, 1198 (La.App. 1 Cir.1983); La.Code Civ. P. art. 3601. Irreparable injury has been interpreted to mean a loss that cannot be adequately compensated in money damages or measured by a pecuniary standard. Star Enter. v. State Through Dept. of Revenue and Taxation, 95-1980, 95-1981, 95-1982, p. 13 (La.App. 1 Cir. 6/28/96), 676 So.2d 827, 834, writ denied, 96-1983 (La.3/14/97), 689 So.2d 1383. A preliminary injunction is essentially an interlocutory order issued in summary proceedings incidental to the main demand for permanent injunctive relief. The courts have generally held that a preliminary injunction is designed to preserve the status quo pending a trial of the issues on the 7merits of the case. Silliman Private School Corp. v. Shareholder Group, 2000-0065, pp. 5-6 (La.App. 1 Cir. 2/16/01), 789 So.2d 20, 23, writ denied, 2001-0594 (La.3/30/01), 788 So.2d 1194.

Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury if the injunction does not issue and must show entitlement to the relief sought; this must be done by a prima facie showing that the party will prevail on the merits of the case. Jurisich v. Jenkins, 97-1870, p. 4 (La.App. 1 Cir. 9/25/98), 722 So.2d 1008, 1011, reversed on other grounds, 99-0076 (La.10/19/99), 749 So.2d 597. A showing of irreparable injury is not necessary when the act sought to be enjoined is unlawful, or a deprivation of a constitutional right is involved. Maynard Batture Venture v. Parish of Jefferson, 96-649, p. 4 (La.App. 5 Cir. 12/30/96), 694 So.2d 391, 392.

Louisiana Code of Civil Procedure article 3612 provides that while a party is not entitled to an appeal from an order relating to a temporary restraining order, an appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction. Nevertheless, an order or judgment issued in this manner shall not be suspended during the pendency of an appeal unless the court in its discretion orders a stay of further proceedings until such time as the appeal has been decided. La.Code Civ. P. art. 3612.

DISCUSSION OF ISSUES PRESENTED ON APPEAL

Alleged Jurisdictional Defects of Petition

In their initial assignment of error, defendants direct this court’s attention to what defendants claim are jurisdictional defects with respect to plaintiffs’ lawsuit. More specifically, defendants assert that the trial court lacked jurisdiction to grant the preliminary injunction because plaintiffs (1) failed to pursue their administrative remedies, and (2) are engaged in an impermissible collateral attack on agency action in an improper venue.

Defendants contend that there is no evidence that plaintiffs attended hearings concerning the permitting of this well, submitted public comments, or directly engaged 8the Commissioner of Conservation with respect to the decision to authorize operation of the Clean Harbors well at its present location. In support of this contention, defendants cite Swanson v. Dept. of Public Safety and Corrections, 2001-1066, pp. 3-4 (La.App. 1 Cir. 6/21/02), 837 So.2d 634, 635-37, for the proposition that a failure to exhaust administrative remedies deprives all courts of jurisdiction to review agency authorizations. Accordingly, defendants claim that the trial court lacked jurisdiction to grant plaintiffs’ request for injunctive relief, and for this reason, argue that the trial court’s judgment must be vacated.

Defendants further argue that inasmuch as it is undisputed that the injection well in question was first authorized in the 1970s, the present complaints by the plaintiffs in this matter constitute belated challenges to permits and orders issued by the LDEQ, LDNR, and the United States Environmental Protection Agency (“EPA”). Defendants point out that the Commissioner of Conservation of the LDNR has jurisdiction, pursuant to La. R.S. 30:4.1, over authorization of certain activities involving the permitting and location of deep injection wells. Defendants further rely on La. R.S. 30:12 A(l) for the proposition that plaintiffs must first exhaust their administrative remedies before bringing suit to challenge these orders and permits.

In support of this position, defendants cite and rely on Theriot v. Mermentau Resources, Inc., 385 So.2d 939, 942 (La. App. 3 Cir.), unit refused, 392 So.2d 689 (La.1980). Under the facts presented in Theriot, the plaintiffs therein filed suit seeking to enjoin the operation of a disposal well used to inject chemical waste products beneath the surface of their land. The trial court denied the defendant operator’s declinatory exception of improper venue, and the court of appeal denied the defendant operator’s application for writs of certiorari, prohibition, and mandamus. Writs were granted by the Louisiana Supreme Court, and on remand, the Third Circuit held that the suit was an attack on an order of the Commissioner of Conservation that authorized operation of the disposal well, and pursuant to statutes regulating disposal wells, the exclusive venue in any suit directly, indirectly, or collaterally attacking such an order is that provided by La. 9R.S. 30:12, not La. R.S. 30:1074 (the antecedent of the present day, La. R.S. 30:2026, the citizen suit provision relied upon by the plaintiffs in this matter).

In response to this assignment, plaintiffs assert that binding jurisprudence from this court mandates that defendants’ appeal of the exceptions previously denied by the trial court is not timely. Plaintiffs cite Ciolino v. Castiglia, 446 So.2d 1366, 1369 (La.App. 1 Cir.1984), for the proposition that a trial court’s ruling with respect to an exception raising an objection of res judicata could not be contested as part of an appeal from a judgment on a preliminary injunction absent a showing of irreparable harm with respect to the issue raised by the exception. Although a judgment on a preliminary injunction is an interlocutory judgment, it may be appealed pursuant to La.Code Civ. P. art. 3612. Relying on this court’s holding in Ciolino, plaintiffs claim that La.Code Civ. P. art. 3612 does not authorize appellate review of an interlocutory judgment affecting exceptions with an appeal from a judgment on a preliminary injunction. Plaintiffs conclude by stating that because defendants have failed to allege or put forth any proof that the trial court’s judgment overruling the exceptions will cause irreparable injury, the appeal of these rulings is improper at this time.

Based upon our review of this matter, we are of the opinion that appellate review of an interlocutory judgment overruling various exceptions raised by defendants is improper at this time. Additionally, it is evident to this court that plaintiffs in this matter have filed a citizen suit pursuant to the LEQA and the specific statutory authority of La. R.S. 30:2026. Plaintiffs are not appealing a final determination of state agency, but are instead attempting to enforce Louisiana’s environmental laws and seek redress for alleged violations of said laws. For the foregoing reasons, we conclude that defendants’ first assignment of error alleging jurisdictional defects with respect to plaintiffs’ lawsuit is without merit.

| ^Alleged Violation of the Separation of Powers Provision

In their second assignment of error, defendants question whether the trial court violated provisions of both the United States and Louisiana Constitutions with respect to the doctrine separating the respective powers of government. Defendants argue that the judiciary is not vested with original jurisdiction over claims such as those brought by plaintiffs.

In support of this contention, defendants cite Matter of American Waste & Pollution Control Co., 588 So.2d 367, 373 (La.1991), for the proposition that LDEQ determinations with respect to permits are not “civil matters” within the meaning of Article V, § 16(A) of the Louisiana Constitution of 1974, which vests state district courts with original jurisdiction in all civil matters. Defendants argue that such matters are constitutionally delegated by the legislature to the LDEQ and fall within the ambit of the executive branch of state government. Judicial review of a decision by a state agency is an exercise of a court’s appellate jurisdiction, which pursuant to La. R.S. 30:2024, is reserved to the 19th Judicial District Court.

Defendants contend that by choosing to exercise jurisdiction in this matter, the trial court has violated the separation of powers articles of both the United States and Louisiana Constitutions, and for this reason, its judgment must be vacated.

As we have previously determined, plaintiffs in this matter are not attempting to challenge or appeal from a final decision made by LDEQ, but are merely litigating perceived violations of Louisiana’s environmental laws and regulations in the manner prescribed by state statute. We similarly find defendants’ second assignment of error to be without merit.

Trial Court’s Interpretation of La. R.S. 30:2202(C)

In their remaining assignments of error, defendants question the trial court’s determination that the location and operation of defendants’ injection well violates La. R.S. 30:2202(C) based upon its finding that the wellhead or casing of defendants’ injection well is located within a wetland. Defendants also question whether the wellhead or casing of their injection well is located within a surface water body or former surface 11water body in violation of La. R.S. 30:2202(0). Finally, defendants question whether La. R.S. 30:2202(0 is applicable to areas that were formerly characterized as surface water bodies, and whether said statute can be applied retroactively to defendants’ injection well, which was in continuous operation for years prior to the effective date of the statute.

As we have previously noted, this appeal results from the trial court’s decision to grant plaintiffs petition for a preliminary injunction against defendants for allegedly violating La. R.S. 30:2202(0. Although the subsequent decision by the trial court to stay the preliminary injunction is not an issue in this appeal, the trial court’s written reasons for staying the injunction provide insight as to its reasons for granting the injunction. In its Reasons For Ruling with respect to Clean Harbors’ motion for a stay of the preliminary injunction, the trial court noted that at the hearing on the preliminary injunction, the plaintiffs had proven, “by a preponderance of the evidence, a prima facia case that the well site owned by Clean Harbors is located within a wetlands, marsh, swamp, in violation of State law.”

In connection with their appeal in this matter, defendants assert that the primary issue before this court is the proper interpretation and application to be given La. R.S. 30:2202(0 of the LEQA. We agree. In 1983, La. R.S. 30:2202(0 was amended to provide:

Notwithstanding any law, order, or regulation to the contrary, no person shall dispose of hazardous waste by injection into a Class I underground injection well when the well head or any portion of the casing is within the banks or boundaries of a lake, stream, or other surface water body within the jurisdiction of the state of Louisiana, whether man-made or occurring naturally, whether on a temporary or permanent basis.

La. R.S. 30:2202(C) [emphasis supplied].

Defendants argue that both the clear language of the foregoing statute, and its legislative history, show that the prohibition on injecting through a surface water body does not apply to the injection well at issue. Pursuant to defendants’ interpretation of La. R.S. 30:2202(C), the statute is restricted in its application to present-day lakes, streams, or surface water bodies, and clearly does not apply to any past condition of the area where a well head is located and also does not apply to wetlands. Defendants point to Qthe use of present tense language in the wording of the statute, and urge application of the well-settled rule that when a law is clear and does not lead to absurd consequences, the law shall be applied as written. See La. Civ.Code art. 9; La. R.S. 1:4. To extend application of the statute to areas that were once part of the banks or boundaries of a lake, stream, or other surface water body would, defendants argue, lead to absurd results. Defendants assert that much of the earth, including all of the present State of Louisiana, was at one point in the past, a surface water body.

Defendants further point to the legislative history of the statute and hearings by the House Natural Resources Committee that they assert clarify the intent of the statute was to prevent the injection of hazardous waste directly into currently existing bodies of water. Louisiana Revised Statute 30:2202(C) was created by Acts 1983, No. 375, and introduced as House Bill No. 102. All versions of the bill are titled:

“Hazardous Waste Disposal — Prohibits disposal of hazardous waste in bodies of water.” (Emphasis supplied)

Both sides rely on statements made during a hearing before the House Committee on Natural Resources relative to House Bill No. 102. It was this bill that ultimately amended Section 2202. In response to the trial court’s inquiry regarding whether wetlands and swamps are to be considered “bodies of surface water” as contemplated by the statute, plaintiffs and defendants both quote statements made by State Representative James David Cain, the author of House Bill 102:

SPEAKER:
Well, does that include like marshes and all that?
MR. CAIN:
It should, yes, sir. I don’t think that we should have an injection hazardous waste well in a — if it’s a water body, yes. It does, yes, sir. I don’t know of any site down there — and I would certainly hope no one would attempt to put one — but it would include water body if it’s yot surface water on top of it, or streams, the rivers, Mississippi River, wherever.
There’s none there now. We’ve heard there may be applications in the future to put them in lakes so we’re getting at the problem before there’s really a problem, but it’s coming down the pike, and I understand there are — I don’t want to say it, but it’s possible permits already— I mean, you know, applied-for permits on lakes and so forth. We want to stop it.
18SSPEAKER:
So any injection site could not have any surface water on their whole property?
MR. CAIN:
No, that’s not what it says. It says the permit could not be allowed to yo throuyh water or surface on water. Certainly it could have it, ....

[Emphasis supplied].

While plaintiffs claim that it is clear from the foregoing discussion that the Legislature intended to include swamps and wetlands as “bodies of surface water” for the purpose of Section 2202, defendants assert that it is evident from the same colloquy that marshes would be included only where they also contain surface water bodies and only if the well head is actually situated in the surface water body.

In their brief to this court, defendants direct this court’s attention to copies of previously-introduced photographs depicting the well site facility and the injection well itself, and further emphasize that the injection well at issue is located on dry, graveled land, surrounded on four sides by a rectangular-shaped ten and a half-foot, man-made levee or berm. It has not been inundated with water at any time since the passage of this legislation in 1983. Defendants add that the area immediately surrounding the bermed portion of the facility consists, on all four sides, of fenced and unfenced portions of lawn, maintained by regular mowing.

Defendants concede that to the north and northwest, beyond the levee and surrounding lawn, lay naturally-forested areas that likely contain some swamp and wetland areas. It is these naturally-forested areas situated outside of the levee, defendants claim, that their expert, Dr. Easterly, referred to when he testified that the facility was in a wetlands “area.” Defendants further claim it is uncontested by the parties that neither the well head nor the well casing is in contact with a water body or a wetland. Additionally, the parties do not dispute that the well at issue does not inject through a wetland.

14In response, plaintiffs direct our attention to copies of previously-introduced photographs depicting the well site facility during a mean high water period and the area as it appeared in 1979 before the berm was relocated and its height increased. Plaintiffs ask this court to consider the appearance of the area outside of the protection levee during periods of high water. It is the contention of the plaintiffs that they have set forth a prima facie case that the area surrounding the facility has been characterized by experts from both sides as a “forested swamp,” “slough” or “basin.” Thus, when adjacent water courses overflow, the swamp and the low-lying areas surrounding the facility become inundated.

While acknowledging that Clean Harbors presently holds a permit to operate as a Class I hazardous waste injection well, plaintiffs contend that the provisions of La. R.S. 30:2202(C) take precedence over other provisions of the LEQA and prohibit the injection of waste classified as “hazardous” into what they contend once constituted the channel of an historic water body. Plaintiffs have sought to restrain Clean Harbors by means of a preliminary injunction from continuing to dispose of hazardous waste at its injection well located at Bayou Sorrel, Louisiana, together with an assessment of civil penalties for noncompliance with La. R.S. 30:2202, all as provided for in La. R.S. 30:2026.

In their injunction petition and incorporated memorandum, plaintiffs claim that the language of La. R.S. 30:2202(0 is extremely clear and that in instances where the well head or any part of the casing is located within the “banks or boundaries” of a “stream or other surface water body ... on a temporary or permanent basis” the well cannot lawfully dispose of hazardous waste. Citing Civil Code article 456, which defines the “bank of a navigable river,” the plaintiffs attempt to “bootstrap” Civil Code article 456 to La. R.S. 30:2202(C) in support of their contention that the well head at issue, or any part of its casing, cannot be located within the “ordinary low and the ordinary high stage of the water.”

Plaintiffs acknowledge in their petition for injunction, that they hired Dr. George Castille, a professional geographer, “to investigate the location of the injection well for the purpose of determining whether or not the well is within the banks or boundary of a lake 15or stream.” Relying upon historical photographic evidence, government documents, vegetation patterns and data produced by aerial radar, plaintiffs claim that Dr. Castille proved conclusively that the Clean Harbors well site is surrounded by the boundaries of an historic body of water identified on early surveys as Lake Bayou Pigeon.

Plaintiffs contend that “[b]y situating the present Clean Harbors facility on this old survey, it is readily apparent that the location of the Clean Harbors facility is identified as open water in this 1832 survey. Specifically, the existing well head and casing would be in an area of open water within the historic body of water identified as Lake Bayou Pigeon.”

Following a two-day hearing, the trial court issued its “JUDGMENT OF THE COURT” on January 14, 2005. This ruling granted plaintiffs’ request for a preliminary injunction and restrained Clean Harbors “from disposing of hazardous waste in the injection well ... in violation of La. R.S. 30:2202(C).” Also on that date, the trial court issued its “RULING OF THE COURT” that granted plaintiffs’ request for a preliminary injunction for the reasons stated in plaintiffs’ “Memoranda in Support of said Petition” [sic], that the court expressly adopted as its own.

Several days later, defendants filed a motion to stay the effect of the preliminary injunction pending a determination of defendants’ appeal. In response, the trial court held a telephone conference with counsel for the parties relative to the stay request wherein the trial court attempted to clarify its previous ruling that granted plaintiffs’ request for a preliminary injunction. The court made it clear that its earlier ruling on the preliminary injunction involved a strictly technical application of the statute and the legislative intent as to whether the site was considered wetlands or marshes. Admitting that it was well aware that the well site is now elevated and surrounded on four sides by a rectangular-shaped ten and a half-foot, man-made levee or berm, the court concluded that prior to its improvement, the area surrounding the well site was, “wetlands, marshes and swamps.” Based upon this finding, the court concluded that this finding constituted a violation of La. R.S. 30:2202(0).

16We must disagree. Based upon our reading of La. R.S. 30:2202(0), it is evident to this court that under the terms of the statute, the disposal of hazardous waste into underground injection wells where the well head or any portion of the casing is within a body of water is clearly prohibited. Thus, a hazardous waste injection well could not be situated within a present-day river, lake, or stream. More troubling are swamps, marshes, and other low-lying areas typically described as “wetlands.”

In the opinion of this court, simply categorizing an area as “wetland” cannot end the inquiry. We believe the question must be whether a proposed site is covered by surface water a majority of the time. While an area’s historic designation as a water body may account for its low-lying condition today, in terms of statutory application, historic designation is not determinative of the issue. The statute’s application must be restricted to present-day conditions.

It is our belief that a swamp or marsh covered by water a majority of the year would be considered a surface water body and precluded as a site for a hazardous waste injection well under the terms of the statute. Similarly, saturated, low-lying areas typically described as “wetlands” and subject to regular inundation by flood-waters would also be precluded as a site for a hazardous waste injection well. However, low-lying wetland areas that are dry for most of the year, and subject only to occasional flood waters, which can be protected by an encompassing levee or berm, as is the case with the Clean Harbors facility at issue in this case, are not precluded as a site for a hazardous waste injection well.

We conclude that the trial court erred in its application of La. R.S. 30:2202(0 and its issuance of the preliminary injunction. We pretermit discussion of all remaining issues.

CONCLUSION

For the reasons set forth above, the trial court’s issuance of a preliminary injunction restraining defendant, Clean Harbors, from disposing of hazardous waste in its injection well at Bayou Sorrel, Iberville Parish, Louisiana, is hereby reversed. All costs 17associated with this appeal shall be assessed against plaintiffs, Terry Giauque, Melissa Bertrand, and Darla Larson, individually and on behalf of the minor child, Allie Larson.

REVERSED.

KUHN, J., concurs.

      . Plaintiffs allege that Rollins is presently in bankruptcy, and consequently, is not a party to this proceeding.

      . Giauque et al v. Clean Harbors Plaquemine, L.L.C., Civil action 03-958-D-M2 (U.S. Dist Ct. M. Dist. La.)

      . The order denying the stay request reflects that it was signed by the court on August 15, 2004. Inasmuch as a hearing on defendants' motion for a stay request was held on Monday, August 16, 2004, the August 15th date appears to be incorrect.

      . Pursuant to House Concurrent Resolution No. 247 of the 1987 Regular Session, the subject matter of the sections and Parts of Chapter 11 were reorganized and redesignat-ed.