author: KUHN, J.

text:
    Teresa Mae Badeaux FERNANDEZ v. Donald F. HEBERT, et al.
    No. 2006 CA 1558.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      Walter Antin, Jr., Hammond, Jacques F. Bezou, Covington, Counsel for Plaintiffs/Appellants Teresa Mae Badeaux Fernandez and Charles Raymond Fernandez.
    Richard F. Zimmerman, Jr., Baton Rouge, Counsel for Defendants/Appellees J. Alvin Badeaux, Jr., Anthony Carroll Ba-deaux, Mary Claire Badeaux Elmore, Manuel J. and Lorraine Landeche Rodrigues.
    Henry P. Julien, Jr., New Orleans, William W. Edelman, Metairie, Counsel for DefendanVAppellee Thomas Badeaux.
    Richard G. Duplantier, New Orleans, Counsel for Defendant/Appellee Charles C. Theriot, CPA.
    Frederick R. Bott, New Orleans, Counsel for Defendants/Appellees Camile A. Morvant, II and Morvant and Cavell.
    William E. Wright, Jr., New Orleans, Counsel for Defendants/Appellees Terry J. Bonvillian and Terry J. Bonvillian, APLC.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   KUHN, J.

| ¡¡Plaintiff-appellant, Charles Raymond Fernandez, appeals the trial court’s judgment, concluding that donations inter vi-vos made by defendant-appellee, Thomas L. Badeaux, on behalf of his aunt Viola Mary Tabor Badeaux (the decedent) to himself and to defendants, J. Alvin Ba-deaux, Anthony Badeaux, and Mary Claire Badeaux Elmore (collectively the Badeaux siblings), are valid. The trial court’s judgment granted partial summary judgment and dismissed all Fernandez’s claims against defendants, J. Alvin Badeaux, Anthony Badeaux, and Mary Claire Badeaux Elmore. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Fernandez is the residuary legatee named in the will executed by the decedent on July 2, 1991. Decedent died on June 21, 2003; she and her husband had no children. The will, which mirrored her late husband’s 1991 will, left numerous particular legacies to, among others, her nephew, Thomas Badeaux, and his siblings, the children of J. Alvin Badeaux, who co-founded and worked at National Beverage |4Company, a wholesale malt beverage distributorship. Thomas Ba-deaux had worked alongside decedent’s husband at the distributorship for approximately forty years and had become a part-owner by the time of decedent’s death.

Commencing in 1993, decedent began to transfer the property that was the subject of mortis causa legacies in her will by donations inter vivos to those who had been named as particular legatees. Fernandez filed this lawsuit subsequent to decedent’s death, challenging as null, among other things, two inter vivos donations executed by Thomas Badeaux on behalf of decedent prior to her death. Fernandez alleged that Thomas Badeaux and defendant Camille Morvant had committed fraud or duress in making the donations. The residuary legatee sought a declaration that the donations are null and the return of the donations to Fernandez or payment of damages for their fair market value. From Camille Morvant, Fernandez claimed entitlement to an amount that would compensate the residuary legatee’s damages.

The first donation that Fernandez challenges is five shares of Balamor, Inc. stock, transferred on December 22, 1996, from decedent to Thomas Badeaux and the Badeaux siblings. The act of donation, which transferred to each donee 1.25 shares of the Balamor, Inc. stock, was signed by Thomas Badeaux on behalf of the decedent, pursuant to a power of attorney purportedly executed in favor of Thomas | bBadeaux by the decedent on October 14, 1993. The second inter vivos donation Fernandez challenges is of fifty shares of National Beverage Company stock from decedent to Thomas Badeaux and the Badeaux siblings on July 20, 2000. In this second donation of 12.5 shares of stock to each donee, Thomas Badeaux appeared as the decedent’s agent, ostensibly pursuant to the October 14, 1993 power of attorney.

Fernandez does not dispute that on October 14, 1993, the decedent executed a power of attorney in favor of Thomas Ba-deaux as her agent. But he alleges that the power of attorney, which was drafted, prepared, and notarized by Camille Morvant, an attorney with Morvant & Cavell, was subsequently altered to allow Thomas Ba-deaux to make donations and gifts. Fernandez compares the acts of donation executed by two of the Badeaux siblings with their respective responses to interrogatories. The residuary legatee points out that none of these acts is in proper form because in an interrogatory response, one sibling states that he was not in the presence of the notary and the two witnesses who appear on the acts of donation and the other sibling states that she cannot recall whether she was present. Thus, because two versions of the power of attorney exist and two of the Badeaux siblings’ responses to interrogatories call into question the veracity of the recitals on the acts of donation, Fernandez avers that the donations were made with fraud or duress so 1 fias to entitle him, as the residuary legatee, to a declaration of the nullity of the donations.

On August 22, 2005, the Badeaux siblings filed a motion for summary judgment, averring that the donations of the five shares of Balamor, Inc. and the fifty shares of National Beverage Company stock were valid and seeking dismissal of Fernandez’s claims. On January 31, 2006, Thomas Badeaux filed a similar motion for partial summary judgment on the same bases claimed by Fernandez in challenging the validity of the Balamor, Inc. and National Beverage Company stock. And on February 6, 2006, Camille Morvant and the law firm of Morvant & Cavell similarly moved for a partial summary judgment.

After a hearing on April 17, 2006, the trial court granted the motions, concluding that the two inter vivos donations of Bala-mor, Inc. and National Beverage Company stock to Thomas Badeaux and the Badeaux siblings were valid. The trial court’s judgment stated that decedent had the requisite mental capacity to make each of the two inter vivos donations; the donations were made in proper form and the stock had been properly delivered; Thomas Ba-deaux had express oral authorization to make the donations on decedent’s behalf; and decedent had the requisite donative intent to make the donations. All claims against the Badeaux siblings were dismissed. The judgment also expressly dismissed all claims regarding the two inter vivos donations. The trial court certified as final its judgment, and this appeal by Fernandez followed.

17Fernandez urges that the trial court’s summary judgment was inappropriate. The residuary legatee suggests that both factual and legal issues preclude summary judgment. Fernandez contends that the issue of whether decedent had capacity is factually unresolved. The residuary legatee also suggests that, as both a matter of law and fact, defendants failed to establish Thomas Badeaux had the authority to make the donations to either the Badeaux siblings or himself. And Fernandez asserts that whether decedent had a dona-tive intent is another factually unresolved issue which does not permit summary judgment at this juncture of litigation.

SUMMARY JUDGMENT

On appeal, summary'judgments are reviewed de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Brumfield v. Gafford, 99-1712, p. 3 (La.App. 1st Cir.9/22/00), 768 So.2d 223, 225. An appellate court thus asks the same questions as does the trial 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. Id.

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. The motion 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 the mover is entitled to judgment as a matter of law. Id., 99-1712 at pp. 3-4, 768 So.2d at 225.

The burden of proof is on the movant. But if the movant will not bear the burden of proof at the trial of the matter, the movant is not required to negate all ^essential elements of the adverse party’s claim, but rather to point out an absence of factual support for one or more essential elements. Thereafter, if the adverse party fails to provide factual evidence 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 is properly granted. La. C.C.P. art. 966 C.

In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, p. 11 (La.4/12/05), 907 So.2d 37, 48. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Anglin v. Anglin, 05-1233, p. 5 (La.App. 1st Cir.6/9/06), 938 So.2d 766, 769. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Id.

CAPACITY

Fernandez initially contends that summary judgment is precluded because outstanding issues of material fact exist on the issue of whether the decedent had the capacity to make the inter vivos donations on December 22, 1996 and July 20, 2000.

Capacity to donate inter vivos must exist at the time the donor makes the donation. La. C.C. art. 1471. To have capacity to make a donation inter vivos, a person must be able to comprehend generally the nature and consequences of the disposition that he is making. La. C.C. art. 1477. A person who challenges the capacity of a donor must prove by clear and convincing evidence that the donor lacked capacity at the time the donor made the donation inter vivos. La. C.C. art. 1482 A. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. In re Succession of Crawford, 04-0977, p. 8 (La.App. 1st Cir.9/23/05), 923 So.2d 642, 647, writ denied, 05-2407 (La.4/17/06), 926 So.2d 511.

In support of their motion for summary judgment, the defendants offered deposition testimony and affidavits of the decedent’s family members, sitters, and physician, which collectively establish that despite frailness in health and limited vision and hearing, the decedent remained mentally alert and capable of comprehending her affairs until a week or two before her death, when she was in the care of hospice. The affidavit of decedent’s physician, Dr. T. Gregory Chaisson, a specialist in internal medicine, established that he had examined her on various occasions from October 1997 through May 12, 2003. Noting her difficulties with vision and hearing, Dr. Chaisson nonetheless attested that decedent “could both see and hear.” According to her physician, there was no record or indication that the decedent was mentally incompetent on or near July 20, 2000, when the inter vivos donation of the National Beverage Company stock was made. Dr. Chaisson indicated that nothing in the medical records suggested that the decedent had at any time been mentally incompetent, unable to think, demented, or treated by mental health professionals. He attested, “For her age, [the decedent] was mentally sharper than most. She was able to formulate her thoughts clearly and articulate them to me. She also was able to understand clearly when I would talk with her. In my opinion, [the decedent’s] thought processes were clear.” Every witness who testified by deposition or affidavit |inabout her capacity expressed an appreciation of the decedent as mentally “sharp” and aware. Clearly, the record supports a showing by the defendants that the decedent had the requisite mental capacity on December 22, 1996 and on July 20, 2000, when the inter vivos donations of Balamor, Inc. and National Beverage Company stock were made on her behalf by Thomas Badeaux.

In his production of factual support sufficient to establish that he will be able to satisfy his burden of proof at trial, Fernandez relied on excerpts from Thomas Ba-deaux’s May 14, 2004 deposition testimony. In that testimony, Thomas Badeaux acknowledged that the decedent was advanced in age, of limited vision, hard of hearing, and in declining health. He also testified that the decedent “had virtually no knowledge of the world of business and finance and transactions and so forth.” This, Fernandez maintains, is sufficient to create a genuine issue of material fact on the decedent’s capacity.

Despite Thomas Badeaux’s description of decedent’s health issues, a review of the entirety of his deposition reveals that he repeatedly testified that the decedent was mentally “sharp.” Absent evidence that decedent’s health issues actually interfered with her mental faculties or that she demonstrated conduct of a person with less than full faculties, the limited testimony of Thomas Badeaux relied upon by Fernandez standing alone does not support a finding that she lacked the necessary capacity to make the inter vivos donations to Thomas Badeaux and the Badeaux siblings on either December 22, 1996 or July 20, 2000. Likewise, the entirety of Thomas Badeaux’s deposition shows that while the In decedent was not financially astute, she was capable of deciding the disposition of her property after her death. Fernandez’s showing is woefully short of that required to create an issue of fact about the decedent’s capacity at the time of the inter vivos donations. Accordingly, no material facts exist, which preclude summary judgment on the basis that the decedent lacked capacity.

MANDATE’S AUTHORITY

Fernandez next maintains that the trial court erred as a matter of law in concluding that Thomas Badeaux was authorized by the decedent to make the donations to himself and his siblings. On appeal the residuary legatee concedes the applicability of the Louisiana Stock Transfer Law, see La. R.S. 10:8-101-116, and that delivery of the stock certificates is sufficient to consummate a transfer in ownership. Fernandez urges, however, that Thomas Badeaux required decedent’s written authority to enable him to make inter vivos donations. Without that written authority, the residuary legatee maintains the donations of Balamor, Inc. and National Beverage Company stock are null.

In an effort to avoid delay arising from disputed facts about the execution of two powers of attorney, the defendants have conceded for purposes of disposition of summary judgment that no written authority was given to Thomas Badeaux to make the donations. They urge that Thomas Badeaux did not require written authority.

According to La. C.C. art. 2989, “[a] mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal.” La. C.C. art. 2993 states:

The contract of mandate is not required to be in any particular form.
| ^Nevertheless, when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form.

La. C.C. art. 2996 provides that “[t]he authority to alienate, acquire, encumber, or lease a thing must be given expressly. Neither the property nor its location need be specifically described.” La. C.C. art. 2997 further elaborates:

Authority also must be given expressly to:
(1) Make an inter vivos donation, either outright or to a new or existing trust or other custodial arrangement, and, when also expressly so provided, to impose such conditions on the donation, including, without limitation, the power to revoke, that are not contrary to the other express terms of the mandate.

Fernandez urges that in order to validly make the inter vivos donations of the Bala-mor, Inc. and National Beverage Company stock, under Articles 2996 and 2997 Thomas Badeaux was required to act pursuant to written authority from the decedent. Pointing to Rutledge v. Hibernia Corp., 00-0674 (La.App. 4th Cir.1/16/02), 808 So.2d 765, Fernandez contends that the Supreme Court considers the word “express” to mean “written” authority in Articles 2996 and 2997.

In Rutledge, the fourth circuit examined whether a petition for damages for alleged acts of negligence and breach of contract stated a cause of action. There, Rutledge had averred that as caretaker of the decedent, she had been given an unlimited power of attorney authorizing her to perform all acts for the decedent that she would be legally able to perform for herself. Rutledge subsequently assisted the decedent in making two donations to family members. While at the bank acquiring funds for one of the donations, the decedent instructed Rutledge to cash a certificate of deposit and expressed her intent to donate the cashed funds to Rutledge. It was alleged that Rutledge properly completed the paperwork; a bank employee informed |iaher that the paperwork would be sent to a New Orleans office for processing; and the bank employees were aware that Rutledge had a power of attorney from the decedent. After the decedent died, Rutledge returned to the bank to inquire about the delay in delivery of the certificate of deposit. She was advised an error had occurred and that the bank had failed to process the paperwork properly. Thus, the certificate of deposit was still in the decedent’s name upon her death and believed to have been paid or delivered to the decedent’s succession.

Noting that under the commercial laws, an instrument is transferred by delivery to someone other than its issuer for the purpose of giving the recipient the right to enforce the instrument and concluding that the power of attorney that Rutledge relied upon did not expressly authorize her to make donations, the court considered whether the allegations of the principal’s verbal authority were sufficient to authorize her to make the donation to herself on behalf of the decedent. Pointing to La. C.C. art. 2998, which states “A mandatary who represents the principal as the other contracting party may not contract with himself unless he is authorized by the principal, or, in making such contract, he is merely fulfilling a duty to the principal,” the Rutledge court applied that article to the allegations of the petition and held that no written authorization by the principal was required for a mandatary to self deal. 00-0674 at p. 11, 808 So.2d at 771. Thus, the Rutledge court concluded the petition stated a cause of action.

Although not required for disposition of the case, which dealt with a mandatary making a donation to herself on behalf of her principal — a situation | uwholIy addressed by Article 2998 — the Rutledge court looked to Tedesco v. Gentry Dev., Inc., 540 So.2d 960 (La.1989), and concluded that by holding “in the sale of immovable property written authority is required for an agreement to sell or a contract of sale,” it was “at once apparent that the Supreme Court considered the word ‘express’ to mean ‘written’ authority.”

In Tedesco, the court stated, “In the sale of immovable property, written authority is required for an agent to execute either an agreement to sell or a contract of sale,” and relied upon an in pan materia reading of former articles La. C.C. art. 2996 (stating in pertinent part “[i]f it be necessary to alienate or give a mortgage, or do any other act of ownership, the power must be express.... ”), art. 2997 (providing “[t]hus, the power must be express and special ... [t]o sell or buy”), and art. 2440 (stating “[a]ll sales of immovable property shall be made by authentic act or under private signature,” and that in general, “every verbal sale of immovables shall be null....”) to reach its conclusion.

But the facts in the case sub judice is not as those in Tedesco, which involved an attempted transfer of immovable property and the apparent authority of an agent to bind his principal to a contract of sale. Thus, the dicta in Rutledge, suggesting that the mandatary’s express authority under Articles 2996 and 2997 must be written, does not resolve the issue raised in this case. Rather, it is the provisions of Article 2993, which state that the contract of mandate is not required to be in any particular form but that nevertheless, when the law prescribes a certain form for an act, the mandate authorizing the act must be in that form, which are instructive. See_\^also 7 Glenn G. Morris & Wendell H. Holmes, Louisiana Civil Law Treatise Business Organizations § 21.04 (1999) (noting that a principal’s manifestations of authority need not be made in any particular form in order to bind him under actual or apparent authority).

Applying Articles 2993, 2996, 2997, and the Louisiana Stock Transfer Law to the facts as established by the evidence submitted at the hearing on the motion for summary judgment, there is no legal error in the trial court’s conclusion that the express authority granted to Thomas Ba-deaux by the decedent to make inter vivos donations of the Balamor, Inc. and National Beverage Company stock to his siblings need not have been in writing. And concluding, as the Rutledge court did, that written authority was not needed for Thomas Badeaux to transfer to himself 1.25 shares of Balamor, Inc. and 12.5 shares of National Beverage Company stock, there is no legal error in the trial court’s conclusion that these donations were valid despite a lack of written authorization. Thus, despite Fernandez’s strenuous arguments challenging the validity of the acts of donation based on the existence of two powers of attorney and the responses of two Badeaux siblings to interrogatories, because no written authority was required to make the inter vivos donations of the Balamor, Inc. and National Beverage Company stock, the circumstances surrounding the execution of each are not material issues of fact sufficient to preclude summary judgment.

We now address Fernandez’s contention that, on the showing made, outstanding issues of material fact preclude summary judgment because the evidence of Thomas Badeaux’s verbal authority to make the stock donations is contradictory, thereby requiring the trier of fact to resolve the conflict. In support |1fiof their assertion that Thomas Badeaux had verbal authority to make the donations, defendants point to his July 7, 2005 affidavit. Fernandez suggests a conflict exists between the statements attested to by Thomas Badeaux in July 2005 and his May 14, 2004 deposition testimony.

We find no conflict between the affidavit and the deposition testimony. Insofar as the Balamor, Inc. stock, nothing in the deposition testimony relied upon by Fernandez purports to address Thomas Ba-deaux’s authority to make that donation on behalf of decedent. And while Thomas Badeaux testified on May 14, 2004 that he did not remember whether he asked the decedent what she wanted to do with the National Beverage Company stock, by July 7, 2005, his memory was clear that the decedent had “verbally directed” him to make the donation and that she made the donation “intentionally and expressed an understanding that she would be giving up ownership of those shares of stock” to Thomas Badeaux and the Badeaux siblings. Additionally, Thomas Badeaux’s comments that the decedent was unavailable to sign the donations for herself because of medical or other health-related reasons do not imply an inability of the decedent to have verbally directed the donations. Physical unavailability is not necessarily tantamount to verbal incapacity; Fernandez has provided nothing further to suggest that the decedent could not have spoken with her nephew on July 20, 2000 prior to making the donation. Thus, we do not find that contradictory evidence creates a genuine issue of material fact insofar as whether Thomas Badeaux had verbal authority from the decedents to make the donations.

Having failed to offer any evidence to contradict the showing made by the defendants — that the decedent verbally directed Thomas Badeaux to make the inter \ ^vivos donations of Balamor, Inc. and National Beverage Company stock and that she made the donations intentionally and with the understanding that she was giving up ownership in the stock — the trial court correctly concluded there were no outstanding issues of material fact that precluded summary judgment on the issue of whether the donation was valid in form.

DONATIVE INTENT

Although Fernandez concedes the applicability of the Louisiana Stock Transfer Act to the inter vivos donations made by Thomas Badeaux as mandatary for the decedent on December 22, 1996 and July 20, 2000, and that the stock certificates were actually delivered as required by law, he urges that disputed material facts preclude summary judgment on the issue of whether the decedent had the requisite donative intent to give the Balamor, Inc. and National Beverage Company stock to Thomas Badeaux and the Badeaux siblings.

Although a donation may be valid as to form, the substantive requirements of a divestment and donative intent must be fulfilled in order to effect a valid donation. Fogg v. Fogg, 571 So.2d 838, 841-42 (La.App. 3d Cir.1990), writ denied, 575 So.2d 372 (La.1991). The donee bears the burden of proving the validity of alleged donations. The proof must be “strong and convincing” that the donor intended to give the property. Fogg, 571 So.2d at 842.

In support of their requisite showing of donative intent, the defendants offer the decedent’s will and note the pattern of inter vivos donations of mortis causa legacies set forth in the will that commenced in 1993 when the decedent personally signed the acts of donation. The defendants point out that the inter vivos donations of the Balamor, Inc. and National Beverage Company stock by the | ^decedent’s mandatary on behalf of the decedent in conformity with her mortis causa legacies simply is a continuation of the established pattern.

The defendants also urge that the deposition testimony of Badeaux sibling, J. Alvin Badeaux, Jr., supports a finding of donative intent. He testified that after the donations were made, he thanked the decedent and that of her deceased husband for their kindness and generosity. He stated that the decedent replied by telling him that he was welcome and that was what her deceased husband wanted.

Additionally, insofar as the donation of the National Beverage Company stock, the defendants submitted into evidence a copy of gift tax return to the IRS submitted in 2000. That return, signed by the decedent personally, reflects the donation of National Beverage Company stock made by Thomas Badeaux as mandatary for the decedent.

The trial court also considered as further support of decedent’s donative intent that the purpose of the inter vivos donations was estate planning, as established through by the deposition testimony of Charles Theriot, with whom Thomas Ba-deaux had consulted. According to Theriot, because decedent owned more than what her day-to-day needs required, the reason the inter vivos donations were made to those who were going to inherit under decedent’s will anyway was to reduce the size of her estate prior to her death and, therefore, the amount of estate taxes that would have to be paid.

Based on this showing, the defendants demonstrated factual support sufficient to sustain their burden of proof at the trial. Thus, to create a genuine issue of material fact, the onus was on Fernandez to produce evidence that the decedent did not have an intent to donate the Bala-mor, Inc. and National Beverage 119Company stock inter vivos to Thomas Badeaux and the Badeaux siblings. This he failed to do. And while Fernandez questions whether the decedent knew what she was doing when she signed the 2000 gift tax return for the inter vivos donation of the National Beverage Company stock to Thomas Badeaux and the Badeaux siblings, he offered no evidence that would support a finding that decedent was not aware of her actions when she signed the gift tax return.

Mindful that the voluminous record is devoid of a single item of evidence suggesting the inter vivos donations were not in conformity with decedent’s will, there is no genuine issue of material fact insofar as donative intent, and the defendants are entitled to summary judgment.

Defendants have pointed out an absence of factual support for the essential elements of Fernandez’s claim, i.e., that decedent lacked capacity at the time of the inter vivos donations; Thomas Badeaux lacked authority to make the donations; and the decedent did not have an intent to donate the Balamor, Inc. and National Beverage Company stock to Thomas Ba-deaux and the Badeaux siblings. Thereafter, Fernandez failed to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Thus, there are no genuine issues of material fact which preclude summary judgment, see La. C.C.P. art. 966 C(2), and the trial court correctly granted defendants’ motions.

DECREE

For these reasons, the trial court’s judgment, concluding that the inter vivos donations of Balamor Inc. and National Beverage Company stock by Viola Mary Tabor Badeaux by her mandatary Thomas Ba-deaux to himself and the Badeaux siblings are valid, granting partial summary judgment, and dismissing all | snFernandez’s claims against defendants, J. Alvin Ba-deaux, Anthony Badeaux, and Mary Claire Badeaux Elmore, is affirmed. Appeal costs are assessed against plaintiff-appellant, Charles Raymond Fernandez.

AFFIRMED.

      . Although this lawsuit was instituted by Teresa Mae Badeaux Fernandez, after her death Charles Raymond Fernandez, the testamentary executor of her succession, was substituted as plaintiff.

      . The judgment also dismisses Fernandez’s claims against defendants, Manuel and Lorraine Rodrigues, based on the conclusion that two inter vivos donations Thomas Badeaux made on behalf of the decedent, transferring 626 shares of Edward Badeaux Company stock, were valid. In Fernandez v. Hebert, 2006-1416 (La.App. 1st Cir.5/4/07), 2007 WL 1300804 (an unpublished opinion) also rendered this day, we affirmed the trial court's dismissal of all of Fernandez's claims against the Rodrigues, determining the Rodrigues established that any declaration of the nullity of those transactions would result in restoration of the stock to the decedent’s patrimony, under the decedent’s will the stock would then be distributed to the Rodrigues, and that there were no outstanding issues of material fact on any damages Fernandez had suffered as a result of the transfer of the stock inter vivos rather than mortis causa that precluded summary judgment in favor of the Rodrigues. Because all claims against the Rodrigues have been dismissed, no practical relief can be given by our review of the propriety of the trial court’s determination in this appeal of the validity of the donations to them, and the matter is moot. See Robin v. Concerned Citizens, St. Bernard, Inc., 384 So.2d 405 (La.1980). Accordingly, we pretermit an appellate review of Fernandez's challenge against the Rodrigues in this appeal.

      . A judgment of partial possession in the decedent's succession rendered on June 18, 2004, placed into the residuary legatee's possession all claims and causes of action that the decedent may have had in connection with or arising out of, among other things, the inter vivos donations made by Thomas Ba-deaux pursuant to any power of attorney. See La. C.C.P. arts. 685 & 3372. Thus, Fernandez asserts these claims in his capacity as the residuary legatee as well as on behalf of the decedent.

      . The trial court's judgment, finding valid three additional donations to Thomas Ba-deaux and the Badeaux siblings executed by decedent personally, has not been appealed.

      . Balamor, Inc. was a company related to National Beverage Company set up to own real estate; both companies had the same owners.

      . Admitted into evidence were two versions of a power of attorney, both dated October 14, 1993, and nearly identical in language. Both stated that the decedent appointed Thomas Badeaux as "Agent” and granted "full power and authority for him ... to conduct, manage and transact all ... affairs, business, concerns and matters of whatever nature or kind, without any exception or reservations whatsoever,” but one version added, "including but not limited to donations, gifts of any kind and/or character said agent in his sole discretion deems necessary to make.”

      . See La. C.C. art. 1478.

      . Having reviewed the trial court’s certification of the judgment as final, we find no error in the designation. See Motorola, Inc. v. Associated Indem. Corp., 02-1351, pp. 16-17 (La.App. 1st Cir. 10/22/03), 867 So.2d 723, 732-33.

      . See La. R.S. 10-3-203(a).

      . For this reason, Succession of Aucoin, 99-2171 (La.App. 1st Cir. 11/8/00), 771 So.2d 286 and In re Succession of Jackson, 00-31 (La. App. 3d Cir.7/26/00), 770 So.2d 804, writ denied, 00-2482 (La.11/17/00), 774 So.2d 974, upon which Fernandez relies, are inapposite.


source: Caselaw Access Project

author: WELCH, J.

license: Public Domain

text:
    Tess BALL v. HERITAGE MANOR OF MANDEVILLE.
    No. 2006 CA 1379.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.
    James E. Shields, Gretna, for Plaintiff— Appellee Tess Ball.
    Lawrence B. Frieman, Metairie, for Defendant — Appellant Heritage Manor of Mandeville.
    Before: KUHN, GAIDRY, and WELCH, JJ.
   WELCH, J.

In this workers’ compensation case, the employer, Heritage Manor of Mandeville, and its insurer, Employers Risk Management Services, appeal an amended judgment which “ORDERED, ADJUDGED, AND DECREED that the current complaints by Tess Ball of her low back and lower extremities [were] related to her work accident sustained on July 22, 2002, while in the course of her employment with Heritage Manor of Mandeville.”

This court’s appellate jurisdiction extends to “final judgments.” La. C.C.P. art.2083; Carter v. Williamson Eye Center, 2001-2016 p. 3 (La.App. 1st Cir.11/27/02), 837 So.2d 43, 44. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Carter, 2001-2016 at p. 2, 837 So.2d at 44.

The amended judgment on appeal in this matter does not contain any decre-tal language, does not specifically enter judgment in favor of or against a party to this proceeding, and does not award (or deny) workers’ compensation benefits of any kind or specify any other relief. Thus, the amended judgment is fatally defective and cannot be considered a final judgment for the purpose of appeal. SeeCarter, 2001-2016 at p. 2, 837 So.2d at 44.

Since the record in this matter does not contain a valid final judgment, we conclude that this court lacks subject matter jurisdiction, and therefore, we dismiss this appeal. Once a valid final judgment has been signed, a new appeal may be filed, and either party may request that this case be placed on the first available docket once the record of the new appeal is lodged and briefs are filed.

APPEAL DISMISSED.


author: PARRO, J.

text:
    Rivers McLAIN v. Horace MANN, Bryon Patureau, & Chad Terro.
    No. 2006 CA 1174.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      Kimuel Lee, Baton Rouge, for Plaintiff-lst Appellant Rivers McLain.
    Frank A. Fertitta, Seale, Smith, Zuber & Barnette, Baton Rouge, for Defendant-2nd Appellant Chad Térro.
    William C. Rowe, Jr., Adras Paul La-Borde, III, Rowe Law Firm, Baton Rouge, for Defendant-Appellee Louisiana Farm Bureau Casualty Insurance Company.
    Before: PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

| ¡¿Plaintiff, Rivers McLain, and defendant, Chad Térro, appeal the judgment of the trial court dismissing the plaintiffs claim against Louisiana Farm Bureau Casualty Insurance Company (Farm Bureau). For the reasons that follow, we dismiss the appeal as moot.

FACTUAL AND PROCEDURAL HISTORY

On December 24, 2002, Mr. McLain was injured when the vehicle he was driving was struck by a vehicle driven by Mr. Térro. At the time of the accident, Mr. Térro owned a 2001 Chevrolet Cavalier, which was operable and insured by Farm Bureau; however, the accident occurred while Mr. Térro was driving a 2002 Jeep Wrangler (Jeep) owned by his roommate, Byron Patureau, and insured by Horace Mann Insurance Company (Horace Mann).

Mr. McLain filed this suit against Mr. Térro, Mr. Patureau, and Horace Mann, seeking damages for the injuries he sustained in the accident. Mr. McLain subsequently amended his petition to name Farm Bureau as a defendant in its capacity as Mr. Terro’s insurer. Farm Bureau filed a motion for summary judgment, contending that coverage was not afforded to Mr. McLain in accordance with the terms and conditions of the policy. Shortly thereafter, Farm Bureau filed a motion for involuntary dismissal pursuant to LSA-C.C.P. art. 1672(C), contending that the plaintiff had failed to request service on Farm Bureau within ninety days of the filing of the amended petition as required by LSA-C.C.P. art. 1201(C). On February 8, 2006, the trial court signed a Isjudgment granting the motion for summary judgment, dismissing Mr. McLain’s claims against Farm Bureau, with prejudice. The judgment further granted Farm Bureau’s motion for involuntary dismissal. Mr. McLain and Mr. Térro have appealed.

DISCUSSION

On appeal, Mr. McLain and Mr. Térro have set forth various assignments of error challenging the trial court’s decision to grant the motion for summary judgment. However, neither appellant has assigned any error or briefed any issue challenging that part of the February 8, 2006 judgment granting Farm Bureau’s motion for involuntary dismissal. Aceord-ingly, for purposes of appellate review, appellants have abandoned any challenge they may have had to the involuntary dismissal of the plaintiffs claim against Farm Bureau, and the judgment of dismissal is now final. See LSA-C.C.P. art. 2129 and Rule 2-12.4, Uniform 'Rules of Courts of Appeal.

Because the judgment of involuntary dismissal is final, there are no longer any viable claims against Farm Bureau in these proceedings. Thus, the issue of whether the trial court properly granted Farm Bureau’s motion for summary judgment is moot and is not properly before this court at this time. Courts may not decide cases that are moot, or where no justiciable controversy exists. An issue is moot when it has been deprived of practical significance and has been made abstract or purely academic. Suite v. Lafayette City-Parish Consolidated Government, 04-1459, 04-1460, 04-1466 (La.4/12/05), 907 So.2d 37, 55. In light of these principles, it is clear that any opinion this court were to issue concerning the motion for summary judgment would afford no practical relief to the appellants at this time and would amount to an improper advisory opinion. Accordingly, this appeal is dismissed as moot. All costs of this appeal are assessed to Rivers McLain and Chad Térro.

APPEAL DISMISSED.

McCLENDON, J., dissents.

      . In its answer and exceptions. Farm Bureau contends that its proper designation is “Louisiana Farm Bureau Mutual Insurance Company.” However, the judgment refers to Louisiana Farm Bureau Casualty Insurance Company.

      . The petition apparently improperly named this defendant as Biyon Patureau.

      . In his first amended petition, Mr. McLain named State Farm Insurance Company as a defendant in its capacity as Mr. Terro’s insurer. However, Mr. McLain later amended his petition to name Farm Bureau as a defendant in that capacity. State Farm was not named as a defendant in the second amended petition.

      . At the time this suit was filed, LSA-C.C.P. art. 1201(C) provided:
      Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver.
      Furthermore, LSA-C.C.P. art. 1672(C) provided:
      A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C), upon contradictory motion of that person or any party or upon the court’s own motion, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.
      Subsequent to the judgment in this case, LSA-C.C.P. arts. 1201(C) and 1672(C) were amended by 2006 La. Acts, No. 750, § 1, effective August 15, 2006.


author: McClendon, j.

text:
    Jerry Lee BALDWIN v. The BOARD OF SUPERVISORS FOR The UNIVERSITY OF LOUISIANA SYSTEM, The University of Louisiana at Lafayette, and Nelson Schexnayder, Individually, and in His Capacity as Director of Athletics for the University of Louisiana at Lafayette.
    No. 2006 CA 0961.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      G. Karl Bernard, Baton Rouge, Marshall Simien, Lake Charles, Counsel for Plaintiff/Appellant Jerry Lee Baldwin.
    Robin L. Jones, Lafayette, Counsel for Defendants/Appellees The Board of Supervisors for the University of Louisiana System, The University of Louisiana at Lafayette, and Nelson Schexnayder, Individually, and in his capacity as Director of Athletics for the University of Louisiana at Lafayette.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

| gPlaintiff, Jerry Lee Baldwin, appeals the trial court’s grant of a partial summary judgment dismissing the racial discrimination claim filed against defendants, the Board of Supervisors for the University of Louisiana System, on behalf of the University of Louisiana at Lafayette, and Nelson Schexnayder, individually, and in his capacity as Director of Athletics for the University of Louisiana at Lafayette. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

In December of 1998, Mr. Baldwin was employed as the head football coach for the University of Louisiana at Lafayette (ULL). His formal contract was approved by the Board of Supervisors for the University of Louisiana System in April of 1999. On November 26, 2001, after three football seasons, Mr. Baldwin was relieved of his duties as head coach. However, the school continued to pay his salary throughout the remaining term of his contract.

On July 21, 2003, Mr. Baldwin filed a suit alleging various causes of action. By an amending and supplemental petition filed on September 17, 2004, Mr. Baldwin specifically alleged racial discrimination.

On March 21, 2005, defendants filed a motion for summary judgment asking that plaintiffs claims be dismissed. On the discrimination claim, the trial court, in its oral reasons, found “some issues or claims that are disputed, but I’m of the opinion ... that the system of the administration at the university separated its employment relationship with Mr. Baldwin for reasons that are not illegal or unlawful.” A partial judgment dismissing the racial discrimination claim with prejudice was signed on November 21, | ^OOS. Pursuant to LSA-C.C.P. art. 1915 B, Mr. Baldwin filed a motion to certify the partial summary judgment as a final judgment based on the separability of the discrimination claim from the unadjudicated claims; the unlikelihood of the need to review the same issues twice, even with subsequent appeals of judgments on the other causes of action; the interest of sound judicial administration and economy; and, the absence of a just reason for delay. By an order signed on February 24, 2006, the trial court granted the motion to certify without reasons.

On appeal, Mr. Baldwin asserts that the trial court erred in failing to find that the reasons offered by ULL for Mr. Baldwin’s removal were a pretext for discrimination. Defendants assert that ULL’s reasons for removing Mr. Baldwin were valid and were not based on racial discrimination.

ARTICLE 1915 B CERTIFICATION

A partial judgment or partial summary judgment does not constitute a final ap-pealable judgment. LSA-C.C.P. art. 1915 B(l). However, the judgment may be certified as a final judgment “after an express determination that there is no just reason for delay.” Id.

Initially, we note that, although the trial court granted the motion to certify the partial summary judgment as a final judgment subject to appeal, the trial court did not provide its own analysis or reasons for the certification. Thus, under the principles enunciated in R.J. Messinger, Inc. v. Rosenblum, 2004-1664, pp. 13-14 (La.3/2/05), 894 So.2d 1113, 1122-23, we must review the propriety of the certification, on which our [Jurisdiction to hear the appeal is based, before we address the merits of the appeal.

The jurisprudence has long maintained a policy against multiple appeals that foster piecemeal litigation. However, of equal importance is the need to balance judicial efficiency and economy with the need for review at a time that best serves the interests of the litigants. R.J. Messinger, Inc., 2004-1664 at p. 13, 894 So.2d at 1122. Noting that LSA-C.C.P. art. 1915 B was patterned after Federal Rule of Procedure 54(b), the Louisiana Supreme Court considered the analysis utilized by federal courts in addressing the lack of reasons for certification, and adopted from the federal jurisprudence the following non-exclusive factors to consider in deciding whether a partial judgment should be certified:

1. The relationship between the adjudicated and unadjudicated claims;

2. The possibility that the need for review might be mooted by future developments in the trial court;

3. The possibility that the reviewing court might be obliged to consider the same issue a second time; and

4. Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and similar concerns. R.J. Messinger, Inc., 2004-1664 at pp. 13-14, 894 So.2d at 1122.

After a review of the record in light of the Messinger factors, and balancing the need for judicial administration with the need for fairness to the parties, we find that the partial summary judgment was properly certified. The claim that Mr. Baldwin was fired because he was an African-American is a separate cause of action from the unadjudicated claims based on contract. Further, it is unlikely that the need for review of the racial ^discrimination claim will be mooted by future developments in the district court on the causes arising in contract. While some of the facts in the discrimination claim may overlap with other tort claims alleged in the petition, such as the intentional infliction of emotional distress, that factor alone is not sufficient to preclude or void a certification. See H & W Industries, Inc. v. Formosa Plastics Corp., 860 F.2d 172, 175 (5th Cir.1988). From what is present in the record before us, a judgment on the discrimination claim would neither resolve nor impede the remaining intentional tort claims. Nor would it force an unnecessary second review of this essentially separate cause based on racial discrimination. A ruling on the discrimination claim appears to pose no threat to the viability of the remaining causes of action. However, a delayed reversal of the summary judgment dismissing the racial discrimination claim, that is, a reversal rendered after final judgment on the other claims brought by plaintiff, would require the parties to pursue the discrimination claim in another, separately held trial. If the summary judgment dismissing the discrimination claim is reviewed now, and reversed, it may be possible to try the discrimination claim with one or more of the other claims still pending in the court below, which could avoid unnecessary duplication of trial costs. This would benefit the judicial system and the parties. Thus, from our review, we cannot say that judicial efficiency and economy would be adversely affected by reviewing the judgment dismissing the claim of racial discrimination at this time. It appears far more likely that considerations of efficiency, economy, and fairness favor a review now, rather than later. See Custom-Bilt Cabinet & Supply, Inc. v. Quality Built Cabinets, Inc., 32, 441, pp. 15-17 (La.App. 2 Cir. 12/8/99), 748 So.2d 594, 605.

| RACIAL DISCRIMINATION CLAIM

APPLICABLE LEGAL PRECEPTS

Under Louisiana law, it is unlawful for an employer to “[ijntentionally fail or refuse to hire or to discharge any individual, or otherwise to intentionally discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment, because of the individual’s race, color, religion, sex, or national origin.” LSA-R.S. 23:332 A(l). Racial discrimination is also unlawful under federal law pursuant to Title VII of the Civil Rights Act of 1964 and subsequent legislation. See McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Vaughn v. Edel, 918 F.2d 517 (5th Cir.1990). Based on the commonality between federal and state anti-discrimination laws, state courts may appropriately consider a federal court’s interpretation of federal statutes to resolve similar questions concerning Louisiana statutes and the proper burden of proof sequence. Hicks v. Central Louisiana Electric Company, Inc., 97-1232, p. 3 (La.App. 1 Cir. 5/15/98), 712 So.2d 656, 658.

The plaintiff claiming discrimination has the initial burden of proof and must establish a prima facie case of discrimination. The plaintiff may meet this initial burden by showing that (1) he was a member of a racial minority; (2) he was qualified for the position; (3) he was discharged; and (4) the position was filled by a person who was not a member of the protected minority class. See McDonnell Douglas Corporation, 411 U.S. at 802, 93 S.Ct. at 1824; St. Mary’s Honor Center, 509 U.S. at 506, 113 S.Ct. at 2747; Vaughn, 918 F.2d at 521. If the plaintiff establishes a prima 17facie case, the burden shifts to the defendant who “must articulate a legitimate nondiscriminatory reason for its action. If the defendant articulates such a reason, the plaintiff must then show by a preponderance of the evidence that the defendant’s reason is mere pretext.” Vaughn, 918 F.2d at 521; see McDonnell Douglas Corporation, 411 U.S. at 802-04, 93 S.Ct. at 1824-25.

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. Fagan v. LeBlanc, 2004-2743, p. 5 (LaApp. 1 Cir. 2/10/06), 928 So.2d 571, 574. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B.

A motion for summary judgment is rarely appropriate for a determination based on subjective facts, such as intent, motive, malice, knowledge, or good faith. Bilbo v. Shelter Insurance Company, 96-1476, p. 5 (La.App. 1 Cir. 7/30/97), 698 So.2d 691, 694, writ denied, 97-2198 (La.11/21/97), 703 So.2d 1312; Sanders v. Ashland Oil, Inc., 96-1751, pp. 6-7 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035. Further, issues that require the determination of reasonableness of acts and conduct of parties under all facts and circumstances of the case cannot ordinarily be disposed of by summary judgment. Granda v. State Farm Mutual Insurance Company, 2004-1722, pp. 4-5 (La.App. 1 Cir. 2/10/06), 935 So.2d 703, 707, writ denied, 2006-0589 (La.5/5/06), 927 So.2d 326.

On appeal, summary judgments are reviewed de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Sunrise Construction and Development Corporation v. Coast Waterworks, Inc., 00-0303, p. 4 (La.App. 1 Cir.6/22/01), 806 So.2d 1, 3, writ denied, 01-2577 (La.1/11/02), 807 So.2d 235.

APPLICATION OF LAW TO THE FACTS

On the motion for summary judgment, Mr. Baldwin presented what he considered to be a prima facie case of racial discrimination. He offered evidence to show that he was an African-American, his background as a high school football coach and assistant coach at LSU qualified him for the position of head coach at ULL, he was removed from his duties, and he was replaced by a white male.

To counter Mr. Baldwin’s eviden-tiary showing, ULL offered what it considered legitimate and nondiscriminatory reasons for the removal. ULL pointed to the three losing seasons comprising Mr. Baldwin’s tenure and the significant drop in game attendance, particularly in light of a pending NCAA rule that required a higher level of attendance for ULL to maintain its Division 1-A status. ULL also argued that the win/loss record and the low attendance combined to create a budget crisis that demanded an immediate change in the head football coaching position.

In response, Mr. Baldwin argued that the reasons offered by ULL were not the true reasons and were merely pretextual. As support, Mr. Baldwin highlighted evidence that he believed undermined ULL’s claim of nondiscriminatory reasons.

To rebut ULL’s reliance on the win/loss record as a nondiscriminatory basis for removal, Mr. Baldwin highlighted testimony from ULL’s personnel showing that ULL was aware that the “cupboard was bare,” that is, the ULL team was extremely weak in terms of depth and talent at the time Mr. Baldwin was hired, and that ULL realized it would take some time to turn |9the program around. In addition, although the replacement coach had two losing seasons, he was actually given a contract extension.

On the question of game attendance, Mr. Baldwin established that the attendance in his first year as head coach greatly improved over the previous year’s numbers, and asserted that the program benefited from the help of ULL’s marketing director. Mr. Baldwin argued that the subsequent drop in attendance was in part caused by the absence of a marketing director in Mr. Baldwin’s second and third seasons. In contrast, after the replacement coach was hired, the vacancy in the marketing director position was filled, and an additional person was hired to assist as a fundraiser.

As for the budget crisis, Mr. Baldwin produced testimonial evidence showing that it was of long standing and argued that it was not primarily caused by the three losing seasons or the lowered attendance. Mr. Baldwin produced deposition testimony from ULL’s president that ULL’s scheduling of “money games,” defined as games with better known and higher caliber teams, brought in more money than an average game. More so than team records or attendance, these “money games” were relied on by the administration to bolster the shortfalls in the budget. Thus, Mr. Baldwin argued, the budget crisis during his term was exacerbated by ULL’s decision not to schedule sufficient “money games,” its failure to replace the marketing director, and ULL’s failure to support Mr. Baldwin’s quest for a coach’s television show, which he believed would create more local interest in ULL football.

Mr. Baldwin also relied on a claim that he was treated differently than the prior coach and the replacement coach. For example, although the previous coach was counseled when the administration disapproved of the football program or decisions by that coach, ULL never apprised Mr. | t nBaIdwin of dissatisfaction with his performance or gave Mm the opportunity to improve before he was removed. After the new coach was hired to replace Mr. Baldwin, a marketing director and fundraiser were hired, and the new coach was given a television program. Mr. Baldwin also testified that he repeatedly reported a damaged trophy case as an eyesore that negatively reflected on the program during recruiting season. However, repair of the trophy case was not completed until after the new coach was hired. Mr. Baldwin interpreted ULL’s decisions as calculated to undermine his success, which he believed was used as a basis for his removal, when the true basis was racial discrimination.

ULL argued that Mr. Baldwin’s interpretation of the facts, and the motives assigned by Mr. Baldwin to ULL’s actions, were erroneous. ULL asserted that the television show was a decision made by the local station based on advertising, and that any delay in the repair of the trophy case arose from the school’s lack of funds and some missteps by a volunteer involved in the repair. According to ULL, the same lack of funds caused the delay in the hiring of another marketing director. Overall, ULL believed its conduct was reasonable and stated that its decisions and actions were not based on racial discrimination.

From our review, we agree that the plaintiff met his initial burden to establish a prima facie case, and that the defendants came forth with seemingly legitimate and nondiscriminatory reasons for Mr. Baldwin’s removal. At that point, Mr. Baldwin was required to show that genuine issues of material fact remained as to whether the reasons offered by ULL for the removal were a pretext for racial discrimination.

Based on the record evidence before us, we find that Mr. Baldwin successfully met his burden. The facts asserted by both Mr. Baldwin and |nULL are open to different interpretations. For example, different motives can be attributed to the decision not to hire another marketing director during Mr. Baldwin’s tenure as head coach, allegedly for financial reasons, and the hiring of a marketing director and fundraiser shortly after Mr. Baldwin was removed. The decision could be seen as an indirect method of weakening Mr. Baldwin’s attempts to improve support for the team, or may have been a totally financial decision. Similarly, the testimony on the number of variables used by the school in grading the team’s performance other than the win/loss record, and the reliance on “money games” as well as the sale of game tickets to improve the budget, could cast doubt on the legitimacy of two of the bases given by ULL for Mr. Baldwin’s removal. On the other hand, after the trial court makes various credibility determinations, ULL’s decision to remove Mr. Baldwin from his duties as head coach may be found to have a legitimate, non-discriminatory basis. Also, even though a former coach was alerted to the school’s concerns and given an opportunity to improve, the failure to alert Mr. Baldwin to ULL’s dissatisfaction with the football program’s progress may have no basis in discrimina,tion. However, if the disparate treatment was a decision based on discrimination, it is unlawful. See generally Vaughn, 918 F.2d at 521-23. In summary, these inquiries, which require credibility decisions and determinations of reasonableness of conduct, and motive and intent, are not ripe for summary judgment. See generally Bilbo, 96-1476 at pp. 10-14, 698 So.2d at 697-99.

Therefore, finding that genuine issues of material fact remain, we reverse the partial summary judgment and remand for further proceedings consistent with this opinion. Costs of the appeal are assessed to defendant-appellees, the Board of Supervisors for the University of Louisiana System, |12on behalf of the University of Louisiana at Lafayette, and Nelson Schex-nayder, individually, and in his capacity as Director of Athletics for the University of Louisiana at Lafayette.

REVERSED AND REMANDED.

      . Subsequently, the trial court denied defendants' motion for summary judgment on the claims of intentional or negligent infliction of emotional distress, tortious interference with contract, and breach of contract. The ruling on the claim of abuse of rights is unclear.


text:
    Tommy J. HOOKS, Jr., Paul F. Garwood, and Noreen Wogan v. TREASURER, John Kennedy, in His Capacity as Treasurer of the State of Louisiana, and Administrator of Unclaimed Property, Pursuant to La. R.S. 9:152 et seq., and the State of Louisiana Through Richard P. Ieyoub, Attorney General of the State of Louisiana.
    No. 2006 CA 0541, 2006 CW 0100.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.
    Rehearing Denied Aug. 3, 2007.

      Richard J. Dodson, Kenneth H. Hooks, III, W. Steven Mannear, Baton Rouge, Counsel for Plaintiffs/Appellees Tommy J. Hooks, Jr., Paul F. Garwood, and Noreen Wogan.
    Michael H. Rubin, Juston O’Brien, Paul S. West, Mary L. Meyer, John B. Davis, II, E’vinski L. Davis, Baton Rouge, Counsel for Defendant/Appellant John Kennedy, Treasurer of the State of Louisiana and Administrator of Unclaimed Property.
    Before: PARRO, GUIDRY, and McClendon, jj.
   McClendon, j.

laOn June 18, 2002, Tommy J. Hooks, Jr., Paul F. Garwood, and Noreen Wogan filed a “CLASS ACTION PETITION FOR DAMAGES” against John Kennedy, in his capacity as Treasurer of the State of Louisiana, and as Administrator of Unclaimed Property (state); and against the State of Louisiana through the Attorney General. In their petition, the named plaintiffs prayed for: 1) “interest,” 2) “just compensation” for “property taken unconstitutionally” in violation of Louisiana Constitution Article I, Section 4, and the Fifth Amendment to the Constitution of the United States, and 3) a declaration that Louisiana’s Unclaimed Property law, LSA-R.S. 9:151, et seq., was unconstitutional for failing to provide for “just compensation.” In a subsequently filed amended motion to certify the class, the plaintiffs sought a class specifically defined as owners who had not received “just compensation” for their reclaimed property, and owners who had not yet reclaimed property on which the state was not accruing “just compensation.”

On December 11, 2002, the state filed a declinatory exception raising the objection of lis pendens, and peremptory exceptions raising the objections of res judicata, no right of action, no cause of action, and prescription. In September of 2005, the state filed supplemental and amending peremptory exceptions of no right of action, no cause of action, peremption, and the declinatory exception of lis pendens. In the accompanying memorandum, the state argued that no “taking” occurred under the state unclaimed property statutes, and thus, in the absence of a “taking,” no compensation, beyond that allowed as statutory interest, was owed.

|aOn November 21, 2005, the trial court heard and ruled on the motion to certify the class. After certifying the class, the trial court heard the state’s exceptions. The court maintained the exception of no right of action as to Mr. Hooks and Mr. Garwood, which was not appealed. The court reasoned that their claims were covered by a class that was previously certified in another suit, Albach v. Kennedy, 2000-0636 (La.App. 1 Cir. 8/6/01), 801 So.2d 476, writ denied, 2001-2499 (La.10/12/01), 799 So.2d 1138. In Albach, the class was defined by the trial court, as follows:

owners of property which was surrendered to the State prior to July 10, 1986 if the property was interest bearing to the owner on the date of surrender by the holder to the administrator of unclaimed property. In addition, the class shall also include all persons who are owners of property which was surrendered to the administrator of unclaimed property when that property was interest bearing to the owner on the date of surrender to the State and the State failed to pay or accrue interest thereon pursuant to [LSA-] R.S. 9:163 and the previous versions of the statute ....

However, the trial court found that Ms. Wogan would be a valid and adequate class representative, and denied the exception of no right of action as to her. The court also denied the exceptions of lis pendens, no cause of action, and prescription or peremption.

By judgment dated December 19, 2005, Ms. Wogan was appointed as the class representative, and the class was defined as:

Category 1.
Individuals who are/were “owners” of unclaimed property, as defined by L[SA-]R.S. 9:153(10), and who have had property taken and administered by the State of Louisiana pursuant to the Unclaimed Property Act and its various statutory schemes, and who have made a claim for this property while under the |4administration of the State of Louisiana and who have had their property returned by Louisiana’s Unclaimed Property Administrator, without receiving just compensation.
Sub-Class 1A.
Those individuals who are/were “owners” of unclaimed property, as defined by L[SA-]R.S. 9:153(10), and who have had property taken and administered by the State of Louisiana pursuant to the Unclaimed Property Act and its various statutory schemes, and who have made a claim for this property while under the administration of the State of Louisiana and who have had their property returned by Louisiana’s Unclaimed Property Administrator with statutory interest paid thereon, however, said statutory interest did not rise to the level of just compensation.
Sub-Class IB.
Those individuals who are/were “owners” of unclaimed property, as defined by L[SA-]R.S. 9:153(10), and who have had property taken and administered by the State of Louisiana pursuant to the Unclaimed Property Act, and it various statutory schemes, and who have made a claim for this property while under the administration of the State of Louisiana and who have had their property returned by Louisiana’s Unclaimed Property Administrator without just compensation being paid thereon.
Category %.
Individuals who are “owners” of unclaimed property, as defined by L[SA-]R.S. 9:153(10), who currently have property being taken and administered by the State of Louisiana pursuant to the Louisiana Unclaimed Property Act, and its various statutory schemes and who have not yet recovered their property from Louisiana’s Unclaimed Property Administrator, and for which the Administrator is not accruing just compensation thereon.

On the same day the class certification judgment was signed, the trial court signed another judgment reflecting the interlocutory rulings of the trial court on the various exceptions.

The state appealed the judgment of certification and filed a writ application objecting to the trial court’s denial of the state’s exceptions. In its appellate brief, the state assigned error to:

Li. the finding that Ms. Wogan was an adequate class representative;
2. the certification of an overbroad class that includes class members from another suit based on the same underlying facts; and,
3. the failure to find that no member of the class could state a claim.

Although the state in its appeal did not assign specific error to the denial of the exception of no cause of action, the state’s brief references its exceptions and asserts that the class has no valid legal claim for “constitutional” interest. Therefore, the state argues, the class certification “frustrates the goal of judicial efficiency.” The ■writ application includes a more fully developed argument that the unclaimed property statutes do not effect a taking that would require “just compensation” under either the state or federal constitutions.

After a thorough review of the record and applicable law, we grant the exception of no cause of action on our own motion. The case is remanded to the court below for further proceedings.

APPLICABLE LEGAL PRECEPTS

Cause of Action

The purpose of the peremptory exception raising the objection of no cause of action is to test the sufficiency in law of the petition and determine whether the law affords any relief to the claimant. To that end, no evidence may be submitted to support or controvert the exception of no cause of action, and the well pled facts in the petition must be accepted as true. LSA-C.C.P. art. 931; Adams v. Owens-Corning Fiberglas Corporation, 2004-1296, p. 3 (LaApp. 1 Cir. 9/23/05), 921 So.2d 972, 975, writ denied, 2005-2501 (La.4/17/06), 926 So.2d 514. However, conclusions of law asserted as facts are not considered well pled allegations of fact and the correctness of those conclusions are not conceded. First Natchez Bank v. Malarcher-Damare Co., 135 La. 295, 65 So. 270, 300 (1914); Kyle v. Civil Service Commission, 588 So.2d 1154, 1159 (La.App. 1 Cir.1991), writ denied, 595 So.2d 654 (La.1992). If a petition alleges more than one cause of action based on separate and distinct operative facts, the exception may be granted as to one, and denied to another. Hand v. Hand, 99-2420, p. 4 (La.App. 1 Cir. 12/20/02), 834 So.2d 619, 622, writ denied, 2003-0612 (La.5/2/03), 842 So.2d 1103. Similarly, if a petition can be amended to state a cause of action, the party opposing the exception must be given a fair opportunity to amend. See LSA-C.C.P. art. 934.

At trial, the burden of proof is on the exceptor. Adams, 2004-1296 at p. 3, 921 So.2d at 975. On appeal, the review is de novo, as the well pled facts are accepted as true, and only a question of law remains. Industrial Companies, Inc. v. Durbin, 2002-0665, pp. 6-7 (La.1/28/03), 837 So.2d 1207, 1213. A trial or appellate court may also recognize the failure to state a cause on its own motion. LSA-C.C.P. art. 927 B.

Class certification is procedural, and not dependent on the existence of a cause of action. Hampton v. Illinois Central Railroad Co., 98-0430 through 0435, p. 6 (La.App. 1 Cir. 4/1/99), 730 So.2d 1091, 1093. However, class action suits have been dismissed for failure to state a cause of action before and after class certification. See Sommers v. Secretary, Department of Revenue and Taxation, 593 So.2d 689, 693 n. 5 (La.App. 1 Cir.1991), writ denied, 594 So.2d 877 (La.1992); Edmonds v. City of Shreveport, 39,893 (La.App. 2 Cir. 8/31/05), 910 So.2d 1005, writ denied, 2005-2324 (La.3/31/06), 925 So.2d 1255; State v. Hamilton, 2003-0556, pp. 8-9 (La.App. 3 Cir. 11/5/03), 858 So.2d 822, 827.

Takings Clauses

Louisiana Constitution, Article I, § 4(A), provides that: “Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.” Similar to the Fifth Amendment to the United States Constitution, our constitution further provides that “[pjroperty shall not be taken or damaged by the state ... except for public purposes and with just compensation .... ” LSA-La. Const. Art. I, § 4(B).

Unclaimed Property Laws

Under common law and civilian precepts, “States as sovereigns may take custody of or assume title to abandoned personal property .... ” Delaware v. New York, 507 U.S. 490, 497, 113 S.Ct. 1550, 1555, 123 L.Ed.2d 211 (1993); Louisiana Health Service and Indemnity Company v. McNamara, 561 So.2d 712, 715-16 (La.1990). To remedy the special problems arising from neglected and abandoned property, various American states adopted specific unclaimed property laws “as incidents of their police powers .... ” McNamara, 561 So.2d at 716.

In 1950, Louisiana enacted a “Uniform Unclaimed Property Act,” which was contained in LSA-R.S. 9:151 to 188. The act underwent several modifications over the years, and was again amended and reenacted by Acts 1997, No. 809, § 1, and designated as LSA-R.S. 9:151 to 181. The preamble [«to the unclaimed property statutes (Act 1995) references the “Uniform Laws Annotated, Master Edition, volume 8B” and provides a table listing other states that have adopted the same or similar uniform laws. The Louisiana “Uniform Unclaimed Property Act of 1997” is to be “construed to effectuate its general purpose to make uniform the law with respect to the subject ... among states enacting it.” LSA-R.S. 9:151 & 152. These uniform unclaimed property acts “have withstood constitutional scrutiny, whether complained of as a taking, as an impairment of contract, or due process, or as a violation of equal protection or unlawful search and seizures, or the guarantee of full faith and credit.” Louisiana Health Service and Indemnity Company v. Tarver, 93-2449 (La.4/11/94), 635 So.2d 1090, 1099.

Louisiana chose a custodial scheme for handling certain types of abandoned property, rather than one in which the title to the abandoned property reverts to the sovereign. See LSA-R.S. 9:156 & 162. Under Louisiana law, after a specified passage of time, holders of property abandoned by missing owners must report the possession of the abandoned property and relinquish custody to the state. See LSA-R.S. 9:153-160. Upon transfer from the holder, the state “assumes custody and responsibility for the safekeeping of the property.” LSA-R.S. 9:162 B. As notice to possible owners, the state is required to publish lists of the unclaimed property. LSA-R.S. 9:161. The state then holds the property, or cash equivalent, in perpetual custody for the absent owner. LSA-R.S. 9:164-168; see McNamara, 561 So.2d at 716; Albach, 2000-0636 at p. 3, 801 So.2d at 479. “Pending a claim by a missing owner, the [s]tate receives the use of the property as well as any income that it may provide.” McNamara, 561 So.2d at 716; Albach, 2000-0636 at p. 3, 801 So.2d at 479. Thus, state custody protects the property of the missing owner while awaiting possible reclamation, and reflects “a policy that unclaimed property should benefit the general public rather than holders of the property.” McNamara, 561 So.2d at 716; Albach, 2000-0636 at pp. 3-4, 801 So.2d at 479; see also Tarver, 93-2449, 635 So.2d at 1092; LSA-R.S. 9:165 A.

The legislature requires the state to pay post-abandonment interest to reclaiming owners of certain types of property. LSA-R.S. 9:163; see La. Acts 1986, No. 829, § 1 and former LSA-R.S. 9:172 & 175 (Act 829 of 1986 adopted the 1981 revision); Albach, 2000-0636 at pp. 3-4, 801 So.2d at 478-79. In part, the applicable provision states that a successful reclaiming owner is

entitled to receive from the [state] any gain realized or accruing on the property at or before liquidation or conversion of the property into money. If the property was interest bearing to the owner on the date of surrender by the holder, the [state] shall pay interest at a rate of five percent a year or any lesser rate the property earned while in the possession of the holder. Interest begins to accrue when the property is delivered to the [state] and ceases on the earlier of the expiration of ten years after delivery or the date on which payment is made to the owner.

LSA-R.S. 9:163.

While interpreting an Indiana property abandonment law in Texaco, Inc. v. Short, 454 U.S. 516, 530, 102 S.Ct. 781, 792-93, 70 L.Ed.2d 738 (1982), the United States Supreme Court held that the statute, which provided that lapsed mineral rights reverted to the surface owner of the immovable, did not constitute a “taking” without just compensation in violation of the Fourteenth and Fifth Amendments of the United States ImConstitution. The Court found that, after a reasonable period of abandonment, the former owner of the minerals retains an insufficient interest on which he may claim just compensation. By the owner’s own act in failing to administer or care for his property, not by any action of the state, the property became abandoned and the owner’s rights lapsed. Id. In its analysis, the Supreme Court noted that “this Court has never required the [s]tate to compensate the owner for the consequences of his own neglect.” Texaco, Inc., 454 U.S. at 530, 102 S.Ct. at 792. This same overall analysis has been echoed by other state courts. See Smyth v. Carter, 845 N.E.2d 219 (Ind.Ct.App.), transfer denied, 860 N.E.2d 588 (Ind.2006), cert. denied, — U.S. -, 127 S.Ct. 1155, 166 L.Ed.2d 996 (2007); Smolow v. Hafer, 867 A.2d 767 (Pa.Cmwlth.2005); Fong v. Westly, 117 Cal.App.4th 841, 853-54, 12 Cal.Rptr.3d 76, 84 (2004). The Louisiana Supreme Court has also refused to find that the state’s exercise of its statutory custody effects an unconstitutional “taking.” Tarver, 93-2449, 635 So.2d at 1099.

ANALYSIS

Even accepting all the petition’s well pled allegations of fact as true, the threshold assertion of the certified class, that a “taking” o.ccurs when the state exercises its statutory custodial rights, is not based on well pled facts, but on a legal conclusion, clothed as fact. The correctness of that conclusion is contradicted by the unclaimed property statutes and the jurisprudence. We are not compelled to accept a party’s legal conclusions as facts. See First Natchez Bank, 65 So. at 300; Kyle, 588 So.2d at 1159.

The triggering event in the exercise of the state’s power of eminent domain is the state’s overt act of taking private property from an owner. The triggering event in an unclaimed property case is the owner’s act of abandonment over a period of several years. See LSA-R.S. 9:154, 156, & 160. After abandonment, the unclaimed property law requires the holder of the abandoned property to transfer “custody,” not title, to the state. LSA-R.S. 9:162 B.

We can find no bar to this statutory scheme. When the state receives custody, it is also required to assume, in apparent perpetuity, the responsibility of safekeeping the property for any owners who may wish to re-claim their abandoned property. In return for this advantageous long-term reclaiming service, the state is afforded the benefit of retaining, after any deductions required by law, the interest earned from post-abandonment actions of the state. See LSA-R.S. 9:162 & 165.

Therefore, from our reading of the clear provisions of the applicable statutes, constitutional articles, and jurisprudence, we find that the state’s exercise of its statutorily' imposed' custody, and the legislature’s decision to award owners only the interest provided for in LSA-R.S. 9:163, do not equate to a “taking.” See Tarver, 93-2449, 635 So.2d at 1099; Smyth, 845 N.E.2d at 223-25; Fong, 12 Cal.Rptr.3d at 84; compare Smolow, 867 A.2d at 774-76 & n. 10 (Louisiana cited as a state that pays post abandonment interest, but court found no taking occurred even though Pennsylvania statute did.not provide for interest). “At all times, the ‘owner’ ... owns the money under the statutory scheme.” Tarver, 93-2449, 635 So.2d at 1099. In the absence of any actionable “taking,” there is no basis to claim a constitutionally mandated payment of “just compensation.” See Tarver, 93-2449, 635 So.2d at 1099; Smyth, 845 N.E.2d at 223-25; Smolow, 867 A.2d at 774-76.

As to the claim that the state custody imposes a fiduciary duty to seek additional interest for absent owners, we find no evidence in this case of such a statutorily or contractually imposed duty. The state is a third party to |1P.any agreement between the owner and the holder chosen by the owner. The statutory duty to accept custody and hold abandoned property in safekeeping cannot logically or fairly be stretched to create a higher fiduciary duty to pay interest not earned by any action of an owner who abandoned not only his property and investment opportunities, but also the responsibility to maintain and care for the property. See generally Leider v. United States, 301 F.3d 1290, 1298-99 (Fed.Cir.2002), cert. denied, 538 U.S. 978, 123 S.Ct. 1786, 155 L.Ed.2d 666 (2003).

Additionally, we find that an opportunity to amend the petition to state a cause of action for a taking without just compensation would be futile in light of the nature of a claim that is based on an erroneous reading of the applicable statutes. To successfully amend a petition, the plaintiff or class representative must be able to remove the impediment or objection. See LSA-C.C.P. art. 934; Sommers, 593 So.2d at 693 n. 5; Hamilton, 2003-0556 at pp. 8-9, 858 So.2d 822, 827; see also Edmonds, 39,893 at pp. 10-12, 910 So.2d at 1012-13 (appellate court refused to maintain class where recovery barred by law). In the absence of the requisite taking, we find no indication that the lack, of a viable cause could be cured by amendment. For all these reasons, we grant the exception of no cause of action on our own motion, and dismiss from the petition the claim for just compensation based on a “taking.”

Questions do remain, however, as to whether the class may be modified or redefined to state a separate cause of action alleged in the petition, whether Ms. Wogan may be able to proceed as a single plaintiff, or whether the suit should be dismissed. However, those questions are best resolved at the trial court level on remand. See LSA-C.C.P. art. 591 A(3)(c) |is(trial court may amend, recall, enlarge, restrict, or redefine the class or the issues subject to the class action).

For these reasons, we grant the exception of no cause of action, deny the writ application, and remand the matter to the trial court for further proceedings consistent with this opinion. The costs of the appeal are assessed to the plaintiff-class representative, Noreen Wogan.

WRIT DENIED; PEREMPTORY EXCEPTION RAISING THE OBJECTION OF NO CAUSE OF ACTION SUSTAINED, AND CASE REMANDED.

GUIDRY, J., concurs in the result.

      . In Albach, the class complained of the state’s refusal to pay the statutory interest authorized by LSA-R.S. 9:163. In this case, the certified class does not seek interest paid pursuant to statute, but seeks the “just compensation” provided by Louisiana Constitution, Article I, § 4. Thus, unlike Albach, the factual transaction underlying the relief sought by the Hooks certified class is whether the state’s exercise of custody over abandoned property effected a "taking,” or a virtual wresting of title from the owner, for which the state would owe "just compensation.”

      . Although a suspensive or devolutive appeal may be taken from a judgment of certification as a matter of right, we note that the legislature seemingly did not intend “to abridge the discretionary authority of the appellate courts to avoid undue delay and consider ... certification judgments under more expeditious supervisory writ procedures.” LSA-C.C.P. art. 592 A(3)(b) & Comments-2005.

      . Our grant ex proprio motu of the exception of no cause of action renders moot the exception of no cause of action filed by the state in this court, the class representative's motion to dismiss the exception, and the state’s writ application complaining of the exception of no cause of action. Having found that the class as certified cannot state a cause of action, we choose at this time not to exercise our supervisory authority. Thus, we deny the writ, as well as any pending motions pertaining to the writ.

      . Louisiana Health Service and Indemnity Company v. McNamara, 561 So.2d 712, 715-17 (La.1990), provides a general historical background for the traditions of abandoned property laws and of Louisiana's Unclaimed Property Acts prior to the 1997 revision. See also Louisiana Health Service and Indemnity Company v. Tarver, 93-2449 (La.4/11/94), 635 So.2d 1090, 1092-94; Albach v. Kennedy, 2000-0636, pp. 3-4 (La.App. 1 Cir. 8/6/01), 801 So.2d 476, 478-79 (also refers to the 1997 revision).

      . For purposes of the unclaimed property law, "property” is defined as: "a fixed and certain interest in intangible property that is held, issued, or owed in the course of a holder’s business, or by a government ...." LSA-R.S. 9:153(12). An “owner” is defined as "a person who has a legal or equitable interest in property subject to this Chapter or the person's legal representative.” LSA-R.S. 9:153(10). A "holder” is one who is "obligated to hold for the account of, or deliver or pay to, the owner of property ...." LSA-R.S. 9:153(5).


author: DOWNING, J.

text:
    Aundra GROSS v. CORPORATE PERSONNEL SERVICE TEMPS.
    No. 2006 CA 1253.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.
    Waldon Michael Hingle, Slidell, Dayne M. Freeman, Baton Rouge, Counsel for Plaintiff/Appellant Aundra Gross.
    Anthony Paul Palermo, Baton Rouge, Counsel for Defendant/Appellee Corporate Personnel Service Temps.
    Before: PETTIGREW, DOWNING and HUGHES, JJ.
   DOWNING, J.

| pClaimant/Appellant, Aundra Gross, seeks review of a judgment rendered by the Office of Workers’ Compensation (OWC) decreeing he violated the provisions of La.R.S. 23:1208 and as such forfeited his right to continued medical and indemnity benefits. We affirm the OWC judgment.

Louisiana Revised Statute 23:1208 provides in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
⅜ ⅜ ⅜
(4) Notwithstanding any provision of law to the contrary which defines “benefits claimed or payments obtained”, for purposes of Subsection C of this Section, the definition of “benefits claimed or payments obtained” shall include the cost or value of indemnity benefits, and the cost or value of health care, medical case management, vocational rehabilitation, transportation expense, and the reasonable costs of investigation and litigation.
E. Any employee violating this Section shall, upon determination by hearing officer, forfeit any right to compensation benefits under this Chapter.

We recognize that statutory forfeiture of workers’ compensation benefits is a harsh remedy and, as such, must be strictly construed. Leonard v. James Industrial Constructors, 03-0040, p. 9 (La.App. 1 Cir. 5/14/04), 879 So.2d 724, 730. Here, Mr. Gross denied in deposition of ever having had treatment for prior back or neck problems. His medical records, however, contradict his denial. The hospital records from two different facilities show that he was treated in 1997 and again in 2002 for similar ailments.

After a thorough review of the record, exhibits and jurisprudence, we conclude that the OWC was not manifestly erroneous in finding that Gross willfully misrepresented his prior back injuries, thereby triggering the forfeiture statute.

|⅞As the issue involves no more than an application of well-settled rules to a recurring fact situation, we affirm the judgment by summary disposition in accordance with Uniform Rules — Courts of Appeal, Rule 2-16.2(2), (4), (8).

All costs of this appeal are assessed against Claimant/Appellant, Aundra Gross.

AFFIRMED.