text:
    Cynthia DANIELS v. USAGENCIES CASUALTY INSURANCE COMPANY, Lucy Austin, Tessie Parrish, Express Marketing, Inc., Southern Underwriters Insurance Company, Charlene Hoyt, and State Farm Fire and Casualty Company. Katie Daniel v. USAgencies Casualty Insurance Company, Lucy Austin, Tessie Parrish, Express Marketing, Inc., Southern Underwriters Insurance Company, Charlene Hoyt, and State Farm Fire and Casualty Company. Lucy Austin v. Tessie Parrish, Express Marketing, Inc., and Southern Underwriters Insurance Company.
    Nos. 2011 CA 1357, 2011 CA 1358, 2011 CA 1359.
    Court of Appeal of Louisiana, First Circuit.
    May 3, 2012.

      Douglas K. Williams, Chris D. Billings, Baton Rouge, LA, for Defendants-Appel-lees, Tessie Parrish and Southern, Underwriters Insurance Company.
    Locke Meredith, Sean D. Fagan, Corey Orgeron, Baton Rouge, LA, for Plaintiff-2nd Appellant, Cynthia Daniels.
    Darryl M. Phillips, Angela Lumzy-Jones, New Orleans, LA, for Plaintiff-1 st Appellant, Katie Daniel.
    Stephen M. Alexander, Baton Rouge, LA, for Plaintiff-3rd Appellant, Lucy Austin.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

| ¡¡Plaintiff's in these consolidated cases, Cynthia Daniels, Katie Daniel, and Lucy Austin, appeal from a summary judgment rendered in favor of defendants, Tessie Parrish and Southern Underwriters Insurance Company, dismissing plaintiffs’ claims against those defendants. After de novo review, we affirm the judgment of the district court.

FACTS AND PROCEDURAL BACKGROUND

This case involves two successive incidents that occurred during a rainy day on August 19, 2008, on an elevated northbound section of Interstate 55 (1-55) between New Orleans and Hammond, Louisiana. The chain of events began when one of the defendants, Charlene Hoyt, lost control of her vehicle while driving in the right lane of 1-55 north. Charlene swerved to avoid another vehicle that was. drifting into the right lane. Her vehicle began to spin and then struck the left-side concrete barrier on 1-55, coming to rest across and completely blocking the northbound left lane.

Tessie Parrish was traveling behind Charlene’s vehicle with her headlights and windshield wipers activated. Tessie witnessed Charlene’s vehicle hit the concrete barrier and then come to a stop in a position that was almost perpendicular to the road and completely blocking the left northbound lane of travel. Tessie slowed and parked her pickup truck approximately 20 yards behind Charlene’s disabled vehicle. Because the shoulder was too narrow for Tessie to park completely off the roadway, she parked partially in the left lane and partially on the narrow left shoulder, so that she could render assistance as well as protect the occupants in Charlene’s vehicle, which was disabled and vulnerable to oncoming traffic. When Tessie exited her vehicle, she' left the engine running while she checked on Charlene. Tessie observed that Charlene’s airbag had deployed, that Charlene was bleeding, and that Charlene appeared to be ^disoriented. Tessie left Charlene in her car while she returned to her own vehicle to retrieve her cell phone in order to call 911 for help. According to Tessie and Charlene’s affidavits, the emergency flasher lights on Tessie’s vehicle were activated. Charlene also attested that she observed another vehicle had parked directly in front of her disabled car in the left lane, and that particular driver began waving oncoming traffic into the right lane, around the accident scene that was blocking the left lane.

At this point, which was roughly five to ten minutes after Charlene’s initial crash into the concrete barrier, Tessie heard screeching tires as another vehicle, driven by Lucy Austin, skid toward and collided with the rear of Tessie’s pickup truck. Lucy had been traveling in the left northbound lane but she did not see Tessie’s stopped vehicle until a car that was directly in front of her and blocking her view suddenly swerved around Tessie’s vehicle into the right lane. Lucy and one of her passengers, Cynthia Daniels, testified in their depositions that Tessie’s vehicle did not have any lights on at all. Lucy stated that once she saw Tessie’s vehicle, she had absolutely no time to stop, and she could not move into the right lane because of a truck in that lane. As a result, she crashed into the back of Tessie’s vehicle. Lucy and her two passengers, Cynthia Daniels and Katie Daniel, were injured.

Cynthia, Katie, and Lucy (collectively referred to as “plaintiffs”) each filed separate lawsuits, which were later consolidated in the district court for trial against Tessie and her liability insurer, Southern Underwriters Insurance Company, as well as other defendants who are not relevant to this appeal. All plaintiffs |BaIleged that Tessie’s negligence was a cause of the accident. Southern Underwriters and Tessie (collectively referred to as “defendants”) filed a motion for summary judgment, relying on the facts as alleged in plaintiffs’ petitions and the affidavits of Tessie and Charlene to establish there was no genuine issue of material fact that Tessie had acted reasonably as a “rescuer” and had not breached any duty owed to plaintiffs, and therefore, plaintiffs’ claims against defendants should be dismissed as a matter of law. Plaintiffs opposed the summary judgment, relying on Cynthia’s and Lucy’s deposition testimony, and essentially arguing that there are genuine issues of material fact regarding whether Tessie was a rescuer, the reasonableness of her actions, and whether she had breached a duty to warn oncoming motorists by not activating her emergency flasher lights or using some other warning device.

After a hearing, the district court ruled in favor of the defendants, and on March 22, 2011, a final judgment was signed, dismissing plaintiffs’ claims against Tessie and Southern Underwriters, in accordance with La. C.C.P. art. 1915(A). Plaintiffs filed separate devolutive appeals of that judgment, which were consolidated on the docket of this court. Each plaintiff asserts that the district court prematurely and incorrectly granted summary judgment, because discovery had not been completed and because various factual issues precluded summary judgment.

LAW AND ANALYSIS

Plaintiffs argue there are still material factual issues to be resolved, and the summary judgment was premature due to a lack of discovery. However, we note that plaintiffs did not file a motion for continuance or for additional discovery before the district court heard defendants’ motion for summary judgment. Code of | (¡Civil Procedure article 966 deals with the procedure for filing a motion for summary judgment, and paragraph (A)(1) permits the defendant to file the motion at any time. Paragraph (C)(1) states that “[ajfter adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” (Emphasis added.) It is well settled that trial courts in Louisiana have broad discretion when regulating pretrial discovery, which discretion will not be disturbed on appeal absent a clear showing of abuse. Moak v. Illinois Cent. R. Co., 93-0783 (La.1/14/94), 631 So.2d 401, 406.

It is not an abuse of the district court’s wide discretion in discovery matters to entertain a motion for summary judgment before discovery has been completed. It is within the trial court’s discretion to render a summary judgment or require further discovery. Thomas v. Willis-Knighton Medical Center, 43,176 (La.App.2d Cir.4/30/08), 981 So.2d 807, 814, writ denied, 2008-1183 (La.9/19/08), 992 So.2d 932. While parties must have a fair opportunity to conduct discovery and present their claims, there is no absolute right to delay action on a motion for summary judgment until discovery is complete. Welch v. East Baton Rouge Parish Metropolitan Council, 2010-1532 (La.App. 1st Cir.3/25/11), 64 So.3d 249, 254; Green v. State Farm General Ins. Co., 35,775 (La.App.2d Cir.4/23/02), 835 So.2d 2, 6. A suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of material fact, and the plaintiff does not show a probable injustice in proceeding with the suit. Welch, 64 So.3d at 254.

The key witnesses who could arguably support plaintiffs’ claims were not unknown or unavailable to plaintiffs, yet the record shows that plaintiffs did not initiate any discovery during the nearly four-month period between serving Tessie and the hearing on Tessie and Southern Underwriter’s motion for summary 17judgment. Nor did plaintiffs file a motion for continuance of the hearing on the motion. Under these circumstances, the district court did not abuse its discretion in proceeding with the hearing on the motion for summary judgment, based on the pleadings, depositions, and affidavits in the record.

An appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Granda v. State Farm Mut. Ins. Co., 2004-2012 (La.App. 1st Cir.2/10/06), 935 So.2d 698, 701. The motion should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). On a motion for summary judgment, if the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. If the adverse party then fails to produce factual support sufficient to establish that it will be able to satisfy its eviden-tiary 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).

Tessie and her insurer, Southern Underwriters, would not bear the burden of proof at trial; therefore, their burden on the motion for summary judgment did not require that they negate all essential elements of plaintiffs’ negligence claims. Rather, their burden on the motion for summary judgment was to point out to the court that there was an absence of support for one or more elements essential to plaintiffs’ negligence claims. La. C.C.P. art. 966(C)(2). See Babin v. Winn-Dixie Louisiana, Inc., 2000-0078 (La.6/30/00), 764 So.2d 37, 39. See also Robles v. ExxonMobile, 2002-0854 (La.App. 1st Cir.3/28/03), 844 So.2d 339, 341. At that point, the burden would shift to plaintiffs to present evidence that genuine issues of material fact existed as to whether defendants were negligent and whether that negligence caused the accident at issue.

Material facts are those that potentially insure or preclude recovery, affect the litigant’s success, or determine the outcome of a legal dispute. Gatlin v. Kleinheitz, 2009-0828 (La.App. 1st Cir.12/23/09), 34 So.3d 872, 875, writ denied, 2010-0084 (La.2/26/10), 28 So.3d 280. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Lemann v. Essen Lane Daiquiris, Inc., 2005-1095 (La.3/10/06), 923 So.2d 627, 632. Plaintiffs’ claims in this case are based upon Tessie’s alleged negligence. Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under general negligence principles. Id., 923 So.2d at 632-33. For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) the actual damages (the damage element). Id., 923 So.2d at 633. A negative answer to any of the elements of the duty-risk analysis prompts a no-liability determination. Joseph v. Dickerson, 99-1046 (La.1/19/00), 754 So.2d 912, 916.

Duty is a question of law and is a threshold issue in any negligence action. Lemann, 923 So.2d at 633; Fredericks v. Daiquiris & Creams of Mandeville, L.L.C., 2004-0567 (La.App. 1st Cir.3/24/05), 906 So.2d 636, 639, writ denied, 2005-1047 (La.6/17/05), 904 So.2d 706. Simply put, the inquiry is whether a plaintiff has any law — statutory, jurisprudential, or arising from general principles of fault — to support the claim. Fredericks, 906 So.2d at 639. In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. Lemann, 923 So.2d at 633. See also Socorro v. City of New Orleans, 579 So.2d 931, 938 (La.1991). When no factual dispute exists and no credibility determinations are required, the legal question of the existence of a duty is appropriately addressed by summary judgment. Fredericks, 906 So.2d at 639.

In this case, defendants argue that Tessie was a “rescuer” who acted reasonably under the exigent circumstances when she witnessed Charlene’s ve-hiele suddenly spin out of control, crash into the concrete barrier, and become disabled as it completely blocked the left northbound lane on 1-55 directly in front of her. A rescuer is someone who makes some effort or takes some action to protect the personal safety of another, who was or appeared to be in imminent peril. See Stevenson v. Delahaye, 310 So.2d 651, 653-54 (La.App. 1st Cir.1975).

Plaintiffs counter that Tessie breached the duty imposed by La. R.S. 32:141, which provides as follows:

A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such a highway.
|1flB. The provisions of this Section shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.
C. The driver of any vehicle left parked, attended or unattended, on any highway, between sunset and sunrise, shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence. If the vehicle is not removed from the highway within twenty-four hours, the provisions of R.S. 32:473.1(B) shall apply.
D. In the event of a motor vehicle accident, if the driver is not prevented by injury and the vehicle is not disabled by the accident, or the accident has not resulted in serious injury or death of any person, the driver shall remove the vehicle from the travel lane of the highway to the nearest safe shoulder. Compliance with the provisions of this Subsection shall in no way be interpreted as a violation of requirements to remain at the scene of an accident as provided for in the Highway Regulatory Act or by R.S. 32:414.

This statute imposes a two-fold duty on drivers of vehicles stopped on a highway: (1) to remove the vehicle as soon as possible; and (2) to protect traffic until the vehicle is removed. Laizer v. Kosarek, 2009-0277 (La.App. 4th Cir.6/24/09), 16 So.3d 442, 446.

Plaintiffs argue that Tessie violated Subsection B of the above-quoted statute by failing to discharge her responsibility of protecting traffic under the circumstances. Plaintiffs maintain that there is a genuine issue of material fact as to whether Tessie activated her emergency flashers when she stopped and left her vehicle partially in the left lane of travel. We disagree with plaintiffs as to the materiality of this disputed fact. After stopping in a timely manner to avoid hitting Charlene’s disabled vehicle, Tessie parked her vehicle as far off the road as possible in an area where there was little to no shoulder, with the intent of rendering aid and protecting the occupants of Charlene’s disabled vehicle. The right lane and right shoulder of 1-55 were not blocked in any way, so northbound motorists could still freely pass the blocked left lane. Lucy’s deposition testimony clearly reveals that Lucy did not see Tessie’s vehicle in time to stop because of a |ncar that was blocking the view directly in front of her, not because of the lack of flashing lights on Tessie’s vehicle. Furthermore, La. R.S. 32:141(C) only requires that signal lights be displayed if the vehicle is left parked on a highway when it is dark (between sunset and sunrise). It is undisputed that this accident occurred during the daytime, and Lucy’s view of Tessie’s vehicle was blocked until it was too late for Lucy to safely stop. To hold that warning devices or flashing signal lights might have helped Lucy avoid this accident would be sheer speculation. See Warren v. Hunter Truck Lines, Inc., 289 So.2d 257, 261 (La.App. 1st Cir.1973), writ denied, 290 So.2d 910 (La.1974).

We find, as did the district court, that Tessie’s actions were reasonable under the circumstances, and she did not breach any duty owed to plaintiffs. An interval of approximately five to ten minutes elapsed between the time when Charlene’s car became disabled and when the accident between Lucy’s and Tessie’s vehicles occurred. During this time, Tessie was actively engaged in activities that were reasonably calculated to aid Charlene— such as parking in a way that she could protect Charlene’s vulnerable and disabled vehicle from being hit broadside, checking on Charlene to see if she was injured, and attempting to call 911 for assistance. Additionally, because the highway was already obstructed, Tessie’s placement of her vehicle between Charlene’s disabled vehicle and the oncoming traffic was an attempt to protect other motorists from the disabled vehicle that had previously blocked the entire left lane of travel. Tessie clearly had no control over the location of Charlene’s disabled vehicle, and it was undisputed that the left northbound shoulder of 1-55 was too narrow for Tessie’s vehicle to park completely off of the roadway. It was also undisputed that another motorist who had parked directly in front of Charlene’s disabled vehicle in the left lane was waving traffic around the accident scene and into the open right lane of travel.

1 12This is a case where Tessie acted upon a sudden impulse to come to the aid of Charlene, who was in immediate danger of being hit broadside by oncoming traffic on an interstate highway. As such, application of the rescuer doctrine is warranted. See Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 746; Stapleton v. Great Lakes Chemical Corp., 93-1355 (La.11/29/93), 627 So.2d 1358, 1362-63. Contrast Bangs v. Government Emp. Ins. Co., 387 So.2d 1323, 1325 (La.App. 1st Cir.1980). A rescuer is looked on with favor in the eyes of the law, and is not chargeable with negligence merely because she failed to make the wisest choice when rendering aid. See Chastain v. Allstate Ins. Co., 212 So.2d 243, 244 (La.App. 2d Cir.1968). Subsection B of La. R.S. 32:141 requires that the driver of a disabled vehicle take reasonable steps, under the circumstances, to protect traffic until the vehicle can be removed. The law will not impose upon a person who stops in aid of a distressed motorist, a burden of care greater than that required of the driver of the disabled vehicle. Payne v. Allstate Ins. Co., 256 So.2d 788, 792 (La.App. 1st Cir.1971), writ denied, 260 La. 1123, 258 So.2d 376 (1972). We find that Tessie’s actions of placing her vehicle where she did and checking on the occupants of Charlene’s vehicle were commendable and reasonable under the circumstances, and were intended to benefit Charlene and the motorists approaching the scene of Charlene’s accident.

CONCLUSION

In summary, we conclude that under the facts presented, there was no legal duty that required Tessie to activate her emergency flashing signal lights while she rendered aid to Charlene. In the absence of any legal duty, plaintiffs cannot satisfy their evidentiary burden of proof as to Tessie’s negligence. Further, we find that | ^defendants met their burden of pointing out that plaintiffs could not show that Tessie’s conduct constituted a breach of any duty owed by a rescuer who was confronted with an emergency situation. Plaintiffs failed to submit proof that Tessie’s conduct was unreasonable under the circumstances. Therefore, Tessie and Southern Underwriters are entitled to summary judgment as a matter of law. Accordingly, we affirm the judgment of the district court. All costs of the appeals in these consolidated cases are to be paid by plaintiffs-appellants, Katie Daniel, Cynthia Daniels, and Lucy Austin, in equal portions.

AFFIRMED.

CARTER, C.J., concurs in the results.

      . Cynthia Daniels filed the first lawsuit (trial court number 575,875) on February 27, 2009, against Tessie Parrish, Tessie’s employer and owner of the pickup truck, Express Marketing, Inc., and the insurer of the pickup truck, Southern Underwriters. Cynthia also sued Lucy Austin and Charlene Hoyt and their respective insurers, USAgencies and State Farm Fire and Casualty Company. Katie Daniel's lawsuit (trial court number 578,734) was filed against the same defendants on May 27, 2009. Lucy Austin filed her lawsuit (trial court number 581,566) on August 18, 2009, against Tessie, her employer, Express Marketing, and the insurer of the pickup truck, Southern Underwriters. These three actions were consolidated in the district court.

      . The record reflects that service on Tessie was accomplished by private process server on November 22, 2010, and the hearing on the motion for summary judgment took place on March 14, 2011.

      . A trial court cannot make credibility determinations or evaluate the weight of the evidence on a motion for summary judgment; instead, the trial court must assume that all of the witnesses are credible. All Crane Rental of Georgia, Inc. v. Vincent, 2010-0116 (La.App. 1st Cir.9/10/10), 47 So.3d 1024, 1027, writ denied, 2010-2227 (La. 11/19/10), 49 So.3d 387.

      . In Payne, 256 So.2d at 790-91, we similarly held that a three to seven-minute time period between the time a rescuer stopped his car behind a disabled car and when a following car hit the parked car was not unreasonable, even though a factual dispute existed surrounding the rescuer’s use of flasher lights, and the rescuer did not use flares or other warning devices to alert other motorists. However, the length of time a vehicle remains parked on a highway is not a determinative factor in cases of this nature. Warren, 289 So.2d at 260.


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    STATE of Louisiana v. Vernon A. ESTEVE.
    No. 2011 KA 1889.
    Court of Appeal of Louisiana, First Circuit.
    May 3, 2012.

      Walter P. Reed, District Attorney, Cov-ington, LA, Kathryn Landry, Special Appeals Counsel, Baton Rouge, LA, for Ap-pellee, State of Louisiana.
    Gwendolyn K. Brown, Louisiana Appellate Project, Baton Rouge, LA, for Defendant-Appellant, Vernon A. Esteve.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   PARRO, J.

[^Defendant, Vernon A. Esteve, was charged by bill of information with one count of creation or operation of a clandestine laboratory for the unlawful manufacture of a controlled dangerous substance (methamphetamine), a violation of LSA-R.S. 40:983 (Count 1); one count of possession of a Schedule II controlled dangerous substance (methamphetamine), a violation of LSA-R.S. 40:967(0 (Count 2); and two counts of cruelty to a juvenile, violations of LSA-R.S. 14:93 (Counts 3 and 4). The state severed Counts 3 and 4, and it proceeded to trial against defendant on Counts 1 and 2 only. After a jury trial, defendant was found guilty as charged on both counts. The trial court denied defendant’s motions for new trial and post-verdict judgment of acquittal. For his conviction on Count 1, defendant was sentenced to fifteen years of imprisonment at hard labor. For his conviction on Count 2, defendant was sentenced to five years of imprisonment at hard labor. Defendant’s sentences were ordered to be served concurrently. The trial court denied defendant’s motion to reconsider his sentences. Defendant now appeals, alleging two assignments of error. For the following reasons, we affirm defendant’s convictions and sentences.

FACTS

On November 18, 2009, narcotics task force officers in Slidell received a tip from a Wal-Mart loss prevention officer that, based on the types of purchases some customers had made at his store, the customers might be involved in the production of methamphetamine. Based on that tip, Officer Christopher Comeaux, of the St. Tammany Parish Sheriffs Office, and Detective Brian Brown, of the Slidell Police Department, made visual contact with the vehicle that had been described to them by the loss prevention officer, and they followed it to a residence on Admiral Nelson Drive. As the suspect vehicle pulled up to the residence, the officers observed two white females and a juvenile exit the car and enter the house. They later observed a male subject wearing a black shirt and a baseball cap exit and reenter the house. Additionally, the officers saw one of the white females exit and reenter the house | ^several times with a young child. Based on the tip they had previously received, and out of concern for the child, the officers decided to conduct a knock and talk investigation at the residence.

The officers approached the small child who was playing in the front yard, and they asked him to get his mother, so that they could speak to her. The child retrieved his mother, Mary Boyd, from the residence, and the officers asked her to have all of the occupants of the residence step out into the front yard. Mary Boyd complied and retrieved Shawna Evans and defendant from the house. Officer Co-meaux also noticed another female, Barbara Carson, walking from the garage area to the rear of the residence, and he ordered her to move to the front yard. The officers then conducted a security sweep of the residence, during which they encountered the man wearing the baseball cap, Warren Anthony, inside the garage. On his person, the officers discovered a pack of lithium batteries and $1196 in cash. After all the occupants of the house were secured, Detective Brown advised Officer Comeaux that he had witnessed something being tossed out of the rear of the residence as they waited for the occupants to exit. Detective Brown relocated to that area, and found a wadded-up ball of coffee filters that contained a white, powder-like substance that tested presumptively positive as methamphetamine. Based on this evidence, the officers procured a search warrant for the residence.

During the subsequent search of the residence, narcotics agents recovered a Barq’s soda bottle containing a white liquid, a new-in-the-box blender, numerous pieces of aluminum foil, coffee filters, Liquid Fire brand sulfuric acid, lithium batteries, and several containers of salt. Officer Comeaux testified at trial that these items are used as ingredients in the process of manufacturing methamphetamine. Based on the evidence discovered in the residence, all of the adult occupants were arrested and billed with creation or operation of a clandestine laboratory for the unlawful manufacture of a | controlled dangerous substance (methamphetamine) and possession of a Schedule II controlled dangerous substance (methamphetamine).

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant asserts that the trial court denied him his right to confront his accusers. Specifically, defendant argues that the trial court erred in allowing the state to admit into evidence pharmacy logs detailing defendant’s purchases of pseudoephedrine without requiring the state to show that the persons who created the documents were unable to testify.

At trial, the state called as witnesses Sherill Mills and James Williams. Ms. Mills and Mr. Williams are pharmacists at CVS pharmacies in Bogalusa and Frank-linton, respectively. Through their testimonies, the state introduced records of six purchases made by defendant of products containing pseudoephedrine within a three-and-one-half month period. Both Ms. Mills and Mr. Williams testified that these sales records for ephedrine and pseudoephedrine are made by the pharmacist or pharmacy technician who made the sale by scanning the purchaser’s state-issued identification into the store’s computer system at the time of the purchase. They testified that these records are made and kept pursuant to both store policy and federal law. Ms. Mills and Mr. Williams also both testified that these records are made and kept in the course of their regularly conducted business activities and that it was the practice of that business activity to make and keep these records. Finally, although neither Ms. Mills nor Mr. Williams were the individuals who conducted the transactions with defendant, both testified that they were persons qualified to have custody of these records by virtue of their respective employment statuses.

Defense counsel objected to the introduction of these records on the bases of hearsay and lack of foundation during the testimonies of both Ms. Mills and Mr. Williams. The trial court overruled these objections and allowed the records to be admitted under the business records exception to the hearsay rule, as set forth in LSA-C.E. art. 803(6). Thus, defendant never lodged a contemporaneous objection to the |Bconfrontation issue during the respective testimonies of Ms. Mills or Mr. Williams. See LSA-C.E. art. 103(A)(1); LSA-C.Cr.P. art. 841(A). However, after the testimony of Ms. Mills, the defendant did move for a mistrial on the basis that the pharmacy logs were admitted into evidence through her testimony even though she was “not the person who input these records into the computer.” This motion was denied. To the extent that defendant’s motion for a mistrial was sufficient to raise the confrontation issue, we will address the merits of defendant’s assignment of error.

We note first that the pharmacy records were properly admitted into evidence under the business records exception to the hearsay rule. See LSA-C.E. art. 803(6). The state, through the testimonies of Ms. Mills and Mr. Williams, demonstrated that: (1) the records were made at or near the time of the sales; (2) the records were made from information transmitted by a person with knowledge of the transactions; (3) the records were made and kept in the course of a regularly conducted business activity; (4) it was the regular practice of that business activity to make and keep such records; (5) the recorded information was furnished to the business by a person who was routinely acting for the business in reporting the information; and (6) neither sources of information nor the method or circumstances of preparation indicated a lack of trustworthiness. See State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291, 326-27, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006). Further, even though Ms. Mills and Mr. Williams were not the actual preparers of the pharmacy records, they were familiar with and able to testify from their personal knowledge about the record-keeping procedures of their respective pharmacies. See Juniors, 915 So.2d at 327. Thus, the pharmacy logs were properly admitted into evidence as exceptions to the hearsay rule.

Evidence admissible as a hearsay exception under LSA-C.E. art. 803(6) does not require a showing of the unavailability of the declarant for hearsay purposes because of the premise that the out-of-court statement is superior to what is likely to be produced in court. See State v. Marston, 00-0589 (La.3/16/01), 780 So.2d 1058, 1063 (per curiam). Still, we must decide whether the introduction of these pharmacy records without testimony from the persons who created each individual record impinged upon defendant’s constitutional right to confront his accusers.

The Confrontation Clause of the Sixth Amendment provides: “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.... ” U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Under Roberts, 448 U.S. at 66, 100 S.Ct. at 2539, the Confrontation Clause did not bar admission of an unavailable declarant’s statement if the statement fell under a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” In Crawford, a new rule was announced when the Supreme Court held that out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless such witnesses are unavailable to testify and the defendant had had a prior opportunity to cross-examine the witnesses, regardless of whether such statements are deemed reliable by the court. Crawford, 541 U.S. at 53-54, 124 S.Ct. at 1365-66. In Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006), the Supreme Court, in discussing the parameters of Crawford in the context of a police interrogation, held that statements are testimonial when the circumstances objectively indicate there is no ongoing emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321, 129 S.Ct. 2527, 2538, 174 L.Ed.2d 314 (2009). Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because— having been |7created for the administration of an entity’s affairs and not for the purpose of proving or establishing some fact at trial — they are not testimonial. Melendez-Diaz, 557 U.S. at 324, 129 S.Ct. at 2539-40.

Thus, in light of Melendez-Diaz, we find that it is necessary to address the nature of the regularly conducted business activity in this case in order to determine whether these pharmacy records were properly admitted without the need for confrontation. Further, we must determine whether the pharmacy records introduced in this case are testimonial, making their preparers subject to confrontation under the Sixth Amendment.

At trial, both Ms. Mills and Mr. Williams testified that they are required to keep records pertaining to purchases of ephedrine and pseudoephedrine as a result of store policy and federal law. According to Ms. Mills and Mr. Williams, these computer records check the purchaser’s ephedrine and pseudoephedrine transaction limits for each day and each month to inform the pharmacist or pharmacy technician whether the individual may continue with the transaction. Therefore, the primary purpose of this recordation and recordkeeping is not to establish or prove past events potentially relevant to later criminal prosecution, but to ensure that individual purchasers do not exceed daily or monthly purchasing limits for substances containing ephedrine or pseu-doephedrine. For that reason, we find that although these records might prove useful in a prosecution related to charges similar to those in this case, they were not created for the primary purpose of proving or establishing some fact at trial. Thus, we cannot say that the regularly conducted business activity in this case is the production of evidence for use at trial. Accordingly, these pharmacy records are non-testimonial, and as a result, the preparers of these records are not subject to confrontation under |8the Sixth Amendment and need not be subjected to cross-examination.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, defendant argues that the trial court erred in failing to properly advise him of the time delays for filing an application for post-conviction relief.

Our review of the sentencing transcript confirms that the trial court failed to advise defendant of the applicable prescriptive period for filing an application for postconviction relief. However, while LSA-C.Cr.P. art. 930.8(C) directs the trial court to inform the defendant of the two-year prescriptive period for applying for post-conviction relief at the time of sentencing, its failure to do so has no bearing on the sentence and is not grounds to reverse the sentence or remand the case for resentencing. This provision grants no remedy to an individual defendant who was not advised of the time limitations. State v. LeBoeuf, 06-0153 (La.App. 1st Cir. 9/15/06), 943 So.2d 1134, 1142-43, writ denied, 06-2621 (La.8/15/07), 961 So.2d 1158. Moreover, as defendant has expressly raised this issue in this case, it is obvious that he currently has actual notice and knowledge of the correct prescriptive period or has the benefit of an attorney to provide him with such notice.

Considering the circumstances, we decline to remand this matter for resentenc-ing, although we have done so in the past in similar situations. Instead, out of an abundance of caution and in the interest of judicial economy, we hereby advise defendant that LSA-C.Cr.P. art. 930.8(A) generally provides that no application for post-conviction relief, including applications that seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of LSA-C.Cr.P. art. 914 or 922. See LeBoeuf, 943 So.2d at 1143.

For the foregoing reasons, we affirm defendant’s convictions and sentences.

CONVICTIONS AND SENTENCES AFFIRMED.

      . Barbara Carson is also known as "Barbara Esteve.”

      . At trial, the state and defense stipulated that methamphetamine was, in fact, present in these coffee filters.

      . We note that the federal Second Circuit has held that, by their nature, statements properly admitted as business records cannot be testimonial. See United States v. Feliz, 467 F.3d 227, 233 (2d Cir.2006), cert. denied, Erbo v. U.S., 549 U.S. 1238, 127 S.Ct. 1323, 167 L.Ed.2d 132 (2007).

      . We note that 21 C.F.R. § 1314.30 sets out the recordkeeping requirements for sales of packages containing more than 60 milligrams of pseudoephedrine.


author: GAIDRY, J. HUGHES, J.,

text:
    Lacy Nicole PIRTLE v. ALLSTATE INSURANCE COMPANY and Willie Earl Rowzee.
    No. 2011 CA 1063.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2012.

      J. Donald Cascio, Denham Springs, LA, for Plaintiff/Appellant Lacy N. Pirtle.
    Daniel J. Balhoff, Randi S. Ellis, Baton Rouge, LA, for Defendant/Appellee Allstate Insurance Company and Willie Earl Rowzee.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

|2In this suit for damages resulting from a rear-end collision, the plaintiff appeals the jury’s general and special damages awards in her favor. We affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Lacy Nicole Pirtle, filed suit against Willie Earl Rowzee and his insurer, Allstate Insurance Company, for back and neck injuries she allegedly sustained in a rear-end collision which occurred on June 29, 2005. On the date of the accident, Ms. Pirtle was stopped at a red light in the right turn lane at the intersection of Airline Highway and Goodwood Boulevard in Baton Rouge. Mr. Rowzee, who was stopped at the red light behind Ms. Pirtle, was looking down at his phone when he noticed traffic begin to move in the lane to his left, so he took his foot off of the brake and bumped the rear of the vehicle driven by Ms. Pirtle. Ms. Pirtle claims that when her vehicle was hit, she struck her head on the steering wheel before her seatbelt caught and pulled her back, causing her to strike her head on the window before being pulled back against her seat. No damage to the vehicles was observed, and no property damage claims were made. Ms. Pirtle reported feeling or hearing a pop in her neck at the time of the collision, followed by a burning sensation. She told the officer investigating the accident that her neck was sore but that she did not need an ambulance. She later drove herself to Coursey Urgent Care, where her neck was x-rayed and she was discharged with a neck brace, Lortab, Valium, and instructions to follow up 1¡¡with her primary care physician. Ms. Pirtle testified that she did not follow up with a primary care doctor as instructed because she did not have insurance and could not afford it. She eventually was referred to a chiropractor by her attorney, where she was diagnosed with whiplash. Her chiropractor testified that her neck injury responded favorably to treatment. At some point after the accident, she also began to complain of lower back pain, and she sought treatment with an orthopedist, a psychiatrist, and a pain management specialist for neck and low back pain and depression. She was still occasionally receiving treatment for back pain at the time of the trial in June 2009.

After a trial, the jury awarded Ms. Pir-tle $6,300.00 in general damages ($5,000.00 for past and future physical pain and suffering, $800.00 for past and future mental pain and suffering, and $500.00 for loss of enjoyment of life) and $15,000.00 for past medical expenses. The jury made no award for future medical expenses. The defendants filed a motion for judgment notwithstanding the verdict, which was denied, and Ms. Pirtle filed a motion for judgment notwithstanding the verdict, or in the alternative, a motion for new trial, which was also denied. This appeal by Ms. Pirtle followed.

DISCUSSION

On appeal, Ms. Pirtle raises the following two assignments of error:

1. The Trial Judge engaged in behavior, in the presence of the jury, which resulted in the jury losing respect for plaintiff counsel, which then resulted in a small damage award for the plaintiff.
2. The Trial Judge engaged in behavior, in the presence of the jury, which resulted in the jury awarding only a portion of the plaintiffs special damages.

_yVLs. Pirtle alleges in her brief that the trial judge would make gestures which the jury could see but which would not appear in the transcript of the proceedings, or would “chastise plaintiff in the full view of the jury, repeatedly, however the jury could not hear her.” Ms. Pirtle alleges that this objectionable behavior by the judge is not recorded in the transcript, but that it prejudiced the jury against her. Ms. Pirtle filed a motion seeking to have this court order the trial court to supplement the record with these “missing” portions of the transcript. This motion is denied. Although both of Ms. Pirtle’s assignments of error complain of the judge’s behavior, from the arguments in the brief, it appears that her appeal is actually rooted in her belief that the jury awards for general and special damages were so low as to constitute reversible error. Because we cannot address the complaints of actions which are not in the record, we will review the jury’s awards of general and special damages for error.

General Damages Award

The discretion vested in the trier of fact is great and even vast, such that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

Although Ms. Pirtle argues that the jury’s award of general damages was low considering the extent and duration of her back and neck injuries, from our review of the record, it is obvious that the jury concluded that the |sonly injury Ms. Pirtle sustained in the accident was her neck injury and that her neck pain was not of the severity or duration she claimed.

The jury heard testimony at trial regarding other potential causes of Ms. Pir-tle’s back injuries. Brandi Etheredge, Ms. Pirtle’s friend and former co-worker, testified at trial that approximately three weeks before the automobile accident, she and Ms. Pirtle drank several bottles of wine and were waxing floors, when Ms. Pirtle slipped and fell on the floor, injuring her lower back. Ms. Etheredge testified that Ms. Pirtle later showed her the bruises near her tailbone from the fall. Additionally, Ms. Pirtle testified that two weeks after the car accident, she was feeling much better, so she went to False River for the Fourth of July holiday with her family and friends, including Ms. Ether-edge. Because she was “feeling great” and was not in any pain, she went tubing on the river for about an hour. The river was busy, and the ride was very bumpy, and she fell off of the tube several times during the ride before eventually getting off of the tube because her neck started hurting. Ms. Etheredge testified that Ms. Pirtle also rode in a boat for several hours and rode jet skis for thirty to forty-five minutes that day. The testimony from Ms. Pirtle’s physicians relating her low back injury to this automobile accident was based upon information provided by Ms. Pirtle; i.e., that she had never injured her back before, and that her low back pain started soon after the automobile accident. Because other evidence presented to the jury cast doubt on Ms. Pirtle’s credibility and offered another cause for her low back injury, it was reasonable for the jury to conclude that her back injury was not caused by the automobile accident.

| fjThere was also evidence presented to the jury that Ms. Pirtle’s neck pain may not have been as severe or as constant as she alleged it to be. Ms. Pirtle testified at trial that her neck pain comes and goes; however, she testified at her deposition that it started fading away a month and a half to two months after the accident, and the complaints documented by her physicians primarily related to her low back. Although she testified about the pain she was in and how much the pain limited her activities at trial, doubt as to her credibility was cast by her statements and pictures posted online and by the testimony of other witnesses. Ms. Pirtle testified that she was unable to work in any capacity due to pain; was unable to do any chores, care for her child, or even go grocery shopping by herself; and was unable to have a social

life for two years after the accident. However, there was evidence presented at trial that Ms. Pirtle was able to work, do chores such as mowing her lawn with a push mower, and enjoy an active social life including going to bars, riding four-wheelers, riding a horse, going tubing, swimming, and shooting a gun after the accident. Although Ms. Pirtle contended that she was dependent upon pain medication to function, there was testimony that she was selling her pain medication. Under these circumstances, it is reasonable for the jury to have concluded that Ms. Pirtle’s pain was not of the duration and intensity she alleged, and for this reason, the general damages award of $6,300.00 was reasonable for Ms. Pirtle’s neck injury.

Special Damages Award

Special damages are those which generally refer to specific expenses which may be quantified arising out of the consequences of the defendant’s behavior. Coxe Property Management and Leasing v. Woods, 09-1729 p. 4 (La.App. 4 Cir. 8/11/10), 46 So.3d 258, 260. The standard of review for special damages was set forth by the Louisiana Supreme Court in Kaiser v. Hardin, 06-2092, pp. 1112 (La.4/11/07), 953 So.2d 802, 810:

Special damages are those which have a “ready market value,” such that the amount of the damages theoretically may be determined with relative certainty, including medical expenses and lost wages. McGee v. A C and S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770. In reviewing a jury’s factual conclusions with regard to special damages, an appellate court must satisfy a two-step process based on the record as a whole: There must be no reasonable factual basis for the trial court’s conclusions, and the finding must be clearly wrong. Guillory v. Ins. Co. of North America, 96-1084 (La.4/8/97), 692 So.2d 1029.

In this case, the jury awarded Ms. Pirtle $15,000.00 for her past medical expenses and made no award for future medical expenses. In reviewing the jury’s award of special damages, we must determine whether there was a reasonable factual basis for the jury’s conclusion that not all of Ms. Pirtle’s claimed medical expenses were related to the accident and that she would incur no medical expenses in the future related to the accident, and also whether the jury’s conclusion was clearly wrong.

Because the jury obviously concluded that the only injury caused by the automobile accident was Ms. Pirtle’s neck injury, they could not make an award for the medical expenses related to her back injury. The evidence supports the jury’s conclusion that only Ms. Pirtle’s neck injury was caused by the accident, and we do not find this conclusion to be clearly wrong. Furthermore, although the special damages award of $15,000.00 does seem to be an arbitrary amount, it was difficult to determine exactly which medical expenses were related to her back injury and which were related to her neck injury since on several visits she mentioned both. As the defendants have not appealed the amount of the award, we will let it stand.

| ¿¡CONCLUSION

For the reasons set forth herein, the judgment appealed from is affirmed, and the costs of this appeal are cast to the plaintiff, Lacy Nicole Pirtle.

AFFIRMED.

HUGHES, J., dissents with reasons.

HUGHES, J.,

dissenting.

hi respectfully dissent. Given the medical expenses of the plaintiff, I conclude the general damages awarded are unreasonably low.

      . Ms. Pirtle's description of the accident given on June 30, 2005 in a personal injury questionnaire at the Back and Neck Clinic of Louisiana differed in some respects from her testimony at trial. In the personal injury questionnaire, she stated that she hit her head on the steering wheel because her seat belt did not "catch” and then returned to the headrest. She did not mention striking her head on the window of the car and claimed that although she was wearing her seatbelt, the position she was in caused it not to "catch.”

      . Ms. Etheredge testified that they crossed over boat wakes on the tube, making the ride rough, and they were all hurting when they got off the tube.


author: HUGHES, J.

text:
    Kenneth ABNEY v. GATES UNLIMITED, L.L.C.
    No. 2011 CA 1242.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2012.

      Kenneth Abney, Houma, LA, Plaintiff/Appellant Pro Se.
    Michael J. Taffaro, W. Michael Stem-mens, M. Todd Alley, Jennifer E. Freder-ickson, Baton Rouge, LA, for Defendant/Appellee Gates Unlimited, L.L.C.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   HUGHES, J.

| ¡.This is an appeal of a judgment of the Office of Workers’ Compensation, granting defendant/appellee’s motion for summary judgment and dismissing plaintiff/appellant’s claim with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 6, 2010, Mr. Kenneth Abney filed a “Disputed Claim for Compensation” with the Office of Workers’ Compensation (OWC), alleging that Gates Unlimited, L.L.C. (Gates Unlimited) had failed to pay, or timely pay, indemnity benefits or medical expenses for an injury he allegedly sustained while working in the course and scope of his employment with Gates Unlimited. Specifically, Mr. Abney alleged that on January 18, 2010, he was working as a laborer with Gates Unlimited in Gonzales and that around 11:30 a.m., while carrying a post uphill, he slid and fell, injuring his back. As a result, Mr. Abney alleged that he is entitled to total temporary disability benefits and/or supplemental earnings benefits and/or total and permanent disability.

On June 8, 2010, Gates Unlimited filed an answer to the petition, denying the claims asserted by Mr. Abney. Specifically, Gates Unlimited denied that Mr. Abney could have sustained a work-related accident in the course and scope of his employment with Gates Unlimited on the basis that Mr. Abney had never been an employee of Gates Unlimited. Thereafter, on December 21, 2010, Gates Unlimited filed a supplemental and amending answer to include allegations that Mr. Abney had made material misrepresentation in regards to his workers’ compensation claim, citing LSA-R.S. 23:1208.

|sOn December 28, 2010, Gates Unlimited filed a motion for summary judgment, alleging that the claims of Mr. Abney should be dismissed, as there were no genuine issues of material fact in the case. Gates Unlimited attached to its motion the “Disputed Claim for Compensation” filed by Mr. Abney, an affidavit of the owner of Gates Unlimited, two affidavits of other Gates Unlimited employees, and the certified medical records of Mr. Abney’s January 19, 2010 visit to the Ochsner Medical Center of Baton Rouge. A hearing was scheduled on the motion for summary judgment for February 2, 2011. The hearing was continued to April 8, 2011, and Mr. Abney was ordered to file any opposition thereto on or before March 31, 2011.

The hearing was held on April 8, 2011 with Mr. Abney appearing pro se. A judgment was signed on April 20, 2011, granting the motion for summary judgment in favor of Gates Unlimited and dismissing all claims of Mr. Abney with prejudice. This appeal followed. Gleaning from the “Briefs of Case” filed by Mr. Abney, he appeals the judgment of the OWC on the basis that the affidavits provided by Gates Unlimited are “not true at all ... and I feel if they [were] on the stand they would change [their] mind[s] when on the spot.” Additionally, Mr. Ab-ney complains that his witness, |4Holly Bonnier, did not come to court “because of Michael Taffaro did not call her to court.”

LAW AND ANALYSIS

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by LSA-C.C.P. art. 969; the procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). Summary judgment shall be rendered in favor of the mover if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

An appellate court reviews an OWC’s decision to grant a motion for summary judgment in workers’ compensation cases de novo, using the same criteria that govern the OWC’s consideration of whether summary judgment is appropriate. Revere v. Dolgencorp, Inc., 04-1758, p. 3 (La.App. 1 Cir. 9/23/05), 923 So.2d 101, 103, Newman v. Richard Price Construction, 02-0995, p. 3 (La.App. 1 Cir. 8/8/03), 859 So.2d 136,139.

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Ml doubts should be resolved in the non-moving party’s favor. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (per cu-riam).

IsA fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id,., 04-0806 at p. 1, 876 So.2d at 765-66.

On motion for summary judgment, the burden of proof remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. See LSA-C.C.P. art. 966(C)(2).

When a motion for summary judgment is made and supported as provided in LSA-C.C.P. art. 967(A), an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in LSA-C.C.P. art. 967(A), must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B). See also Board of Supervisors of Louisiana State University v. Louisiana Agricultural Finance Authority, 2007-0107, p. 9 (La.App. 1 Cir. 2/8/08), 984 So.2d 72, 79-80; Cressionnie v. Intrepid, Inc., 2003-1714, p. 3 (La.App. 1 Cir. 5/14/04), 879 So.2d 736, 738.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only |fiin light of the substantive law applicable to the case. Richard v. Hall, 2003-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137; Dyess v. American National Property and Casualty Company, 2003-1971, p. 4 (La.App. 1 Cir. 6/25/04), 886 So.2d 448, 451, writ denied, 2004-1858 (La.10/29/04), 885 So.2d 592; Cressionnie v. Intrepid, Inc., 2003-1714 at p. 3, 879 So.2d at 738-39.

The Workers’ Compensation Act provides coverage to an employee for personal injury by accident arising out of and in the course of his employment. An employee must prove the chain of causation required by the workers’ compensation statutory scheme as adopted by the legislature, and must establish that the accident was employment-related, that the accident caused the injury, and that the injury caused the disability. Clausen v. D.A.G.G. Construction, 2001-0077, p. 2 (La.App. 1 Cir. 2/15/02), 807 So.2d 1199, 1201, writ denied, 2002-0824 (La.5/24/02), 816 So.2d 851.

In order to succeed on his claim, Mr. Abney must at least prove that he was an employee of Gates Unlimited. Gates Unlimited emphatically denies that Mr. Abney was ever its employee. In support of its motion for summary judgment, Gates introduced the following affidavits:

1. Affidavit of James Lemoine, Jr.

Mr. Lemoine, Jr. states that he is the owner of Gates Unlimited, and that Kenneth Abney has never been employed by Gates Unlimited L.L.C., has never performed any work for Gates Unlimited, L.L.C., has no personnel file, and has never been issued a W-2 or 1099 by Gates Unlimited, L.L.C.

2. Affidavit of Larry Benoit

Mr. Benoit states Kenneth Abney is his brother. Mr. Benoit further states that while he is employed with Gates Unlimited as an estimator, his brother has never been employed with Gates Unlimited, and has not |7performed any work for Mr. Be-noit relative to Mr. Benoit’s employment with Gates Unlimited.

3. Affidavit of James Lemoine, Sr.

Mr. Lemoine, Sr. states that he is an employee of Gates Unlimited and was working at Gates Unlimited’s only fencing job on January 18, 2010. He stated that the job was in East Baton Rouge Parish, at a residence in the Country Club of Louisiana, that he and Marshall Lippett were the only employees of Gates Unlimited at that job, and that Kenneth Abney was not present at that job site. To his knowledge, Kenneth Abney had never been an employee of Gates Unlimited.

Further, Gates Unlimited introduced the certified medical records of Mr. Kenneth Abney from his visit to the Ochsner Medical Center of Baton Rouge. The certified bills show that Mr. Abney presented to Ochsner on January 19, 2010 at approximately 1:35 p.m. with complaints of “pain/injury” to his back sustained “today” as a result of a fall at “home.”

As such, Gates Unlimited supported its motion with affidavits and other evidence, as required by LSA-C.C.P. art. 966. Therefore, because Mr. Abney will bear the burden of proof at a trial on the merits, the burden shifted to him to produce factual support sufficient to establish that he would be able to satisfy his evidentiary burden of proof at trial, ie., that he was at least an employee of Gates Unlimited. Because he failed to produce any evidence, apart from the allegations in his pleadings (upon which he cannot rely), there is no genuine issue of material fact and summary judgment must be granted. We find no error herein.

CONCLUSION

For the reasons assigned herein, the motion to dismiss filed by defendant/appel-lee, Gates Unlimited, L.L.C., is denied. The judgment of the |8Office of Workers’ Compensation, granting the motion for summary judgment in favor of the defendant/appellee, Gates Unlimited, L.L.C., is affirmed. All costs of this appeal are to be borne by plaintiffiappellant, Kenneth Ab-ney.

MOTION DENIED; JUDGMENT AFFIRMED.

      . At the time of the filing of the claim, on April 6, 2010, Mr. Abney was represented by Robert Booksh, Jr., of John Fox & Associates. Mr. Booksh requested to withdraw as counsel and the court granted that request by signed order on April 27, 2010. Thereafter, attorney Morgan T. Allison filed a motion to enroll on Mr. Abney’s behalf, but also requested to withdraw. The court granted that request by signed order on October 14, 2010.

      . We note that Gates Unlimited filed a "Motion and Order to Strike Appellant’s Brief and Sanctions and to Dismiss” on the basis that the brief filed by Mr. Abney does not comply with the Uniform Rules-Louisiana Courts of Appeal. While we agree that the brief fails to comply with the rules, in the interests of justice, and in light of the appellant’s pro se status, we will nevertheless consider the brief. We therefore deny the motion.

      . According to the record, it appears that Mr. Abney attempted to subpoena Ms. Bonnier, but sent the subpoena to the office of opposing counsel by mistake. The court noted that Mr. Abney's mistake cannot be imputed to opposing counsel. We agree and also note that live testimony is not proper at a motion for summary judgment. As such, even had Ms. Bonnier appeared at the hearing, she would not have been allowed to testify.


text:
    HAT’S EQUIPMENT, INC. v. WHM, L.L.C.
    No. 2011 CA 1982.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2012.

      Rodney N. Erdey, Denham Springs, LA, for PlaintiffAppellant WHM, L.L.C.
    Jenel G. Secrease, Ponchatoula, LA, for Defendant/Appellee Hat’s Equipment, Inc.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   HUGHES, J.

Lin this suit on open account, defendant/appellant, WHM, L.L.C. (WHM) appeals the summary judgment rendered against it. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On February 2, 2009 WHM rented a Caterpillar 320CL (serial # PAB05589) from plaintiff/appellee, Hat’s Equipment, Inc. (Hat’s Equipment). The Caterpillar was rented on a month-to-month basis at the rate of $6,955.00 per month. WHM paid the first three month’s rental fees, but made no rental payments thereafter. The Caterpillar was returned, allegedly damaged, to Hat’s Equipment on July 19, 2009. On May 18, 2010 Hat’s Equipment sent WHM a demand letter via certified mail, pursuant to LSA-R.S. 9:278, demanding $20,865.00 for past due rental payments, and $25,778.19 for the alleged damage to the equipment. In its demand, Hat’s Equipment further stated that if payment was not received within thirty days, I3WHM would also be liable for attorney’s fees and court costs. The dispute eventually culminated in the filing of this suit on June 14, 2010.

In its original petition, Hat’s Equipment incorrectly named “White Horse Maintenance, Inc.” as the defendant. White Horse Maintenance, Inc. filed an answer to the suit and also exceptions, raising the objections of no right or cause of action and insufficiency of citation and service of process. In response, Hat’s Equipment filed an “Unopposed Motion and Order to Supplement and Amend Petition for Suit on Open Account” that was granted by the court by order signed on March 23, 2011. In the supplemental petition, Hat’s Equipment substituted WHM as defendant. Thereafter, WHM filed an answer, generally denying the allegations of the petition, and an exception raising the objection of prescription as to the claim for damages to the equipment. Hat’s Equipment filed a motion for summary judgment claiming that there were no genuine issues of material fact as to whether the debt was owed, or as to the amount of the debt. As such, it contended that summary judgment should be rendered in its favor as a matter of law.

WHM filed an opposition to the motion for summary judgment, wherein it re-urged its general denial of the allegations in the petition. WHM further claimed in its opposition memorandum that its answer and pending exception of prescription created general issues of material fact precluding summary judgment, and also alleged that the rental charges sought by Hat’s Equipment included additional months after WHM had |4advised Hat’s Equipment that its work was completed and the equipment was ready for pick-up.

At the hearing on the motion for summary judgment, both parties argued the issue of prescription. The trial court granted the motion for summary judgment and rendered judgment against WHM in the amounts of $20,865.00 for rental fees owed on the equipment, $25,778.19 for damages to the equipment, $1,200.00 for attorney fees, and $631.16 for court costs, with judicial interest from the date of demand. A judgment was signed on July 19, 2011. WHM appeals that judgment, alleging that the “trial court committed manifest and legal error in its finding of no genuine issue of material fact.”

LAW AND ANALYSIS

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by LSA-C.C.P. art. 969; the procedure is favored and shall be construed to accomplish these ends. LSA-C.C.P. art. 966(A)(2). Summary judgment shall be rendered in favor of the mover 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|5and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882; Allen v. State ex tel. Ernest N. Morial-New Orleans Exhibition Hall Authority, 02-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377; Boudreaux v. Vankerkhove, 07-2555, p. 5 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 729-30.

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

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. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id., 04-0806 at p. 1, 876 So.2d at 765-66.

Only when a motion for summary judgment is made and supported as provided in LSA-C.C.P. art. 967, may an adverse party not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in LSA-C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, | ^summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B). See also Board of Supervisors of Louisiana State University v. Louisiana Agricultural Finance Authority, 07-0107, p. 9 (La.App. 1 Cir. 2/8/08), 984 So.2d 72, 79-80; Cressionnie v. Intrepid, Inc., 03-1714, p. 3 (La.App. 1 Cir. 5/14/04), 879 So.2d 736, 738.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Richard v. Hall, 03-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137; Dyess v. American National Proper ty and Casualty Company, 03-1971, p. 4 (La.App. 1 Cir. 6/25/04), 886 So.2d 448, 451, writ denied, 04-1858 (La.10/29/04), 885 So.2d 592; Cressionnie v. Intrepid, Inc., 03-1714 at p. 3, 879 So.2d at 738-39.

To establish a prima facie case in a suit on open account, the creditor must prove the account by showing that the record of the account was kept in the course of business, and also introduce evidence regarding its accuracy. Jacobs Chiropractic Clinic v. Holloway, 90-1054 (La.App. 1 Cir. 10/18/91), 589 So.2d 31, 34. Once a creditor prevails in establishing its prima facie case, the burden then shifts to the debtor to prove the inaccuracy of the account or to prove that the debtor is entitled to certain credits. Jacobs Chiropractic Clinic v. Holloway, 589 So.2d at 34.

In support of its motion for summary judgment, Hat’s Equipment introduced the following evidence: 1) the Contract Agreement; 2) WHM’s account statement; 3) a letter dated 6/25/09 from Hat’s Equipment to WHM advising WHM of the damage to the Caterpillar and the necessary repairs; 4) an invoice itemizing the costs to repair the Caterpillar; and 5) a copy of the demand letter sent to WHM by Hat’s Equipment’s attorney, with proof of 17receipt by WHM. Hat’s Equipment attached no affidavits or deposition testimony to its motion.

WHM opposed the motion but produced no affidavits or deposition testimony in support of its opposition. However, the law is well settled that the record as a whole must show that all critical elements of the opposing party’s case have been put to rest, regardless of whether the opposing party filed counter affidavits. This is because the burden of proof, as stated above, is on the mover to present a prima facie ease; the opponent has nothing to prove in response to the motion if a prima facie case has not been made. Richardson v. Geico Indemnity Co., 10-0208, p. 8 (La.App. 1 Cir. 9/10/10), 48 So.3d 307, 312, writ denied, 10-2473 (La.12/17/10), 51 So.3d 7, Estain v. U.S. Dept. of Transp. and Development, 01-0554 (La.App. 1 Cir. 5/10/02), 819 So.2d 375, 378.

Therefore, while Hat’s Equipment supported its motion with the contract, the account statement, and an invoice of damages, it did not verify the accuracy of the statement or invoice by affidavit or deposition testimony, as required. Neither did it produce an affidavit or deposition to prove that the records were kept in the course of business. Because Hat’s Equipment failed to prove the account by showing that the record of the account was kept in the course of business, and also neglected to introduce evidence regarding its accuracy, we must conclude that it failed to establish a prima facie case. See Nail v. Germania Plantation, Inc., 96-1602 (La.App. 1 Cir. 5/9/97), 693 So.2d 1294, see also St. Tammany Parish Hospital v. Burris, 00-2639 (La.App. 1 Cir. 12/28/01), 804 So.2d 960, see also National Gypsum Company v. Ace Wholesale, Inc., 96-215 (La.App. 5 Cir. 11/26/96), 685 So.2d 306, writ denied, 96-3055 (La.2/7/97) 688 So.2d 502.

| sConsequently, the burden of proof never shifted to WHM. WHM had nothing to prove in response to the motion and was still entitled to rest on the denials of its pleadings. As such, there are genuine issues of material fact as to the existence of the debt, the amount owed, and the amount of the damages to the equipment, if any. The trial court erred in granting summary judgment. For the reasons assigned above, we reverse the trial court judgment and remand this case for further proceedings.

CONCLUSION

For the reasons assigned herein, the judgment of the Twenty-First Judicial District Court, granting the motion for summary judgment in favor of the plaintiff/appellee, Hat’s Equipment, Inc., is reversed. This case is remanded to the district court for further proceedings. The costs of this appeal are assessed to plaintiff/appellee, Hat’s Equipment, Inc.

REVERSED AND REMANDED.

      . Louisiana Revised Statutes 9:2781 states, in pertinent part, that:
      A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefore] correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debtor shall be liable for the claimant’s attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment on the claim is rendered in favor of the claimant. Receipt of written demand by the person is not required.
      . * * * * * *
      F. If the judgment creditor incurs attorney fees after judgment on the principal demand associated with enforcement of the judgment, the judgment creditor may obtain judgment for those attorney fees and additional court costs by filing a rule to show cause along with an affidavit from counsel for the judgment creditor setting forth the attorney fees incurred. If the judgment debtor does not file with the court a memorandum in opposition at least eight days prior to the hearing on the rule, the court may award the attorney fees and court costs as prayed for without the necessity of an appearance in court by counsel for the judgment creditor. The rule to show cause shall include notice to the judgment debtor of the consequences under this Subsection of not timely filing a memorandum in opposition. The amount of any post-judgment award of attorney fees and costs shall be added to the total to be recovered on the principal demand through any existing writ or garnishment proceedings.

      . While no assignments of error are raised regarding the substitution, we note that White Horse Maintenance, Inc. appears from the record to essentially be the predecessor of WHM, L.L.C. Both are composed of the same individuals, Shannon and Michelle Mack. White Horse Maintenance, Inc.'s charter was revoked in 2008. As such, it was not in existence at the time the contract was signed. However, according to the contract, the "Customer” is "White Horse WHM, L.L.C.” The contract was signed by Michelle Mack and the demand letter sent by Hat’s Equipment was signed as received by Michelle Mack.

      . While the trial court did not specifically so state on the record, it appears that the exception of prescription was overruled. As discussed below, it is clear from the transcript of the hearing and the face of the pleadings that the claims of Hat's Equipment regarding the alleged damages to the Caterpillar did not prescribe.
      WHM argued that the portion of the claim for the damages to the rented equipment is a delictual action based on negligence and is subject to the one-year prescriptive period found in LSA-C.C. art. 3492. Hat's Equipment argued that the damages arise from an open account and are governed by the three-year prescriptive period found in LSA-C.C. art. 3194. Alternatively, Hat’s Equipment argued that the damages amount to a breach of contract and are not prescribed until the passage of ten years.
      Nevertheless, even if we assume that the claim for damages prescribed in one year, prescription began to run on the date that Hat's Equipment knew, or should have known, of the damages. See Harvey v. Dixie Graphics, Inc., 593 So.2d 351, (La.1/17/92). The terms of the contract require that the lessee (WHM) return the tractor to the lessor (Hat’s Equipment). It is uncontested that WHM did not return the equipment until July 19, 2009. Suit was filed on June 14, 2010. As such, even under LSA-C.C. art. 3492, the claim for damages had not prescribed at the time the suit was filed. Moreover, WHM did not assign error to the trial court's ruling on the exception.