author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    PRIVATE CONNECTION PROPERTY, INC., et al. v. FOX CARS, LLC, et al.
    No. 2008-CA-1129.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 2009.
    Rehearing Denied March 18, 2009.

      James E. Uschold, James E. Uschold, PLC, New Orleans, LA, for Plaintiffs/Appellants Private Connection Property, Inc. and Wesley Alden, M.D.
    Michael Q. Walshe, Jr., Justin P. Le-maire, Stone Pigman Walther Wittmann L.L.C., New Orleans, LA, for Defendant/Appellee Insurance Auto Auctions Corp.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge DAVID S. GORBATY).
   JOAN BERNARD ARMSTRONG, Chief Judge.

LThe plaintiffs, Private Connection Property, Inc. (hereinafter PCP) and Wesley Alden, M.D., appeal the trial court’s judgment sustaining exceptions of no right of action and no cause of action filed by the defendant, Insurance Auto Auctions (hereinafter IAA). For the reasons that follow, we affirm.

According to plaintiffs’ original petition, filed on June 21, 2007, PCP entered into an oral lease agreement with defendant Fox Cars, L.L.C. (hereinafter Fox), allowing Fox to operate an auto workshop and store autos at premises located on Earhart Boulevard in New Orleans. Defendant Luis Medina negotiated the lease and represented that he was part owner of Fox. PCP alleges that between June 1 and October 31, 2006, it sustained the following damages: unpaid rent; stolen or damaged autos; lost, stolen, or damaged tools and shop equipment; lost, stolen, or damaged car parts; and damage to the buildings and other improvements located on the leased premises. Dr. Alden alleges that some of the lost, stolen, or damaged items were his personal property.

LThe plaintiffs allege that the individual defendants, Ramon Cruz, Alma Cruz and Luis Medina, are members and/or managers of Fox.

The original petition also contains a breach of contract claim against IAA, a licensed used motor vehicle dealer. IAA is an auction company used primarily by insurance companies to dispose of salvage vehicles. According to the petition, certain auctions were held in Baton Rouge, Louisiana between June 1 and October 31, 2006. Fox was the holder of a Louisiana Buyer Identification Card (BID card) allowing it to purchase vehicles at IAA auctions. The plaintiffs allege that IAA allowed Mr. Medina to bid on vehicles at IAA auctions in the name of and as an agent or representative of Fox, while knowing that he was in fact bidding for himself and not for Fox. The plaintiffs allege that IAA listed vehicles purchased on Mr. Medina’s bids as having been purchased by Fox, and issued titles in Fox’s name.

According to the original petition, in June of 2006, Dr. Alden entered into an arrangement with Mr. Medina and Fox in which Fox and Mr. Medina would bid at IAA auctions for the mutual benefit of Dr. Alden, Fox and Mr. Medina. Pursuant to this agreement, Fox, through Mr. Medina, would bid on the cars; Dr. Alden would pay the purchase price; IAA would issue titles to Fox; Fox, through Mr. Medina, would perform repairs at the leased premises; Fox, through Mr. Medina, would sell the cars to third parties; Dr. Alden and Fox would be reimbursed the purchase price and cost of repair's; and Dr. Alden and Fox, through Mr. Medina, would divide the balance of the sale price.

|3The plaintiffs allege that IAA, Fox and Mr. Cruz knew that Mr. Medina was acting solely in his own interest while using Fox’ status as a licensed used motor vehicle dealer, holder of a BID card, and registered IAA bidder. Furthermore, Dr. Alden claims he would not have entered into the agreement had he known that Mr. Medina was acting for his own account.

Dr. Aden allegedly provided $140,889 in cashier’s checks to pay for approximately one hundred seventeen vehicles purchased by Fox from IAA, which titled all the vehicles to Fox. In November of 2006, Dr. Aden learned that Mr. Medina and/or Fox had been selling these vehicles to third parties without reimbursing Dr. Aden or paying him his share of the profits.

IAA filed a dilatory exception of vagueness on August 28, 2007. On April 1, 2007, the plaintiffs filed a First Amended Petition for Damages. In that petition, the plaintiffs re-titled their Breach of Contract claim against IAA, Fox and the individual defendants as “Negligence, Gross Negligence, And/Or Fraud.” Upon information and belief, the plaintiffs alleged a violation of the Louisiana Recreational and Used Motor Vehicle Commission Act, La. R.S. 32:781, et seq. (hereinafter the Act). Plaintiffs alleged that it was IAA’s actual practice to allow persons or entities other than registered buyers with a Louisiana BID card issued by the Louisiana Recreational and Used Motor Vehicle Commission (hereinafter the Commission) to sign in and bid at auctions under the name(s) of registered buyers. The plaintiffs allege that Fox, Ramon Cruz and IAA knew or should have 14known that Mr. Medina was in fact bidding on his own behalf, and negligently and/or grossly negligently allowed Mr. Medina to place bids at IAA auctions. The plaintiffs allege that IAA allowed Mr. Medina to bid in Fox’s name; knew he was an agent and/or representative of Fox; allowed him to bid on and purchase vehicles using the name Ramon Cruz; and knew Mr. Medina had no authority to bid except as Fox’s agent and/or representative. The plaintiffs alleged in the alternative that IAA knew that Mr. Medina was not Fox’s authorized agent or representative; knew he was using his claimed status to place bids but was in fact bidding for himself and not for Fox; and listed those vehicles for which Mr. Medina was the winning bidder as having been purchased by Fox and issued the titles in Fox’s name. The plaintiffs claim that Fox, Ramon Cruz and IAA were “knowing, willing, negligent, and/or grossly negligent co-conspirators and/or accessories to the fraud” perpetrated on Dr. Aden.

IAA withdrew its Dilatory Exception of Vagueness and filed Peremptory Exceptions of No Right of Action and No Cause of Action to the First Amended Petition for Damages, alleging the following:

(1) The plaintiffs’ claim for violations of the Louisiana Recreational and Used Motor Vehicle Commission Act is subject to the Peremptory Exception of No Cause of Action because the Act does not provide for a private right of action;

(2) To the extent that the amended petition is construed as alleging that IAA was a party to a business agreement involving Dr. Aden, Fox, and Mr. Medina, the amended petition discloses that IAA fulfilled all of its alleged obligations under the |/¡alleged agreement, so that IAA cannot be liable to the plaintiffs for a breach of contract;

(3) To the extent that the amended petition is construed as alleging that IAA was not a party to the alleged business agreement, but is nonetheless liable for allowing a breach of that agreement to occur, the peremptory exception of no cause of action is based on the fact that there is no cause of action under Louisiana law against a non-party who allows a breach of contract to take place;

(4) To the extent that the plaintiffs seek to assert a claim for delictual fraud against IAA, the petition is subject to the peremptory exception of no cause of action because there is no allegation that IAA made any misrepresentation of material fact with intent to deceive the plaintiffs;

(5) To the extent that the plaintiffs seek to assert a negligence claim, IAA asserts the peremptory exception of no cause of action because, even assuming the truth of the amended petition’s allegations, the plaintiffs have not alleged the existence or breach of any legal duty IAA might have owed to the plaintiffs. Furthermore, the acts of persons other than IAA would be the superseding and sole legal cause of damages allegedly suffered by the plaintiffs.

The exceptions were heard in the trial court on July 25, 2008, and on August 1, 2008, the trial court entered judging granting the exceptions of no right of action and no cause of action, dismissing the Petition for Damages and First Amended Petition for Damages with prejudice. This appeal followed.

IfiWe note initially that the Act provides consumers with a private right of action if and only if a motor vehicle or recreational products dealer sells or transfers a flood-damaged vehicle without having informed the recipient, in writing, of the extent of flood damage. The recipient of that vehicle is authorized to bring an action to set aside the transaction. La. R.S. 32:789. The plaintiffs have not asserted any claims pursuant to that section of the Act.

We review the grant of the peremptory exception of no cause of action de novo. Industrial Companies, Inc. v. Durbin, 02-0665, p. 6 (La.1/28/03), 837 So.2d 1207, 1213.

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the particular plaintiff is afforded a remedy in law based on the facts alleged in the pleading. The exception is triable on the face of the petition and, for the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true.... Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. [Citations omitted.]
Id.

The party raising the exception, in this case IAA, carries the burden of proof. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170, p. 9 (La.3/2/99), 739 So.2d 748, 755.

|7It is clear that there is no privity of contract between the plaintiffs and IAA. Insofar as the original and amended petitions purport to state a claim by the plaintiffs against IAA for breach of contract, the petitions fail to disclose any basis for such a claim. Thus, the petitions fail to state a cause of action for breach of contract against IAA. Neither do we find any allegation that would state a cause of action for tortious interference with the contract(s) that may have existed between the plaintiffs, Fox and the individual defendants. Plaintiffs allege that, whatever IAA may have known or should have known about the relationships existing among Fox and the individual defendants, IAA nonetheless was presented by Mr. Medina with an apparently valid BID card, and IAA sold and titled the cars on which Mr. Medina successfully bid, not to Mr. Medina, but to Fox.

The plaintiffs allege that the transactions in questions took place between June 1 and October 31, 2006. Prior to August 14, 2006, salvage sales of used vehicles were governed by Chapters 4-A and 4-B of Title 32, entitled, respectively, “Automotive Dismantlers and Parts Recyclers; Motor Vehicle Crushers; and Scrapped Motor Vehicle Dealers”; and “Used Motor Vehicle Dealers and Marine Product Dealers”, La.R.S. 32:751 et seq. and La.R.S. 32:771 et seq. La.R.S. 32:772 created the Used Motor Vehicle and Parts Commission (hereinafter the Commission), and provision was made for licensing, inter alia, used motor vehicle auctions and salvage pools that deal in used motor vehicles. La.R.S. 32:752; La.R.S. 32:773 A. (4); La.R.S. 32:774. La.R.S. 32:762 provided in relevant part:

A. Sales of motor vehicles at a salvage pool, salvage- disposal sale, or through an insurance company shall be opened only to persons ^possessing a Louisiana buyer’s identification card to buy such motor vehicles as provided in this section.
C. It shall be the duty of the owner, manager, or person in charge of any salvage pool or salvage disposal sale, to prohibit the bidding by any person who does not display a buyer’s identification card, to refuse to sell to any person any wrecked or repairable motor vehicle if such person does not display a valid buyer’s identification card and to prohibit any person without a buyer’s identification card to be present at the bidding site during a sale. Each buyer’s identification card holder may be accompanied by a mechanic or other technician.

By Acts 2006, No. 440, effective August 15, 2006, the Louisiana legislature repealed Chapters 4-A and 4-B, and enacted Chapter 4-C, entitled Louisiana Recreational and Used Motor Vehicle Commission, La. R.S. 32:781 et seq. La.R.S. 32:784 A. (4) retains the licensing requirement found in La.R.S. 32:773 A. (4) and La.R.S. 32:774 for persons who carry on the business of used motor vehicle auctions and salvage pools that deal in used motor vehicles. La.R.S. 32:808(A) retained the requirement of prior La.R.S. 32:762(A) that salvage pool or disposal sales shall be opened only to persons possessing a Louisiana buyer’s identification card. La.R.S. 32:808(C) retained the duty set forth in prior La.R.S. 762(C). We note that the buyer identification card requirement was repealed by Acts 2007, No. 257; however, it was in effect during the period relevant to the instant litigation.

The plaintiffs claim that IAA violated the Act by allowing Mr. Medina to bid on cars at IAA auctions although he did not possess a valid BID card. The plaintiffs also allege that Mr. Medina bid using Fox’s name, and that Fox did possess a valid BID card. Furthermore, the petitions allege that IAA sold the vehicles in question to Fox, not to Mr. Medina individually, and issued titles for | nthe vehicles to Fox, not to Mr. Medina individually. Since IAA sold the vehicles to Fox, a holder of a valid BID card, and titled the vehicles to Fox, we find that the plaintiffs have not alleged a violation of the Act. We find nothing in the statutory language, legislative histories, or jurisprudence to support the contention, implicit but unstated in the amended petition, that a person in IAA’s position has an affirmative duty to go behind the presented bid card and to investigate whether the presenter of the card had authority to bid on behalf of the cardholder, specifically, where the vehicle is sold to and titled to the cardholder and not to the person who presented the card.

Having found that the allegations of the petition do not set forth a violation of the Act, the issue of per se negligence is moot.

The plaintiffs allege in their amended petition that IAA engaged in a conspiracy with Mr. Medina, Mr. Cruz and Fox to defraud Dr. Alden. In Louisiana, legal responsibility in tort is determined by application of a duty/risk analysis. This analysis requires the plaintiff to prove four distinct elements: (1) existence of a duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) the breach is a cause in fact of damage; and (4) actual damage was sustained by the plaintiff. Becnel v. Grodner, 07-1041, p. 3 (La.App. 4 Cir. 4/2/08), 982 So.2d 891, 894. All four elements must be affirmatively proven in order for a plaintiff to recover. Id., citing Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94), 646 So.2d 318, 326.

|10In this case, IAA’s duty was defined during the relevant period by La.R.S. 32:762 C (from June 1 through August 14, 2006) and by La.R.S. 32:808 C (from August 15 through October 31, 2006). The original and amended petitions contain no allegations that IAA breached those duties.

In order to recover for delictual fraud, a plaintiff must show, in addition: (1) a misrepresentation of material fact; (2) made with the intent to deceive; (3) causing justifiable reliance with resultant injury. Id.

While Louisiana law does not require technical forms of pleading, in pleading fraud, plaintiffs must allege with particularity the circumstances constituting the fraud. Malice, intent, knowledge, and other conditions of mind of a person may be alleged generally. La.C.Civ.Proc. arts. 854 and 856. It is insufficient to plead merely that a defendant defrauded a plaintiff.

Applying the foregoing principles to the plaintiffs’ original and amended petitions, we find no allegation that IAA misrepresented any material fact to either plaintiff. The plaintiffs admit in them amended petition that, whether IAA knew or did not know that Mr. Medina allegedly acted for his own account and not for Fox, whose BID card he presented, IAA in fact sold and titled the vehicles in question to Fox, and not to Mr. Medina. There is no allegation that IAA misrepresented any fact to the plaintiffs or, indeed, that IAA had any direct dealings or communications with the plaintiffs. Absent the allegation of such a misrepresentation of material fact, the petition and amended petition fail to state a cause of action for delictual fraud.

[^Having found that the original and amended petitions do not state a cause of action against IAA for which relief could be granted, the trial court’s judgment granting IAA’s exception of no right of action is moot.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . The responses filed by the other defendants are irrelevant to the issues presented in this appeal.

      . Transactions from June 1, 2006 through August 14, 2006 were governed by La.R.S. 32:774.2. Acts 2006, No. 440, effective August 15, 2006, extended coverage to recreational vehicles.


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    Elizabeth BOSWORTH v. ALPHA MUTUAL, L.L.C., Jean Lafitte Enterprises, L.L.C., Turnkey Realty, L.L.C., Duane G. Crump a/k/a Gerald D. Crump, Henry L. Robards, Sr., Henry L. Robards, Architect, a Professional Corporation, Norman Mopsik, Individually, Norman Mopsik, a Professional Law Corporation and Continental Casualty Company.
    No. 2008-CA-0999.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 11, 2009.

      George R. Blue, Jr., George R. Blue, Jr., L.L.C., Covington, LA, for Plaintiff/Appellant.
    David S. Daly, Allen & Gooch, Metairie, LA, for Defendants/Appellees (Norman Mopsik, Individually and Norman Mopsik, APLC, and Continental Casualty Ins. Co.).
    Gregory W. Roniger, Law Offices of Sheryl Story, Metairie, LA, for Defendants/Appellees (Transportation Ins. Co., Claudia S. Haupt, Alpha Mutual L.L.C., Jean Lafitte Enterprises, L.L.C. and Turnkey Realty, L.L.C.).
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).

      . Writs taken from the March 21, 2005 judgment were denied by this Court. Bosworth v. Alpha Mutual, L.L.C., et al, 2005-0616 (La.App 4 Cir. 6/29/06), unpub. The Louisiana Supreme Court denied writs. Bosworth v. Alpha Mutual, L.L.C., et al, 2005-1912 (La.2/3/06, 922 So.2d 1180), unpub.

   MICHAEL E. KIRBY, Judge.

11Plaintiff, Elizabeth Bosworth (“Ms. Bosworth”), and defendants, Norman Mop-sik, individually, Norman Mopsik, A.P.L.C. (“Mopsik”), and Mopsik’s professional liability insurer, Continental Casualty Company (collectively “appellants”), jointly appeal the September 12, 2007 judgment granting an exception of prescription in favor of defendants/appellees, Alpha Mutual, L.L.C., Jean Lafitte Enterprises, L.L.C., Turnkey Realty Corporation, Diane G. Crump, Henry I. Robards, Sr., and Henry I. Robards, Architect, A Professional Corporation. For the reasons that follow, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY:

On April 16, 2001, Ms. Bosworth was injured in a trip and fall at her place of employment with the Louisiana Office of Community Service/Department of Social Services in Chalmette, Louisiana. Shortly after the accident, Ms. Bosworth began receiving voluntary compensation benefits from her employer. Medical |-¿benefits continued until September 4, 2001, and wage benefits were paid through June 21, 2001.

On April 11, 2003, Ms. Bosworth filed a tort action against defendants/appellees arising out of her workplace accident. In the same action, Ms. Bosworth alleged the legal malpractice of Mopsik, her previous attorney, for failing to file the tort suit within the one year prescriptive period.

Defendants/appellees filed exceptions of prescription, asserting that the tort action was prescribed on its face. Ms. Bosworth and Mopsik opposed the exception, arguing that the prescriptive period for the tort suit was interrupted by the timely filing of a 1008 Claim Form with the Office of Workers’ Compensation (“OWC”). Defendants/appellees counter that Ms. Bos-worth’s workers’ compensation claim was not timely filed.

La. R.S. 23:1209 B provides that the filing of a workers’ compensation claim shall be deemed timely when the claim is mailed on or before the prescription date of the claim. Mopsik maintains that he timely mailed the claim to the OWC in Baton Rouge on April 12, 2002, within one year of Ms. Bosworth’s April 16, 2001 accident. Defendants/appellees submit that the evidence shows the claim was not mailed to Baton Rouge on April 12, 2002, but was hand-delivered to the OWC in New Orleans on April 18, 2002, two days late.

Prior to the rendering of the judgment herein, the trial court twice refused to grant the exception of prescription. On April 28, 2004, the exception of [^prescription was referred to the merits. On March 21, 2005, the trial court denied the exception of prescription, finding: “the testimony of Mr. Mopsik to be credible and trustworthy to establish the claim form was timely mailed within the prescriptive period.”

Following the first two rulings on the exception of prescription, defendants/ap-pellees deposed OWC administrative employees, Audrey Scott (“Ms. Scott”) and Christine Melford (“Ms. Melford”) to determine the exact date and method of the filing of Ms. Bosworth’s workers’ compensation claim. The exception of prescription was then re-urged, and the matter was brought before the trial court for a third time on September 7, 2007. Based on the deposition testimony, the trial court determined that the workers’ compensation claim was not timely filed. Judgment was rendered on September 12, 2007, granting the exception of prescription in favor of defendants/appellees. Appellants’ motion for new trial was denied on November 6, 2007. This devolutive appeal followed.

DISCUSSION:

Appellants assert that the trial court erred in granting the exception of prescription based upon the finding that Ms. Bosworth’s workers’ compensation |,|Claim was not timely filed. Appellants further argue that the trial court erred in denying the motion for new trial.

Exception of Prescription:

Ordinarily, the exceptor bears the burden of proof on trial of the peremptory exception, including the objection of prescription. SS v. State, Dept. of Social Services, 2002-0831, pp. 6-7 (La.12/4/02), 831 So.2d 926, 931; see also Primus v. Touro Infirmary, 2005-0062, p. 2 (La.App. 4 Cir. 1/25/06), 925 So.2d 609, 610. It is only where a petition reveals on its face that prescription has run that the burden shifts to the plaintiff to show that his action has not prescribed. SS v. State, 2002-0831, p. 7, 831 So.2d at 931; Primus, 2005-0662, p. 2, 925 So.2d at 610.

Ms. Bosworth’s tort action is clearly prescribed on its face. Therefore, the burden shifted to Ms. Bosworth to prove that the prescriptive period had been interrupted.

Prescription is interrupted when the obligee commences action against the obligor in a court of competent jurisdiction and venue. La. C.C. art. 3462. It is well settled law in Louisiana that a timely filed workers’ compensation claim interrupts prescription on any tort claim that the worker might have against a third party for the same accident. Williams v. Sewerage and Water Board of New Orleans, 611 So.2d 1383 (La.1993).

The issue to be resolved in the present case is whether Ms. Bosworth’s workers’ compensation claim was timely filed. It is evident from the record that |sthe trial court relied on the deposition testimony of the two OWC employees to determine that the claim was not timely filed. The depositions of Ms. Scott, a supervisor in the Baton Rouge Office, and Ms. Melford, a dispute resolution specialist in the New Orleans Office, were taken on March 13, 2007. Although neither employee personally handled Ms. Bosworth’s claim at the time it was filed, Ms. Scott and Ms. Mel-ford testified to the practices and procedures of their respective offices.

After reviewing documents from Ms. Bosworth’s file, Ms. Scott and Ms. Melford each testified that the claim was filed in the New Orleans Office on August 18, 2002. They further testified that there is no indication from the record that the claim was ever received by the Baton Rouge Office.

Ms. Scott and Ms. Melford explained that if Ms. Bosworth’s claim had first been mailed to the Baton Rouge Office (District 5), as Mopsik contends, it would have a District 5 stamp showing the date and time received by that office. Moreover, if the claim was then forwarded to the New Orleans Office (District 8), it would receive a second stamp showing the date and time received by District 8. Ms. Boswoth’s claim form reflects only one stamp showing receipt by the New Orleans Office on August 18, 2002 at 10:56 a.m.

Ms. Scott and Ms. Melford further testified that a computer entry is generated for every workers’ compensation claim received. They explained that if Ms. Bos-worth’s claim had been received in Baton Rouge and forwarded to New | ^Orleans, there would be a computer entry from both offices. The record in this case shows only a computer entry from the New Orleans Office.

Finally, the computer entry for Ms. Bos-worth’s case reflects the postmark date as April 18, 2002, the same date on which the claim form was stamped as received by the New Orleans Office. Ms. Melford testified that this shows the claim form was hand delivered, not mailed.

Mr. Mopsik claims he personally mailed Ms. Bosworth’s workers’ compensation claim form to Baton Rouge on April 12, 2002. However, other than a cover letter dated April 12, 2002, Mr. Mopsik presented no evidence of such mailing. It is also evident from the record that no evidence was submitted to refute the testimony of Ms. Scott and Ms. Melford.

The evidence contained in the record clearly demonstrates that Ms. Bos-worth’s workers’ compensation claim was not mailed to the Baton Rouge Office on April 12, 2002, but was hand delivered to the New Orleans Office on April 18, 2002. Accordingly, the trial court did not err in granting the exception of prescription based on the finding that Ms. Bosworth’s-workers’ compensation claim was not timely filed.

The trial court also rejected appellants’ argument that the voluntary payment of workers’ compensation benefits to Ms. Bosworth interrupted prescription on her tort action. We agree with this finding. As the trial court correctly explained, it is well established law that voluntary payments of workers’ compensation benefits do not interrupt prescription "with regard to a worker’s claim against a third-party 17tortfeasor. Gary v. Camden Fire Insurance Company, 96-0055 (La.7/2/96), 676 So.2d 553, 556; Migliori v. Willows Apartments, 99-2784, 99-2799 (La.App. 4 Cir. 5/31/00), 765 So.2d 435, 437.

Motion for New Trial:

Finally, appellants submit that the trial court erred in denying the motion for new trial. Appellants argue that the judgment is contrary to the law and evidence because the trial court relied on the deposition testimony of two witnesses that lacked firsthand knowledge of the facts of this case.

La. C.C.P. art 1972 states that a new trial shall be granted “[wjhen the verdict or judgment appears clearly contrary to the law and the evidence.” La. C.C.P. art.1973 provides that a “new trial may be granted in any case if there is good ground therefore, except as otherwise provided by law.” The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion. Campbell v. Tork, Inc., 2003-1341 (La.2/20/04), 870 So.2d 968, 971.

After reviewing the record, we find no abuse of discretion in the trial court’s denial of the motion for new trial. Ms. Scott and Ms. Melford did not personally handle the intake of Ms. Bosworth’s claim. However, they did have first hand knowledge of the policies and procedures of the OWC. Furthermore, their undisputed testimony clearly established that Ms. Bos-worth’s claim was first filed in the New Orleans Office on August 18, 2002.

IsFor the foregoing reasons, the trial court’s judgment granting an exception of prescription in favor of defendants/appel-lees is affirmed.

AFFIRMED.

      . Defendants/appellees die owners, and/or insurers, contractors, and architects of the premises where the alleged trip and fall occurred.

      . Writs taken from the April 28, 2004 judgment were denied by this Court. Bosworth v. Alpha Mutual, L.L.C., et al, 2004-0902 (La.App. 4 Cir. 6/18/04), unpub. Writs to the Louisiana Supreme Court were also denied. Bosworth v. Alpha Mutual, L.L.C., et al, 2004-1783 (La.10/14/04), unpub.

      .The record does not contain a trial transcript of the September 7, 2007 hearing.


author: PER CURIAM. WHIPPLE, J., PETTIGREW, J.,

text:
    Vera M. RAINEY v. ENTERGY GULF STATES, INC. and Mike Case.
    No. 2006 CA 0816R.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Pettigrew, J., dissented and assigned reasons.
    Whipple, J., dissented and assigned reasons.
    Thomas More Flanagan, Stephen M. Pesce, Harold Jude Flanagan, New Orleans, LA, John A. Braymer, Baton Rouge, LA, for Defendant/Appellant Entergy Gulf States, Inc.
    Russell W. Beall, Baton Rouge, LA, for Plaintiffs/Appellees Joanne Mays and James McAllister.
    Leonard Cardenas, III, Baton Rouge, LA, In Proper Person as Intervenor.
    Before CARTER, C.J., WHIPPLE, PARRO, KUHN, GUIDRY, PETTIGREW, DOWNING, GAIDRY, McDonald, McClendon, and WELCH, JJ.

      . The Hon. Jefferson D, Hughes, III, J., re-cused himself from consideration of this matter.

   PER CURIAM.

| tIn an August 15, 2008 per curiam, this court sitting en banc decreed that the “trial court judgment stands” because this court had no executable majority to support a judgment. Rainey v. Entergy Gulf States, Inc., 06-0816 (La.App. 1st Cir.8/15/08), 993 So.2d 735. The supreme court then granted Entergy Gulf States, Inc.’s writ application, and in a December 12, 2008 per curiam, the supreme court remanded the matter to this court. Rainey v. Entergy Gulf States, Inc., 08-2233 (La.12/12/08), 996 So.2d 1058. Therein, the supreme court directed that the judges who had declined to reach the merits of the appeal because they found this court lacked jurisdiction “should now reach the merits ... in order that the appellate court may reach an executable majority judgment.” Id., 08-2233 at p. 2, 996 So.2d at 1058. Those judges have complied with the supreme court’s instructions, and a majority of the judges of this court now either agree or concur with Judge Kuhn’s August 15, 2008 concurring opinion. Rainey v. Entergy Gulf States, Inc., 06-0816, 993 So.2d at 741. Thus, a majority of the judges of this court find the trial court erred in concluding that Entergy Gulf States, Inc. was not Vera M. Rainey’s statutory employer at the time of her fall at Entergy’s Willow Glen facility.

Accordingly, that portion of the trial court’s May 31, 2007 judgment, which denied Entergy’s affirmative defense “of Vera Rainey’s status as Entergy’s statutory employee” is reversed, and the remaining portions of the judgment are vacated. Further, all claims of James A. McAllister, Joanne Mays, and Leonard A. Cardenas, III, against Entergy are dismissed.

REVERSED IN PART, VACATED IN PART, AND RENDERED.

GUIDRY, J., concurs.

WHIPPLE and PETTIGREW, JJ., dissent and assign reasons.

CARTER, C.J., and DOWNING, J., dissent for the reasons assigned by WHIPPLE, J.

WELCH, J., dissents.

WHIPPLE, J.,

dissenting.

lil disagree with the result occasioned by the per curiam, reversing the trial court’s judgment, which held Entergy Gulf States, Inc. (“Entergy”) liable for the damages sustained by plaintiff, Vera M. Rai-ney, on the basis that Entergy established the existence of a valid, written statutory employer contract between Entergy and ABB, thus establishing Entergy as Rai-ney’s statutory employer.

Entergy asserts the trial court erred in not finding it immune from tort liability, asserting it was Rainey’s statutory employer and that a valid written contract existed between Entergy and ABB recognizing this relationship. As such, Entergy contends the sole remedy available for the injuries sustained by Rainey is workers’ compensation benefits pursuant to La. R.S. 23:1032. Because Entergy seeks to avail itself of tort immunity under La. R.S. 23:1032, Entergy bears the burden of proving entitlement to the immunity. Weber v. State, 93-0062 (La.4/11/94), 635 So.2d 188, 191. Moreover, the statutory scheme that provides for a statutory employer defense must be strictly construed against the party who seeks the immunity. Weber, 635 So.2d at 193.

Louisiana Revised Statutes 23:1061 A(l) provides that when a “ ‘principal’ ... undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as a ‘contractor’, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032....” Under La. R.S. 1,23:1061 A(l), “work shall be considered part of the principal’s trade, business, or occupation if it is an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.” Louisiana Revised Statutes 23:1061 A(2) recognizes that “[a] statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.”

Prior to 1997, La. R.S. 23:1061 did not require a written contract to exist between the “principal” and “contractor” in order to establish a statutory employer relationship. In 1997, the Louisiana legislature amended La. R.S. 23:1061 to,add subsection A(3), which provides, in part:

Except in those instances covered by Paragraph (2) of this Subsection, a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer. (Emphasis added.)

See 1997 La. Acts, No. 315, § 1. In that same subsection, the legislature also added a rebuttable presumption of a statutory employer relationship between the principal and the contractor’s employees when a written contract exists between a principal and a contractor that recognizes the principal as a statutory employer. This presumption may be overcome only by showing that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services. La. R.S. 23:1061 A(3).

During the August 1, 2005 trial on En-tergy’s statutory employer defense, Rainey stipulated that the work performed by her and ABB at Willow Glen on February 15, 1999 was an integral part of Entergy’s trade, business, or occupation. Therefore, the dispute in this appeal is whether a valid written contract, which | ...recognizes Entergy as Rainey’s statutory employer, existed between Entergy and ABB prior to the February 15,1999 accident.

Entergy notes that in 1992, it and ABB entered into a “General Operations Agreement for Contracted Services,” bearing contract no. FHA00166 (“General Operations Agreement”). Entergy contends the General Operations Agreement met the necessary requirements then existing to allow Entergy to be considered the statutory employer of ABB’s employees. Following the 1997 amendment to La. R.S. 23:1061, which specifically requires the principal and contractor to enter into a written contract that recognizes the principal as a statutory employer, Entergy purportedly sent ABB a written addendum to the General Operations Agreement.

However, the intriguing question presented herein is whether Entergy established that the addendum was validly and timely executed before Rainey’s accident at issue. I agree that the trial court committed legal error in concluding that the written contract contemplated by LSA-R.S. 23:1061(A)(3) must be signed by both parties and that the addendum thus was not validly executed herein because it was not signed by Entergy. However, I am unable to find, on the record |4before us, that Entergy satisfied its burden of proving the existence of an authentic timely executed written addendum to its contract with ABB, or that it had been executed prior to Rainey’s accident herein.

Pursuant to the Louisiana Code of Evidence, “[t]he preliminary determination by the court that evidence is admissible does not limit the right of a party to introduce evidence relevant to weight or credibility at trial.” LSA-C.E. art. 104(D); see Rowe v. State Farm Mutual Automobile Insurance Company, 95-669 (La.App. 3rd Cir.3/6/96), 670 So.2d 718, 728 & n. 14, writ denied, 96-0824 (La.5/17/96), 673 So.2d 611. In the instant case, the circumstances surrounding the discovery of an undated addendum just days before the trial date are questionable at best. The trial court noted this issue in its reasons for judgment, stating that “there existed a purported written addendum to the original contract, stating that Entergy intended to be a statutory employer, even though there is some question as to the circumstances in which the addendum to the original contract was found.” (Emphasis added). However, because the trial court ruled, albeit incorrectly, that the addendum did not meet the legal requirements of a written contract, it did not reach the issue of whether the addendum had in fact been executed prior to the accident in question. To compound this error, the majority now rules on the merits without allowing the trial court to consider (and correct, if necessary) its error.

Where one or more legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and if the record is otherwise complete, the appellate court is obligated to make its own independent de novo review of the record and determine a preponderance of the evidence. However, where the weight of the evidence is so nearly equal that a firsthand view of the witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded for a new trial. Salassi v. State, Department of Public Safety and 5Corrections Administrative Hearing Section, 96-0321 (La.App. 1st Cir.11/15/96), 684 So.2d 1014, 1016.

In the instant case, Entergy produced the addendum a mere two days before the second trial setting, after having denied its existence during discovery. Also, Richard Duplantier, Jr., counsel for En-tergy throughout the first trial, testified by deposition that both in-house counsel for Entergy and in-house counsel for ABB supplied Duplantier with copies of the contracts, and that the copies supplied by both were the same. Notably, however, none of the contracts or addendums provided by Entergy or ABB to counsel contained the necessary language to support a statutory employer defense.

Moreover, it further appears that Enter-gy’s in-house counsel also made efforts to determine whether there was an addendum containing the statutory employer language. At his request, Cara Carpenter, the Entergy employee responsible for filing contracts, searched for any addendum in the ABB file, but found no such addendum. Only later, shortly before the new trial date, did Carpenter suddenly discover the February 27, 1998 letter, on top of a “working desk” or “working table” that was located outside of an employee’s office at Entergy’s offices. No reasonable explanation was given by any of the individuals involved as to how the document came to be on that desk or where the document had been throughout the pendency of this suit.

Additionally, while the letter in question was allegedly signed by Ronald Beckman, vice-president of ABB, he admitted that he did not date the document. Moreover, he admittedly had no personal knowledge as to when the letter was signed, who actually dated the document, or whether the date written on the document was the date on which he signed it. Aso, Michael Penni-son, an Entergy procurement specialist, testified that Entergy used- a computer program, the Contract Management Information Service, to internally track contracts and their |fistatus. According to Pennison, if Entergy had received a signed contract addendum from ABB, it would have been reflected in the “comments” or “scope of work” field of the program. However, the program did not indicate that a signed copy of the addendum was returned to Entergy. These facts all cast serious doubt on the reliability of the addendum and Entergy’s assertion that it was signed prior to the accident in question.

The key issue in this case is the nature of the relationship between ABB and En-tergy. On the record before us, I find that Entergy failed to establish by a preponderance of the evidence that the addendum was signed by ABB and returned to En-tergy before Rainey’s accident.

Accordingly, I dissent from the result reached by the per curiam which reverses the trial court’s judgment in favor of Rai-ney and would affirm the tidal court’s judgment. Aternatively, I would remand to the trial court for a full and reasoned determination of this critical issue, given the obvious and important credibility issues that must be resolved.

Thus, I respectfully dissent.

PETTIGREW, J., dissents, and assigns reasons.

PETTIGREW, J.,

dissenting.

|,I find no legal or manifest error on the part of the trial court and would affirm the judgment of the trial court.

      . Entergy entered the contract in its former name, Gulf States Utilities Company.

      . At the time the contract was entered into between the parties, La. R.S. 23:1061 A provided:
      When any person, in this Section referred to as "principal”, undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person, in this Section referred to as “contractor”, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. The fact that work is specialized or nonspecialized, is extraordinary construction or simple maintenance, is work that is usually done by contract or by the principal's direct employee, or is routine or unpredictable, shall not prevent the work undertaken by the principal from being considered part of the principal's trade, business, or occupation, regardless of whether the principal has the equipment or manpower capable of performing the work.


author: HUGHES, J.

text:
    Matthew WENDELBOE v. EXXON SHIPPING COMPANY, Seariver Maritime, Inc., and Seariver Maritime Financial Holdings, Inc.
    No. 2008 CA 1846.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      See also, 950 So.2d 826.

      Gary P. Koederitz, Baton Rouge, LA, for PlaintifPAppellant, Matthew Wendel-boe.
    Thomas J. Wagner, Thomas A. Rayer, Jr., New Orleans, LA, for Defendants/Ap-pellees, Exxon Shipping Co., SeaRiver Maritime, Inc. & SeaRiver Maritime Financial Holdings, Inc.
    Before PETTIGREW, McDONALD, and HUGHES, JJ.
   HUGHES, J.

|2The plaintiff Matthew Wendelboe appeals a judgment in favor of the defendants, Exxon Shipping Company, SeaRiver Maritime, Inc., and SeaRiver Maritime Financial Holdings, Inc. (hereinafter referred to collectively as “SeaRiver”), dismissing all of his claims with prejudice. The defendants have answered the appeal assigning as error the trial court’s failure to award it, as the prevailing party, all taxable costs.

On December 9, 1992 Mr. Wendelboe was aboard the Exxon New Orleans, a vessel owned and operated by SeaRiver. Mr. Wendelboe served as the vessel’s chief engineer and safety coordinator. The vessel was in the northern Pacific en route from Valdez, Alaska to Anacortes, Washington. On that date, at approximately 11:30-11:45 a.m., Mr. Wendelboe accompanied the vessel’s chief mate to the main or “weather” deck of the vessel to investigate a noise that had been reported by the vessel’s crewmen at that morning’s safety meeting. Based on past experiences, the plaintiff and the chief mate believed the noise was coming from a water locker door that may have come loose during heavy weather the night before. While the two men were engaged in this activity, a powerful wave struck the vessel and washed the chief mate, who was on the ship’s main deck, into the sea. The wave also nearly washed away Mr. Wendelboe, who had remained on the bottom steps of a nearby ladder to “watch for waves.” However, before being struck by the wave, Mr. Wen-delboe, who heard it approaching, braced himself around the rail of the ladder. When the wave struck, he lost his grip on the ladder, was lifted by the wave, “tumbl[ed] in the water”, and landed on the main deck.

| ¡¡Mr. Wendelboe survived the wave but alleges that he sustained serious personal injuries, most significantly to his right wrist. SeaRiver paid Mr. Wendelboe’s maintenance in the amount of $11,240.00, medical expenses in the amount of $17,206.65, and ongoing disability benefits totaling $460,000.00 through the onset of this litigation.

Mr. Wendelboe filed this suit against SeaRiver in November 1995 seeking damages under the Jones Act, 46 U.S.C. § 688(a), and general maritime law. A bench trial was ultimately held on September 11 and 12, 2007, Additional post trial memoranda were filed and arguments were had at the trial court’s request in October 2007, and again in March 2008. On March 20, 2008 the trial court gave oral reasons for judgment, finding: (1) that neither the plaintiff nor the defendant acted negligently, and (2) the wave that allegedly caused the plaintiffs injuries was an Act of God; and therefore, the defendants were not liable. A judgment in accordance with those findings was signed on August 21, 2008. The trial court also denied the plaintiffs subsequent motion for a new trial. This appeal followed.

The plaintiffs sole assignment of error is that the trial court erred in concluding that his injuries resulted from an “Act of God” that exonerated the defendants from liability. The findings of the trial court challenged by this appeal — that neither party was negligent and that the incident was caused by an Act of God-are factual findings subject to the manifest error standard of review.

14ACT OF GOD DEFENSE

Louisiana Law

In Southern Air Transport v. Gulf Airways, Inc., 215 La. 366, 40 So.2d 787 (La.1949), the Act of God defense was raised as a defense to liability for an airplane-ground collision. Discussing the defense generally, the supreme court stated;

An act of God in the legal sense — that which will excuse the discharge of a duty and relieve a defendant from liability for injury — is a providential occurrence or extraordinary manifestation of the forces of nature which could not have been foreseen and the effect thereof avoided by the exercise of reasonable prudence, diligence and care or by the use of those means which the situation renders reasonable to employ.

215 La. at 376, 40 So.2d at 791, (citing, 1 Corpus Juris Secundum, verbo Act of God, page 1425 and Holden v. Toye Brothers Auto and Taxicab Company, 1 La.App. 521). The latest pronouncement from the supreme court regarding the Act of God defense reflects an additional element for the courts to consider in determining its proper application, to wit, whether there was negligence on the part of the defendants:

However, when a force majeure or act of God combines or concurs with the conduct of the defendant to produce an injury, the defendant may be held liable for any damages that would not have occurred, but for its own conduct or omission.

Hanks v. Entergy Corporation, 06-477, p. 14 n. 10 (La.12/18/06), 944 So.2d 564, 575, n. 10 (citation omitted). Thus the determination of the application of the Act of God defense necessarily includes an assessment of any negligence on the part of the defendant(s).

Federal Admiralty/Maritime Law

In Terre Aux Boeufs Land Co., Inc. v. J.R. Gray Barge Company, 2000-2754 (La.App. 4th Cir.11/14/01), 803 So.2d 86, writ denied, 01-3292 (La.3/8/02), 811 So.2d 887, a suit for damages resulting from Hurricane Georges, the fourth 15circuit court of appeal addressed specifically the application of the Act of God defense under federal admiralty law. A review of that case and the applicable federal jurisprudence reveals that the same analysis is employed for the application of the doctrine as under Louisiana law. Citing the 1897 United States Supreme Court case, The Majestic, 166 U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039 (1897), the court began with the definition of Act of God as a ‘loss happening in spite of all human effort and sagacity.’ Borrowing from and summarizing the more recent relevant federal jurisprudence, the fourth circuit noted:

This defense has been widely defined as ‘[a]ny accident, due directly and exclusively to natural causes without human intervention, which by no amount of foresight, pains or care, reasonably to have been expected could have been prevented’ ...

Terre Aux Boeufs Land Co., 2000-2754 at p. 6, 803 So.2d at 91. And citing GILMORE AND BLACK, THE LAW OF ADMIRALTY at 163-64, the court concluded:

[Rjegardless of the type of ‘heavy weather,’ ‘it is certain that human negligence as a contributing cause defeats any claim to the ‘Act of God’ immunity[.]’ ... Indeed, an ‘Act of God’ will insulate a defendant from liability only if there is no contributing human negligence and the defendant has the burden of establishing that weather conditions encountered constituted an uncontrollable and unforeseeable cause by ‘Act of God’.

Id., 2000-2754 at p. 7, 803 So.2d at 92. Thus, like Louisiana law, the federal jurisprudence also incorporates the negligence of the defendant(s), if any, in the determination of the application of the Act of God defense.

As clearly indicated by the jurisprudence, the Act of God defense applies only if the following circumstances exist: (1) the accident is due directly and exclusively to natural causes without human intervention, and (2) no negligent behavior by the defendant(s) contributed to the accident. Terre Aux Boeufs Land Co., 2000-2754 at p. 8, 803 So.2d at 93.

| ^Application of Principles

Appropriately, the trial court in this matter considered the parties’ negligence as well as the nature of the alleged “Act of God” wave in reaching its conclusion that the defense, in this case, exonerated the defendants from liability. The trial court found as a matter of fact that no negligence was proved on the part of either party and also that Mr. Wendelboe’s injuries were caused exclusively as a result of the wave, an Act of God under these circumstances. Notwithstanding the correctness of the trial court’s classification of the wave as a “rogue wave” or Act of God, the record amply provides a reasonable factual basis for its finding that neither the plaintiff nor the defendants were negligent in this incident. We have thoroughly reviewed the entire record and find that the trial court’s findings are not manifestly erroneous.

The record establishes the following with regard to the hierarchy of authority among the ship’s crew. The captain, who at the time of this incident was Keith Eldridge Hoye, has command over the entire vessel — all of the department chiefs, including the chief mate, head of the deck department, and the chief engineer, head of the engineer department, answered to him. The chief mate was the second in command and the one who would assume the captain’s authority in the event of his absence. The captain of the vessel is the only person authorized to make discretionary calls regarding “posting,” or restricting access to, decks, and also the sole authority to give anyone permission to go on the main deck.

This incident occurred during the winter when the seas are commonly rough. The record establishes that throughout the night preceding the incident, the weather had been stormy and rough. However, by all accounts, on the morning of the incident, the weather was subsiding and conditions were far more moderate and less severe than they had been during the night. Therefore, the crew proceeded to 17perform its normal activities, including having a fire drill and a boat drill. Following the drills, the plaintiff, the chief mate, the captain, the third mate, the first and second assistants, and the unlicensed crewmen had a weekly safety meeting in the officers’ lounge. At the safety meeting, while several routine safety issues were discussed, the plaintiff testified that during the meeting he also spent time reading a steering gear casualty report he had received. During the meeting, the captain also announced that a course change was planned for the vessel at approximately 1300 (1:00 p.m.), and cautioned them to ensure that their gear and equipment were secured, as the change in course would cause the ship to roll (move from side to side) more than before. According to Mr. Wendelboe, at the end of the meeting, he stayed behind as he was still reading the steering gear report. He stated that the chief mate and captain had also stayed in the lounge and he overheard them discussing complaints that were brought up at the meeting about a banging noise that had kept some of the crew members up during the night. He testified that when he finished the report and left the lounge to go to the engineer’s office, he ended up walking down the passageway with the chief mate and the captain. He then observed the chief mate going to get his gear. He asked the chief mate if he was going to investigate the noise and when the chief mate said “yes,” Mr. Wendelboe volunteered to go with him so that “together” they could decide what to do. Mr. Wendelboe admitted that he did not first ascertain whether the main deck was posted nor did he seek or receive permission or instructions from the captain, or from anyone else, to go down to the main deck. However, he explained that he assumed the chief mate had gotten permission from the captain, since he clearly was making preparations to do so, and plaintiff had never known the chief mate to violate the procedure of first getting permission from the captain before going out onto the main deck. Other than assuming proper permission had | sbeen obtained by the chief mate, Mr. Wendelboe denied having any specific knowledge of any orders, instructions, or limitations given by the captain to the chief mate regarding investigating the noise. Mr. Wendel-boe fui’ther explained that he personally felt that the chief mate should not go out on the deck by himself and he also thought it made sense for him to participate in the investigation because as chief engineer, he would ultimately be the one responsible for making whatever repairs proved necessary.

Mr. Wendelboe testified that at approximately 11:30 to 11:45 a.m., he and the chief mate descended the ladder from the poop deck to the main deck, and they both remained on the ladder to observe the seas for approximately three to four minutes. Although the seas appeared moderate and back to normal, Mr. Wendelboe testified that he asked the chief mate if he thought they should wait to go on deck and investigate the noise until after the ship’s planned course change, scheduled for approximately 1:00 that afternoon. According to Mr. Wendelboe, the chief mate responded that he did not see any problem with going down at that time. In fact, the chief mate commented that they were better off attempting to find and repair the cause of the noise at that time since the ship would roll more after the course change.

The chief mate proceeded further down the ladder and onto the deck. Mr. Wen-delboe descended to the bottom or second to last step on the ladder and told the chief mate he would remain there, keeping an eye out for waves. From there, he clearly saw that the noise was indeed coming from a water locker door that had come loose as they had suspected. However, it was not the particular water locker located right next to the ladder, as they had thought, but rather a portable locker farther out on the deck, approximately fifteen to twenty feet away. Thus, Mr. Wendelboe stayed on the ladder, and the chief mate went out onto the deck to the locker with the loose door. Mr. Wendelboe noticed a few waves coming toward l0the ship, including one that actually washed water onto the ship, but none that were over three to four feet high. When he first saw the water coming onto the deck, he hollered out to the chief mate then quickly realized that the wave was not as forceful as he had thought. He then stepped onto the deck and turned aft to let the chief mate know the warning had been a false alarm. As he did so, he heard water approaching on the deck behind him. As he turned toward the sound and saw it coming, he got back on the ladder so as to not get wet. However, he then realized that there was even more water coming on deck than he originally anticipated, so he continued farther up the ladder. About two-thirds the way up, he realized that the wave was far bigger than he had anticipated, and he would not be able to make it safely to the poop deck above. Therefore, he stopped and braced himself against the ladder. The force of the wave was strong enough to cause him to lose his grip on the ladder, and the water tossed him onto the deck below. (The injuries for which Mr. Wendelboe now seeks damages were allegedly sustained when he was struck and pushed against the ladder by the wave.) He grabbed hold of a nearby handrail and looked around as the water subsided. He could not find the chief mate and then realized that he had been washed off the vessel by the wave. He immediately threw the nearest life ring overboard and alerted the rest of the ship’s crew of the emergency at hand. Despite immediate action by the ship’s crew and lengthy search and rescue efforts by the Coast Guard, the chief mate was never found and was presumed to have drowned at sea.

Mr. Wendelboe testified that in conversations with the captain immediately following the incident, the captain expressed complete disbelief that the chief mate had gone on deck. He told Mr. Wendelboe that he had given the chief mate strict orders to bring his radio when he went to investigate the noise so that he could call the captain and inform him when he found the noise. The captain explained that he had told the chief mate that if he was going to have to go on deck to fix whatever | inwas making the noise, that he needed to let the captain know first, so that the captain could turn the ship and make a lee (a maneuver that turns the ship to reduce, as much as possible, the effects of the weather). According to the captain, only then would he have been prepared to give anyone permission to go onto the deck. Thus, according to the captain, the chief mate was in direct violation of his orders when he went farther than the ladder to investigate the noise. (Thus, the record reflects that the tragic death of the chief mate may have been a direct result of his own negligence.)

However, as to any directives given to or overheard by Mr. Wendelboe, the evidence is not so clear. The captain testified that he believed Mr. Wendelboe was present and heard him say at the safety meeting that he was going to have the chief mate and the safety engineer (Mr. Wendel-boe) investigate the source of the noise. He admitted, however, that he could not say for sure, and also that he could not remember at all if Mr. Wendelboe was present when he gave the chief mate the specific orders and instructions regarding the extent of the investigation that he had authorized the chief mate to undertake. Mr. Wendelboe, on the other hand, testified that he did not hear anything during the meeting concerning the captain assigning him and the chief mate to investigate the noise. According to him, the first he heard of the noise was when he walked down the passageway out of the lounge with the captain and chief mate, and they were discussing what it might have been. He testified that he did not hear any orders or directives, but only noticed that the chief mate was preparing to get his gear. He asked the chief mate what he was doing, and asserted that he decided voluntarily to accompany the chief mate, so that the chief mate would not be alone and so he himself could be aware of whatever repairs he might be responsible for making as a result of the noise.

The evidence reveals that the captain took reasonable precautions in authorizing the chief mate to conduct a very limited investigation so that he could |nthen take further precautionary measures to ensure that the investigation and any repairs necessary would be undertaken in the safest conditions possible. The captain ordered the chief mate to let him know before he went on deck so he could make a lee. Therefore the trial court’s finding of no negligence on the part of the captain is fully supported by the record and is not manifestly erroneous.

Nor do we conclude that any negligence on the part of the chief mate would benefit the plaintiff. Although any negligence of the chief mate could be legally imputed to the defendants as the employer and ship owner, the evidence reveals that any such negligence on the part of the chief mate, while perhaps having caused his own demise, was not the proximate cause of the plaintiffs involvement in the incident or his resulting injuries. Mr. Wendelboe testified that he was not ordered to assist the chief mate nor was he aware of the orders given to the chief mate by the captain. His involvement in the activity was purely voluntary based on the explanations that he provided in his own testimony. The violation of the captain’s orders by the chief mate in venturing out onto the deck did not cause Mr. Wendelboe’s injuries. Nor did this human activity combine or concur with the wave to injure the plaintiff; the wave alone caused any damages claimed by Mr. Wendelboe.

We further conclude the correctness of the trial court’s correlative finding of no negligence on the part of the plaintiff becomes irrelevant to the outcome of this litigation, which hinges on the defendants’ liability.

ANSWER TO APPEAL

Defendants have answered the appeal, seeking to overturn the trial court’s refusal to award all taxable costs to it as the prevailing party. Louisiana Code of Civil Procedure article 1920 provides for the taxing of costs after trial. While it is the general rule to tax the party cast in judgment, the article affords the trial court some degree of discretion, providing in pertinent part: “Except as otherwise |! ¿provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” On review, a trial court’s assessment of costs can be reversed on appeal only upon an abuse of discretion. Ratcliff v. Town of Mandeville, 551 So.2d 761, 763 (La.App. 1st Cir.1989), writ denied, 556 So.2d 37 (La.1990). When a prevailing party is taxed with costs of litigation, it is usually based on a finding that the party in some way incurred additional costs pointlessly or engaged in other conduct that justified an assessment of costs. Morrison v. Gonzalez, 602 So.2d 1104, 1107 (La.App. 1st Cir.1992).

In this case, the trial court did not specify its reasons for the cost assessment. However, in as much as the court found neither party to be negligent, we may assume that the trial court attempted an equitable assessment of costs based on that finding. We find no abuse of the trial court's discretion ordering each party to bear them own costs in the trial court.

CONCLUSION

Accordingly, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the plaintiff.

AFFIRMED.

      . This matter was previously before us on review of a final judgment concerning the issue of whether the defendants would be entitled to a reduction or offset, against any judgment the plaintiff might receive on the merits, for disability benefits already paid to the plaintiff. Wendelboe v. SeaRiver Maritime, Inc., 06-0013 (La.App. 1st Cir. 11/03/06), 950 So.2d 826 (where we decided the issue in the affirmative.)

      . The chief mate was lost at sea and his body was never found.

      . The plaintiff also argues in brief that the trial court issued conflicting reasons for judgment. We find no merit to this argument. Although the record does contain a document entitled oral reasons for judgment, rendered February 12, 2008, there is no judgment rendered on the basis of those reasons. Indeed, the record reflects that the trial court then ordered the parties to submit post-trial memo-randa and to also appear for hearing to make subsequent arguments as requested by the court. Clearly, the trial court changed its original findings as reflected in the oral reasons, which are clearly detailed in the subsequent oral reasons for judgment rendered March 20, 2008. and pursuant to which a final judgment was rendered and signed. Only a final judgment, and not the reasons for judgment, is appealable. Moreover, until a final judgment was rendered in this case, the trial court was within its authority to further contemplate and even change its findings of fact based on the evidence before it. Therefore, we find no merit in the plaintiff’s allegations in this regard.

      . The record does reflect that the crew performed a slightly modified version of the boat drill, i.e., not lowering the boats all the way to the water, given the roughness of the seas.


author: GAIDRY, J.

text:
    Raymond ROCHON v. Mr. YOUNG, Classification State of Louisiana, Governor Kathleen Blanco, Secretary Richard Stalder, Warden Burl Cain, John Doe I and John Doe II, et al.
    No. 2008 CA 1349.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Raymond Rochon, Angola, Louisiana, Plaintiff/Appellant In Proper Person.
    William L. Kline, Baton Rouge, Louisiana, for Defendants/Appellees Louisiana Department of Corrections, et al.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

| .¿This is an appeal from a judgment dismissing a prisoner’s petition for judicial review without prejudice for failure to exhaust administrative remedies. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Raymond Rochon, a prisoner in the custody of the Louisiana Department of Public Safety and Corrections, filed a petition for a writ of mandamus on September 6, 2005, asking the court to compel the defendants to first obtain his written consent before authorizing anyone to photograph him for anything other than a prison identification card.

Noting that Rochon’s petition contains no allegations that he has submitted his complaint through the administrative process, the Commissioner recommended that Rochon’s suit be dismissed without prejudice because the court lacks subject matter jurisdiction due to Rochon’s failure to exhaust his administrative remedies. The Commissioner also recommended that Ro-chon be assessed a strike for filing suit prior to exhausting his administrative remedies. The court rendered judgment on December 19, 2005, dismissing Rochon’s suit without prejudice and assessing a strike against him.

Rochon applied for supervisory writs, which were denied because the trial court’s December 19, 2005 screening judgment was a final, appealable judgment. Rochon then filed the instant appeal, alleging that the trial court erred in dismissing his petition because the trial court had original jurisdiction to hear his petition for mandamus, alleging that La. R.S. 15:1171 is unconstitutional, and challenging the trial court’s assessment of a strike against him under the Prison Litigation Reform Act (PLRA).

| «DISCUSSION

Although Mr. Rochon’s petition is styled as a petition for mandamus, the relief he seeks is not available by mandamus. A writ of mandamus is directed to a public officer to compel the performance of a ministerial duty required by law, or to a former officer or his hems to compel the delivery of the papers and effects of the office to his successor. La. C.C.P. art. 3863. Reviewing the allegations contained in Rochon’s petition, it does not appear that he is actually seeking to have the defendants compelled to perform a ministerial duty required by law. Rather, he seems to be seeking injunctive relief. Our courts look beyond the caption, style, and form of pleadings to determine from the substance of the pleadings the nature of the proceeding; thus, a pleading is construed for what it really is, not for what it is erroneously called. Bernard v. Hildebrand, 08-0268 (La.App. 1 Cir. 8/6/08), 993 So.2d 678, 684 n. 6. As such, Rochon’s petition will be treated as one requesting injunctive relief relating to the conditions of his confinement.

Louisiana Revised Statutes 15:1171(B) provides that an administrative remedy procedure provides the exclusive remedy for complaints and grievances by adult or juvenile offenders, including but not limited to:

any and all claims seeking monetary, injunctive, declaratory, or any other form of relief authorized by law and by way of illustration includes actions pertaining to conditions of confinement, personal injuries, medical malpractice, time computations, even though urged as a writ of habeas corpus, or challenges to rules, regulations, policies, or statutes.

Under La. R.S. 15:1171, Rochon was required to first submit his complaint to the administrative remedy process prior to filing suit, and his failure to do so deprived the court of jurisdiction over the matter. See La. R.S. 15:1172 C; 4See also Rochon v. Administrative Remedy Procedure, 05-0452 (La.App. 1 Cir. 3/24/06), 934 So.2d 67.

Rochon next alleges that La. R.S. 15:1171 is unconstitutional because it “violates the due process of law, right to access to the courts, and the separation of power clauses.” However, this challenge to the constitutionality of the Corrections Administrative Remedy Act (CARP) is first raised by Rochon on appeal. The constitutionality of a statute must first be questioned in the trial court and must be specifically pled. Vallo v. Gayle Oil Co., Inc., 94-1238 (La.11/30/94), 646 So.2d 859, 864. • Hence, constitutionality of the CARP is not an issue before us in this review.

Finally, Rochon challenges the assessment of a strike against him. The PLRA is applicable to claims relating to prison conditions or officials’ actions affecting the lives of those confined in prison, and provides for the assessment of a strike in eases where a prisoner has brought an action or appeal in a state court that was dismissed on the grounds that it was frivolous, malicious, failed to state a cause of action, or failed to state a claim upon which relief may be granted. See La. R.S. 15:1187; Frederick v. Ieyoub, 99-0616 (La.App. 1 Cir. 5/12/00), 762 So.2d 144, 149-50. We find no error in the court’s assessment of a strike to Mr. Rochon.

Rochon also filed a motion for preliminary default and a motion to transfer documentation. The basis for Rochon’s motion for preliminary default was that the appel-lees chose not to file a brief. In the motion to transfer documentation, Rochon requested that the documents initially filed with his application for supervisory writs be transferred to the record in the instant appeal. Both motions were referred to the merits of the appeal. We grant the motion to transfer documentation and deny the motion for preliminary default.

| ¿DECREE

We affirm the judgment of the trial court dismissing Rochon’s petition without prejudice, grant his motion to transfer documentation, and deny his motion for preliminary default. Costs of this appeal are assessed to Rochon.

AFFIRMED; MOTION FOR TRANSFER OF DOCUMENTATION GRANTED; MOTION FOR PRELIMINARY DEFAULT DENIED.

      . Although Rochon filed his petition for judicial review in forma pauperis, because he is unsuccessful in obtaining the relief sought, costs may be assessed against him. See Gibson v. Barners, 597 So.2d 176, 178 (La.App. 1 Cir. 1992) (assessing costs of unsuccessful appeal against unsuccessful appellant).


author: PARRO, J.

text:
    Herman CARRIER, et al. v. CITY OF AMITE, et al.
    No. 2008 CA 1092.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.
    Rehearing Denied March 31, 2009.

      Jeanne Andry Landry, Arthur W. Landry, New Orleans, LA, for Plaintiffs-Appellants, Herman Carrier, et al.
    John David Ziober, Stephen Dale Cronin, Guglielmo, Marks, Schutte, Terhoeve & Love, Baton Rouge, LA, for Defendant-Appellee, Sears, Roebuck and Co.
    Before PARRO, McCLENDON, and WELCH, JJ.
   PARRO, J.

|2Herman Carrier, individually and as administrator of the estate of his minor child, Herman Blake Carrier, and his wife, Wendy Wallace Carrier (collectively, the Carriers), appeal a judgment granting a motion for summary judgment and dismissing their claims against Sears, Roebuck and Company (Sears). For the following reasons, we reverse the judgment and remand to the district court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Six-year-old Blake Carrier (Blake) was riding his bicycle on a tennis court at Fleet Easley Memorial Park in Amite, Louisiana, wearing a bicycle helmet manufactured by Bell Sports, Inc. (Bell), which had been purchased by his parents at a Sears store in the Hammond Square Mall. The tennis court was open to the public, but the nets had been removed, leaving only the posts in place. While riding his bike, Blake’s right handlebar hit one of the net posts, causing him to fall. As he fell, his forehead was exposed to a hook protruding from the post. The hook punctured his forehead just above the right eye, causing a skull fracture and brain damage.

The Carriers filed suit against the City of Amite and Bell; other defendants, including Sears, were named in amending petitions. Sears filed a peremptory exception raising the objection of no cause of action, which was denied by the trial court. Sears’ application for supervisory writs was denied by this court. After conducting discovery, Sears filed a motion for summary judgment, contending that the Carriers could not establish the existence of a duty on the part of Sears to provide “point-of-sale” fitting instructions for bicycle helmets, nor could they prove that the purported breach of this alleged duty caused their damages. Sears also filed a motion in limine, seeking to exclude the testimony of the Carriers’ expert, James M. Green, whose testimony would be used to establish Sears’ duty, on the basis that his testimony could not meet the Dau-bert/Foret/Kumho (Daubert) test for reliability. The court heard both motions in a hearing on January 28, 2008, and signed a judgment on February 11, 2008, excluding Green’s testimony and dismissing all of the Carriers’ claims against Sears. The Carriers | ..¡appealed, arguing that the court abused its discretion in excluding Green’s testimony without conducting a Daubert analysis and in granting Sears’ motion for summary judgment when evidence presented by the Carriers showed Sears had breached its duty to size and fit bicycle helmets at the point of sale.

MOTION IN LIMINE

Article 702 of the Louisiana Code of Evidence provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

When faced with a proffer of expert testimony, the trial court must determine at the outset whether the expert is proposing to testify to scientific, technical, or specialized knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue. Corkern v. T.K. Valve, 04-2293 (La.App. 1st Cir.3/29/06), 934 So.2d 102, 105. In determining whether to admit expert opinion evidence at the summary judgment stage, the Daubert standards should be considered by the trial court. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 235-36, citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and State v. Foret, 628 So.2d 1116 (La.1993). In the Independent Fire case, the Louisiana Supreme Court reinforced several underlying principles:

The first is that the trial judge cannot make credibility determinations on a motion for summary judgment.... Second, the court must not attempt to evaluate the persuasiveness of competing scientific studies. In performing its ga-tekeeping analysis at the summary judgment stage, the court must “focus solely on the principles and methodology, not on the conclusions they generate.” ... Third, the court “must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion.” ... Fourth, and most importantly, summary judgments deprive the litigants of the opportunity to present their evidence to a jury and should be granted only when the evidence presented at the motion for summary judgment establishes that there is no genuine issue of material fact in dispute. If a party submits expert opinion evidence in opposition to a motion for summary judgment that would be admissible under Daubert-Foret and the other applicable evidentiary rules, and is sufficient to allow a reasonable juror to conclude that the expert’s opinion on a material fact more likely than not is true, the trial judge should deny the motion and let the issue be decided at trial.

Independent Fire, 755 So.2d at 236 (citations omitted). The factors to be used by the court in analyzing the admissibility of expert scientific testimony are whether or not the |technique had been subjected to peer review and/or publication, the known or potential rate of error, the existence of standards controlling the technique’s operation, the technique’s refutability or testability, and the technique’s general acceptance in the scientific community. Id. at 234 n. 3.

When confusion arose over whether the Daubert test applied to nonscientific expert testimony, the United States Supreme Court stated that Dau-beH’s holding — setting forth the trial court’s general gatekeeping obligation— applies not only to testimony based on scientific knowledge, but also to testimony based on technical and other specialized knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999). However, the court held that the test of reliability is flexible, and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Id. “The factors identified in DaubeH may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular’ expertise, and the subject of his testimony.” Kumho, 526 U.S. at 150, 119 S.Ct. at 1175. “[T]he law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho, 526 U.S. at 141-42, 119 S.Ct. at 1171 (emphasis in original).

The factual basis for an expert’s opinion determines the reliability of the testimony. An unsupported opinion can offer no assistance to the fact finder, and should not be admitted as expert testimony. Miramon v. Bradley, 96-1872 (La.App. 1st Cir.9/23/97), 701 So.2d 475, 478. The trial court’s inquiry must be tied to the specific facts of the particular case. The abuse of discretion standard applies to the district court’s ultimate conclusion as to whether' to exclude expert witness testimony and to the court’s decisions as to how to determine reliability. Brown v. City of Madisonville, 07-2104, p. 4 (La.App. 1st Cir.11/24/08), 5 So.3d 874, 879. There is a crucial difference between questioning the methodology employed by an expert witness and questioning the application of that methodology or the ultimate conclusions derived from that application. Only a question of the validity of the methodology employed brings Daubeit into play. MSOF Corp. v. Exxon Corp., 04-0988 (La.App. 1st Cir.12/22/05), 934 5So.2d 708, 718, writ denied, 06-1669 (La.10/6/06), 938 So.2d 78. However, if a district court conducts no Daubert analysis of any kind, the exclusion of the expert’s evidence without an evaluation of the relevant reliability factors is legal error. Corkern, 934 So.2d at 107. A summary judgment granted without such an evaluation must be reversed. Id.

In the matter before us, the Carriers submitted affidavits and deposition testimony from James M. Green, a professional engineer with experience in reconstructing bicycle accidents and with the safety standards applicable to the manufacture, sale, and use of bicycles and other cycling equipment. His testimony was for the purpose of establishing that there was an industry standard governing the sale of bicycle helmets, and that Sears had breached that standard and its duty by failing to provide any “point-of-sale” fitting instructions when the helmet was sold to the Carriers for their child’s use. To establish the basis for his testimony, the Carriers also provided his curriculum vitae, excerpts from numerous publications, and information concerning bicycle safety standards from the National Bicycle Dealers Association.

The Carriers assert that the district court legally erred and abused its discretion by rejecting the expert opinion of Green without conducting a Daubeyt analysis. They point out that the transcript of the oral argument on Sears’ motions reveals that the trial court did not utter the words “Green,” “testimony,” or “Daubert.” In fact, the court never even stated that the motion in limine was granted. At the conclusion of the arguments, the judge said only:

After a review of the documents, I can’t stretch it that far as to Sears’ duty, I just can’t, it just doesn’t fly for me.
Therefore, I agree with Sears, I believe that the point of sale requirement is not mandated on Sears, they don’t have that duty. Summary judgment is granted.

Having examined the transcript, we concede that the Carriers are correct on this point. Although both parties argued with respect to the basis for Green’s opinion, the judge never stated that he found Green’s testimony to be unreliable or irrelevant, or even that he was granting the motion in limine or excluding Green’s testimony. While we are perplexed by this circumstance, we are forced to conclude that there was no evaluation or analysis of the Daubert factors, as required under the jurisprudence from this court, | (¡the Louisiana Supreme Court, and the United States Supreme Court. This is legal error, and in this case it strikes at the sole issue in Sears’ motion for summary judgment. Sears’ motion for summary judgment pointed out to the court that, other than Green’s testimony, the Carriers had no proof concerning a necessary element of their cause of action, namely, that Sears had a duty to provide point-of-sale fittings of bicycle helmets. It appears that the trial court decided the duty issue without first determining that the expert’s testimony was inadmissible, based on the Daubert factors. Accordingly, we must reverse the judgment granting the motion for summary judgment and remand this case to the trial court for further proceedings.

Apparently, this is not the first instance of confusion concerning a trial court’s responsibilities under Daubert. The Louisiana legislature recently amended Louisiana Code of Civil Procedure article 1425 to set out exactly what is required from the parties and the court when conducting such a hearing and ruling on the admissibility of an expert’s proffered testimony. See 2008 La. Acts, No. 787, § 1. The amended article contains the following pertinent provisions:

F. (1) Any party may file a motion for a pretrial hearing to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable under Articles 702 through 705 of the Louisiana Code of Evidence. The motion shall be filed not later than sixty days prior to trial and shall set forth sufficient allegations showing the necessity for these determinations by the court.
(2)The court shall hold a contradictory hearing and shall rule on the motion not later than thirty days prior to the trial. At the hearing, the court shall consider the qualifications and methodologies of the proposed witness based upon the provisions of Articles 104(A) and 702 through 705 of the Louisiana Code of Evidence. For good cause shown, the court may allow live testimony at the contradictory hearing.
(3) If the ruling of the court is made at the conclusion of the hearing, the court shall recite orally its findings of fact, conclusions of law, and reasons for judgment. If the matter is taken under advisement, the court shall render its ruling and provide written findings of fact, conclusions of law, and reasons for judgment not later than five days after the hearing.
(4) The findings of facts, conclusions of law, and reasons for judgment shall be made part of the record of the proceedings. The findings of facts, conclusions of law, and reasons for judgment shall specifically include and address:
(a) The elements required to be satisfied for a person to testify under Articles 702 through 705 of the Louisiana Code of Evidence.
(b) The evidence presented at the hearing to satisfy the requirements of |7ArticIes 702 through 705 of the Louisiana Code of Evidence at trial.
(c) A decision by the judge as to whether or not a person shall be allowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence at trial.
(d) The reasons of the judge detailing in law and fact why a person shall be allowed or disallowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence.
(5) A ruling of the court pursuant to a hearing held in accordance with the provisions of this Paragraph shall be subject to appellate review as provided by law.
(6) Notwithstanding the time limitations in Subparagraphs (1), (2), and (3) of this Paragraph, by unanimous consent of the parties, and with approval by the court, a motion under this Paragraph may be filed, heard, and ruled upon by the court at any time prior to trial. The ruling by the court on such motion shall include findings of fact, conclusions of law, and reasons for judgment complying with the provisions of Subparagraph (4) of this Paragraph.

The above-cited provision is inapplicable to the case we are reviewing, because it was not effective until January 1, 2009, and the legislature’s intent that it be prospective only is clear. See 2008 La. Acts, No. 787, § 3. However, we include it to bring it to the attention of the parties and the court and to indicate the type of analysis that, had the trial court provided it in this case, would have allowed this court to evaluate the judgment granting the motion in li-mine. Without even the scantest mention of any of the factors influencing the court’s decision in this case, we must reverse that judgment and the granting of the motion for summary judgment.

CONCLUSION

For the foregoing reasons, the February 11, 2008 judgment of the trial court is reversed and this case is remanded to the trial court for further proceedings. Each party is to bear its own costs of this appeal.

REVERSED AND REMANDED.

      . Blake’s mother initially stated in a deposition that the helmet had been purchased at J.C. Penney’s store. This statement was later revised to indicate the helmet had been bought at Sears.