author: McCLENDON, J.

text:
    Kymberli R. DOZIER v. Gabriel OKOORKWO, Progressive Casualty Insurance Company and State Farm Mutual Automobile Insurance Company. Kymberli R. Dozier v. Gabriel Okoorkwo, Progressive Casualty Insurance Company and State Farm Mutual Automobile Insurance Company.
    Nos. 2011 CA 0939, 2011 CW 0407.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 2011.
    Aaron J. Lawler, Spencer H. Calahan, Baton Rouge, LA, for Plaintiff/Appellee Kymberli R. Dozier.

      Henry G. Terhoeve, Brad M. Bou-dreaux, Baton Rouge, LA, for Defendant/Appellant State Farm Mutual Automobile Insurance Company.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

12This appeal concerns the validity of an uninsured/underinsured motorist (UM) waiver. State Farm Mutual Automobile Insurance Company (State Farm) seeks review of partial summary judgment granted in favor of plaintiff, Kymberli Dozier, and the denial of its cross-motion for summary judgment. The judgment afforded plaintiff UM coverage for the accident at issue. For the following reasons, we conclude that the UM coverage form was “properly completed” under LSA-R.S. 22:1295(1) (a) (ii), and we reverse the trial court’s judgment, grant State Farm’s motion for summary judgment, and dismiss plaintiffs action against State Farm.

FACTS AND PROCEDURAL HISTORY

Kymberli Dozier was involved in an automobile accident with Gabriel Okoorkwo on November 4, 2009. On January 12, 2010, Ms. Dozier filed suit for alleged injuries she sustained in the accident, naming Mr. Okoorkwo, his liability insurer, Progressive Casualty Insurance Company, and her UM insurer, State Farm, as defendants. With regard to State Farm, Ms. Dozier alleged that it had issued a policy of UM coverage that insured the vehicle she was operating at the time of the accident.

State Farm answered, alleging that Ms. Dozier had rejected UM coverage under the policy it had issued to her. In October 2010, Ms. Dozier filed a motion for partial summary judgment seeking a declaration that UM coverage was available under the policy because the UM coverage form was “improperly completed” insofar as the number entered on the UM coverage form in the space marked “Policy Number” did not match the number on the application. In November 2010, State Farm filed a cross motion for summary judgment, urging that there was no UM coverage under its policy and seeking a judgment dismissing plaintiffs suit against it.

|aIn support of its motion for summary judgment, State Farm submitted a copy of its policy (# 155 5044-E25-18B), the UM coverage form at issue, and the affidavit of Travis Keiser, an underwriting team manager for State Farm.

On the UM coverage form at issue, Ms. Dozier placed her initials by the following option: “I do not want [Uninsured/Un-derinsured Motorists Bodily Injury] Coverage. I understand that I will not be compensated through [Uninsured/Un-derinsured Motorists Bodily Injury] coverage for losses arising from an accident caused by an uninsured/underinsured motorist.” The UM coverage form was dated May 22, 2006, and signed by Ms. Dozier, and “18-2019-F31” was placed in the blank designated for the “Policy Number.”

In his affidavit, Mr. Keiser attested, in pertinent part:

At the time of Ms. Dozier’s May 22, 2006, application for automobile insurance with State Farm, she did not have any automobile policies with State Farm.
At the time Ms. Dozier initially began her application for insurance, a temporary electronic (“E-application”), number, 18-2019-F31, was assigned to her application. The first two numbers, 18, are the code for the State of Louisiana. The next four numbers, 2019, refer to the agent receiving the application, David Hoffman. The last three digits, FBI, refer to the next sequential application submitted by the particular agent ■with numbers running from A01 to Z99. This E-application number appears on the uninsured/underinsured motorist Bodily Injury Coverage Form signed by Ms. Dozier on May 22, 2006, and it was the only number assigned to her application at that time.
On May 24, 2006, Ms. Dozier’s electronic application was received by State Farm. Upon receipt, State Farm’s computer system assigned the number “5” to the “18” prefix, which is a unique digit used to designate a specific division within Louisiana. Thus, on the auto application documentation produced to Ms. Dozier by State Farm in this litigation, the E-application number reads 185-2019-F31, and that is how the application number appeared after it was received by State Farm in Columbia, Missouri. The temporary application number was later replaced with the policy number, 115 5044-E25-18, when the policy issued on June 6, 2006. The policy number could not be placed on the UM/UIM selection Form, because the policy had not been issued, and a policy number did not yet exist or had been assigned. Following a hearing on February 7,

2011, on the cross motions for summary judgment, the trial court found that the UM waiver was ineffective |4because the number written on the waiver “is missing a digit in it.” It then granted Ms. Dozier’s motion for partial summary judgment and denied State Farm’s cross-motion. The trial court, finding “no just reason for delay of an appeal thereof,” designated the grant of Ms. Dozier’s motion for partial summary judgment as a final judgment under LSA-C.C.P. art. 1915.

State Farm filed a writ application to seek review of the denial of its motion for summary judgment. State Farm also filed an appeal of the trial court’s grant of Ms. Dozier’s motion for partial summary judgment. State Farm asserts that the trial court erred in finding that Ms. Dozier’s rejection of UM coverage was invalid.

DISCUSSION

When an appellate court reviews a trial court judgment on a motion for summary judgment, it applies the de novo standard of review, “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Gray v. American Nat’l Property & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844; See La. C.C.P. art. 966(B).

Pursuant to LSA-C.C.P. art. 966(C)(2), the burden of proof remains with the mov-ant. 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.

In Louisiana, UM coverage is provided for by statute and embodies a strong public policy. Duncan v. U.S.A.A. Ins. Co., 06-363, p. 4 (La.11/29/06), 950 So.2d 544, 547. UM coverage is determined not only by contractual provisions, but also by applicable statutes. Id. Thus, under the UM statute, the requirement of UM coverage is an implied amendment to any automobile liability policy, even when not expressly addressed, as UM coverage will be read into the policy unless validly rejected. Id. Because of the strict construction requirement, an insurer has the burden of proving by clear and unmistakable evidence that a UM selection form is valid. See Gray, 07-1670 at pp. 8-9, 977 So.2d at 845.

In Duncan, the supreme court, after reviewing the UM waiver form adopted by the commissioner of insurance, concluded that the following six tasks were essential for a UM waiver to be effective: (1) initialing the selection or rejection of coverage chosen; (2) if limits lower than the policy limits are chosen, then filling in the amount of coverage selected for each person and each |fiaccident; (3) printing the name of the named insured or legal representative; (4) signing the name of the named insured or legal representative; (5) filling in the policy number; and (6) filling in the date. Duncan, 06-363 at pp. 11-12, 950 So.2d at 551-52. The court determined that the “failure to fill in the policy number on the form prescribed by the commissioner of insurance invalidates the UM waiver, and consequently, the UM coverage is equal to the liability limits of the policy.” Duncan, 06-363 at p. 16, 950 So.2d at 554.

Following Duncan, however, the supreme court concluded that filling in the policy number is not essential to a valid UM coverage waiver if no policy number was available at the time of the execution of the UM coverage form. See Carter v. State Farm Mut. Auto. Ins. Co., 07-1294 (La.10/5/07), 964 So.2d 375, 376. Therein, the supreme court distinguished Duncan on the basis that the Commissioner of Insurance’s regulations specifically allow omission of the policy number if it does not exist at the time the UM waiver is complete. See Bulletin LIRC 98-03. Therefore, in a case where a policy number is not available, only five “tasks” are necessary for a valid UM selection form rejecting coverage to be valid. See Gray, 07-1670 at p. 11 n. 2, 977 So.2d at 847 n. 2. Subsequently, this court held that “the insertion of an application number on the form in the space designated for a policy number did not invalidate the form.” Clement v. State Farm Mutual Auto. Ins. Co., 08-0014, p. 7 (La.App. 1 Cir. 6/6/08), 992 So.2d 506, 510, writ denied, 08-1503 (La.10/3/08), 992 So.2d 1020.

Ms. Dozier contends that the waiver was invalid because an “incorrect” application number was placed in the policy number blank on the UM coverage form and an additional digit was later added to the application number. However, it is undisputed that at the time Ms. Dozier signed the UM coverage form, the policy number was not available. Because the policy number was not available, only five of the Duncan “tasks” are necessary for a valid UM selection form rejecting coverage to be valid. See Gray, 07-1670 at p. 11 n. 2, 977 So.2d at 847 n. 2. Ms. Dozier does not contest that these five Duncan tasks were met. 17Moreover, the application number placed on the UM coverage form was not in error insofar as State Farm, in accordance with its internal practice, added the number “5” to the actual application number to designate a specific division within Louisiana. As such, pursuant to the dictates of Gray and Clement, State Farm produced factual support sufficient to establish that it would be able to meet its evidentiary burden of proof at trial to show that Ms. Dozier rejected UM coverage. Ms. Dozier has failed to present any evidence to rebut the presumption that she knowingly rejected UM coverage. See LSA-R.S. 22:1295(1)(a)(ii). Accordingly, no genuine issues of material fact remain, and State Farm is entitled to judgment as a matter of law.

In light of the foregoing, we reverse the district court’s judgment granting Ms. Dozier’s motion for partial summary judgment. We also grant State Farm’s motion for summary judgment and dismiss it from the litigation. Costs of this appeal are assessed against appellee, Kymberli Dozier.

JUDGMENT REVERSED; WRIT GRANTED AND RENDERED.

      . Neither Mr. Okoorkwo nor Progressive is involved in this appeal.

      . Although the trial court provided no reasons for the certification, after considering the factors set forth in R.J. Messinger, Inc. v. Rosenblum, 04-1664, p. 14 (La.3/2/05), 894 So.2d 1113, 1122, this court finds the certification to be proper.

      . On May 9, 2011, a panel of this court referred the writ application to the appeal panel. Because the issues involved in the granting of partial summary judgment in favor of Ms. Dozier are identical to those presented by State Farm’s motion for summary judgment, it is clearly appropriate to review the interlocutory judgment denying State Farm's motion at this time. See La. Workers' Compensation Corp. v. La. Ins. Guar. Ass’n, 08-0885, p. 7 n. 4 (La.App. 1 Cir. 5/13/09), 20 So.3d 1047, 1051 n. 4, writ denied, 09-1308 (La.10/9/09), 18 So.3d 1282.

      . Louisiana Revised Statutes 22:1295(l)(a) provides, in pertinent part:
      (i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Section unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item (l)(a)(ii) of this Section....
      (ii) Such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage....


source: Caselaw Access Project

author: CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    SUCCESSION OF Willie CELESTIN, Jr.
    No. 11-CA-426.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Richard J. Brazan, Jr., Louis R. Koer-ner, Jr., Attorneys at Law, Baton Rouge, LA, for Plaintiff/Appellant.
    Roy H. Maughan, Jr., Namisha D. Patel, Attorneys at Law, Baton Rouge, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

| ¡>This is an appeal by Andrew Celestin from the trial court’s judgment finding he is not a forced heir in the succession of his father, Willie Celestin, Jr. For the reasons which follow, we affirm the trial court’s judgment.

STATEMENT OF THE CASE

Willie Celestin, Jr. executed a last will and testament on October 18,1993. Celes-tin died on March 22, 2001. On March 22, 2010, Andrew Celestin, son of Willie Celes-tin, Jr., filed a Petition to Search for Will and Appointment of Provisional Administrator. A Petition for Probate of Notarial Testament was then filed May 11, 2010 by Terry Celestin Harris, daughter of Willie Celestin, Jr. The petition stated that Cel-estin, the decedent, had left a notarial testament dated October 18, 1993. The original copy of the testament was believed lost, however, a copy was provided with the petition. On May 21, 2010, Harris filed an Amended Petition for Probate indicating that the original will of decedent had been located and was attached to the amended petition for probate.

The notarial testament of Willie Celes-tin, Jr. consisted of one page and contained the following language:

| J leave bequeath and devise the disposal portion of all of my property, both real and personal, separate and community, movable and immovable that I may die possessed of to my wife, EDNA SAUL CELESTIN.
Should I outlive my spouse Edna Saul Celestin, I leave and bequeath all that I may die possessed of to my children which they shall share and share alike.
I confirm the usufruct which my wife Edna Saul Celestin, enjoys under the law to my interest in any property which I own at the time of my death. This usufruct shall remain in full force and effect until her death.

Thereafter, Andrew Celestin filed a rule to show cause regarding why he should not be considered a forced heir of Willie Celes-tin, Jr. Of note, this pleading or rule is not included in the trial court record. Nonetheless, the trial court issued a judgment on January 24, 2011 finding Andrew Celestin is not a forced heir of Willie Cel-estin, Jr. On February 8, 2011, Andrew filed a Motion for New Trial stating he believed the court misinterpreted the law cited. Andrew claimed that since the will was executed when forced heirship was in effect, and the testator died after the forced heirship law was changed, there must be affirmative language indicating a wish to reduce the legitime of the forced heirs in order to abrogate the application of the forced heirship articles.

The trial court granted the motion for new trial and on March 21, 2011, the trial court again issued a judgment and written reasons finding Andrew Celestin is not a forced heir. Andrew filed another motion for new trial, which was denied by the trial court. Andrew now appeals the trial court’s finding that he is not a forced heir of his father’s estate.

DISCUSSION

On appeal, Andrew argues that when a testament is made during the forced heirship regime, and the testator dies after forced heirship is abolished, the new law does not apply. He argues the trial court incorrectly applied the law in effect at the time the succession was opened, rather than the law applicable on the date of death.

I/The issue presented in this case is what law to apply in a situation where the testament was executed when forced heirship laws were in effect, the testator dies after forced heirship laws were abolished, and the succession is not opened until ten years later when new legislation governs the interpretation of a testament. LSA-C.C. Art. 870(B) provides that testate succession rights, including the right to claim as a forced heir, are governed by the law in effect on the date of decedent’s death. Celestin died in March 2001. At that time, LSA-R.S. 9:2501 was in effect and governed the construction of testaments executed prior to January 1, 1996. That statute provided:

If a person dies testate after July 15, 1997, and the testament is executed before January 1, 1996, then the testator’s intent shall be ascertained according to the following rules:
(1) That the testament shall be governed by the law in effect at the time of the testator’s death in any of the following instances:
a. When the testament manifests an intent to disinherit a forced heir or to restrict a forced heir to the legitime under the law in effect at the time of the testator’s death.
b. When the testament leaves the forced heir an amount less than the legitime under the law in effect at the time the testament is executed.
c. When the testament omits a forced heir and the language of the testament indicates an intent to restrict the forced heir to an amount less than the legitime under the law in effect at the time the testament is executed.
(2) That in all other instances the testament shall be governed by the law in effect at the time the testament was executed.
(3) That the term forced heir, as used above, shall mean a presumptive forced heir under the law in effect at the time the testament was executed.

LSA-R.S. 9:2501 was originally enacted in 1996 in order to provide transitional provisions to interpret testaments that were executed prior to the changes to the forced heirship laws in order to best ascertain the testator’s intent. 1 ^Shortly after Celestin’s death, LSA-R.S. 9:2501 was repealed by Section 2 of Acts 2001, No. 560, effective June 22, 2001. Section 3 of that same Act provided “[t]his act is declared to be interpretive, curative, and procedural in nature and shall apply both prospectively and retroactively; however, this Act shall not apply to successions which have been judicially opened prior to the enactment of this Act.” Further, Section 1 of Acts 2001, No. 560 amended LSA-C.C. art. 870 and LSA-C.C. art. 1611, which relate to succession rights and replace repealed LSA-R.S. 9:2501.

The succession in this matter had not been judicially opened at the time of enactment of the Act that repealed LSA-R.S. 9:2501. Thus, according to Section 3 of Acts 2001, the Act applies in this case. Therefore, this Court must consider LSA-R.S. 9:2501 repealed and not applicable and apply LSA-C.C. arts. 870 and 1611, as amended, to determine the succession rights of this case.

LSA-C.C. art. 870 states:

A. The ownership of things or property is acquired by succession either testate or intestate, by the effect of obligations, and by the operation of law.
B. Testate and intestate succession rights, including the right to claim as a forced heir, are governed by the law in effect on the date of the decedent’s death.
LSA-C.C. art. 1611 states:
A. The intent of the testator controls the interpretation of his testament. If the language of the testament is clear, its letter is not to be disregarded under the pretext of pursuing its spirit. The following rules for interpretation apply only when the testator’s intent cannot be ascertained from the language of the testament. In applying these rules, the court may be aided by any competent evidence.
B. When a testament uses a term the legal effect of which has been changed after the date of execution of the testament, the court may consider the law in effect at the time the testament was executed to ascertain the testator’s intent in the interpretation of a legacy or other testamentary provision.

|fiIn accordance with LSA-C.C. art. 870(B), the law in effect at the time of Willie Celestin’s death governs Andrew’s claim that he is a forced heir. In March 2001, forced heirship was governed by LSA-C.C. Art. 1493 and provides, in pertinent part:

A. Forced heirs are descendants of the first degree who, at the time of the death of the decedent, are twenty-three years of age or younger or descendants of the first degree of any age who, because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent.

Pursuant to LSA-C.C. art. 1493, Andrew Celestin is not a forced heir. There has been no showing that Andrew was under twenty-three years of age or that he was permanently incapable of taking care of his person or estate due to a mental incapacity or physical infirmity.

Next, we must look to LSA-C.C. art. 1611 and determine the intent of the Willie Celestin, Jr. The language of the will only provides that Celestin wishes to leave the disposable portion of his estate to his wife and he wishes to leave the estate to his children, only if his wife predeceases him. Celestin did not specify an amount he wished to leave his children. Instead he only referred to the disposable portion of his estate, which he left to his wife.

In In re Succession of Collett, 2009-70 (La.App. 3 Cir. 6/3/09), 11 So.3d 724 (2009), the testator’s will contained language which bequeathed the disposable portion of the property to his wife and the forced portion of the property to his children. The Third Circuit, applying LSA-C.C. art. 870(B), found that the estate had no forced portion. The court found the testator’s use of the legal terms “disposable portion” and “forced portion” showed his desire to leave his children only what the law required him to leave them. The court further found that the |7testator demonstrated his desire to leave his wife the maximum portion of his estate allowed by law.

As in Collett, we find the intent of Celes-tin was to leave everything to his wife, except whatever portion he was required by law to leave to his children. We do not find he specifically intended to leave a portion of his estate to his children. Further, we do not find that the testament used a term, the legal effect of which was changed after the testament was executed. Thus, we will not consider the law in effect at the time the testament was executed, as provided for in LSA-C.C. art. 1611(B). We will apply the law in effect at the time of death, pursuant to LSA-C.C. art. 870(B).

Based on the law in effect at the time of Willie Celestin, Jr.’s death, in accordance with our discussion above, we find the trial court correctly found Andrew Celestin is not a forced heir of Willie Celestin, Jr. Accordingly, the trial court’s judgment is affirmed.

AFFIRMED


author: WALTER J. ROTHSCHILD, Judge.

text:
    RESTORED SURFACES, INC. d/b/a Surface Restoration v. Emile J. SANCHEZ.
    No. 11-CA-529.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Jude C. Bursavich, Claude F. Reynaud, Attorneys at Law, Baton Rouge, LA, for PlaintiffAppellant.
    Blaine M. Hebert, Attorney at Law, Marrero, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

- Isfiestored gurfaceS) jnC- d/b/a Surface Restoration (“RSI”), filed this petition against Emile J. Sanchez seeking damages for breach of Employment and Sales Contracts entered into between the parties. Specifically, RSI alleged that Sanchez violated the terms of a Noncompete Agreement contained in the Employment Contract. RSI also moved for a Preliminary Injunction seeking to enforce the terms of the Noncompete Agreement and to prohibit Sanchez from engaging in any business that competes with RSI in specified Louisiana parishes. A copy of the Employment Contract, dated March 16, 2005, was attached to plaintiffs petition.

In response to this petition, Sanchez filed a Peremptory Exception of No Cause of Action, seeking dismissal of RSI’s claims for breach of Employment Contract, breach of Noncompete Agreement, and the motion for a Preliminary Injunction. RSI opposed the exception, and the matter was heard by the trial court on February 7, 2011. By judgment with reasons rendered on February 8, 2011, the trial court maintained the exception and dismissed RSI’s claims with prejudice. |sOn March 15, 2011, the trial court certified the judgment as a final, appealable judgment pursuant to La. C.C.P. art. 1915(B). This appeal follows.

RSI argues by this appeal that the trial court erred in maintaining the exception of no cause of action and in failing to hear plaintiffs request for a preliminary injunction. For the reasons stated herein, we find this argument to have merit and we therefore must reverse the trial court’s ruling and remand the matter for further proceedings.

The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Scheffler v. Adams and Reese, LLP, 06-1774, p. 4 (La.2/22/07), 950 So.2d 641. The peremptory exception of no cause of action is triable on the face of the pleadings, and, for purposes of resolving issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Scheffler, 06-1774 at p. 5, 950 So.2d at 646. Thus, to determine whether the trial court erred in granting the defendant’s Exception of No Cause of Action, we must accept all facts alleged in the petition as true.

The burden of demonstrating that a petition fails to state a cause of action is upon the mover. Because the exception of no cause of action raises a question of law and the district court’s decision is based solely on the sufficiency of the petition, review of the district court’s ruling on an exception of no cause of action is de novo. City of New Orleans v. Board of Comm’rs of Orleans Levee Dist., 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253.

In support of his exception, Sanchez cites to La. R.S. 23:921, which governs the validity and enforceability of non-competition agreements in Louisiana. At the time of the 2005 agreement between RSI and Sanchez, the statute provided in part as follows:

14A. (1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void. However, every contract or agreement, or provision thereof, which meets the exceptions as provided in this Section, shall be enforceable.

Sanchez does not dispute that he executed this agreement with RSI or that he has been employed by a competitor of RSI. Rather, he contends that because the Noncompete Agreement has the effect of the restraint of his profession, the agreement is against public policy, unenforceable and null and void.

In opposition to the exception, RSI argues that the Noncompete Agreement is valid and enforceable, citing to Subsection C of the statute as an exception to the general rule that contracts restraining trade are unenforceable. That section provides:

C. Any person, including a corporation and the individual shareholders of such corporation, who is employed as an agent, servant, or employee may agree with his employer to refrain from carrying on or engaging in a business similar to that of the employer and/or from soliciting customers of the employer within a specified parish or parishes, municipality or municipalities, or parts thereof, so long as the employer carries on a like business therein, not to exceed a period of two years from termination of employment. An independent contractor, whose work is performed pursuant to a written contract, may enter into an agreement to refrain from carrying on or engaging in a business similar to the business of the person with whom the independent contractor has contracted, on the same basis as if the independent contractor were an employee, for a period not to exceed two years from the date of the last work performed under the written contract.

Historically, Louisiana’s public policy has disfavored noncompetition agreements. SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695, p. 3 (La.6/29/01), 808 So.2d 294, 298; H2O Hair, Inc. V. Marquette, 06-930, p. 13 (La.App. 5 Cir. 5/15/07), 960 So.2d 250, 258. This policy is based on the state’s desire to prevent an individual from contractually depriving himself of the ability to support himself and consequently becoming a public burden. SWAT 24, 00-1695 at 3, 808 So.2d at 298; H2O Hair, Inc., 06-930 at 13, 960 So.2d at 258. Such agreements are in derogation of the common right, and must be strictly construed against the party seeking their enforcement. SWAT 24, 00-1695 at 3, 808 So.2d at 298; H2O Hair, Inc., 06-930 at 14, 960 So.2d at 259.

La. R.S. 23:921(C) is an exception to Louisiana’s public policy against non-competition agreements and, as such, must be strictly construed. Kimball v. Anesthesia Specialists of Baton Rouge, Inc., 00-1954, pp. 67 (La.App. 1st Cir.9/28/01), 809 So.2d 405, 410-11, writs denied, 01-3316, 0-13355 (La.3/8/02), 811 So.2d 883, 886. Under this provision, an independent contractor may enter into agreements not to compete and not to solicit customers within a specified geographical area for a period of no more than two years. The exceptions set forth in La. R.S. 23:921(C) must be strictly construed, and agreements con-fected pursuant to this provision must strictly comply with its requirements. SWAT 24, supra.

A noncompetition agreement is a contract between the parties who enter it, and it is to be construed according to the general rules of contract interpretation. SWAT 24, supra. The common intent of the parties is used to interpret a contract. La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046.

In maintaining the defendant’s exception of no cause of action, the trial court relied on two prior decisions from this Court which followed the holding of the Supreme Court in SWAT 24 supra: Richard Berry & Associates, Inc. v. Bryant, 03-106 (La.App. 5 Cir. 4/29/03), 845 So.2d 1263 and Bail Bonds Unlimited, Inc. v. Chedville, 01-1401 (La.App. 5 Cir. 10/29/02), 831 So.2d 403, writ denied, 02-2913 (La.2/07/03), 836 So.2d 104. In SWAT 24 and the cited cases, La. R.S. 23:921(C) was interpreted as restricting an employee or independent contractor from engaging in or carrying on his own competing business, but still allowing an employee or independent contractor to become employed by a competitor of his former employer.

However, this interpretation of “carrying on and engaging in a business similar to that of the employer” in La. R.S. 23:921(C) has since been legislatively overruled. By Act 2003, No. 428, effective August 15, 2003, the legislature broadened the scope of noncompete agreements by amending La. R.S. 23:921 to provide:

D. For the purposes of Subsections B and C, a person who becomes employed by a competing business, regardless of whether or not that person is an owner or equity interest holder of that competing business, may be deemed to be carrying on or engaging in a business similar to that of the party having a contractual right to prevent that person from competing.

Thus, La. R.S. 23:921, as amended in 2003, now provides that a person who becomes employed by a competing business, regardless of whether he is an owner or equity interest holder of that business, may be deemed to be carrying on or engaging in a business similar to that of his former employer who seeks to enforce a noncompete agreement. La. R.S. 23:921(D). The 2005 Employment Contract executed by the parties in this case was therefore governed by the 2003 statutory amendments. We therefore find that the trial court erred in applying pre-amendment jurisprudence to the facts of this case. The court erred in failing to consider the effect of the statute as amended on whether RSI has stated a cause of action in the present case.

|7In the present case, the “General Independent Contracting Agreement” executed by the parties on March 16, 2005 and referred to in plaintiffs petition as the Employment Contract provides that as an independent contractor, Sanchez agreed to properly refinish bathtubs and countertops of buildings, residences or other structures assigned to him by RSI. The compensation amount for this service is also specified in the terms thereof. The Employment Contract also references the Noncompete Agreement which is incorporated into the document, and provides in part that if the contract was terminated, Sanchez agreed to refrain from:

(A) Carrying on or engaging in a business similar to that of SURFACE RESTORATION, INC., within the specified Parishes of the State of Louisiana listed in the Geographical Areas Addendum (Exhibit “A”), attached hereto and incorporated herein, during the two (2) year period from the termination date of the relationship with SURFACE RESTORATION, INC.
(B) Directly or indirectly owning, managing, operating, joining, controlling, being employed by, or participating in the ownership, management, operation or control of, or being connected in any manner with any business engaged to any extent in a business similar to that of SURFACE RESTORATION, INC. or any of its subsidiary corporations, or any of its parent corporations, in competition with SURFACE RESTORATION, INC., within the specified Parishes of the State of Louisiana listed in the Geographical Areas Addendum (Exhibit “A”), attached hereto and incorporated herein, during the two (2) year period from the termination date of the relationship with SURFACE RESTORATION, INC.
(C) Soliciting or contacting, directly or indirectly, any customer, client, underwriter, servicer, supplier or former customer, client, underwriter, servicer or supplier of SURFACE RESTORATION, INC., in an attempt to thereby procure business for EMILE J. SANCHEZ or divert business from SURFACE RESTORATION, INC., within the specified parishes of the State of Louisiana listed in the Georgraphical Areas Addendum (Exhibit “A”), attached hereto and incorporated herein, during the two (2) year period from the termination date of the relationship with SURFACE RESTORATION, INC.

The Geographical Areas Addendum (Exhibit “A”) attached to this document lists the following State of Louisiana parishes to which the agreement applies: East Baton Rouge, Orleans, Jefferson, Livingston and Ascension.

|sIn its petition, RSI, a Texas corporation, alleges that it generally specializes in the repair, stripping, resurfacing, refinishing, and remodeling of bathtubs, sinks, tile, countertops and other various surfaces found in kitchens and bathrooms located within residential and other buildings and properties. RSI alleged that in March of 2005, it hired Sanchez as an independent contractor pursuant to the written Employment Contract to perform and oversee its on-site surface restoration and refinishing work in furtherance of RSI’s Louisiana business. RSI alleges that the Noncom-pete Agreement was incorporated and made part of the Employment Contract, and that Sanchez terminated the employment contract on May 26, 2010.

RSI further alleges that while still an independent contractor pursuant to the Employment Contract, Sanchez “associated himself with and engaged in a business that directly competes with RSI, namely QUALITY REFINISHING, LLC ... by procuring business for QUALITY REFINISHING, LLC in the prohibited geographical areas, ... primarily by exploiting his established personal relationships with RSI’s long-established customers in these areas and soliciting business from these customers, in direct competition with RSI, effectively usurping much of RSI’s long establish business.” RSI further alleges that Sanchez “continues to solicit and procure business ... from longstanding customers and clientele and to advertise and promote the similar resurfacing business of QUALITY REFINISHING, LLC, a Louisiana company directly competing with RSI, with the deliberate purpose and effect of usurping much of RSI’s business in the prohibited Louisiana parishes specifically identified under the Noncompete Agreement.” RSI alleges that if the terms of the Noncompete Agreement executed by Sanchez qualifies as an exception to the general prohibition against agreements in restraint of trade, the agreement is valid and enforceable under Louisiana law. RSI alleges that the terms of the Noncompete Agreement meet the requirements set 19forth in La. R.S. 23:921(C), and that by carrying on and engaging in a business similar to that of RSI in the specified Louisiana parishes, in direct competition with RSI, Sanchez is in direct violation of the Noncompete Agreement. RSI sought both money damages and injunctive relief as provided for by contract.

Accepting as true the allegations of the petition, we find that RSI has properly stated a cause of action against Sanchez for breach of the Employment Contract. We find, according to the allegations of the petition and pursuant to La. R.S. 23:921, as amended, the action sought to be enjoined by RSI falls within a strict construction of the exception set forth in La. R.S. 23:921(C). We therefore hold that the trial court erred in maintaining defendant’s peremptory exception and dismissing plaintiffs petition, and the judgment is therefore reversed. However, as the only issue before us is whether the petition states a cause of action, nothing in this opinion should be construed as a ruling on the merits of plaintiffs petition for damages and injunctive relief. The matter is remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed against Emile Sanchez.

REVERSED AND REMANDED

      . The dispute over the Sales Contract is not a part of this appeal and will not be addressed herein.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Jack McCLANAHAN, et al. v. Susan Folse McCLANAHAN.
    No. 11-CA-284.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      W. Christopher Beary, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    David M. Prados, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this malicious prosecution proceeding, plaintiff/appellant, Jack McClanahan, appeals a judgment granting summary-judgment in favor of the defendant/appel-lee, Susan Folse McClanahan, and dismissing his case. Mr. McClanahan sued his former wife, Ms. Folse, alleging malicious prosecution arising from a community property partition in which Mr. McClana-han prevailed in large part on his ex-wife’s reimbursement claims. Upon de novo review, we find that the seminal issues are these: (1) Was the granting of summary judgment premature because of outstanding discovery? (2) Was advice of counsel in this case, a complete defense to Mr. McClanahan’s action for malicious prosecution? For the reasons that follow, we affirm the granting of summary judgment. We conclude that the motion for summary judgment was not premature and advice of counsel was a complete defense to Mr. McClanahan’s action.

Procedural History

In the community property proceeding, Ms. Folse asserted claims for reimbursement of alleged community funds transferred to various companies. McClanahan v. McClanahan, 09-182, p. 2 (La.App. 5 Cir. 10/13/09), 27 So.3d 862, 863, writ denied, 09-2455 (La.1/29/10), 25 So.3d 833 (discussing procedural history). After the trial judge rendered judgment, Mr. McCla-nahan and Ms. Folse appealed. On appeal, we noted that the parties were married for 10 years; prior to the marriage, Mr. McClanahan had a net worth of between 40 and 60 million dollars and at the termination of the marriage he had a net worth of approximately 10 million dollars; Mr. McClanahan attributed this significant downturn primarily to the crash in the oil industry; during the course of the marriage Mr. McClanahan customarily engaged in numerous complicated business transactions; and, many of these transactions were through his primary company which, both parties agreed, he owned prior to the marriage, McClanahan Contractors. McClanahan v. McClanahan, 03-1178, p. 1 (La.App. 5 Cir. 2/23/04), 868 So.2d 844, 847, writ denied, 04-1175 (La.9/3/04), 882 So.2d 609. We affirmed certain of the trial court’s reimbursement awards to Ms. Folse and found no legal basis for the trial court’s reimbursement award for other claims made by Ms. Folse. See, e.g. McClanahan, supra, at 11-13, 15-16, 852-54.

In 2005, after the appeal, Mr. McClana-han filed a petition alleging malicious prosecution. Mr. McClanahan alleged as follows: that of the more than $10 million in reimbursement claims, $176,385.75 were found to be meritorious — less than 2% of the total amount claimed; Ms. Folse asserted a community property interest in Sterling Investments LLC, which was clearly found not to be community property; Ms. Folse did not have an honest belief in the underlying |4facts or legal theories regarding the reimbursement claims and the community claim to the interest in Sterling Investments; Ms. Folse’s allegations were made with wanton and reckless disregard of his rights and with the intent to obtain an unfair advantage from him so that he would agree to pay more money in settling the community property partition; the lack of probable cause in making the reimbursement claims was evidenced in part by several statements made by this Court in its appellate opinion with respect to her claims in the community property partition; Ms. Folse’s knowledge regarding the fact that the reimbursement claims had no legitimate factual or legal basis was evidenced by the fact that she offered to settle the community property proceeding for receipt of the home and $200,000; Ms. Folse made the multi-million-dollar reimbursement claims without probable cause in order to receive a favorable settlement; and, Ms. Folse asserted numerous claims for reimbursement without probable cause and with malice. Mr. McClanahan alleged that in several respects he suffered damages as a result of Ms. Folse’s baseless and malicious claims.

Ms. Folse raised, among other defenses, the defense that she relied on the advice of counsel in seeking the reimbursement claims. As a result, Mr. McClanahan sought to disqualify Ms. Folse’s counsel, Mr. Robert C. Lowe, who represented her in the partition matter. The trial court granted the motion in 2006.

A few years later, Mr. McClanahan sought Mr. Lowe’s records and deposition. Mr. McClanahan urged that he had no alternative means of obtaining the communications and records regarding matters concerning the community property proceeding. He asserted that the information was not protected by a privilege or the work product rule since Ms. Folse waived the privilege by | ¿asserting the advice of counsel defense. On May 20, 2009, the trial court denied the request for the subpoena for the records but granted Mr. McClanahan leave to take Mr. Lowe’s deposition. Mr. McClanahan then sought writs. This Court found that the subpoena duces tecum was procedurally defective and that the remaining issues (privilege and work product) had not been presented to the trial court for determination. McClanahan v. McClanahan, 09-182, 09-426, pp. 4-7 (La.App. 5 Cir. 10/18/09), 27 So.3d 862, 865-66, writ denied, 09-2455 (La.1/29/2010), 25 So.3d 838.

Thereafter, Ms. Folse filed a motion for summary judgment urging that Mr. McClanahan could not carry his burden to prove all of the elements necessary to establish his claim. Additionally, she urged her advice of counsel defense, and attached supporting affidavits.

Mr. McClanahan opposed the motion and reurged his discovery requests, seeking a ruling regarding Ms. Folse’s alleged privileges. He opposed summary judgment in part as premature due to inadequate discovery. Mr. McClanahan conceded that he had been granted leave to depose Mr. Lowe but had not done so, urging that the deposition would be a futile exercise given opposing counsel’s assertion that the matter was privileged. Mr. McClanahan maintained that by pleading the advice of counsel defense, Ms. Folse placed Mr. Lowe’s testimony at issue and waived the attorney-client and work product privileges with regard to that testimony.

The trial judge granted the motion for summary judgment and dismissed the case. He also ruled that the discovery motions were therefore moot.

IfiAnalysis

We note at the outset that Mr. McClana-han raises three specifications of error claiming legal error in the trial judge’s reasons for judgment, which are rendered moot by our de novo review. The applicable standard of review for an appellate court when reviewing a motion for summary judgment is that of de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A de novo review gives no weight to the trial court’s findings. Covington v. McNeese State University, 08-505, p. 3 (La.App. 3 Cir. 11/5/08), 996 So.2d 667, 669, writ denied, 09-0069 (La.3/6/09), 3 So.3d 491. Thus, we will not address whether the trial court applied incorrect law. Rather, we will fully conduct a de novo review and address the remaining issues: (1) The district court erred by failing to allow adequate discovery prior to ruling on the motion for summary judgment. (2) Even without allowing for adequate discovery, the circumstantial evidence in this case is sufficient to create genuine issues of material fact as to the presence of malice. (3) Summary judgment is seldom appropriate for determinations based on subjective facts.

We begin our analysis with the settled premise that actions for malicious prosecution have never been favored, and, in order to sustain them, a clear case must be established, where the forms of justice have been perverted to the gratification of private malice and the willful oppression of the innocent. Johnson v. Pearce, 313 So.2d 812, 816 (La.1975) (citation omitted).

[/There are six elements necessary to support a claim for malicious prosecution, and the lack of any one of these factors is fatal to such a claim. They are: 1) the commencement or continuance of an original criminal or civil judicial proceeding; 2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; 3) its bona fide termination in favor of the present plaintiff; 4) the absence of probable cause for such proceeding; 5) the presence of malice therein; and 6) damage conforming to legal standards resulting to plaintiff. McClanahan v. McClanahan, 09-182, p. 3 (La.App. 5 Cir. 10/13/09), 27 So.3d 862, 864, writ denied, 09-2455 (La.1/29/10), 25 So.3d 833 (citation omitted). Further, the action for malicious prosecution has always been applied only where there has been strict compliance with all essential elements. Id.

Here, Ms. Folse raised the advice of counsel defense.

In Eusant v. Unity Industrial Life Ins. & Sick Benefit Ass’n of New Orleans, 195 La. 347, 353, 196 So. 554, 556 (1940) (citations and internal quotation marks omitted), the Court recognized the well-settled rule that where a party has communicated to his counsel all the facts bearing on the case of which he has knowledge, or could have ascertained by reasonable diligence and inquiry, and has acted upon the advice received honestly and in good faith, the absence of malice is established, the want of probable cause is negatived, and the action for malicious prosecution will not lie. Probable cause does not depend upon the actual state of the case in point of fact, but on the honest and reasonable belief of the party prosecuting. Id.

With these precepts in mind, we first consider whether the motion for summary judgment was premature.

{¡^Discovery

Mr. McClanahan argued that summary judgment was premature because discovery was inadequate as to the defense of advice of counsel, relying on his counsel’s, W. Christopher Beary’s, affidavit explaining his reasons for the inadequacy. Mr. McClanahan argued that Mr. Lowe’s file was the only source of information regarding Ms. Folse’s defense. He stated that Ms. Folse could not simply testify that she relied on advice of counsel without testifying to the substance of that advice; the correspondence she received from counsel; and, the notes from meetings with counsel. Mr. McClanahan also urged that he needed to question Mr. Lowe about his thoughts, impressions, research, and advice. He argued that without knowing the advice given, when it was given, and the analysis supporting that advice (what was known or should have been known about the legal theories and relevant facts), it was impossible to ascertain Ms. Folse’s motives and whether there was any legitimacy to the claims.

La.C.C.P. art. 966(C)(1) provides: “After 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.”

A defendant’s motion for summary judgment may be made at any time. La. C.C.P. art. 966(A). This Court has found that La. C.C.P. art. 966 does not give parties an absolute right to delay a decision on a motion for summary judgment until all discovery is complete. Musa v. Litton-Avondale Industries, Inc., 10-627, p. 13 (La.App. 5 Cir. 3/29/11), 63 So.3d 243, 251, writ denied, 11-1256 (La.9/23/11), 69 So.3d 1163 (citation omitted). Yet, the law does require that parties be given a fair opportunity to present their claim. Id. It is within the trial court’s wide discretion to render a summary judgment, if appropriate, or to allow further discovery. Id. Unless a plaintiff shows a probable injustice a suit should not be |3delayed pending discovery when it appears at an early stage that there is no genuine issue of fact. Simoneaux v. E.I. du Pont de Nemours and Co., Inc., 483 So.2d 908, 913.

In this case, Mr. McClanahan seeks further discovery but he did not avail himself of the opportunity to depose Mr. Lowe. Furthermore, the answers Mr. McClana-han seeks were provided by affidavits attached to Ms. Folse’s motion for summary judgment, including Mr. Lowe’s affidavit in which he attached his post-trial memorandum from the partition proceeding. Mr. Lowe, Ms. Folse, and Mr. Harold A. Asher (Ms. Folse’s CPA) attested that Ms. Folse provided no information or input regarding the reimbursement claims. Rather, the reimbursement claims were based on analysis and theories of and by Mr. Lowe and Mr. Asher based on the law and the documents provided (and not provided) by Mr. McClanahan. In Mr. Lowe’s professional opinion, these claims were not baseless or without probable cause. He provided his post-trial memorandum to show his thoughts, impressions, research, and advice to. Ms. Folse.

In these unique circumstances where the basis for the attorney’s advice came from documents provided by Mr. McClanahan rather than from Ms. Folse, any further discovery involving the attorney’s files and deposition (even assuming these are non-privileged) would be irrelevant. The partition proceeding rested on technical claims and expert testimony. This case is distinguishable from cases in which the client, who is relying on an advice of counsel defense, misrepresents facts to counsel. See, e.g. Bladg v. Giacomino, 170 La. 638, 128 So. 661, 662 (La.1930). (“The fact that defendant, in a suit for damages for malicious prosecution, acted under advice of counsel, is of no excuse if the advice was given upon his misrepresentation of the circumstances of the case.”). Since the unrefuted basis for the attorney’s advice came from documents provided by Mr. McClanahan rather | inthan from Ms. Folse, Ms. Folse could not have misrepresented the facts upon which her attorney relied.

Further, Mr. McClanahan has not demonstrated how additional discovery would have altered the outcome of this claim since Ms. Folse’s reimbursement claims did not rest on her representation to counsel. We find that under these circumstances, Mr. McClanahan failed to show a probable injustice to warrant a delay pending discovery. See: Simoneaux v. E.I. du Pont de Nemours and Co., Inc., supra.

We now turn to the remaining specifications of error.

The Summary Judgment

An appellate court asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith, supra. A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, show that there is no genuine issue of material fact such that the mover is entitled to judgment as a matter of law. Audubon Trace Condominium Ass’n, Inc. v. Brignac-Derbes, Inc., 05-715, p. 6 (La.App. 5 Cir. 2/27/06), 924 So.2d 1131, 1134, citing La.C.C.P. art. 966(B).

Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Id. (Citations omitted).

On appeal, Ms. Folse urges that although the trial court did not address it in his reasons, reliance on the advice of counsel is an absolute defense, and it negates the presence of probable cause and malice. She states, however, that the trial court did not base its ruling on this defense, and it did not have to, as her other defenses | nwere sufficient to support the granting of summary judgment. Nevertheless, she urges that this Court is not precluded from considering her advice of counsel defense. Since we are conducting a de novo review, we give no weight to the trial court’s findings.

Upon de novo review, we find that the record shows conclusively that the defense of advice of counsel was established by Ms. Folse as a matter of law. Ms. Folse provided supporting affidavits to show that she provided no information or input regarding the reimbursement claims. Mr. McClanahan corroborated the attestation that Ms. Folse relied on advice of counsel in his opposing affidavit. In his affidavit in opposition to the motion for summary judgment, Mr. McClanahan attested that Ms. Folse told him that she would seek her lawyer’s advice to determine the reasonableness of her claims.

Moreover, Mr. Lowe’s advice that in his professional opinion as a Board Certified Family Law Specialist and author of Louisiana Divorce, the claims were not baseless or without probable cause was evident from his post-trial memorandum. For example, Mr. Lowe relied on the law at the time that required Mr. McClanahan to rebut the strong presumption that property was not community property by proof that was fixed, clear, positive and legally certain, citing La.C.C. art. 2340 and Luffey v. Luffey, 572 So.2d 1045, 1049 (La.App. 2 Cir.1990), writ denied, 577 So.2d 50 (La.1991) (citations omitted).

Furthermore, Ms. Folse consulted an experienced attorney in this area. Thus, she was justified in her belief in his competency and was in good faith in relying on his advice. In Brooks v. Bank of Acadia, 138 La. 657, 70 So. 573, 575 (La.l916), the Louisiana Supreme Court held: “Advice of counsel, even though erroneous, on questions of law, when accepted and acted on by the client in good faith, is a shield against charges of malice and bad faith.” Therefore, the defense of advice of counsel does not depend on whether this Court found legal support lacking for the issues raised by Mr. Lowe in the partition appeal.

Moreover, although summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge or malice; it may be granted on a subjective issue when no issue of material fact exists concerning that issue. Smith, supra, 639 So.2d at 751. In this case, we find no issue of material fact exists.

Conclusion

Accordingly, for the reasons stated, the judgment is affirmed.

AFFIRMED

      . Although Ms. Folse sought to have the instant malicious prosecution suit transferred from the division to the division that handled the community property partition, the court denied the transfer. Mr. McClanahan filed a motion in this Court seeking supplementation of the appellate record with the motion and denial. Ms. Folse opposed the supplementation urging that the pleadings were not part of this record. We granted the motion to supplement. The pleadings, however, are cumulative since these documents were already contained in the prior appellate record, which is an exhibit to the record on appeal. These documents were attached to Ms. Folse's reply memorandum filed on January 29, 2008 and attached to that memorandum.

      . In a prior appeal in the malicious prosecution case, McClanahan v. McClanahan, 09-182, 09-426 (La.App. 5 Cir. 10/13/09), 27 So.3d 862, writ denied, 09-2455 (La.1/29/2010), 25 So.3d 833, this Court affirmed the judgment sustaining the exception of no right of action finding that the ex-husband's companies were not proper parties plaintiff to the ex-husband’s action against the ex-wife for malicious prosecution.

      . See, e.g. McClanahan, supra, at 11-13, 15-16, 852-54.

      . This Court denied writs. McClanahan v. McClanahan, 07-83 (La.App. 5 Cir. 3/5/07) (unpublished), writ denied, 07-0577 (La.5/4/07), 956 So.2d 619.

      . He asserts the following: (1) The district court erred by weighing the evidence to arrive at the conclusion that Ms. Folse lacked malice during the partition proceeding. (2) The district court erred as a matter of law in finding that no malicious prosecution suit can arise out of reimbursement claims previously asserted in a community property partition. (3) The district court erred in finding that the plaintiff had to allege wrongful conduct during the partition proceeding in order to sustain a claim for malicious prosecution after the conclusion of the partition proceeding.

      . After the partition proceeding was tried, and before this Court decided the appeal, the Louisiana Supreme Court changed the proof standard. In Talbot v. Talbot, 03-0814 (La.12/12/03), 864 So.2d 590, 600, the Court held: "As a matter of public policy and in the interest of fairness, we find that the community presumption contained in article 2340 is rebuttable by either spouse upon a showing by a preponderance of the evidence the separate nature of property brought into the community.”

      . Accord: Brodrib v. Doberstein, 107 Conn. 294, 140 A. 483, 484-85 (Conn.1928) (citations omitted) ("Advice of counsel is a complete defense to an action for malicious prosecution when it appears that the defendant made the complaint relying in good faith on such advice, given after a full and fair statement of all the facts within his knowledge, or which he was charged with knowing, and the fact that the attorney’s advice was unsound or erroneous will not affect the result.”).


text:
    Jackie DUNCAN v. Frederic C. QUERENS D.D.S., M.S. and XYZ Insurance Co.
    No. 11-CA-289.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Katherine M. Guste, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    John B. Cazale, Peter E. Sperling, Fri-lot Law Finn, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

| ¡¿Plaintiff, Jackie Duncan, now appeals the trial court’s granting of Dr. Frederic Querens’ exception of prescription and dismissal of her claims with prejudice. For the following reasons, we affirm the trial court’s judgment.

STATEMENT OF THE CASE

Plaintiff, Jackie Duncan, had braces placed on her teeth by Dr. Frederic Quer-ens in August 1987. The braces remained on her teeth for thirteen years. In April 2000, her regular dentist referred her to another orthodontist. On May 1, 2000, Duncan sought a second opinion from Dr. Hector Maldonado. Dr. Maldonado performed testing to determine the injuries she had sustained due the her braces remaining on her teeth for an extended amount of time.

On May 1, 2001, Duncan filed a request for a medical review panel regarding the alleged malpractice of Dr. Querens. The medical review panel issued an opinion and reasons on December 3, 2009. Copies were sent to the | ¡¡parties by certified mail. Duncan received the opinion, through her counsel, on February 6, 2010.

On May 19, 2010, Duncan filed a petition for damages against Dr. Querens seeking damages for his negligence. In her petition, Duncan states that she sought a second opinion from Dr. Maldonado on May 1, 2000. In response to this petition, Dr. Querens filed an exception of prescription arguing there was no time remaining on the one year prescriptive period after the medical review panel request was filed, so Duncan only had ninety days from the receipt of the medical review panel opinion to file her petition. Duncan’s counsel received the opinion February 6, 2010, so Dr. Querens contends she had until May 7, 2010 to file her petition. Duncan’s petition was not filed until May 19, 2010. Therefore, Dr. Querens argued the petition was prescribed.

Duncan did not file a memorandum in opposition to the exception of prescription. She requested a continuance of the original hearing date, but still failed to file an opposition or any exhibits prior to the hearing. A hearing was held on the exception of prescription on August 18, 2010. At the hearing, Duncan attempted to testi-' fy, however, Dr. Querens’ objected and the trial court ruled that it would not allow the testimony at the hearing because no opposition had been filed and defense counsel had no notice. Duncan’s counsel did argue in opposition of the exception that Duncan did not receive a second opinion until August 21, 2000, when she went to Dr. Maldonado and he explained the damages, options, and course of treatment. Thus, Duncan argued she did not have actual knowledge of specific damages until August 21, 2000, so she had until August 21, 2010 to file her petition for damages. The trial court executed a judgment on August 18, 2010, granting the exception of prescription and dismissing all claims of Duncan, with prejudice.

|4Puncan now appeals this judgment arguing the'petition is not prescribed on its face and Dr. Querens has not met his burden of proving it is prescribed on its face. Also, Duncan argues she should have been able to testify and to introduce evidence to support her opposition of the exception at the hearing. For the reasons which follow, we affirm the trial court’s granting of the exception of prescription and dismissal of all Duncan’s claims.

DISCUSSION

Prescription in this medical malpractice case is governed by LSA-R.S. 9:5628(A) and provides as follows:

A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

Further, LSA-R.S. 40:1299.47(A)(2)(a) provides that “[t]he filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail, as provided in Subsection J of this Section, to the claimant or his attorney of the issuance of the opinion by the medical review panel ...” Thus, the petition for damages must be filed one year from the date of the discovery of the alleged act, but the prescriptive period is temporarily suspended once the medical malpractice claim is submitted to the medical review panel. Prescription then begins to run again ninety days after the plaintiff has received notice of the medical review panel’s decision.

1 .JDuncan’s petition stated she sought a second opinion from Dr. Maldonado on May 1, 2000. This is Duncan’s only reference to the date of discovery of the alleged malpractice and the injuries she suffered due to the braces placed on her teeth by Dr. Querens. The request for a medical review panel was filed May 1, 2001, exactly one year after she states she sought her second opinion. Duncan then received the medical review panel opinion on February 6, 2010. Thus, in accordance with LSA-R.S. 40:1299.47(A)(2)(a), prescription began to run again ninety days after February 6, 2010, or on May 7, 2010. Since the request for the medical review panel was filed exactly one year after discovery of the alleged malpractice, Duncan had no time remaining once the suspension of prescription ended. Therefore, Duncan had to file her petition for damages by May 7, 2010. Her petition was not filed until May 19, 2010. Thus, we agree with the trial court and find the petition for damages was prescribed on its face.

Additionally, Duncan argues on appeal that the trial court erred in not considering the medical records she attempted to introduce at the hearing and in not allowing her to testify at the hearing. At the hearing and on appeal, Duncan argues she did not have knowledge of the injuries she had sustained until August 12, 2000, when Dr. Maldonado met with her to discuss the results of the diagnostic testing. However, this date does not appear in Duncan’s petition. At the hearing on the exception of prescription, Duncan claims she attempted to introduce into evidence copies of her dental records from Dr. Maldonado, including the contract she signed on August 12, 2000. The trial court would not accept these exhibits, nor allow Duncan to testify because she had failed to submit an opposition memorandum to the trial court. Uniform District Court Rule 9.9 provides that parties who fail to submit an opposition memo to the trial court and other parties eight days before the hearing may forfeit the privilege of oral argument. In this | ficase, the trial court allowed Duncan’s counsel to orally argue in opposition of the exception, but would not allow Duncan to testify at the hearing because defense counsel had no notice. We find the trial court correctly refused to allow Duncan to testify or present evidence at the hearing on the exception due to her failure to comply with the district court rules and file an opposition to the exception.

Duncan has also attached exhibits to her appellee brief to this Court, including portions of her dental records from Dr. Maldonado that she attempted to introduce at the trial court hearing. In response, Dr. Querens has filed a motion to strike exhibits A, B, and C, arguing these exhibits were not made part of the trial court record and cannot be presented for the first time on appeal. We agree with Dr. Querens and grant the motion to strike. These exhibits are not part of the trial court record and were not considered on appeal.

Accordingly, we affirm the trial court’s granting of the exception of prescription and dismissal of Duncan’s claims.

AFFIRMED; MOTION TO STRIKE GRANTED


text:
    Ann RICHARD and Kirt Richard v. LOUISIANA NEWPACK SHRIMP COMPANY, INC.
    No. 11-CA-309.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Robert B. Evans, III, Cesar R. Burgos, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Guy D. Perrier, Rodney J. Lacoste, Jr., Gerard J. Dragna, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

| gThis is a personal injury suit in which the trial judge granted summary judgment in favor of the defendant. The plaintiffs/appellants, Ann Richard and Kirt Richard, appeal the judgment in favor of the defendant/appellee, Louisiana New-pack Shrimp Co., Inc. The issue presented here is whether the plaintiffs’ claims are barred by the Louisiana Recreational Use Immunity Statutes, La.R.S. 9:2791 and La.R.S. 9:2795. Finding that the plaintiffs’ claims are barred by the Recreational Use Statutes, we affirm.

Procedural History

The plaintiffs filed a petition for damages alleging that on April 11, 2009 around 7:30 PM, Mrs. Richard was walking on a levee when she fell in a hole and sustained serious injuries. They alleged that the hole was caused by the defendant’s delivery trucks as the trucks entered and exited the defendant’s facility. The plaintiffs asserted that the defendant was negligent or strictly liable in several respects, including failure to warn patrons of the levee’s hazardous condition.

IsThe defendant denied the allegations and raised affirmative defenses, including the defense that it was immune from liability pursuant to the Recreational Use Statutes. Relying on the alleged immunity, the defendant filed a motion for summary judgment asserting that it was entitled to judgment as a matter of law. To support its motion, the defendant filed an act of sale and property description, a property survey, Edward Lee’s affidavit, and the plaintiffs’ depositions.

Mr. Lee attested to the following:

He manages the Edward Lee Family Investment Company, LLC (the Lee property), the owner of the property where Mrs. Richard claimed she injured herself. The Lee property is leased to the defendant, which operates a wholesale seafood processing business on the site. Bayou Segnette runs adjacent to the seafood plant. There are boat docks in the bayou that have been used for many years by recreational and commercial fisherman as well as boaters. Those docks are built into the canal or bayou. Neither the defendant nor the Lee property company does any business with the boaters and/or fishermen who use the docks adjacent to the seafood plant property. For many years, individuals have been allowed to gain access to their docks and boats free of charge by entering from the seafood plant property. Often, these individuals park their vehicles on the seafood plant property. Neither the defendant nor the Lee property company has ever charged these individuals a fee or collected any revenue from the individuals who use the docks and boat slips. Neither the Lee Company nor the defendant operates a commercial recreational enterprise at the seafood plant property. At the time that Mrs. Richard claimed to have fallen, the seafood plant was closed and there were no employees of the defendant or the Lee property company present.

|4Mrs. Richard’s deposition testimony was consistent with Mr. Lee’s attestation that for many years, individuals have been allowed to gain access to their docks and boats by entering from the seafood plant property. She stated that on the date of the alleged accident, she had been staying at a friend’s camp located on the water in Bayou Segnette. This marsh area can only be accessed by boat. The camp is approximately 12 to 15 minutes from the seafood plant. She testified that over the course of 20 years, people have always parked in the seafood plant property area to get to the boats. The seafood plant operated during those 20 years with trucks coming and going there. Before the alleged accident, she had been to the camp approximately 50 times over the course of 20 years. People with boats who want to launch their boats use the road that cuts through the seafood plant property all of the time. At the time she fell, around 7:00 PM or 7:15 PM on a Saturday evening, the shrimp plant was closed.

Likewise, Mr. Richard testified that during the entire time that he has been coming to the camp by boat it was customary for vehicles to park alongside the seafood factory. Each day, there is fairly steady traffic going up and down that road with people coming to launch their boats at the public launch in the rear.

Mrs. Richard testified that on the day in question, she fell while she was at the seafood property. She explained that her family had been at the camp for the Easter weekend, arriving a few days before the alleged fall. Upon arriving, she and her husband parked their vehicle on the seafood plant’s property and accessed their friend’s boat, which was already in the water. The boat was by the “little levee” on the seafood plant’s property. She testified that she had crossed the “little levee” before that day approximately hundreds of times and never had a problem crossing. She described the “little levee” as a 2-1/2 to 3 foot dirt mound that runs along the waterway and also along the road that cuts through the defendant’s property.

| RMrs. Richard testified that at the camp, people fished and canoed. She left the camp that day by boat accompanied by her husband and friend in order to purchase groceries and items for the children. Upon returning to the boat to depart to the camp, she realized that she left her jacket on the back of the truck. She-walked on the levee, a path she had previously- walked hundreds of times without incident, in order to retrieve the jacket. Before the fall, she made six trips across the levee loading groceries into the boat. Finally, while crossing the levee in the same area as before to retrieve her coat, surprisingly, the ground gave way causing her to fall.

Mrs. Richard stated that she fell when her leg got caught in a rut. According to Mrs. Richard, the defendant’s failure to accommodate trucks entering and leaving its business allowed trucks little room to negotiate the turn. Thus, the truck’s tires caught the bottom of the “little levee” making tire tracks and cuts into the levee. She had seen these ruts after the plant built a fence and before the accident. She had never, however, complained to the defendant about the ruts.

The plaintiffs opposed the motion on two grounds. First, they asserted that the Recreational Use Statutes do not apply because the defendant’s lot only incidentally services recreational activity and the recreational activity is exclusively and always engaged in away from the defendant’s property. Second, they argued that the Recreational Use Statutes do not provide immunity for a willful failure to warn against a dangerous condition, use, structure, or activity.

In granting summary judgment, the trial judge concluded that the defendant was immune under the Recreational Use Statutes. This appeal followed.

| (Analysis

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966(B). We apply the de novo standard of review in reviewing a district court judgment on a motion for summary judgment. Robinson v. Jefferson Parish Sch. Bd., 08-1224, p. 13 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975 (citations omitted).

The movant bears the burden of proof. La.C.C.P. art. 966(C)(2). If the movant meets this initial burden, the burden then shifts to the plaintiff to present factual support adequate to establish that he will be able to satisfy the evidentiary burden at trial. Thereafter, if the plaintiff fails to meet this burden, there is no genuine issue of material fact and defendant is entitled to summary judgment as a matter of law. Id.

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 (citations omitted).

Immunity

The first issue presented on appeal is whether the Immunity Act is applicable, thereby immunizing the defendant from liability. The plaintiffs argue that at the time of the alleged accident, Mrs. Richard was not engaging in recreational activity; the activity did not begin until she was in the boat. They also argue that the levee served more than one purpose. It served the defendant’s own commercial enterprise, the commercial enterprises of other fisherman, and allowed |7others a “pass through” to enter the bayou for a recreational purpose in another area. Thus, according to the plaintiffs, the levee only incidentally serviced recreational activity.

Louisiana’s Recreational Use Statutes are contained in La.R.S. 9:2791 and La. R.S. 9:2795. These statutes generally provide immunity to certain parties, including a lessee, when the subject land is used for a recreational purpose. La.R.S. 9:2795(B)(1) does, however, retain liability for willful or malicious failure to warn against a dangerous condition, use, structure, or activity.

La.R.S. 9:2791(A) provides:

An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping, hiking, sightseeing, or boating or to give warning of any hazardous conditions, use of, structure, or activities on such premises to persons entering for such purposes, whether the hazardous condition or instrumentality causing the harm is one normally encountered in the true outdoors or one created by the placement of structures or conduct of commercial activities on the premises. If such an owner, lessee, or occupant gives permission to another to enter the premises for such recreational purposes he does not thereby extend any assurance that the premises are safe for such purposes or constitute the person to whom permission is granted one to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted.

“Premises” as used in the above section, “includes lands, roads, waters, water courses, private ways and buildings, structures, machinery or equipment thereon.” La.R.S. 9:2791(C). Thus, the levee, the land, is included in the definition of premises.

The later-enacted statute, La.R.S. 9:2795, pertinently provides::

|SB. (1) Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
(a) Extend any assurance that the premises are safe for any purposes.
(b) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.
(c) Incur liability for any injury to person or property caused by any defect in the land regardless of whether naturally occurring or man-made.
La.R.S. 9:2795(33).

The defendant leases the property owned by the Lee company. (La.R.S. 9:2795(B)(1), provides an exception to immunity as to an “owner”) La.R.S. 9:2795(A)(2) defines “owner” as “the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.” Thus, the immunity exception extends to lessees such as the defendant.

In separate years, the Legislature passed these two remarkably similar statutes designed to encourage landowners to open their lands, on a basically nonprofit basis for recreational use. Richard v. Hall, 03-1488, pp. 21-22 (La.4/23/04), 874 So.2d 131, 147-48 (citation omitted). The statutes should be construed with reference to each other. Id. The Recreational Use Statutes are in derogation of common or natural right and, therefore, are to be strictly interpreted, and must not be extended beyond their obvious meaning. Id. at 22, 874 So.2d at 148. However, the enactment of La.R.S. 9:2795, a second more expansive immunity statute, evidences an intent on the Legislature’s part that these statutes are to grant a broad immunity from liability. Hall, supra, at 29-30, 874 So.2d at 151-52. Thus, in Hall, the Louisiana Supreme Court placed a construction on La.R.S. 9:2795(B)(1), the section at issue therein, which was consistent with the obvious intent of the Legislature to grant a broad immunity from liability and did not extend the statutes beyond their obvious meaning. Id.

The Immunity Act grants immunity for recreational activities. La.R.S. 9:2791(A) provides a restrictive list of recreational activities: hunting, fishing, camping, hiking, sightseeing, or boating. On the other hand, the later enactment, La.R.S. 9:2795(A)(3), provides for a more expansive list of recreational activities. La.R.S. 9:2795(A)(3) broadly defines “recreational purposes” as including but not limited to

any of the following, or any combination thereof: hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, horseback riding, bicycle riding, motorized, or nonmotorized vehicle operation for recreation purposes, nature study, water skiing, ice skating, roller skating, roller blading, skate boarding, sledding, snowmobiling, snow skiing, summer and winter sports, or viewing or enjoying historical, archaeological, scenic, or scientific sites.

Here, we must determine whether Mrs. Richard had been engaged in a “recreational purpose.” Given that La.R.S. 9:2795(A)(3) expansively defines “recreational purposes” as including but not limited to the enumerated list, we find that Mrs. Richard’s activity was covered by that omnibus clause “including] but not limited to.” La.R.S. 9:2795(A)(3). The “including, but not limited to” language makes clear that the Legislature did not intend that the list of enumerated activities was exhaustive. Although loading a boat and preparing to depart to a camp are not any of the specific enumerated activities, the definition of recreational purpose is broad enough to include the normal activities associated with boating and camping.

The plain wording of the Immunity Act only requires that the lessee permits with or without charge any person to use his land for recreational purposes. linLa.R.S. 9:2795(B)(1). The statute does not require that the injury arise out of the recreational activity per se, as long as the person injured was on the property for a recreational purpose. Webb v. Parish of St Tammany, 06-0849, p. 6 (La.App. 1 Cir. 2/9/07), 959 So.2d 921, 925, writ denied, 07-0521 (La.4/27/07), 955 So.2d 695 (citation omitted).

The levee walkway granted access to the bayou and allowed people to continue to enjoy the recreational purposes provided by boating and camping. In Broussard v. Dep’t of Transp. & Dev., State of La., 539 So.2d 824, 882 (La.Ct.App. 3 Cir.1989), the plaintiff, who was injured on a concrete boat launch ramp, sued the State for its alleged failure to maintain the ramp. The Third Circuit concluded that a boat ramp that the owner built to make marsh areas available to the public for recreational purposes fell within the purview of the Immunity Act. LSA-R.S. 9:2791 and 9:2795.

We hold that the levee was recreational -within the meaning of the Immunity Act. Because of the expansive definition of “recreational purpose”, we find that the levee itself need not be recreational in character. Although the levee walkway adjacent to Bayou Segnette might not be primarily recreational in character, boating in the bayou is certainly recreational and the levee walkway allowed boaters the ability to reach their boats. Taken as a whole, we find that the bayou and its adjacent levee walkway were intended or permitted to be used for recreational purposes.

Mrs. Richard’s purpose at the time of her alleged injury had undoubtedly been recreational, within the meaning of the recreational use statute. She was in the process of boarding the boat to resume camping activities. Boating and camping fall within the definition of “recreational purposes,” to which the recreational use statute applied.

Inin this case, the plaintiffs were using the levee located on the defendant’s property for the purpose of engaging in camping and boating recreational activities. The levee afforded the means through which the plaintiffs could access a boat to the camp site.

The sole purpose of Mrs. Richard’s walk over the defendant’s levee property was to gain access to the boat to use for recreational purposes. The walk was an integral part of the recreational activities. Assuming non-recreational use of the levee for commercial fishing did take place, it did not affect the recreational use in question. As we see it, the inquiry in any given case is whether the permitted use in question is for recreational purposes on a noncommercial basis. Broussard v. Dep’t of Transp. & Dev., State of La., 539 So.2d 824, 831 (La.App. 3 Cir.1989).

We conclude, therefore, that the Recreational Use Statute is applicable and, in the absence of any exception, bars the instant claim.

Exception

Appellants argue that even if this Court were to find that the Immunity Act applies, there is an issue of material fact precluding summary judgment because the defendant could still be found without immunity under La.R.S. 9:2795(B)(1) for “willful or malicious failure to warn against a dangerous condition, use, structure, or activity.” “A failure to warn of a dangerous condition connotes a conscious course of action, and is deemed willful or malicious when action is knowingly taken or not taken, which would likely cause injury, with conscious indifference to consequences thereof.” Robinson v. Jefferson Parish Sch. Bd., 08-1224, p. 18 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1046, writ denied 09-1187 (La.9/18/09), 17 So.3d 975 (citations omitted).

|1?As a general rule, the defendant owed a duty to discover any unreasonably dangerous condition on the premises and either correct it or warn potential victims of its existence. However, this duty does not extend to potentially dangerous conditions which should have been observed by an individual in the exercise of reasonable care or which are as obvious to a property owner as to a visitor. Wood v. State, ex rel. Dept. of Wildlife & Fisheries, 43,457, p. 13 (La.App. 2 Cir. 8/13/08), 989 So.2d 280, 288, writ denied, 08-2192 (La.11/14/08), 996 So.2d 1094 (citations omitted).

In this case, Mrs. Richard testified that she was well aware of the ruts in the levee before the alleged accident. Thus, the defendant’s duty did not extend to the alleged obvious potentially dangerous condition.

Furthermore, once the defendant established that it was entitled to immunity under La.R.S. 9:2795, the burden of establishing a malicious or willful failure to warn of a dangerous condition shifted to the plaintiffs, who presented no summary judgment evidence in this regard. DeLafosse v. Vill. of Pine Prairie, 08-0693, p. 5 (La.App. 3 Cir. 12/10/08), 998 So.2d 1248, 1252, writ denied, 09-0074 (La.2/4/09), 999 So.2d 766. Specifically, the plaintiffs made no showing that the defendant was aware of the alleged danger.

In Robinson v. Jefferson Parish Sch. Bd., 08-1224, p. 18 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1046, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975, the plaintiffs asked the Court to assume that since the person who arranged the ROTC trip was aware of the a sudden drop off into the lake, then the recreational facility was also aware of the- alleged danger to swimmers. This Court declined to adopt that assumption, and found that the plaintiffs failed to meet their burden of showing a willful or malicious failure to warn against a dangerous condition, use, structure, or activity. Id.

1 ^Therefore, since the plaintiffs, who would bear the burden of proof at trial, failed to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial on this matter, there is no genuine issue of material fact.

Conclusion

Accordingly, for the reasons stated, the judgment is affirmed.

AFFIRMED

      . The language in La.R.S. 9:2791, which provides that the Immunity Act shall not apply "when the premises are used principally for a commercial, recreational enterprise for profit” conflicts with the language in La.R.S. 9:2795, which provides the immunity is afforded to the owner, "except an owner of commercial recreational developments or facilities!.]" Because Acts 1975, No. 615, § 7 specifically provides all parts of laws in conflict with La. R.S. 9:2795 are repealed, the controlling provision in determining who is afforded immunity when the premises are a commercial recreational enterprise is the language of La.R.S. 9:2795. Richard v. Hall, 03-1488, p. 25 (La.4/23/04), 874 So.2d 131, 150. Therefore, the person claiming the immunity must utilize the premises for a commercial recreational enterprise for profit to be excluded from the immunity provisions. Id. at 29, 874 So.2d at 152.

      . La.R.S. 9:2795(A)(1) broadly defines "land” as "urban or rural land, roads, water, watercourses, private ways or buildings, structures, and machinery or equipment when attached to the realty.” Prior to its amendment in 2001, La.R.S. 9:2795 did not specifically include urban land. The amendment inserted "urban or rural” preceding "land, roads, water” in paragraph (A)(1).