author: GUIDRY, J. McCLENDON, J.,

text:
    David Michael LIEUX and Lucile Arden Lieux, Individually, and on Behalf of their Minor Son, Frederick Joseph Lieux, II v. Dr. Charles F. MITCHELL, d/b/a Ent Medical Center and Saint Paul Fire and Marine Insurance Company.
    No. 2006 CA 0382.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.
    Rehearing Denied March 28, 2007.

      Sean D. Fagan, Baton Rouge, Counsel for Plaintiffs/Appellants David Michael Lieux and Lucile Arden Lieux, Individually and on behalf of their minor son, Frederick Joseph Lieux, II.
    John Swanner, Baton Rouge, Counsel for Defendants/Appellees Dr. Charles F. Mitchell and St. Paul Fire and Marine Insurance Company.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

Din this medical malpractice suit, plaintiffs, David Michael Lieux and Lucile Arden Lieux, individually and on behalf of their minor son, Frederick Joseph Lieux, II, appeal a summary judgment dismissing their claims against defendants, Dr. Charles F. Mitchell, d/b/a ENT Medical Center, and St. Paul Fire and Marine Insurance Company (StPaul). For the reasons assigned, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 29, 1998, Dr. Charles F. Mitchell performed several surgical procedures on Frederick Lieux in order to alleviate his chronic ear infections, including the insertion of tubes into his ears, removal of the adenoids, and a maxillary sinus irrigation. Frederick is the son of David and Lucile Lieux and was approximately seven months old at the time of the surgery. During the sinus irrigation procedure, a hydrogen peroxide solution used for irrigation of the sinuses entered the orbital cavity behind the child’s right eye, causing rapid swelling and pressure on the eye. Dr. Mitchell immediately recognized the problem and instructed a nurse to find an ophthalmologist. The nurse was able to quickly locate an ophthalmologist near the operating room, and he performed a lateral eanthotomy, a procedure involving the cutting of the eyelid. Although the procedure was successful in relieving the pressure and saving the child’s eyesight, it resulted in Frederick' having a drooping eyelid. He subsequently underwent two surgical procedures to correct the deformity, but each was unsuccessful. Since it appeared the procedures might have failed due to the child’s youth, his parents were advised to wait until Frederick was older before again scheduling corrective surgery.

Plaintiffs filed a complaint with the Louisiana Patients’ Compensation Board against Dr. Mitchell, a qualified healthcare provider under the Medical Malpractice Act. See La. R.S. 40:1299.41 A(l). A medical review panel was convened and |,-¡ultimately issued an opinion that unanimously concluded that “[t]he evidence does not support the conclusion that the defendant [Dr. Mitchell] failed to meet the applicable standard of care as charged in the complaint. The conduct complained of was not a factor of the damages complained of by plaintiff.” On July 26, 2001, plaintiffs filed a petition seeking damages from Dr. Mitchell and his liability insurer, St. Paul, alleging that Dr. Mitchell breached the standard of care in performing the maxillary sinus irrigation and causing the peroxide solution to enter the right orbital cavity, in performing the procedure on a child of Frederick’s age and medical status, and in failing to use irrigation tools appropriate in size to the child’s age.

In interrogatories propounded to plaintiffs almost three years later, defendants requested the names and addresses of any expert witnesses plaintiffs intended to call at trial in support of their claims. Plaintiffs responded on June 8, 2004, stating “[t]his information has not been determined at this time, but will be forwarded upon determination.” Defendants filed a motion for summary judgment on March 23, 2005, on the grounds that the medical review panel concluded Dr. Mitchell had not breached the applicable standard of care and plaintiffs had failed to name any expert witness who would testify to the contrary. The motion was set for hearing on July 11, 2005.

Several days before the scheduled hearing, plaintiffs filed a motion to continue on the grounds that their expert had withdrawn unexpectedly from the case and they needed additional time to contact Dr. Scott Manning, a pediatric ear, nose and throat specialist (ENT) in Seattle, Washington, for an expert opinion. The district court granted the continuance, over defendants’ objection, but it indicated it was doing so only for the limited purpose of allowing plaintiffs’ counsel to retain Dr. Manning and not to give counsel an opportunity to begin a Rsearch for new experts. The hearing on the motion for summary judgment was rescheduled for December 12, 2005.

On October 27, 2005, plaintiffs’ counsel noticed a deposition of Dr. John L. Guaris-co, a member of the medical review panel that considered this matter. In response, defense counsel filed a motion for an ex parte order preventing Dr. Guarisco’s deposition or, in the alternative, for an expedited hearing on the matter. Plaintiffs’ counsel filed a written opposition to the motion. Without holding a hearing, the district court signed an order on November 3, 2005, prohibiting plaintiffs from deposing Dr. Guarisco.

After a hearing on December 12, 2005, the district court granted summary judgment in favor of defendants dismissing plaintiffs’ claims on the grounds they failed to present expert testimony raising any issues of fact as to whether Dr. Mitchell breached the applicable standard of care. A written judgment dismissing plaintiffs’ claims, with prejudice, was thereafter signed. Plaintiffs now appeal, raising two assignments of error: (1) the district court erred in prohibiting them from taking Dr. Guarisco’s deposition; and (2) the district court erred in finding no genuine issues of material fact precluding summary judgment.

ASSIGNMENT OF ERROR NUMBER ONE

Plaintiffs argue the district court erred in issuing an ex parte order prohibiting them from taking Dr. Guarisco’s deposition. In the opinion issued by | Rthe medical review panel, Dr. Guarisco indicated he believed the complication that occurred in this case was a material risk of sinus irrigation that should have been disclosed by Dr. Mitchell. Plaintiffs planned to depose Dr. Guarisco on this issue, as well as to challenge the basis of the medical review panel’s opinion. They contend the trial court’s refusal to allow the deposition effectively deprived them of their right to cross-examine a key witness and was in clear derogation of La. R.S. 40:1299.47 H.

An understanding of the procedural background leading to the district court’s order is essential to a consideration of plaintiffs’ arguments. Plaintiffs filed a motion to continue the original hearing date on defendants’ motion for summary judgment on the grounds that, because their original medical expert unexpectedly withdrew from the case, they needed additional time to retain Dr. Manning, a pediatric ENT, as their expert witness. Plaintiffs’ counsel stated he had made numerous attempts to contact Dr. Manning, but was only able to reach him on one occasion. The district court granted the continuation over defendants’ objection, but explained it was doing so with the following parameters:

I’m going to allow you to pursue the follow-up of Dr. Scott Manning. What I’m not going to have is that this time is going to be used as an opportunity to start searching for new experts, because the only reason I’m granting the continuance today is that the withdrawal of somebody who previously committed as an expert, the reference to another physician who may fill in. Regardless of what Dr. Manning says, if he finds there’s no breach of the standard of care, then we’re going to go forward on that basis on the motion for summary judgment.
So I don’t want to prejudice your clients [plaintiffs] because of the late withdrawal of an expert, but on the same vein, I don’t want to prejudice the defendants because of the time that’s passed in this case. | fiYou’re either going to get an expert, Dr. Manning, or we’re going to go with the summary judgment.

The hearing on defendants’ motion for summary judgment was rescheduled for December 12, 2005. On October 27, 2005, plaintiffs noticed the deposition of Dr. Guarisco to be taken on November 10, 2005. In response, defense counsel filed a motion for an ex parte order to prohibit the taking of Dr. Guarisco’s deposition or, in the alternative, for an expedited hearing on the motion. In the motion, defendants asserted that taking Dr. Guarisco’s deposition would violate the district court’s prior ruling that the continuance was granted for the limited purpose of allowing the plaintiffs to retain Dr. Manning as an expert witness. In a written opposition, plaintiffs argued that deposing Dr. Guaris-co would not violate the district court’s ruling, which they maintained was intended only to ensure they would not use the continuance to search for a “new” expert witness. Plaintiffs pointed out that Dr. Guarisco was not a new expert, since all the parties had known of him since his appointment to the medical review panel. Without holding a contradictory hearing, the district court signed an order on November 3, 2005, prohibiting plaintiffs from deposing Dr. Guarisco.

A party generally may obtain discovery of any information that is relevant to the subject matter involved in the pending action. See La. C.C.P. art. 1422. The court has broad discretion in ruling on discovery matters, including the discretion to deny discovery. See La. C.C.P. art. 1426; Laburre v. East Jefferson General Hospital, 555 So.2d 1381, 1385 (La.1990). In its discretion, a court can refuse or limit discovery of matters not relevant, unreasonably vexatious, or tardily sought. Lehmann v. American Southern Home Insurance Company, 615 So.2d 923, 925 (La.App. 1st Cir.), writ denied, 617 So.2d 913 (La.1993). See Belonga v. Crescent City Dodge, L.L.C., 2000-3419, p. 2 (La.3/9/01), 781 So.2d 1247, 1248.

|7The record reveals the present suit was filed in July 2001, several months after the medical review panel issued its opinion. Defendants’ motion for summary judgment was not filed until March 2005. Therefore, plaintiffs had the opportunity for almost four years to take Dr. Guaris-co’s deposition. At no time during this period did plaintiffs attempt to depose him. Instead, they waited until after a hearing date was set on defendants’ motion for summary judgment to do so. Plaintiffs obtained a continuance of that hearing on the specific grounds that additional time was needed to retain Dr. Manning as an expert. Plaintiffs allege Dr. Manning eventually advised them he was contractually precluded from acting as their expert. However, at no time from the date the continuance was granted on July 11, 2005, until plaintiffs’ opposition was filed on November 2, 2005, did plaintiffs’ counsel inform the district court that Dr. Manning was unavailable or seek a modification of the court’s prior ruling as to the limited purpose of the continuance.

Based on our review, we find no error in the district court’s order. There was a period of almost four years from the filing of suit until defendants filed their motion for summary judgment. Although plaintiffs had the opportunity to depose Dr. Guarisco during this extended period, they made no attempt to do so. At the time plaintiffs were granted the continuance, over seven years had passed since the surgery giving rise to this suit. The district court expressed concern that defendants might be prejudiced as a result of the extensive delay that had already occurred in this matter. Moreover, the district court granted plaintiffs the continuance for the specific purpose of retaining Dr. Manning as an expert, not to allow them to begin discovery that could have been conducted during the nearly four year period between suit being filed and defendants’ motion for summary judgment. Under these circumstances, we find no abuse of the district court’s broad discretion in the order prohibiting Dr. Guarisco’s deposition.

| ^Plaintiffs rely on Adeola v. Kemmerly, 2001-1231, p. 8 (La.App. 1st Cir.6/21/02), 822 So.2d 722, 727, writs denied, 2002-2354 (La.11/15/02), 829 So.2d 438, and 2002-2413 (La.11/22/02), 829 So.2d 1054, as support for their argument that the district court’s refusal to allow Dr. Guarisco’s deposition deprived them of the right to cross-examine a key defense witness, since defendants relied on the opinion of the medical review panel to support their motion for summary judgment. In Adeola, the trial court refused to allow defense counsel to cross-examine the plaintiffs expert before the jury on his background, qualifications, and credentials. This court vacated the trial court judgment on the grounds that, while a trial court has the right to control the nature, extent, and character of cross-examination, it cannot deprive a party of the procedural right of cross-examination in the interest of judicial economy and other well-intentioned motives. Adeola, 2001-1231 at p. 9, 822 So.2d at 728.

Adeola is factually distinguishable from the present case. In Adeola, the trial court totally deprived the defendant of an opportunity at trial to cross-examine the plaintiffs expert on his background and qualifications. In contrast, the plaintiffs herein had almost four years prior to the filing of the motion for summary judgment during which they had every opportunity to depose Dr. Guarisco. Rather than depriving plaintiffs of their only opportunity to cross-examine an expert witness, the district court herein merely prevented plaintiffs from doing so at the late stage of the summary judgment proceedings.

We also find no merit in plaintiffs’ argument that the district court’s order was in clear derogation of La. R.S. 40:1299.47 H. This provision provides, in pertinent part, that “either party shall have the right to call, at his cost, any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify.” See Medine v. Roniger, 2003-3436, pp. 13-14 (La.7/2/04), 9879 So.2d 706, 715-16 (supreme court finding that La. R.S. 40:1299.47 H required panelists on medical review panels to testify if called to do so by a party.)

Thus, plaintiffs assert they had a right to discovery of the evidence they planned to develop through Dr. Guarisco’s deposition. Initially, we note that the right to discovery is not unlimited. See La. C.C.P. art. 1426; Laburre, 555 So.2d at 1385. In its discretion, a court can refuse or limit discovery of matters that are tardily sought. See Lehmann, 615 So.2d at 925. We agree that plaintiffs had a right to call Dr. Guarisco as a witness, had they done so in a timely manner. However, the right granted by La. R.S. 40:1299.47 H should be considered in conjunction with the district court’s broad discretion to refuse discovery of matters not relevant, unreasonably vexatious, or tardily sought. See La. C.C.P. art. 1426; Lehmann, 615 So.2d at 925. As previously noted, plaintiffs did not attempt to depose Dr. Guarisco until more than four years after the opinion of the medical review panel was issued and suit was filed. Moreover, when they did finally attempt to depose him, it was only after a hearing date had twice been set on defendants’ motion for summary judgment, plaintiffs having obtained a continuance of the original hearing date. For these reasons, we do not find the district court abused its broad discretion in limiting discovery under the present facts.

ASSIGNMENT OF ERROR NUMBER TWO

Plaintiffs contend the trial court erred in failing to conclude that genuine issues of material fact existed that precluded summary judgment.

An appellate court reviews the 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. Boland v. West Feliciana Parish Police Jury, 2003-1297, p. 4 (La.App. 1st Cir.6/25/04), 878 So.2d 808, 812, writ denied, 2004-2286 (La.11/24/04), 888 So.2d 231. A motion |infor summary judgment should 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 the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B; Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230-31.

If the moving party will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, the moving party must 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. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and summary judgment must be granted. La. C.C.P. art. 966 C(2); Boland, 2003-1297 at p. 4, 878 So.2d at 813.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Craig v. Bantek West, Inc., 2004-0229, p. 7 (La.App. 1st Cir.9/17/04), 885 So.2d 1241, 1245. In order to prevail in a medical malpractice action, a plaintiff is required to establish: (1) the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians within the involved medical specialty; (2) that the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in luthe application of that skill; and (3) that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred. See La. R.S. 9:2794 A. In other words, the plaintiff must establish the standard of care applicable to the doctor, a breach of that standard of care, and that the substandard care caused an injury the plaintiff otherwise would not have suffered. Hoot v. Woman’s Hospital Foundation, 96-1136, p. 5 (La.App. 1st Cir.3/27/97), 691 So.2d 786, 789, writ denied, 97-1651 (La.10/3/97), 701 So.2d 209 (citing Martin v. East Jefferson General Hospital, 582 So.2d 1272, 1276 (La.1991)).

An expert witness is generally necessary as a matter of law to meet the burden of proof on a medical malpractice claim. Fagan v. LeBlanc, 2004-2743, p. 6 (La.App. 1st Cir.2/10/06), 928 So.2d 571, 575. Although there are exceptions in instances of obvious negligence, those exceptions are limited to instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can. Fagan, 2004-2743 at p. 6, 928 So.2d at 575. Moreover, this requirement of producing expert medical testimony is especially apt when the defendant has filed a motion for summary judgment and supported such motion with expert opinion evidence that the treatment met the applicable standard of care. Fagan, 2004-2743 at pp. 6-7, 928 So.2d at 575-76.

In the instant case, plaintiffs contend Dr. Mitchell was negligent in using hydrogen peroxide as the irrigant in the sinus irrigation procedure. Plaintiffs bear the burden of proof for these claims of medical malpractice. Since defendants would not bear the burden of proof at trial, they were only required to point out an absence of support for one or more elements essential to plaintiffs’ claims against them.

112Pefendants did so by supporting their motion with the unanimous opinion of the medical review panel. In this opinion, the panel concluded the evidence did not support plaintiffs’ claims that Dr. Mitchell failed to meet the applicable standard of care. Further, the opinion specifically found that “[t]he choice of a peroxide solution by Dr. Mitchell played no special causative role in the complication which developed in this case, and was not below the standard of care for him to utilize a peroxide solution in the sinus irrigation.” Defendants also submitted Dr. Mitchell’s deposition describing both the reasons for the surgical procedures performed and the performance of those procedures. Dr. Mitchell also explained that he used hydrogen peroxide as an irrigant at that time because, due to its effervescent activity and the release of oxygen, he found with patients he irrigated with peroxide that “their postoperative recovery was less, the need for antibiotic was less, their restoration to good sinus health was quicker.”

This evidence satisfied defendants’ burden of pointing out an absence of support for an essential element of plaintiffs’ claims, i.e., that the use of a hydrogen peroxide solution violated the applicable standard of care. Plaintiffs were required at this point to produce factual evidence sufficient to establish that they would be able to satisfy their evidentiary burden of proof on this issue at trial. Since their claim was not of such a nature that a lay jury could perceive negligence in Dr. Mitchell’s conduct just as well as any expert could, they had to provide expert medical testimony to support their claim that Dr. Mitchell breached the applicable standard of care. See Fagan, 2004-2743 at p. 6, 928 So.2d at 575.

Plaintiffs failed to present any expert testimony regarding the applicable standard of care. Rather, to meet their burden, they relied on Dr. Mitchell’s deposition testimony that, because saline does not have an effervescent effect like hydrogen peroxide does, it does not create the possibility of the type of complication that occurred in this case if it leaks into the orbital cavity. Plaintiffs |iafurther note that Dr. Mitchell admitted there was no medical reason requiring the use of hydrogen peroxide, but that he used it as a matter of personal preference. They emphasize he failed to indicate other surgeons also used hydrogen peroxide as an irrigant. Plaintiffs also point out that Dr. Mitchell was well aware of the possibility of the irrigant solution leaking into the orbital cavity, since he stated in his deposition that it had occurred on two prior sinus irrigation procedures that he had performed. Finally, plaintiffs contend the fact that Dr. Mitchell paid a portion of the child’s medical expenses was a tacit admission he breached the standard of care by using hydrogen peroxide as an irrigant.

Based on our review of the record and the evidence as outlined above, we find the district court did not err in granting defendants’ motion for summary judgment as to plaintiffs’ claim that Dr. Mitchell breached the standard of care by using hydrogen peroxide as an irrigant. The evidence relied on by plaintiffs was insufficient to refute the unanimous expert opinion of the medical review panel that the use of hydrogen peroxide did not breach the applicable standard of care. Plaintiffs’ claim that it did breach the standard of care does not present a situation where a lay jury could perceive negligence in the charged physician’s conduct as well as an expert could. Therefore, in the absence of any expert evidence that the use of hydrogen peroxide breached the applicable standard of care, the district court did not err in granting defendants’ motion for summary judgment on this claim.

| i4Plaintiffs also contend Dr. Mitchell was negligent in introducing the hydrogen peroxide solution after he felt two pops when entering the maxillary sinus cavity, since he indicated in his deposition that it was normal to hear a single pop. According to plaintiffs, the second pop might have meant that Dr. Mitchell had penetrated the floor of the sinus cavity with the cánu-la, allowing hydrogen peroxide to enter the orbital cavity. Plaintiffs argue this deposition testimony, created a genuine issue of material fact as to whether Dr. Mitchell was negligent in introducing the hydrogen peroxide solution under those circumstances.

Plaintiffs’ contention that Dr. Mitchell heard two pops upon entering the maxillary sinus cavity was based on the deposition testimony of Frederick’s parents to the effect that Dr. Mitchell told them after the surgery that he had heard two pops. However, contrary to plaintiffs’ contentions, Dr. Mitchell did not specifically indicate it was normal to hear only a single pop. Rather, in describing the sinus irrigation procedure, he indicated a little pop was heard upon entering the sinus cavity because the opening was always swollen. However, he was not asked, and did not indicate, whether it would have been abnormal to hear a second pop. Moreover, when asked if it was possible to perforate the floor of the sinus cavity, he stated he believed in that case one would feel some obstruction, causing an awkward sensation different than what one normally felt when entering the sinus cavity. There was no indication he experienced such a sensation while performing the procedure in this ease. Further, his deposition testimony indicates he introduced the hydrogen peroxide solution slowly and cautiously.

The medical review panel found no breach of the applicable standard of care in this case. However, plaintiffs maintain the panel failed to address the issue of whether Dr. Mitchell was negligent in in-traducing the irrigant solution after hearing two pops. Plaintiffs base this assertion on the fact that the panel’s opinion did not set forth a specific finding on this issue, as it did with respect to several |1fiother claims. Nevertheless, regardless of whether or not the panel delineated a specific finding on this claim, after considering all the evidence submitted, it reached the ultimate conclusion that the evidence did not support plaintiffs’ claims that Dr. Mitchell breached the applicable standard of care. Thus, defendants met their burden of showing an absence of factual support for an element of plaintiffs’ malpractice claim, namely that they would be unable to prove that Dr. Mitchell breached the standard of care. Plaintiffs then failed to come forward with sufficient factual support in the form of expert testimony to show that they would be able to meet their evidentiary burden at trial. Accordingly, the district court properly granted summary judgment on this claim of malpractice.

Finally, plaintiffs argue that summary judgment also was improper because genuine issues of material fact existed regarding the issue of informed consent. However, we do not reach the merits of this argument. Although informed consent was an issue presented to the medical review panel, we agree with the district court’s conclusion that the plaintiffs’ petition in this suit fails to allege any facts raising a claim of lack of informed consent.

Louisiana is a fact-pleading jurisprudence. Mehta v. Baton Rouge Oil Company, Inc., 99-1773, p. 5 (La.App. 1st Cir.9/22/00), 768 So.2d 243, 246. Since “theory of the case” pleading has been abandoned, the courts of this state require only that a pleading set forth the facts upon which relief may be granted. See La. C.C.P. art. 891; Spencer-Wallington, Inc. v. Service Merchandise, Inc., 562 So.2d 1060, 1064 (La.App. 1st Cir.), writ denied, 567 So.2d 109 (La.1990). Recovery may be granted to a party under any legal theory justified by the facts pled. See La. C.C.P. art. 862; Mehta, 99-1773 at p. 5, 768 So.2d at 246; Spencer-Wallington, Inc., 562 So.2d at 1064. However, the petition must set forth facts upon which such recovery can be based. Sledge v. Continental Casualty Co., 25,770, p. 20 (La.App. 2nd Cir.6/24/94), 639 So.2d 805, 819.

h In Gunter v. Plauche, 439 So.2d 437, 440 (La.1983), the Louisiana Supreme Court recognized that a claim for surgical malpractice and a claim for breach of the duty to obtain informed consent are distinct causes of action, based on different statutory duties. Thus, facts that raise a claim of surgical malpractice do not necessarily encompass a claim for lack of informed consent. On appeal, plaintiffs argue that the allegations of paragraph thirteen of their petition is broad enough to include a claim for lack of informed consent. This paragraph provides as follows:

Petitioners allege that Charles F. Mitchell, M.D., breached the standard of care in performing the maxillary sinus irrigation on Frederick Joseph Lieux, II, and that as a result, the child has suffered and will continue to suffer substantial physical and mental pain associated with the initial surgery, as well as with all subsequent and future procedures.

We do not agree that these allegations, which relate specifically to the performance of the surgery, are sufficient to raise a claim for lack of informed consent. Moreover, our thorough review of the entire petition reveals that it sets forth no factual events, such as consultations or discussions with the physician or his staff, that relate to informed consent. The petition contains absolutely no facts that can reasonably be construed as forming the basis for or alleging a claim for lack of informed consent. Accordingly, we find no error in the district court’s conclusion that a claim for lack of informed consent was not properly before it.

JjjCONCLUSION

For the above reasons, the judgment of the district court, granting defendants’ motion for summary judgment and dismissing plaintiffs’ claims, with prejudice, is affirmed. Plaintiffs are to pay all costs of this appeal.

AFFIRMED.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurs, and assigns reasons.

hi do not believe that deposing Dr. Guarisco amounts to taking the deposition of a “new” expert witness, since Dr. Guar-isco was already an expert whose opinion had been rendered in the medical review panel and, therefore, I would have found an abuse of the trial court’s discretion in prohibiting his deposition. However, the evidence that was being sought through Dr. Guarisco’s testimony concerned the issue of informed consent and I agree that plaintiffs’ petition fails to allege any facts raising a claim relating to informed consent, or the lack thereof. Therefore, the taking of Dr. Guarisco’s deposition would have been a vain act, and accordingly I concur with the result reached by the majority.

      .We note that the order is not actually an ex parte order as asserted by plaintiffs. An order is considered to be “ex parte when it is taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested.” Black’s Law Dictionary 399 (abridged 6th ed.1991) (emphasis added). In this case, despite the fact that defendants requested an ex parte order in their motion, it is undisputed that they served opposing counsel with a copy of the motion and he actually filed a written opposition to the motion. Thus, even though no contradictory hearing was held, the district court did not issue an ex parte order, since opposing counsel received notice of the motion and had an opportunity to be heard on it through a written opposition before the order was signed. In any event, we note that La. C.C.P. art. 963 provides that ‘‘[i]f the order applied for by written motion is one to which mover is clearly entitled without supporting proof, the court may grant the order ex parte and without hearing the adverse party.” Since the motion at issue was based on the allegation that deposing Dr. Guarisco would violate the district court's own ruling, it appears to have raised a matter peculiarly within the district court's own knowledge on which no supporting proof was necessary.

      . The other two physician panel members disagreed with this conclusion because of the rarity of the complication.

      . Plaintiffs did not seek supervisory writs from this ruling, nor assign error to it on appeal.

      . Plaintiffs also argue Dr. Mitchell’s deposition testimony makes it clear that the complication that occurred in this case would not have happened but for his use of a hydrogen peroxide solution as an irrigant. Plaintiffs argue that, since this testimony is at odds with the conclusion of the medical review panel that the hydrogen peroxide solution "played no special causative role in the complication which developed in this case,” a genuine issue of material fact exists as to causation. However, because plaintiffs have failed to produce factual evidence sufficient to establish they would be able to satisfy their evidentiary burden of proving a breach of the applicable standard of care at trial, it is unnecessary to reach the issue of causation. Thus, any issue that might exist as to causation is not a material issue of fact that would preclude summary judgment in this case.

      . A general medical malpractice claim is governed by La. R.S. 9:2794, while a claim for breach of the duty to obtain informed consent is governed by La. R.S. 40:1299.40.

      . In a general malpractice claim, the plaintiff must establish the standard of care applicable to the doctor, a breach of that standard of care, and that the substandard care caused an injury the plaintiff otherwise would not have suffered. See Hoot, 96-1136 at p. 5, 691 So.2d at 789. The plaintiff in a lack of informed consent case must prove that a physician failed to disclose all material information and that there was a causal relationship between the physician’s failure and the damages claimed by the patient. See Lugenbuhl v. Dowling, 96-1575, p. 12 (La.10/10/97), 701 So.2d 447, 454; Boyd v. Louisiana Medical Mutual Insurance Company, 593 So.2d 427, 429 (La.App. 1st Cir.1991), writ denied, 594 So.2d 877 (La.1992).


source: Caselaw Access Project

author: WHIPPLE, J. CARTER, C.J.,

license: Public Domain

text:
    Brian K. ABELS v. UNGARINO AND ECKERT, LLC.
    No. 2006 CA 0366.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Brian K. Abels, pro se.
    Matthew W. Bailey, Baton Rouge, for Plaintiff/Appellee.
    Matthew J. Ungarino, David L. Borde-lon, Metairie, for Defendant/Appellant, Ungarino and Eckert, LLC.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   WHIPPLE, J.

UThis matter is before us on appeal by defendant, Ungarino and Eckert, LLC, from a judgment of the trial court granting injunctive and declaratory relief and fixing the amount of attorney’s fees and costs due by defendant to plaintiff, Brian K. Abels. Also before us is an answer to appeal filed by Abels in which he seeks additional attorney’s fees and damages in defending the instant appeal. For the following reasons, we affirm the judgment of the trial court and deny the answer to appeal.

FACTS AND PROCEDURAL HISTORY

Abels, a lawyer, was employed at the law firm of Ungarino and Eckert, LLC (“the firm”) from August 1, 2001 to February 27, 2004, conducting business throughout Louisiana.

After commencing employment with the firm, Abels was required to sign a non-compete agreement as a condition to his continued employment with the firm. Despite his concerns about the agreement, Abels signed the agreement presented to him by his employers at the firm on August 9, 2001. On March 1, 2004, Abels began employment with the law firm of Walsh and Bailey. Thereafter, Abels was informed by letter dated November 23, 2004 from Matthew J. Ungarino that the firm intended to pursue a claim against Abels and Mathew C. Nodier, another associate who had also resigned from the firm, pursuant to the non-compete agreement. In the letter, Ungarino directed Abels and Nodier to contact Roger Larue with MAPS Arbitration to schedule an arbitration date within twenty days and to forward MAPS a check for $2,500.00 to cover their “half’ of the arbitration expense. Ungarino further threatened to take legal action and seek attorneys fees and costs should Abels and Nodier fail to submit to mandatory arbitration.

|sIn response, on November 30, 2004, Abels filed a Petition for Preliminary Injunction, Permanent Injunction, and Declaratory Judgment contending that the “non-compete agreement” is void ab initio as it violates the provisions of LSA-R.S. 23:921, which govern non-compete agreements and public policy in general. Abels further alleged that its creation and attempted enforcement by the firm violated Rule 5.6 of the Louisiana Rules of Professional Conduct. Abels also contended that because the non-compete agreement is void and unenforceable, the arbitration clause is also void ab initio and therefore, the firm should be enjoined from forcing Abels to submit to arbitration.

On January 19, 2005, the firm filed a notice of removal to the United States District Court for the Middle District of Louisiana in the state district court proceedings. On April 6, 2005, the magistrate judge for the middle district issued a report finding that no basis for federal jurisdiction existed in the case and recommending that the matter be remanded to the state district court. With regard to Abels’ motion for court costs, attorney’s fees and expenses pursuant to 28 U.S.C. § 1447(c), the magistrate judge agreed that “Ungari-no did not have objectively reasonable grounds for arguing that removal was legally proper in this case and that a cursory review of the Commerce Clause and the Federal Arbitration Act would have revealed the lack of federal question jurisdiction in this case.” While the magistrate judge |4did not find that Rule 11 sanctions were warranted, she found that the firm should be required to pay Abels’ court costs, attorney’s fees, and expenses associated with the attempted removal. By ruling dated April 25, 2005, the United States District Judge adopted the report and recommendations as the judgment of the court and issued an order remanding the matter to the Twenty-First Judicial District Court, in and for the Parish of Livingston, Louisiana.

On May 12, 2005, the firm filed an exception of no right or cause of action or alternatively, a motion for summary judgment in the remanded matter contending that it desired to withdraw its request for arbitration under the agreement, and accordingly, that there were no further issues to litigate. On June 16, 2005, Abels filed a motion to tax and fix the specific amount of court costs, attorney’s fees, and expenses awarded by the federal court and further, for an order of sanctions pursuant to LSA-C.C.P. art. 863(B) against the firm for frivolous removal of this matter.

The matters were heard before the trial court on August 8, 2005. At the conclusion of the hearing, the trial court: (1) denied the firm’s exceptions of no right of action and no cause of action and motion for summary judgment; (2) granted Abels’ request for a preliminary injunction, permanent injunction, and declaratory judgment decreeing the non-compete agreement void ab initio and, therefore, unenforceable; and (3) granted Abels’ motion to fix the amount | Bof attorney’s fees, costs, and expenses due by the firm. Accordingly, the trial court awarded Abels $5,000.00 in attorney’s fees, $438.00 in court costs for the federal court proceedings, and all costs of the state district court proceedings. A judgment was signed on October 11, 2005.

The firm appeals, challenging only the portion of the judgment fixing the amount of attorney’s fees and costs.

DISCUSSION

On appeal, the firm does not challenge the reasonableness of the amounts awarded, but argues that the trial court did not have the authority to award attorney’s fees and costs with respect to the removal of the case to federal court. The firm contends that any right of Abels to seek attorney’s fees and costs from defendant lapsed pursuant to United States District Court Local Rule 54.3, entitled, “Memorandum of Costs,” which provides, as follows:

Within 30 days after receiving notice of entry of judgment, unless otherwise ordered by the court, the party in whose favor judgment is rendered and who claims and is allowed costs, shall serve on the attorney for the adverse party and file with the clerk a notice of application to have the costs taxed, together with a memorandum signed by the attorney of record stating that the items are correct and that the costs have been necessarily incurred. (Emphasis added.)

We find no merit to defendant firm’s arguments. A reading of Rule 54.3, in conjunction with the other provisions of Rule 54, reveals that Rule 54.3 provides for the taxing of costs after receiving notice of entry of a final judgment and has been so interpreted in the jurisprudence. See Laborde v. Brown & Williamson Tobacco Corporation, 88 Fed.Appx. 811, 2004 WL 486003 (5th Cir.2004). Moreover, even if Local Rule 54.3 did apply to the ruling on remand herein, Local Rule 54.3 has been interpreted to apply to “costs”; not attorney’s fees. Yousuf v. UHS of De La Ronde, Inc., 110 F.Supp.2d 482, 484-486 (E.D.La. June 11, 1999); see also United States District Court Local Rule 54.2.

| ^Instead, we look to 28 U.S.C. § 1447, which sets forth the pertinent procedures for removal of a case from state court to federal court and for remand of a case from federal court to state court. Specifically, subsection (c) of 28 U.S.C. § 1447 addresses motions to remand and provides, as follows:

A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case. (Emphasis added.)

When attorney’s fees, expenses, and costs incurred as a result of the removal are awarded by the federal district court upon the grant of a motion to remand, the determination of reasonableness of costs and fees to be awarded may be reserved for the state court pursuant to 28 U.S.C. § 1447(c). See Hodach v. Caremark RX, Inc., 374 F.Supp.2d 1222, 1226 (N.D.Ga.2005).

Moreover, contrary to defendant firm’s arguments, this Court has held that the action of a federal court entering an order of remand to the state court vests jurisdiction with the state court. Citizens Bank and Trust Company v. Carr, 583 So.2d 864, 866 (La.App. 1st Cir.1991), writ denied, 588 So.2d 109 (La.1991) (citing Federal Deposit Insurance Corporation v. Santiago Plaza, 598 F.2d 634, 636 (1st Cir.1979) where the court held that once a district court has decided to remand a case and has so notified that state court, the district judge is without power to take any further action.) Moreover, when a remand to the state court is based on want of jurisdiction on the part of the federal court, it is for the state court to determine what effect, if any, will be given to pleadings filed in the federal court. Rivet v. Regions Bank, 2002-1813 (La.2/25/03), 838 So.2d 1290, 1294.

UGiven the federal court’s judgment herein, remanding the case to state court and specifically ordering the firm to pay Abels’ court costs, attorney’s fees, and expenses associated with the removal, we find no error by the trial court in giving deference to the federal court ruling and awarding same to' Abels. These arguments lack merit.

ANSWER TO APPEAL

Abels filed an answer to appeal seeking attorney’s fees and damages for having to defend this appeal. Generally, additional attorney’s fees are awarded on appeal to the appellee when the appellant obtains no relief, and the appeal has necessitated additional work on the opposing party’s counsel, provided the opposing party appropriately requests an increase. Sund v. St Helena Parish School Board, 2005-2473 (La.App. 1st Cir.5/5/06), 935 So.2d 219, 223, writ denied, 2006-1392 (La.9/22/06), 937 So.2d 392.

However, this court has previously held that because attorney’s fees are awarded to a successful litigant so that his recovery might not be diminished by the expense of legal representation, to allow an attorney filing suit in proper person to recover attorney’s fees when he has not actually incurred their expense gives him a monetary advantage unavailable to anyone hiring counsel. Lamz v. Wells, 2005-1497 (La.App. 1st Cir.6/9/06), 938 So.2d 792, 798. Because we are bound by the court’s prior decision in Lamz, and Abels has represented himself on appeal, we are unable to award any additional attorney fees. Accordingly, his request for additional fees in the answer to appeal is | ^denied.

CONCLUSION

For the reasons set forth above, the October 11, 2005 judgment of the trial court is affirmed. The answer to appeal is denied. Costs of this appeal are assessed against the appellant, Ungarino and Ec-kert, LLC.

AFFIRMED; ANSWER TO APPEAL DENIED; MOTION TO STRIKE DENIED AS MOOT.

CARTER, J., concurs with reason.

CARTER, C.J.,

Concurring.

Iil respectfully concur because, although I agree that the majority’s opinion is legally correct, I believe that this court should reconsider en banc, and reverse, the case of Lamz v. Wells, 05-1497 (La.App. 1 Cir. 6/9/06), 938 So.2d 792.

      . Rule 5.6 of the Rules of Professional Conduct, entitled, "Restrictions on Right to Practice” provides as follows:
      A lawyer shall not participate in offering or making:
      (a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or
      (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy.

      . Louisiana Code of Civil Procedure article 863(B) provides as follows:
      Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

      . Although Matthew W. Bailey is also named as counsel for Abels on his pleadings and briefs on appeal, we note that the pleadings and briefs, including the answer to appeal, are actually signed by Abels. Moreover, Abels appeared and personally presented oral argument herein.

      . Ungarino and Eckert’s original brief to this court was filed late, thereby forfeiting their right to file a reply brief and their right to orally argue this matter on appeal. See Uniform Rules, Courts of Appeal, Rules 2-12.6 and 2-12.12. On June 8, 2006, appellant filed a motion for leave to file a reply brief and a motion to reinstate oral argument, which were both granted by another panel of this court on June 12, 2006. Abels, in turn, filed a motion to strike reply brief and oral argument, which was referred to the panel to which this appeal has been docketed. As the motions for leave to file a reply brief and to reinstate oral argument were previously granted by another panel of this court, we deny as moot any outstanding motion to strike.


author: WHIPPLE, J.

text:
    George S. BARRIOS v. LAMBAR, INC. and Ohio Casualty Group and Lambert Construction and Maintenance and LIPCA, Inc.
    No. 2006 CA 0324.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Pete Lewis, Metairie, Counsel for Claimant/Appellee, George S. Barrios.
    Eric Waltner, Lafayette, Counsel for Defendants/Appellees, Lambar, Inc. and Ohio Casualty Group.
    E. Scott Hackenberg, Baton Rouge, Counsel for Defendants/Appellants, Lambert Construction and Maintenance, Inc. and LIPCA, Inc.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   WHIPPLE, J.

I ?This matter is before us on appeal from a judgment of the Office of Workers’ Compensation (“OWC”), District 6 finding Lambert Construction and Maintenance, Inc. and its insurer, LIPCA, Inc., liable for benefits as the general employer of plaintiff, George S. Barrios. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On Friday, November 12, 1999, plaintiff, George S. Barrios, was employed as a full-time carpenter by Lambert Construction and Maintenance, Inc. (“Lambert Construction”), which was owned by Mack Roland Lambert, Jr. (“Mack”). On that day, while en route to a cabinet job in Bogalusa, Louisiana, with his supervisor, Randy Crawford, also a full-time employee of Lambert Construction, Crawford received a phone call from Mack, instructing the men to turn around and report to the shop, to bend and load steel rods on a trailer for Lambar, Inc. (“Lambar”), a company owned by Mack’s father, Mack Roland Lambert, Sr. (“Roland”). While cutting and lifting sixty-foot portions of rebar steel under Roland’s supervision, Barrios injured his back. Barrios reported his injury to Crawford that day and subsequently called the Lambert Construction office and reported his injury to Debbie Lambert, secretary for Lambert Construction.

On July 21, 2004, Barrios filed a Disputed Claim for Compensation stating that his wage benefits had been improperly terminated or reduced on July 4, 2004. Specifically, Barrios alleged that Lambar’s workers’ | ¡¡compensation carrier, Ohio Casualty Group, had initially paid benefits, but had improvidently reduced his benefits from TTD to SEB, and had made irregular and tardy payments of compensation benefits and medical bills, and had applied an inappropriate average weekly wage.

On January 3, 2005, Ohio Casualty Group and Lambar filed a third-party demand against Lambert Construction and its workers’ compensation carrier, LIPCA, Inc. (“LIPCA”), contending that Barrios was a borrowed employee from Lambert Construction at the time of the accident, and that Lambert Construction and Lam-bar accordingly were liable in solido for any indemnity, medical and other workers’ compensation benefits due Barrios. Thus, Ohio Casualty Group and Lambar sought reimbursement from Lambert Construction and LIPCA pursuant to LSA-R.S. 23:1031. Barrios then amended his claim for compensation, contending that since he was “loaned” to the borrowing employer, Lambar, by his primary employer, Lambert Construction, at the time of the accident, Lambar and Lambert Construction were solidarily liable for his claims.

LLambert Construction and LIPCA filed exceptions of “partial no cause of action,” prematurity, and prescription, and alternative motions for summary judgment or declaratory judgment. By judgment dated June 22, 2005, the exceptions and motions were denied.

Following a hearing, the OWC judge rendered judgment on July 28, 2005, finding that although Barrios was in the general employ of Lambert Construction on the day of his accident, he had been loaned to Lambar and thus, was the borrowed employee of Lambar at the time of the accident.

The OWC judge further ruled that as the general employer, Lambert Construction and its insurer, LIPCA, and the borrowing employer, Lambar, and its insurer, Ohio Casualty Group, were jointly and soli-darily liable for benefits due plaintiff, and that the claim of Lambar and Ohio Casualty Group for contribution from Lambert Construction was well-founded. Thus, the judgment granted the third-party claim of Lambar and Ohio Casualty Group, for one-half of the benefits paid through the date of trial, i.e., $193,323.80, and imposed ongoing liability for 50 percent of any further indemnity and/or medical benefits due plaintiff.

The OWC judge further held that because Barrios was borrowed by Lambar from Lambert Construction, his appropriate compensation rate was to be calculated with reference to his earnings with Lambert Construction. As such, based on LSA-R.S. 23:1031(0 and LSA-R.S. 23:1021, Barrios’ average weekly wage was deemed to be $480.00 per week, with a resulting compensation rate of $320.16 per week. Finding that the uncontroverted evidence established that Barrios was hired as a full-time employee, never classified as a part-time employee, was normally paid $12.00 per hour and did not regularly and/or at his own discretion choose not to work when work was available, the OWC judge concluded that the presumption of a forty-fiours work week, as provided in LSA-R.S. 23:1021(10)(a)(l), applied. Thus, the OWC judge granted judgment for all underpayments to date ($32.15 per week) with interest on past-due weekly benefits as they became due and continued indemnity benefits at the corrected rate of $320.16 per week.

The OWC judge further held that defendant, Ohio Casualty Group, failed to reasonably controvert the average weekly wage, but based on a pretrial stipulation of the parties, limited the penalty due Barrios to $2,000.00 and the attorney’s fees due plaintiffs counsel to $5,000.00, plus legal interest from the date of judgment. The judgment further provided that the award of penalties and attorney’s fees was limited to defendants, Lambar and Ohio Casualty Group, inasmuch as Lambert Construction and LIPCA were not initially parties to the adjustment or handling of this matter.

Finally, the judgment cast all defendants with all costs of these proceedings.

Lambert Construction and LIPCA appeal from the judgment of the OWC, contending that the OWC erred in: (1) giving insufficient weight to “objective documentary evidence”; (2) finding that Barrios was a borrowed employee of Lambert Construction at the time of his accident; and (3) awarding damages while failing to consider the effects of prescription and solidarity.

DISCUSSION

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

Louisiana Revised Statute 23:1031(0 and the jurisprudence decided in accordance therewith set forth the standard by which one may be considered a special or borrowed employee of another employer. Pursuant to LSA-R.S. 23:1031(C), a “borrowing” or special employer can be held liable for compensation benefits where the employee is under the control and Indirection of the borrowing employer in the performance of the work. In a workers’ compensation case, the issue of whether a borrowed servant relationship exists is a matter of law for the court to determine. Gardiner v. St. Tammany Parish Sheriff’s Department, 2004-0345 (La.App. 1st Cir.12/30/04), 898 So.2d 470, 473, writ denied, 2005-0914 (La.5/20/05), 902 So.2d 1054. While there is no fixed test, the factors to be considered in determining the existence of a borrowed employee relationship include: right of control; selection of employees; payment of wages; power of dismissal; relinquishment of control by the general employer; which employer’s work was being performed at the time in question; the existence of an agreement, either implied or explicit, between the borrowing and lending employer; furnishing of instructions and place for the performance of the work; the length of employment; and the employee’s acquiescence in a new work situation. Moreover, when a general employer attempts to avoid liability for the acts of an employee by contending the employee was loaned to another employer, the general employer bears the burden of overcoming by a preponderance of the evidence the presumption that he is liable. Arabie Brothers Trucking Company v. Gautreaux, 2003-0120 (La.App. 1st Cir.8/4/04), 880 So.2d 932, 940, writ denied, 2004-2481 (La.12/10/04), 888 So.2d 846.

The evidence demonstrates that Barrios was a full-time employee of Lambert Construction. On the day of the accident herein, Barrios was en route to a job for Lambert Construction, when his supervisor received a phone call from Mack instructing them to report to Lambar’s shop to work for Lambar that day. Barrios was under the direct supervision of Roland while performing the steel work for Lambar, and was unable to leave until the job was completed as per Roland’s instructions, and his wages were paid |7that day by Lambar. Barrios testified that he did not like to do heavy-duty work for Lambar and did not actively solicit the work, but likewise did not want to refuse work when it was available. In Barrios’ three to four years of employment with Lambert Construction, the only other company he worked for was Lambar, on three occasions, each pursuant to the instructions of his supervisor or Mack. At the conclusion of each of those projects, Barrios returned to his regular employment at Lambert Construction. Moreover, Roland selected the employees that he wanted to work for Lambar and could have discharged Barrios at any time if dissatisfied with his work.

After thorough review of the entire record, evidence, and transcripts in this proceeding, and considering the factual situation presented herein, we find no error in the OWC judge’s conclusion that Barrios was clearly a borrowed employee of Lam-bar at the time of his accident.

Moreover, we find no merit to the arguments by Lambert Construction and LIPCA that certain Lambert Construction and Lambar employment records contradict the express testimony of Crawford and Barrios, and that the OWC judge failed to give these documents “sufficient weight.” Instead, we find no error in the OWC judge’s determination that the testimony of Crawford and Barrios was consistent and credible, as demonstrated in the record herein. Even if we were to find their testimony was placed in doubt by some of the records, the OWC judge’s ultimate determination that their testimony was credible cannot be disturbed on review in the absence of manifest error. Barber Brothers Contracting Company, LLC v. Reilly, 2003-1365 (La.App. 1st Cir.2/23/04), 874 So.2d 194, 196.

Accordingly, we find no merit to these assignments.

| ¡ASSIGNMENT OF ERROR NUMBER THREE

Lambert Construction and LIPCA also argue that prescription and solidarity limit the amount of damages the OWC should have awarded. Lambert Construction and LIPCA contend that Barrios’ initial claim for benefits is prescribed, as it was not filed within one year of his accident. Louisiana Revised Statute 23:1209(A) provides as follows:

In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident. (Emphasis added; footnote omitted.)

Barrios filed his Disputed Claim for Compensation on July 21, 2004, stating therein that his wage benefits were terminated or reduced on July 4, 2004. Accordingly, the claim was clearly filed within one year of the date of the last payment. This argument lacks merit.

Lambert Construction and LIPCA next argue that Lambar and Ohio Casualty Group failed to timely file their third-party contribution claim. In Grammer v. Patterson Services, Inc., 860 F.2d 639, 646 (5th Cir.1988), cert. denied, 491 U.S. 906, 109 S.Ct. 3190, 105 L.Ed.2d 698, the court of appeal stated, “we express doubt that [the prescriptive periods set forth in] section 1209 governs contribution claims for workers’ compensation payment,” relying on this court’s opinion in Employers’ Liability Assurance Incorporation v. General Accident Fire and Life Assurance Corporation, 125 So.2d 689 (La.App. 1st Cir. 1960), where we determined a claim by one solidary obligor against another solidary obligor to recover workers’ compensation payments is a claim for restitution governed by a ten-year prescriptive period. Lambert Construction and LIPCA contend, however, that since the rendition of Grammer, LSA-R.S. 23:1310.3(E), which sets forth the jurisdictional provisions for the initial filing of workers’ compensation claims, was amended to vest workers’ compensation judges with original exclusive jurisdiction over contribution claims or disputes, that contribution claims are now subject to the one-year prescriptive period set forth in LSA-R.S. 23:1209(A).

Pretermitting whether this argument has merit, even assuming arguendo that LSA-R.S. 23:1209(A) applies herein, we note that the arguments of Lambert Construction and LIPCA ignore that portion of LSA-R.S. 23:1209(A) that provides that “[w]here such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment.” Thus, even if LSA-R.S. 23:1209(A) applies, Lambar and Ohio Casualty Group’s third-party contribution claim was timely filed within one year from the date of the last payment.

10Moreover, payment of workers’ compensation benefits by one solidary obli-gor interrupts and suspends prescription as to both. LSA-C.C. arts. 1799 and 3503; Gardiner v. St. Tammany Parish Sheriff's Department, 2002-0394 (La.App. 1st Cir.2/14/03), 839 So.2d 470, 472; Scott v. Sears, Roebuck and Co., 99-0571 (La.App. 1st Cir.12/22/00), 778 So.2d 50, 54. Thus, the payment of benefits initially by Lam-bar and Ohio Casualty interrupted prescription as to Lambert Construction and LIPCA.

Because Barrios’ disputed claim for compensation specifically alleged “irregular and tardy payment of medical bills” we also reject as meritless them contention that “[s]ince nonpayment of medical benefits was never raised ... the contribution claim for medical payments was prescribed.”

Accordingly, we find that the OWC correctly dismissed Lambert Construction and LIPCA’s exception of prescription.

CONCLUSION

After a thorough review of the record and relevant jurisprudence, we find no manifest error herein in the findings of the OWC judge, which are amply supported by the record. Moreover, we find no legal error or erroneous evidentiary ruling by the OWC judge herein. Thus, the July 28, 2005 judgment of the OWC is affirmed. This memorandum opinion is issued in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.1 B. Costs of this appeal are assessed against the appellants, Lambert Construction and LIPCA.

AFFIRMED.

      . The “shop” was built and owned by Lam-bar, Inc. and Roland, but was located on Mack’s property.

      . Debbie Lambert was Mack’s wife. In addition to working for Lambert Construction, she also performed the secretarial and bookkeeping services for Lambar.

      . Louisiana Revised Statute 23:1031 provides, with reference to borrowed employees, in pertinent part:
      C. In the case of any employee for whose injury or death payments are due and who is, at the time of the injury, employed by a borrowing employer in this Section referred to as a “special employer”, and is under the control and direction of the special employer in the performance of the work, both the special employer and the immediate employer, referred to in this Section as a "general employer”, shall be liable jointly and in solido to pay benefits as provided under this Chapter. As between the special and general employers, each shall have the right to seek contribution from the other for any payments made on behalf of the employee unless there is a contract between them expressing a different method of sharing the liability. Where compensation is claimed from, or proceedings are taken against, the special employer, then, in the application of this Chapter, reference to the special employer shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the general employer by whom he is immediately employed. The special and the general employers shall be entitled to the exclusive remedy protections provided in R.S. 23:1032.

      . We note that LSA-R.S. 23:1209(A) addresses claims arising "[i]n case[s] of personal injury.” Lambar and Ohio Casualty Group's third-party contribution claim is a claim by one solidary obligor seeking recovery of workers’ compensation payments from another solidary obligor. Unlike our brethren in the Third Circuit, we are unable to find clear support in the Workers' Compensation Act for the conclusion that third-party contribution claims for restitution are governed by the prescriptive period applicable to claims arising from personal injury. See Larkin v. Regis Hair Stylists, 2002-127 (La.App. 3rd Cir.5/15/02), 817 So.2d 1266 (where the court found that because jurisdiction of contribution claims is vested exclusively with the workers' compensation judge, those contribution claims are governed by the prescriptive statute for claims arising from personal injury.) Instead, we save for another day whether such third-party claims for contribution are now subject to a shorter prescriptive period.

      . The prescriptive period for medical payments is one year from the date of the accident or where payments have been made, three years from the time of making the last payment. LSA-R.S. 23:1209(C).


author: McClendon, j.

text:
    Vilma RAGER v. Bartley Paul BOURGEOIS, Global Motorsports, Canal Indemnity Company and Allstate Insurance Company.
    No. 2006 CA 0322.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Philip Bohrer, Baton Rouge, Counsel for Plaintiff/Appellee Vilma Rager.
    Alan J. Yacoubian, Rene S. Paysse, Jr., New Orleans, Counsel for Defendants/Appellants Canal Indemnity Company, Bart-ley Paul Bourgeois, Global Motorsports.
    Donald R. Smith, Baton Rouge, Counsel for Defendant/Appellant Allstate Insurance Company.
    Christopher E. Lozes, Mandeville, Counsel for Defendant/Appellant Allstate Insurance Company.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

| gDefendant-appellant, Canal Indemnity Company (Canal), appeals the district court’s denial of Canal’s motion for summary judgment and grant of summary judgment in favor of Allstate Insurance Company (Allstate) on the issue of coverage. Finding error in the grant of the summary judgment, we reverse that judgment and remand.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff, Ms. Vilma Rager, who was insured by Allstate, alleged that a vehicle driven by defendant, Mr. Bartley Paul Bourgeois, rear-ended Ms. Rager’s vehicle, and caused damage. At the time of the accident on June 23, 2003, the vehicle driven by Mr. Bourgeois was owned by Pace Brothers, LLC d/b/a Global Motorsports (Global Motorsports), who was insured by Canal. Although Mr. Bourgeois apparently believed at the time of the accident that he had liability coverage with Allstate, Allstate claimed that his policy afforded comprehensive coverage only.

The issue before the court on the motions for summary judgment was coverage under the policy issued to Global Motor-sports by Canal. The challenged exclusion from coverge in the Canal policy provided as follows:

a. The following are “insureds” for covered “autos”:
(1) You for any covered “auto”.
(2) Anyone else while using with your permission a covered “auto” you own, hire or borrow except;
⅝ * ⅜
(d) Your customers, if your business is shown in the Declarations as an “auto” dealership. However, if a customer of yours:
(i) Has no other available insurance (whether primary, excess or contingent); they are an “insured” |sbut only up to the compulsory or financial responsibility law limits where the covered “auto” is principally garaged.
(ii) Has other available insurance (whether primary, excess or contingent) less than the compulsory or financial responsibility law limits where the covered “auto” is principally garaged, they are an “insured” only for the amount by which the compulsory or financial responsibility law limits exceed the limit of their other insurance.

The motion for summary judgment filed by Canal asked for a finding that the Canal insurance policy issued to Global Motorsports, a used car dealership, provided coverage to the dealership “customers” only to the compulsory limits required by LSA-R.S. 32:900 B(2). Thus, argued Canal, Mr. Bourgeois, who acknowledged in his deposition that he was a customer of Global Motorsports, was covered only to the statutory minimum of $10,000.00 per person, $20,000.00 per accident, and $10,000.00 for property damage. Citing as support, Marcus v. Hanover Insurance Company, Inc., 98-2040, pp. 8-10 (La.6/4/99), 740 So.2d 603, 609-10, Canal alternatively prayed that any applicable invalid policy provision be reformed only to the extent of the same minimum compulsory limit.

Attached to Canal’s motion for summary judgment in the record before us is the Canal policy and the deposition of Mr. Bourgeois. The deposition and a more complete version of the Canal policy were also filed in the record as plaintiffs exhibits one and two. In its memorandum, Canal reserved the right to resolve the issue of the type of coverage afforded to Mr. Bourgeois by Allstate.

The motion by Allstate was filed in its capacity as the carrier of Ms. Rager’s uninsured/underinsured motorist (UM) coverage. In Allstate’s memorandum in support of its motion, it argued that Canal’s attempt to limit its coverage to uninsured or underinsured “customers,” and only for the minimum UM coverage mandated by law, violated Louisiana law and was Ragainst public policy. Allstate further argued that based on other statements in the deposition, Mr. Bourgeois was not a customer, but rather a permissive driver who “borrowed” the vehicle in question and other cars from his brother-in-law, an owner of Global Motorsports. As a permissive driver, Mr. Bourgeois was not subject to the exclusion contained in the Canal policy for “customers,” and thus, was entitled to the full liability coverage of $100,000.00. In support of its position, Allstate primarily relied on the Canal policy and Bourgeois deposition. At the time Allstate filed its motion, it also filed a pleading entitled, “STATEMENT OF UNCONTESTED FACTS,” which again denied that Allstate covered Mr. Bourgeois for liability.

In the deposition, Mr. Bourgeois specifically testified that he had sold his previous vehicle almost four months before the June, 2003 accident, and that he was a “customer” of Global Motorsports. While he was deciding what to buy, he drove various cars, including two or three from Tip Pace, his brother-in-law and an owner of Global Motorsports in St. Francisville, Louisiana, and two cars from a “guy” in “Woodville.” When asked if he paid anything for the use of the cars he “borrowed” from his brother-in-law, he responded, “No.” On the day of the accident, he had been “test driving” that particular car for about five days. Further, Mr. Bourgeois stated that he eventually purchased a car from a Global Motorsports located in another state, which was owned by Mr. Pace’s brother. Mr. Bourgeois also testified that he believed the Allstate insurance he earned at the time in question covered him regardless of what vehicle he drove.

After a hearing, the district court denied Canal’s motion for summary judgment, and granted Allstate’s motion. In its judgment, the district court |fispecifically found that “[Canal] affords $100,000.00 liability coverage for Bartley Bourgeois_” Canal appealed the district court’s interlocutory denial of its motion, and the summary judgment granted in favor of Allstate.

LEGAL PRECEPTS

Summary judgment is appropriate only if pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B. The burden remains on the movant. However, if the initial burden on the matter is not on the movant, he is required only “to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense”. LSA-C.C.P. art. 966 C(2). The initial burden to establish that a claim falls within the policy coverage is on the plaintiff. Evins v. Louisiana Farm Bureau Mutual Insurance Company, 2004-0282, p. 3 (La.App. 1 Cir. 2/11/05), 907 So.2d 733, 734. However, an insurer seeking to avoid coverage through summary judgment must prove some provision applies to exclude coverage. Gaylord Chemical Corporation v. ProPump, Inc., 98-2367, p. 4 (La.App. 1 Cir. 2/18/00), 753 So.2d 349, 352. Absent a conflict with statutory provisions or public policy, insurers are entitled to limit their liability. Marcus, 98-2040 at p. 4, 740 So.2d at 606. The likelihood a party will prevail on the merits does not constitute a basis for rendition of summary judgment. Smith v. State, Department of Administration, 96-0432, p. 7 (La.App. 1 Cir. 5/9/97), 694 So.2d 1184, 1188, writ denied, 97-1493 (La.11/14/97), 703 So.2d 1288.

The credibility of a witness is an important question of fact. Thus, even though summary judgments are now favored, a credibility determination is not appropriate on a motion for summary judgment. 6Hutchinsm v. Knights of Columbus, Council No. 5747, 2003-1533, p. 8 (La.2/20/04), 866 So.2d 228, 234; LSA-C.C.P. art. 966 A(2). Summary judgment is seldom appropriate for determinations based on subjective facts, such as motive, intent, good faith, knowledge, and malice. If the evidence presented on a motion for summary judgment is subject to conflicting interpretations, or reasonable men might differ as to its significance, summary judgment is improper. However, if reasonable minds must inevitably conclude that the mover is entitled to judgment on the undisputed material facts before the court, the motion for summary judgment should be granted. Jackson v. State, Teachers’ Retirement System of Louisiana, 407 So.2d 416, 418 (La.App. 1 Cir. 1981); Johnson v. Edmonston, 383 So.2d 1277, 1281 (La.App. 1 Cir.1980). On appeal, summary judgments are reviewed de novo, using the same criteria as the court below. Hutchinson, 2003-1533 at p. 5 n.2, 866 So.2d at 232 n.2.

ANALYSIS

Logically, the threshold issue in Canal’s and Allstate’s cross motions was whether Mr. Bourgeois was a “customer,” possibly subject to the coverage limitation contained in the Canal policy. If he was found to be a “customer,” the court would then need to determine if the exclusion from coverage for “customers” violated Louisiana statutory requirements or public policy. If he was a permissive driver at the time of the accident, the trial court would not need to address Louisiana statutory or public policy requirements.

It appears from the district court’s oral reasons that the basis for the grant of summary judgment was the court’s finding that the Canal policy violated Louisiana’s “omnibus clause.” See LSA-R.S. 32:861 & 900 B(2) & M (compulsory extension of coverage to permissive drivers). The court, |7however, then reformed the Canal policy to afford Mr. Bourgeois the maximum coverage under the policy. Thus, although the district court did not make a clear ruling on Mr. Bourgeois’ status, it must have initially found that he was a customer test driving a vehicle. Otherwise, the court would not have needed to address whether the exclusion violated Louisiana law or public policy.

In Savana v. Certain Interested Underwriters at Lloyd’s London, 2001-2450 (La.App. 1 Cir. 7/2/02), 825 So.2d 1242, this court found an identical coverage limitation or exclusion to be valid. We find nothing in this record that would distinguish the instant case from Savana, or serve as a basis for a violation of our law or public policy. The Canal limitation or exclusion did not impermissibly eliminate coverage for “customers,” regardless of the circumstances or whether the customer lacked insurance coverage. It merely limited, to the allowable statutory minimum, the coverage Canal was required to provide to uninsured or underinsured “customers.” Thus, we find that the policy provisions do not violate Louisiana law or public policy. As a matter of law, the district court erred in its grant of summary judgment based on a finding of statutory or legal invalidity, and in its reformation of the policy to provide the maximum coverage. See Savana, 2001-2450 at pp. 3-6, 825 So.2d at 1243-45 (and supporting cases cited therein); Marcus, 98-2040 at pp. 8-10, 740 So.2d at 609-10 (wherein the Louisiana Supreme Court found a different, more exclusionary provision to be invalid, but held that the provision could be reformed to provide coverage equal only to the statutory minimum).

Despite this error, we must determine whether the record provides an alternative basis for upholding the grant of summary judgment. Another possible basis for upholding the district court’s decision would be a finding |sthat, at the time of the accident, Mr. Bourgeois was clearly not a customer, but a permissive driver who “borrowed” a car for an extended period from a family member’s dealership.

However, from our de novo review, we find that the evidence presented in the deposition was open to conflicting interpretations, including subjective questions of motive or intent. We also find that reasonable men could have differed on the significance of various statements by Mr. Bourgeois. Jackson, 407 So.2d at 418; Johnson, 383 So.2d at 1281. Without a rejection of Mr. Bourgeois’ direct testimony that he was a customer of Global Mo-torsports, was test driving a vehicle from Global Motorsports, and eventually bought a car from a related dealership, the district court could not have “inevitably” concluded that Mr. Bourgeois was a permissive driver, not a customer. Id. Regardless of whether the district court believed that Canal would be able to meet its burden at trial to rebut the plaintiffs and Allstate’s claim that Mr. Bourgeois was a permissive driver, Canal is entitled to present its evidence and argue its interpretation to the trier of fact. Thus, a genuine issue of material fact remained as to Mr. Bourgeois status as a customer or a permissive driver. A finding of a permissive driver at this juncture would require an inappropriate credibility decision on a motion for summary judgment, and cannot serve as an alternative basis for the grant of summary judgment.

Under a similar analysis, we find that the district court was correct in denying Canal’s motion for summary judgment. A grant of Canal’s motion for summary judgment would have required the district court to place significance on certain statements, disregard the frequency and duration of the use of a family member’s dealership cars, and accept as credible Mr. Bourgeois’ subjective claim that, at the time of the accident, his intent or | amotive was that of a “customer” conducting a routine test drive. Again, such an inquiry is inappropriate on a motion for summary judgment. Thus, we disagree with Canal, and find that the district court’s interlocutory judgment denying Canal’s motion was correct.

For these reasons, we find that the district court erred in granting summary judgment in favor of Allstate. We reverse that judgment and remand to the district court for further proceedings. The costs of the appeal are assessed one-half to the appellee, Allstate, and one-half to appellant, Canal.

REVERSED AND REMANDED.

      . In its briefs to this court, Canal refers to an affidavit by Frank Pace. However, the affidavit does not appear in the record on appeal.


text:
    Joseph BALLARD v. Joseph L. WAITZ, Jr., District Attorney, 32nd Judicial District Court.
    No. 2006 CA 0307.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.
    Rehearing Denied March 5, 2007.

      Kathryn Richard, Houma, Counsel for Defendant/Appellee, Joseph L. Waitz, Jr.
    Joseph Ballard, Angola, Plaintiff/Appellant, In Proper Person.
    Before: CARTER, C.J., WHIPPLE and McDonald, jj.
   WHIPPLE, J.

| ¡¿Plaintiff, Joseph Ballard, an inmate at Louisiana State Penitentiary in Angola, Louisiana, challenges the trial court’s denial of his motion to continue a hearing and subsequent grant of summary judgment in favor of defendant, District Attorney, Joseph L. Waitz, Jr.

On September 4, 2003, Ballard filed a “Petition for Complaint” contending therein that the district attorney illegally detained him for a period of seventy-three days by failing to set his arraignment for underlying criminal charges within thirty days as required by LSA-C.Cr.P. art. 701(C). Ballard further contended that this alleged “illegal confinement” constituted a violation of his civil rights and constitutional rights for which he requested damages in the amount of $1,000.00 per day for the seventy-three days he was allegedly “illegally detained” and $50,000.00 in punitive damages for pain and suffering.

In response to Ballard’s petition, the district attorney filed a motion for summary judgment, alleging that as district attorney, he was entitled to absolute immunity for his actions, as steps taken in preparation for the initiation of judicial proceedings or for trial, and which occurred in the course of his role as an advocate for the state. The district attorney conceded that Ballard was not arraigned within thirty days, as set forth in LSA-C.Cr.P. art. 701(C), but contended that the decision as to when to arraign Ballard constituted “a discretionary act made in furtherance of pursuing a pending criminal prosecution.”

| oOn June 11, 2004, the matter was heard before the trial court. Relying on Knapper v. Connick, 96-0434 (La.10/15/96), 681 So.2d 944, 950-951, the trial court concluded that even pretermit-ting whether there was just cause for the delay in setting the arraignment, under the undisputed facts, the district attorney was entitled to absolute immunity for his actions undertaken while engaged in or connected to judicial proceedings. Thus, the trial court granted summary judgment in favor of the district attorney dismissing plaintiffs claims. The trial court found that since plaintiffs claims were based on actions that occurred after his indictment, the court was bound to recognize the absolute immunity in favor of the district attorney under these circumstances. A judgment was signed on June 30, 2004.

On appeal, Ballard assigns error to the trial court’s (1) grant of summary judgment dismissing his claims and (2) denial of his motion for continuance.

In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Henderson v. Kingpin Development Company, 2001-2115 (La.App. 1st Cir.8/6/03), 859 So.2d 122, 126. Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

|4When a motion for summary judgment is made and supported as provided by law, an adverse party may not rest on the mere allegations and denials of his pleading. His response, by affidavits or otherwise provided by law, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be rendered against him. LSA-C.C.P. art. 967; Robles v. ExxonMobile, 2002-0854 (La.App. 1st Cir.3/28/03), 844 So.2d 339, 341.

We have thoroughly reviewed the evidence in the record and agree with the trial court under the undisputed facts, that the district attorney herein is afforded absolute immunity, as provided in Knapper, 681 So.2d at 951, for the claims set forth by Ballard. Ballard’s claim that the district attorney failed to set his arraignment within the thirty-day time frame provided by LSA-C.Cr.P. art. 701(C), is clearly an action that occurred after his indictment, and in connection with judicial proceedings, as opposed to administrative or investigative functions. As such, the trial court correctly recognized the absolute immunity that the district attorney enjoys vis-a-vis the claims set forth by Ballard. Moreover, we agree that under the controlling law, Ballard failed to bear his burden of proving that genuine issues of material fact remained for trial.

In reference to Ballard’s challenge of the trial court’s denial of his request for continuance, we note that although an interlocutory judgment, such as a denial of a motion for continuance, generally is not appealable, it is subject to review by an appellate court when an ap-pealable judgment is ^rendered in the same case. Wright v. Bennett, 2004-1944 (La.App. 1st Cir.9/28/05), 924 So.2d 178, 190.

A continuance rests within the sound discretion of the trial court, and may be granted in any case “if there is good ground therefor.” LSA-C.C.P. art. 1601. The trial court must consider the particular facts of a case when deciding whether to grant or deny a continuance. Gilmore v. Wickes Lumber, 2004-2769 (La.App. 1st Cir.2/17/06), 928 So.2d 668, 674. Absent a clear abuse of discretion in granting Or denying a continuance, the ruling of the trial court should not be disturbed on appeal. St. Tammany Parish Hospital v. Burris, 2000-2639 (La.App. 1st Cir.12/28/01), 804 So.2d 960, 963.

On the record before us, we find no abuse of the trial court’s discretion in denying Ballard’s motion for continuance. As determined by the trial court, Ballard’s request for a continuance based upon the fact that he had not had an opportunity to review responses to discovery concerning the merits of his claims was effectively mooted by the trial court’s proper application of the absolute immunity rule and dismissal of Ballard’s claims against the district attorney.

After a de novo review of the record, we find no error in the trial court’s grant of summary judgment. Moreover, we find no abuse of discretion in the denial of Ballard’s motion for continuance. Thus, we affirm the June 30, 20041 ¿judgment of the trial court. Costs of this appeal are assessed against plaintiffi'appellant, Joseph Ballard.

AFFIRMED.

      . Louisiana Code of Criminal Procedure article 701(C) provides:
      Upon filing of a bill of information or indictment, the district attorney shall set the matter for arraignment within thirty days unless just cause for a longer delay is shown.

      . At the outset of the hearing, Ballard moved for a continuance based on the fact that he had not received responses to discovery requests and interrogatories he had propounded to the district attorney. The trial court denied his motion for continuance finding that it was highly unlikely that any information that he could possibly develop by way of discovery would preclude application of the absolute immunity rule as set forth by the Supreme Court in Knapper.

      . The district attorney argues in brief that the trial court's denial of Ballard’s motion for continuance is an interlocutory judgment, and is therefore non-appealable pursuant to LSA-C.C.P. art.2083 and Succession of Grace, 29 La. Ann. 694 (La. 1877). We note that in Succession of Grace, the appeal was taken solely from an interlocutory order of the trial court granting a motion for continuance, as the appellant alleged irreparable injury. The Supreme Court therein held that "a mere order of continuance can not be appealed from.”
      In the instant case, however, where Ballard appeals from the judgment granting the district attorney's motion for summary judgment, we consider Ballard’s assignment of error related to the interlocutory ruling on his motion to continue as it is directly related to the final judgment on appeal. See Judson v. Davis, 2004-1699 (La.App. 1st Cir.6/29/05), 916 So.2d 1106, 1112-1113; see also, Uniform Rules — Courts of Appeal, Rule 1-3.