author: CLARENCE E. McMANUS, Judge. WICKER, J.

text:
    QUINCY CONDOMINIUMS OF METAIRIE, INC. v. Phillip W. DUHON.
    No. 11-CA-723.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 8, 2012.

      Clarence F. Favret, III, Attorney at Law, New Orleans, LA, for Plaintiff/Appel-lee.
    Carl J. Selenberg, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKS HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

|2On February 10, 2010, Quincy Condominiums of Metairie, Inc., (hereinafter “Quincy Condominiums”) filed a petition for recognition of a lien and for money damages. In the petition, it alleges that Philip Duhon is the owner of Unit 4, and that he has not paid condominium fees and assessments in violation of the Condominium Agreement. The petition further alleges that at the time of the filing of the petition, Mr. Duhon owed $10,703.00 in fees and late penalties, in addition to attorney fees, interest and costs. The petition also requested that a lien be placed on the property pursuant to LSA-R.S. 9:1123.115.

On March 16, 2010, Mr. Duhon filed a reconventional demand alleging that Quincy Condominiums unlawfully removed a structure and unlawfully destroyed a hot tub located in the limited common area dedicated to his condominium. Mr. Duhon also alleged that Quincy Condominium unlawfully removed a window air conditioning unit and that it negligently allowed removal of his tools. In addition, Mr. Du-hon alleges that he was unable to lease his unit because of Quincy Condominiums failure to trim the hedges around his condominium and failed to fix a water leak. Mr. Duhon alleges that he suffered damages of $76,800.00 as a result of Quincy Condominiums negligence.

Two days before the trial of this matter, Quincy Condominium filed an exception of prescription to the claims made by Mr. Duhon in his reconventional demand.

|sOn December 14, 2010, the trial court heard both the exception of prescription and trial on the merits. At its conclusion, the trial court found in favor of Quincy Condominiums on the main demand, awarding it $15,047.68 plus reasonable attorney fees of $7,500.00, with interest until paid and costs of the proceedings. The trial court also dismissed Mr. Duhon’s re-conventional demand at his cost. In its judgment, the trial court stated that Mr. Duhon’s reconventional demands were prescribed.

Mr. Duhon appeals from the decision of the trial court, alleging that the trial court erred in finding that his reconventional demands were prescribed. Mr. Duhon does not challenge the award made to Quincy Condominiums or the recognition of a lien against the property.

At trial, Mr. Duhon testified that he was the owner of condominium Unit 4, having leased in 1982, and then purchased it in 1984. He knew at that time that he was subject to dues and certain regulations, as set forth in the Condominium Declaration Creating and Establishing Condominium Property Regime, the Quincy Condominium By-laws and the Articles of Incorporation. Mr. Duhon also admitted that he had not paid condominium dues for a period of almost three years, since January 1, 2007. He alleged however that he did not owe late fees, as he had an agreement with a prior president of the Condominium Association, Lisa Garcia, based on what he alleges was a violation between he and the defendant of a prior consent judgment. (See infra). Ms. Garcia testified that she owned a Condo Unit from 1998 until 2006, and that she did served as president of the Condominium Association. She testified that she never entered into an agreement with Mr. Duhon concerning his condominium fees, and that he never asked for such an agreement. She also stated that, as Condominium Association president, she did not have the authority to enter into such an agreement, without presentation to the ^Condominium Association Board. Frank Szita owns a condominium unit and was the -Condominium Association President at the time of trial. He testified that the last deposit for condominium fees made by Mr. Duhon was in December of 2006. He further testified that the Condominium Association By-laws provided for late fees and interest in the event of late payment, and further provided for attorney fees in the event of legal action.

Concerning the reconventional demand made by Mr. Duhon, the judgment on which is the subject of this appeal, the evidence at trial showed the following. Mr. Duhon testified that he built a deck in the limited common area outside his condominium unit in 1985. At the time of its construction, he added a roof and a hot tub. In addition, he installed a stereo system and storage areas around the hot tub. He also placed lawn furniture and plants on the deck.

Ms. Garcia testified at trial that a prior lawsuit was brought by the Condominium Association against Mr. Duhon to require him to remove structures attached to his unit which were against the Condominium By-Laws. Introduced into evidence at trial was a Consent Judgment entered into between Quincy Condominiums and Mr. Duhon on July 16, 2002, which provided in part that Mr. Duhon was “obligated to remove all other improvements, including but not limited to, roofs, decks electrical wires, lattice work and shed, which were not original to the Condominiums, not later than July 5, 2002.” The judgment also provided that Mr. Duhon was “obligated to modify, at his expense, the wood decking in the Limited Common Element of Unit 4, to allow for inspection and treatment of termites.” Finally, the judgment provided that if Mr. Duhon did not complete the work within the time allowed, Quincy Condominiums would have the right to perform the work at Mr. Duhoris expense.

^During the current trial, Mr. Duhon testified that he performed the actions necessary, and that Quincy Condominiums exceeded the scope and removed our damaged his property. Mr. Duhon admitted that as a result of the prior suit, he removed all the free standing structures he had placed on the Common Area. He further admitted that he agreed to modify the deck to allow termite inspection if the deck areas were’ inaccessible, however he contends that the deck areas were not inaccessible so no modification was needed. He further contended that there were no issues with termites in the deck.

Ms. Garcia testified that for two years after the consent judgment was finalized, Duhon failed to modify the deck to allow for the termite inspection. She tried to contact him through telephone and letters, but he failed to respond. Ultimately, the Condominium Association undertook the job and hired a contractor to remove the structure completely because it was attached to the building and it was infested with termites. From photographs introduced at trial, it appears that the hot tub was left in the limited common area of Mr. Duhon’s Unit.

Mr. Duhon also testified that when the deck was removed, many of his tools and deck components that were with the decking disappeared.

In addition to the removal of the deck, Mr. Duhon contends that the Condominium Association unlawfully removed a window air conditioning unit from his property. Mr. Szita testified that Mr. Duhon’s unit had an air conditioning window unit attached to a second floor window that was hanging over a common sidewalk, and had been there since 2006. Mr. Duhon testified that there had been a window air conditioning unit of some kind since 1984. The Condominium Association was concerned that it might fall and hurt someone. Mr. Szita sent a letter to Mr. Duhon on May 9, 2009 and again on June 9, 2009, requesting removal of the air conditioning unit, but received no response. In August of 2009, he 1 ^removed the air conditioner unit with hoists, and then placed it in the condo unit’s back yard. Szita stated that the unit was not plugged in at the time he removed it.

The last claim in Mr. Duhon reconven-tional demand was for lost rentals. Mr. Duhon testified he was unable to rent his unit at the time of trial because the internal A/C compressor was not working, and it would require $10,000 to repair it. He also contends that there is a leak which had not been fixed, and that the Condominium Association would not trim his hedges. He presented no evidence of any written estimates, requests to the Condominium Association for repairs, or attempts to rent the unit.

In his sole allegation of error, Mr. Duhon alleges that the trial court erred in granting the exception of prescription and in dismissing his reconven-tional demand. He contends that the consent judgment in the prior litigation was a contract between the parties and that Quincy Condominiums actions in removing the deck and its accessories, and in allowing the disappearance of his tools was a violation of that contractual agreement, subject to a ten-year prescriptive period. However, Mr. Duhon’s action is not one for breach of contract, but rather for conversion.

The tort of conversion is committed when one wrongfully does any act of dominion over the property of another in denial of or inconsistent with the owner’s rights. Any wrongful exercise or assumption of authority over another’s goods, depriving him of the possession, permanently or for an indefinite time, is a conversion. Louisiana civil law conversion is committed when any of the following occurs: 1) possession is acquired in an unauthorized manner; 2) the chattel is removed from one place to another with the intent to exercise control over it; 3) possession of the chattel is transferred without authority; 4) possession is withheld from the owner or possessor; 5) the chattel is altered or destroyed; 6) the chattel is used improperly; or 7) ownership is asserted over the chattel.

Funderburg v. Superior Energy Services, Inc., 10-517, *6, (La.App. 5 Cir. 12/29/11), 83 So.3d 1148.

|7Here, Mr. Duhon alleges that Quincy Condominiums unlawfully removed and destroyed his property, and thus he states an action for the tort of conversion.

Because conversion is a tort, it is governed by the one-year prescriptive period. LSA-C.C. art. 3492; Jefferson v. Crowell, 42,177 (La.App. 2 Cir. 5/9/07), 956 So.2d 746.

The alleged conversion took place in 2004, and Mr. Duhon filed his reconven-tional demand in 2010, well over the one year prescriptive period for the filing of an action in tort. Accordingly the trial court did not err in finding that his causes of action for the removal of the deck and its accessories, and for the loss of his tools, had prescribed.

The trial court also denied recover for two additional claims for damages, the removal of the air conditioning unit in August of 2009 and the loss rentals for Mr. Duhon’s alleged inability to rent his condominium. To the extent that the trial court may have denied these claims on the basis that they were prescribed, we find that the court was in error. However, the evidence presented at the trial , on the merits of these issues finds no error in the denial of these claims.

Plaintiff has the burden of proving every essential element of his tort case, including cause-in-fact, by a preponderance of the evidence. Manuel v. Shell Oil Co., 94-590 (La.App. 5 Cir. 10/18/95), 664 So.2d 470, 475, writ denied, 96-0141 (La.3/8/96), 669 So.2d 397.

With regard to his claim for damage to the air conditioning unit, Mr. Duhon presented a picture of the unit sitting in the limited common area of his condominium unit and a printout of an air conditioner from the internet, indicating that the unit depicted in the picture retailed for —. Mr. Duhon stated that the unit was plugged in when it was removed, while Mr. Szita stated that it was not plugged in. Mr. Duhon offered no evidence, other than his self-serving testimony, |sthat the unit was working prior to its removal and was not working after its removal. Mr. Szita testified that he sent two letters to Mr. Duhon requesting removal of the unit which went unanswered. Furthermore, Mr. Szita testified that the unit was hanging over a sidewalk and created a hazard; Mr. Duhon offered no evidence to rebut this contention. We find that Mr. Duhon did not prove by a preponderance of the evidence that Mr. Szita, acting on behalf of Quincy Condominiums, unlawfully damaged or converted the air conditioning unit.

With regard to his claim for lost rentals, Mr. Duhon alleged that he was unable to rent his unit because the internal air conditioning compressor did not work, there was a leak and the hedges were untrimmed. Introduced into evidence were pictures of the hedges and a picture of a water leak on the exterior of a condominium unit. Mr. Duhon offered no evidence concerning the compressor, and he offered nothing to support his claims that he attempted to rent the unit. Again we find that Mr. Duhon has not proved this claim by a preponderance of the evidence.

For the above discussed reasons, the judgment of the trial court dismissing the reconventional demand of defendant, Philip Duhon, is affirmed. All costs are assessed against defendant, appellant, Philip Duhon.

AFFIRMED

WICKER, J., dissents and assigns reasons.

WICKER, J.

dissents and assigns reasons.

|! This matter is before this Court on appeal of the district court’s judgment, as to the appellant’s reconventional demand, granting appellee’s Exception of Prescription and dismissing appellant’s reconven-tional demand. I respectfully dissent because it is my opinion that this court lacks jurisdiction to consider this appeal because the judgment at issue, as to appellant’s reconventional demand, is not a valid judgment. Therefore, I would dismiss the instant appeal without prejudice and remand the matter to the trial court so that a proper, final judgment may be rendered.

On January 18, 2011, the trial court issued a judgment in favor of Quincy Condominiums and against Duhon recognizing the lien filed by Quincy Condominiums and ordering that Duhon pay past due association fees in the amount of $15,047.68 with reasonable attorney fees of $7,500.00. The judgment also addressed Duhon’s recon-ventional demand and set forth the following:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the re-conventional demand of plaintiff in re-convention, Philip W. Duhon, be and is hereby dismissed, at plaintiff in recon-vention’s cost.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the demands of plaintiff in reconvention and against defendant in reconvention, be and are hereby prescribed.

It is my opinion that the portion of the judgment concerning Duhon’s reconven-tional demand is defective and thus is not a valid judgment. From the language provided in the judgment alone, it is unclear if the trial judge simply | gdismissed Duhon’s claims by reason of prescription or if he additionally dismissed Duhon’s claims after consideration of the merits post-trial.

Louisiana Code of Civil Procedure article 1841 provides that “[a] judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled.” A valid judgment must be precise, definite and certain. Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Technologies, Inc., 10-477 (La.App. 5 Cir. 10/29/10), 52 So.3d 909, 915-16; Blanke v. Duffy, 05-829, p. 2 (La.App. 5 Cir. 3/28/06), 927 So.2d 540, 541. The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment. Input/Output Marine Sys., Inc., supra, at 916. The quality of definiteness is essential to a proper judgment. Id.; Russo v. Fidelity & Deposit Co., 129 La. 554, 56 So. 506, 508 (La.1911).

The portion of the judgment at issue addressing Duhon’s reconventional demand is not precise, definite and certain. Further, the specific relief granted or denied, i.e., whether the trial court considered Duhon’s claims on their merits, is not determinable from the language of the judgment appealed. One cannot discern from the face of the judgment the specific relief granted or denied. As such, it is my opinion that the judgment as to Duhon’s reconventional demand is defective and therefore not a valid judgment.

This court cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. Id.; Creighton, Richards & Higdon, L.L.C. v. Richards Clearview, L.L.C., 09-247, pp. 3-4 (La.App. 5 Cir. 10/29/09), 28 So.3d 391, 393. Because this Court lacks jurisdiction in the absence of a valid judgment, I would dismiss this appeal without prejudice and remand to the trial court so that a valid, final judgment may be rendered.

      . The Limited Common Area refers to each Unit’s back yard.


source: Caselaw Access Project

author: MARION F. EDWARDS, Chief Judge.

license: Public Domain

text:
    Fabien MANG v. HEISLER PROPERTIES, L.L.C., Debra Garrett Levis, Billie Garrett Semmes, as Co-Executrices of the Succession of William C. Garrett, Josephine DeSalvo Dimitri, Camella M. Dimitri, as Independent Executrix of the Succession of Joseph Dimitri, Josephine Virga Dimitri, Executrix of the Succession of Frank P. Dimitri, Frank P. Dimitri (deceased) and Joseph Dimitri (deceased).
    No. 11-CA-867.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.
    Rehearing Denied Aug. 20, 2012.
    See also 58 So.3d 483.

      Albert J. Nicaud, Nicaud & Sunseri, L.L.C., Metairie, LA, for Plaintiff/Appellant.
    Henry L. Klein, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Robert S. Stassi, Lindsay E. Spann, Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, LLC, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARION F. EDWARDS, Chief Judge.

| ¿This appeal involves a dispute over contested provisions in a lease agreement regarding the right of first refusal to purchase immovable property in Jefferson Parish, and is a companion case to one decided earlier by this Court.

The matter before the Court in this appeal began as a petition for breach of contract and specific performance filed by plaintiff, Winning Legends, Inc., against several defendants alleging the property leased by Legends was sold to a third party in violation of a right of first refusal clause in the contract. Legends was subsequently removed as party plaintiff and replaced by its sole shareholder, Fabien Mang. The judgments on appeal are the grant of an exception of no right of action of Mang to maintain the lawsuit, and summary judgment in favor of defendants. For reasons that follow, we affirm both judgments.

FACTS

Brothers, Frank P. Dimitri and Joseph Dimitri, owned property on North Hullen Street in Jefferson Parish, Louisiana. On February 25, 1985, they leased 13the property to Andrew Jaeger. On November 4, 1991, Winning Legends, Inc. (“Legends”), assumed the lease. Fabien Mang is the sole shareholder of Legends. The lease provided for successive options to renew the lease, and Legends renewed and recorded each option up through February 28, 2007.

Frank Dimitri died in 1993, and his wife, Josephine DeSalvo Dimitri, was recognized as his sole heir and was placed in possession of Frank’s undivided one-half interest in the property. Legends’ lease was uninterrupted because it was properly recorded.

On May 30, 2000, Josephine DeSalvo Dimitri filed a petition for relief under Chapter 11 of the Bankruptcy Code. In that proceeding, all of Mrs. Dimitri’s property, including her undivided one-half interest in the North Hullen Street property, was passed to the Bankruptcy Trustee. The Bankruptcy Trustee recognized William C. Garrett as a creditor when it was shown that he held a first mortgage on several of the properties, including the North Hullen Street property at issue herein.

On April 25, 2002, the Bankruptcy Court converted Mrs. Dimitri’s reorganization case into a Chapter 7 liquidation proceeding. The property was seized and sold to the highest bidder, the Succession of William C. Garrett (“Garrett Succession”), at a public auction on October 14, 2003. On that same day, the United States Marshall sold and conveyed to the Garrett Succession several properties belonging to Mrs. Dimitri, including the undivided one-half interest in the North Hullen Street property. However, because Legends had filed the lease in the public records prior to this sale, it survived the foreclosure sale and remained valid.

|4On June 19, 2003, Joseph Dimitri died. On December 11, 2003, Joseph’s succession sold some of his property, including his undivided one-half interest in the North Hullen Street property to Mrs. Josephine DeSalvo Dimitri. ■ She subsequently sold this property and other parcels to Heisler Properties, L.L.C. (“Heisler”).

On August 26, 2005, Legends filed this suit for breach of contract and specific performance seeking to enforce the right of first refusal clause in the lease on the North Hullen Street property. Legends named Heisler, the individual Garrett heirs, as well as Josephine DeSalvo Dimi-tri, the executrix and heirs of Frank Dimi-tri’s succession, Josephine Virga Dimitri, and the executrix and heirs of Joseph Dim-itri’s succession. The action sounds in contract and alleges breach of the right of first refusal clause. Legends asserts it had the right of first refusal to purchase the property that was improperly sold at the Marshall’s sale in violation of that clause. All defendants answered the lawsuit raising various defenses.

The Garrett Succession and Heisler filed an exception of no right of action alleging that Fabien Mang and Legends assigned the lease to Townsend Legends, Inc. on December 10, 2005. In response, Legends and Mang filed a motion to substitute proper party-plaintiff asserting that Mang, as sole shareholder of Legends, sold his interest in the company Winning Legends, Inc. to Raymond Townsend on November 7, 2005. However, Mang maintained that he retained all rights of first refusal and options to purchase the real property and improvements thereon in the sale of the business. That motion was granted by the trial court on March 28, 2006, and Fabien Mang was substituted as plaintiff for Legends.

Townsend Legends, Inc. (“Townsend”) filed a petition of intervention asserting that, as the current lease holder on the property, it has a vested interest in |fithe original matter before the court. A motion for summary judgment on the issue of the validity of the lease was filed by Townsend and granted by the trial court.

The executrix of Frank Dimitri’s succession filed an exception of no cause of action based on a clause contained in the lease that excluded a transfer or sale of property to heirs from the right of first refusal clause. That exception was granted by the trial court. Fabien Mang filed a motion for new trial on that judgment.

The exceptions of no right of action filed by the Garrett Succession and Heisler were also granted, and Mang filed a motion for new trial on those judgments. While that motion was pending, on December 28, 2010, this Court handed down an opinion in a companion case, in which Royal Oldsmobile filed a similar action on another parcel of land acquired by Heisler in the same transaction. Based on that opinion, the Garrett Succession filed a motion for summary judgment. By agreement of the parties, the hearing on the motion for new trial was continued to be heard with the motion for summary judgment filed by the Garrett Succession.

After a hearing on the matter, the trial court granted the Garrett Succession’s motion for summary judgment, dismissing the claims against them. In that same judgment, the trial court denied Fabien Mang’s motion for new trial.

Fabien Mang has filed an appeal of that judgment.

LAW AND ANALYSIS

On appeal, Mang presents five assignment of error for our review. He asserts the trial court erred in:

1) Ruling that Fabien Mang does not have a right of action for specific performance to proceed in this case;
| fi2) Granting the Garrett Succession’s motion for summary judgment;
3) Granting the Heisler’s exception of no right of action;
4) Failing to hold that the Garrett Succession and Heisler were required to provide Legends with Mennonite notice; and
5) Failing to order specific performance setting aside the sale of one-half undivided interest of the property from Josephine DeSalvo Dimitri to Heis-ler, as well as the sale to the Garrett Succession.

NO RIGHT OF ACTION

The issue in assignments one and three for our.consideration is the decision of the trial court to grant the exception of no right of action filed by the Garrett Succession and Heisler. The objection of no right of action tests whether the plaintiff has a “real and actual interest” in the suit. The exception is appropriate when the plaintiff does not have an interest in the subject matter of the suit or legal capacity to proceed with suit in a particular case. The introduction of evidence to support or controvert an exception of no right of action is admissible. The exception assumes that the petition states a valid cause of action and questions whether the plaintiff in a particular case has a legal interest in the subject matter of the litigation.

The determination of whether a plaintiff has a right of action is a question of law. Our review of questions of law is to simply determine whether the district court was legally correct or incorrect. We find here that the trial court was legally correct.

It is undisputed that Fabien Mang was the sole shareholder in Winning Legends, Inc. d/b/a Legends Bar & Grill and that Legends had a valid lease on the 17property in question. It is also undisputed that Legends sold the business to Raymond C. Townsend. This matter is confused by the admission of two sales agreements and one addendum to the sales agreement. Attached to the Garrett Succession’s memorandum in support of the exception of no right of action is a document executed on November 7, 2005 in which Legends is the seller and Townsend is the buyer of the business at a sales price of $250,000. There is also an “attachment” to that sale also dated November 7, 2005 that reserved the right of first refusal and options to purchase under the lease to Fabien Mang. That document is separate and is obviously in a different font. There is also a document dated December 10, 2005 that shows that Fabien Mang, acting as president of Winning Legends, Inc., sold “all of the assets of Winning Legends, Inc. d.b.a. Legends Bar & Grill which includes, but are not limited to, fixtures, furniture, equipment, utensils inventory and all leasehold improvements ...” to Raymond C. Townsend for a price of $200,000.

At the hearing, the trial court considered the documents and argument of counsel and decided that the sale on November 7, 2005 to Legends, who owned the lease and the right of first refusal, divested itself of these rights to Townsend. The attachment, which reserves the right of first refusal to Fabien Mang as an individual, does not have Legends’ approval and, therefore, is not valid. We find this reasoning persuasive. It is clear from the evidence that Legends was the lessee with the right of first refusal. When it sold the business and transferred the lease to Townsend on November 7, 2005, that right passed to Townsend. Fabien Mang, as an individual, could not reserve the right of first refusal. Further, he substituted himself for Legends as party-plaintiff in this action. Thus, the lessee with the right of first refusal is no longer a party to this action and, further, has sold its interest in the lease.

IsMang’s opposition to the ruling on the no right of action exception seems to challenge the standing of Heisler and the Garrett Succession to question the sales agreements, and the arguments in support revolve around the parole evidence rule of La. C.C. art. 1848. As we understand Mang’s argument, he maintains that the goal of contract law is to discern a compatible meaning to all provisions of the agreement. While we do not disagree with Mang’s statement of law, it is not controlling in this instance. The trial judge was ruling on a no right of action exception, and the transcript of the hearing on the motion clearly shows that the trial court considered the documents and found that they are clear and require no further interpretation. We agree. Accordingly, Fa-bien Mang has no right of action for specific performance regarding the right of first refusal clause in the lease.

SUMMARY JUDGMENT

In support of the second assignment of error, regarding the grant of the motion for summary judgment, Mang argues that our ruling in Royal Oldsmobile is not controlling and the trial judge erred in relying on it in this matter. The Royal Oldsmobile case shares similar facts and the same defendants with the Mang matter. In Royal, Royal Oldsmobile entered into a lease with the Dimitri Brothers in 1977. The lease had a right of first refusal clause. Royal filed suit for breach of contract and specific performance, presenting the same issues to this Court as the ones under review herein. The Royal property was also one of the parcels seized and sold in the Marshall’s sale resulting from Mrs. Dimitri’s bankruptcy proceeding, and it is also a property that was purchased at the sale by the Garrett Succession. In the Royal case, as in this matter, Mrs. Joseph Dimitri sold her ^undivided half of the property to Josephine DeSalvo Dimitri, and the property was included in the sale to Heisler. The Garrett Succession moved for summary judgment that was granted by the trial court and that judgment was affirmed by this Court.

The Royal court found that, under the lease terms, the involuntary Marshall’s sale in the bankruptcy proceeding did not trigger the right of first refusal clause in the lease.

In the matter before this Court, Mang argues the terms of the two leases are different, and the reasoning in the Royal opinion is not applicable in this matter.

In Royal, the right of first refusal clause read as follows:

RIGHT OF FIRST REFUSAL. In the event that the Lessor has a bona fide offer in writing and desires to sell all or any part of the leased premises, the Lessee shall have the right of first refusal, for a period of thirty (30) days following delivery of a copy of the offer to its offices, to purchase the property for such amounts and upon such terms as the Lessor has an opportunity to sell such property to a third person. Provided, however, the right of first refusal provided for in this paragraph shall not apply to sales or transfers from the present owner to trusts for the benefit or members of the families of such owner, or to corporations, the majority of the voting stock of which is owned by the present owner or members of his family; however, such right of first refusal shall be binding on such transferees in the event the transferees desire to sell all or part of the leased premises, and Lessor agrees that a clause to that effect shall be set forth in any act of transfer of the property to any trust or corporations as set forth above.

The Royal Court found that, in the involuntary bankruptcy transfer, the seller did not have a bona fide offer in writing or a desire to sell all or part of the leased property. Thus, the right of first refusal clause in the lease was not triggered.

In the matter before us, the clause in the lease reads as follows:

The Lessor shall make no offer to sell nor accept an offer to buy, 1 mor make a sale of the said property to any third persons during the terms of this lease without first advising the Lessee of said offer or intention, the amount thereof, and the terms of payment, and giving the Lessee thirty (30) days from the date of mailing of such advice by registered or certified mail in which time the Lessee can exercise the said option and to purchase the said property for the same price, and with the same terms of payment as contained in the said offer to sell by Lessor, or offer to buy from a third party.
Further, provided, however, that said option mentioned above shall not be effective against sales among or between the following parties: Lessor Co-owners, their heirs, devisees, or usufructuar-ies.

Mang argues that, since the requirement of a bona fide written offer and a desire to sell are not part of the right of first refusal clause in the lease on the Legends’ property, Royal does not apply. We disagree.

The property in question was seized and sold in a bankruptcy proceeding and sold at a public action by Federal Marshalls. The owner neither made an offer to sell nor accepted an offer to buy. Further, Josephine DeSalvo Dimitri did not sell her undivided one-half interest in the property to a third party. This was an involuntary sale that did not trigger the right of first refusal clause in the lease.

In our de novo review of this matter, we find there are no material facts undecided, and summary judgment was warranted as a matter of law. Accordingly, the trial court was correct in finding that the lessee did not have a right of first refusal in this matter.

Because of our findings as set forth above, we pretermit any discussion of the issue of required notice to Mang raised by assignment of error number four and the application of the right of first refusal clause to further transactions. Because we find the trial court’s judgment was correct, we affirm the judgment.

AFFIRMED

      . See, Royal Oldsmobile Co., Inc. v. Heisler Properties, L.L.C., 10-152 (La.App. 5 Cir. 12/28/10), 58 So.3d 483.

      . Both Frank and Joseph married women named Josephine.

      . There are no further pleadings filed by Townsend, and he has not participated in this appeal.

      . Royal Oldsmobile Co., Inc. v. Heisler Properties, L.L.C., 10-152 (La.App. 5 Cir. 12/28/10), 58 So.3d 483.

      . Louisiana Paddlewheels v. La. Riverboat Gaming Comm'n, 94-2015 (La. 11/30/94), 646 So.2d 885, 888.

      . Gorum v. La. Hosp. Assoc. Employee Benefit Trust, 95-468 (La.App. 3d Cir. 11/2/95), 664 So.2d 662, 664.

      . La. C.C.P. art. 931.

      . Id.

        . Acorn Community Land Assoc. of La., Inc. v. Zeno, 05-1489 (La.App. 4 Cir. 6/21/06), 936 So.2d 836.

      . Id.

      . We acknowledge that the finding that Fa-bien Mang has no right of action in this action moots out further discussion; however, because of the intervention .filed by Townsend, we will address the remaining assignments of error.

      . Royal Oldsmobile Co., Inc. v. Heisler Properties, L.L.C., 10-152 (La.App. 5 Cir. 12/28/10), 58 So.3d 483.

      . Royal Oldsmobile v. Heisler, 58 So.3d at 485-86.

      . Id. at 492.

      . La. C.C.P. art. 966(B).


author: JUDE G. GRAVOIS, Judge.

text:
    David DARR v. MARINE ELECTRONICS SOLUTIONS, INC., M.E.S. Installations, Inc., Donna Penney, Clay Mazyck and ABC Insurance Company, Inc.
    No. 11-CA-908.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.
    See also 2006 WL 3068832.

      Jack H. Tobias, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Thomas J. McGoey, II, Celeste C. La-borde, Attorneys at Law, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

IsThe plaintiff has appealed a summary judgment granted in favor of the defendants dismissing plaintiffs claims. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This case has a long and convoluted procedural history. Plaintiff, David Darr, and his former wife, Donna Penney, were the sole shareholders of two corporations, Marine Electronic Solutions, Inc. (“MES”) and M.E.S. Installations, Inc. (“MESI”). Ms. Penney, her father, and plaintiff were the directors of the corporations. Plaintiff owned 46 percent of the stock of MES and 45 percent of the stock of MESI. Ms. Penney owned the remaining stock in the corporations. The corporations were incorporated in Florida and had an office in Harahan, Louisiana.

Plaintiff and Ms. Penney were married on May 24, 1996. Their marriage ended in divorce on September 19, 2003. On August 24, 2003, as part of their [¿divorce proceeding, plaintiff and Ms. Penney entered into a Marital Settlement Agreement (the “MSA”) which included the following provision, to-wit:

The parties jointly own two (2) businesses, Marine Electronics Solutions, Inc., a Florida corporation, and M.E.S. Installations, Inc., a Florida corporation. The parties shall continue to jointly own said businesses and shall operate said businesses as they have done in the past. Furthermore, the parties’salaries shall remain equal.
(Emphasis added.)

On June 21, 2004, at a joint meeting of the board of directors of the corporations, the following changes were made in the management of the corporations: plaintiff was named Vice President of Marketing, and another employee, Clay Mazyck, was named Vice President of Operations. Because he vociferously objected to these changes (to the extent that management felt the need to call a police officer to have him escorted from the building), plaintiff was verbally terminated from employment and removed as a director of the corporations on that day. Both corporations were dissolved in 2006.

On December 28, 2004, plaintiff filed a sixteen-page petition for damages naming Ms. Penney, Mr. Mazyck, and the corporations as defendants. In his petition, plaintiff made numerous allegations of misconduct by defendants, including that defendants: 1) violated the MSA which he alleged was a shareholder agreement; 2) failed to provide him with business records of the corporations; 3) failed to pay him; 4) improperly handled the corporations’ accounting, resulting in discrepancies; 5) improperly removed him as a board member; 6) improperly ejected him from the corporations’ premises; 7) provided him with a false and misleading valuation of the corporations; 8) failed to allow him to inspect the books of the corporations; and 9) failed to disclose records of the corporations | .¡¡regarding additional contracts of the corporations. Plaintiff alleged that defendants’ said actions and inactions caused him emotional distress, stress and hypertension. On February 17, 2005, plaintiff filed a supplemental petition alleging that: 1) his removal from the board of directors was in violation of the consent decree entered in his divorce proceeding; 2) the articles of incorporation require unanimous consent of all directors to remove a director; 3) he is entitled to his salary and benefits for as long as he is a shareholder in the corporations; 4) he is entitled to penalties for the failure to pay his salary; and 5) a conservator or curator be appointed to oversee the corporations.

Defendants filed various exceptions to plaintiffs claims. At a hearing on the exceptions, plaintiff verbally alleged various federal claims against defendants, prompting defendants to have the case removed to federal court. In federal court, defendants moved for and were granted summary judgment on all of the federal claims and on most of the state law claims asserted by plaintiff. Marine Electronics Solutions, Inc. v. Darr, 254 Fed. Appx. 356 (5th Cir.2007). Plaintiffs state law claims of alleged breach of fiduciary duty, request for review of corporate records, any shareholders’ derivative claims asserted by plaintiff, and whether the MSA constituted a shareholders’ agreement under Florida law, were eventually remanded to state court. Id.

After the matter was remanded, plaintiff filed a motion for partial summary judgment claiming that he was entitled to summary judgment confirming that the MSA constituted a shareholders’ agreement, an operating agreement and/or an employment contract, and that defendants breached the agreement. On September 16, 2009, the trial court denied plaintiffs motion for partial summary judgment.

On August 16, 2010, defendants moved for summary judgment on all of plaintiffs pending claims. On March 31, 2011, the trial court rendered judgment [ ^dismissing plaintiffs claims of breach of fiduciary duty, review of corporate records, and breach of shareholders’ agreement. Plaintiff has timely appealed that judgment.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Bell v. Parry, 10-369 (La.App. 5 Cir. 11/23/10), 61 So.3d 1, 2. The summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof is on the mover to show that he is entitled to judgment as a matter of law. La. C.C.P. art. 966(C)(2).

In determining whether summary judgment is appropriate, the appellate court reviews evidence de novo. Under this standard, the appellate court looks at pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, in making an independent determination that there is no genuine issue of material fact and that movant is entitled to judgment as a matter of law. Bell v. Parry, supra.

Because the corporations involved herein were incorporated in Florida, Florida corporate law applies to the claims on appeal. International Insurance Co. v. Johns, 874 F.2d 1447, 1458, n. 19 (11th Cir.1989).

|7In their motion for summary judgment, defendants argued that:

(1) Plaintiff has no claim for breach of fiduciary duty to disclose the state of the corporations in order for plaintiff to be able to ascertain the value of the corporations. Defendants argue that plaintiff has been provided with records and information that will permit him to make his own valuation. Defendants contend that plaintiff has been provided with all the documents to which he is entitled.
(2) Plaintiff has not stated an actionable shareholder derivative claim, explaining that a derivative action must be brought by a shareholder on behalf of the corporation. Defendants assert that in his pleadings, plaintiff is seeking damages for himself, not for the corporation.
(3) Plaintiff cannot establish a claim for an alleged breach of a shareholder’s agreement because the MSA is not a shareholder’s agreement.

In support of them motion, defendants attached the transcript from a hearing on motions held on February 18, 2005. In that hearing, the trial judge, Judge Fred-ericka Wicker, to whom the case was previously assigned, held that:

(1) Plaintiff was entitled to the original valuation of the corporations.
(2) Plaintiff was entitled to the documents that form part of the valuation but not the assumptions upon which the valuations were based.
(3) Plaintiff was not entitled to the labor rate analysis spreadsheet and other calculations regarding payments to technicians.
(4) Plaintiff was entitled to all worksheets used to determine profit on any project completed.
(5) Plaintiff was entitled to all accounts receivables, accounts payable, employee accounts and benefits accounts.

Defendants also submitted portions of plaintiffs deposition, in which plaintiff admitted that he had received three different computer discs containing financial records of the corporations, including a disc containing financial records of the corporations into late 2005. An affidavit of Ms. Penney was also submitted in which she attested that plaintiff had been given computer discs from the corporations’ Quick-Books accounting system, containing all of the corporations’ financial records, including general ledgers, balance sheets, profit and loss | statements, accounts payable, accounts receivable, payroll, invoices, check details, and deposit details.

In opposition to the motion for summary judgment, plaintiff submitted an affidavit attesting that he has never been given the original valuation of the corporations, he has never been given communications concerning contracts not awarded, he had never been given worksheets, he has never received the QuickBooks discs that the corporations’ accountants worked from, and he was never given assumptions on which valuations of the corporations were based. Plaintiff also submitted various other documents, including a business valuation dated March 31, 2004, profit and loss statements dated 2004, and projected earnings of the corporations for 2004-2009. Plaintiff also submitted portions of the deposition of Corina May, the accountant for the corporations, who testified that valuations of the corporations were performed at the request of Ms. Penney.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, plaintiff asserts that the trial court erred in finding that defendants have provided him with all of the documents that Judge Wicker ordered defendants to provide to him at the hearing held in this matter on February 18, 2005.

As noted above, in support of their motion for summary judgment, defendants submitted an affidavit of Ms. Penney in which she attested that plaintiff has been given computer discs from the corporations’ QuickBooks accounting system, containing all of the corporations’ financial records.

Although plaintiff argues that he has never been given assumptions on which valuations of the corporations were based, Judge Wicker specifically held on February 18, 2005 that he was not entitled to these assumptions and instructed | nplaintiff s attorney that the proper way to obtain this information was through a deposition. Plaintiff never came forward with any competent evidence to controvert Ms. Penney’s affidavit that he has been given computer discs containing all of the corporations’ financial records. Plaintiff has thus not shown that he has not been provided with financial data sufficient for him to have a business valuation performed. Moreover, plaintiff alleged in his petition that he made an offer to purchase Ms. Penney’s shares for a certain amount. Based on this allegation, plaintiff clearly had sufficient documents to perform a business valuation.

Further, under applicable Florida law, corporate income tax returns, the general ledger of the corporation, the balance sheets of the corporation, the profit and loss statements of the corporation, and the corporate stock book have been found to be the only relevant documents needed to determine the value of the corporation’s stock. Jewelers International Showcase, Inc. v. Mandell, 529 So.2d 1211 (Fla. 3rd DCA 1988). The record before us confirms that defendant has been given access not only to all of these particular corporate documents and financial records, but also to additional corporate documents and records as noted in Ms. Penney’s affidavit.

A plaintiff may not satisfy his burden under La. C.C.P. art. 967 by resting on mere allegations or by filing self-serving, conclusory affidavits which merely restate those allegations. Peralta v. Perazzo, 06-343 (La.App. 5 Cir. 10/31/06), 942 So.2d 64, 68, writ denied, 06-3028 (La.2/16/07), 949 So.2d 415. Our de novo review of the documents submitted by defendants in support of their motion for summary judgment, as well as the documents submitted by plaintiff in opposition to the motion, clearly establishes that no issues of material fact exist with respect to whether defendants have provided plaintiff with all of the |indocuments that Judge Wicker ordered them to provide to plaintiff at the hearing held in this matter on February 18, 2005. As such, the trial court did not err in granting summary judgment in favor of defendants on this issue.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, plaintiff asserts that the trial court erred in finding that defendant, Donna Penney, incurred no obligation under the Marital Settlement Agreement (the “MSA”), which plaintiff claims constituted a shareholders’ agreement.

In their motion for summary judgment, defendants argued the above-quoted clause contained in the MSA is not a shareholders’ agreement, and that even assuming arguendo that it was, plaintiff has not brought forth competent evidence to prove that defendants breached the alleged shareholders’ agreement. Defendants argued that in his deposition, plaintiff was asked what claims he was asserting against Ms. Penney, and plaintiff did not mention a breach of any agreement. Defendants further argued that the petition states that the defendant corporations were his employer and failed to continue paying his salary and benefits. Defendants also argued that in his deposition, plaintiff admitted that he did not have an employment contract with the corporations. Plaintiff then stated that the divorce agreement (the MSA) contained a stockholder’s agreement and was therefore a contract of employment.

Under Florida law, a shareholders’ agreement is “a written agreement that is signed by all persons who are shareholders at the time of the agreement and such written agreement is made known to the corporation.” Fla. Stat. Ann. 607.0732(2)(a)2. Implicit in this statute is the requirement that the persons signing the agreement are signing the agreement “as shareholders” of the corporation.

.JjjUpon our de novo review of this matter, we find that plaintiff cannot carry his burden of proving that plaintiff and Ms. Penney signed the MSA “as shareholders” of the corporations. Rather, it is quite obvious that they signed the MSA in their individual capacities as part of settling various matters involved in their divorce proceeding. Further, mere knowledge of the existence of the MSA by plaintiff and Ms. Penney, without more, does not transform the MSA into a shareholders’ agreement. Thus, we find that plaintiffs argument that the above-quoted clause contained in the MSA somehow constitutes a shareholders’ agreement under Florida law is without merit.

Moreover, even if we were to construe the above-quoted clause contained in the MSA as a shareholders’ agreement, plaintiff has not shown that he will be able to carry his burden of proving any breach thereof. The clause contained in the MSA first provides that “[t]he parties shall continue to jointly own said businesses.” It is undisputed that plaintiff continued to own the same amount of stock in the corporations that he owned when the MSA was executed. The clause in the MSA next provides that the parties “shall operate said businesses as they have done in the past.” Plaintiff has not shown by competent evidence that he will be able to establish that the corporations were operated any differently after he was terminated from employment. Finally, the clause in the MSA provides that “the parties’ salaries shall remain equal.” Plaintiff has not shown that he will be able to carry his burden of showing that he has lost any salary subsequent to execution of the MSA while he was still employed by the corporations. Rather, it is undisputed that plaintiff was paid the same salary as Ms. Penney until he was terminated from employment on June 21, 2004. In fact, when plaintiff was asked in his deposition what he lost as a result of the board of directors voting to make him Vice President of Marketing and Mr. Mazyck Vice President of Operations, he responded that this 112decision restricted his job, but “looking back over the whole thing today [virtually nothing was taken away].”

Plaintiff further argues that the above-quoted clause contained in the MSA constitutes a contract of employment. However, even if we were to construe it as such, the clause fails to specify a period of time of employment, which under Florida law makes plaintiff an at-will employee subject to termination at any time. Accordingly, no issue of material fact remains as to whether the MSA constitutes a contract of employment.

Also, the corporations were not parties to the MSA. Under Florida law, in order for a corporation to be bound by a contract, the person signing the contract must be acting as an agent of the corporation. Michael Const. Co. v. Smith, 244 So.2d 563 (Fla.App.1971). Plaintiff has not come forward with any competent evidence to establish that plaintiff and Ms. Penney were acting as agents of the corporations when they executed the MSA. As such, the MSA cannot be enforced against the corporations.

Finally, as Mr. Mazyck also was not a party to the MSA, he can have no obligations thereunder.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

Plaintiff next complains that the trial court erred in finding that defendants, Donna Penney and Clay Mazyck, did not breach their fiduciary duty by wasting corporate assets, by failing to provide a complete and honest valuation of the companies, by failing to account for funds and accounts receivable, and by taking exorbitant salaries to the depleting of the shareholders’ assets.

1^Plaintiff admits that he has received three different valuations of the corporations. He complains that because these valuations are different, he has been misled as to the value of his shares. A letter dated October 28, 2004 from an accounting firm addressed to Ms. Penney was attached to plaintiffs opposition to the motion for summary judgment. This letter explains that an original valuation was completed in June 2004 for a particular investor based on the fair market value of the corporations. A revised valuation was performed based on updated projected earnings. This letter explains that two business valuations were performed based on different assumptions. Valuations attached to the letter presumably are the valuations referred to in the letter. Plaintiff also attached a letter stating that he offered to purchase Ms. Penney’s shares of the corporations; however, Ms. Penney declined and offered to purchase his shares. Ostensibly, plaintiff must have come up with a valuation of the corporations in order to make an offer to purchase Ms. Penney’s shares. Thus, plaintiff has not shown that he did not have sufficient financial documents of the corporations so as to allow him to have his own valuations of the corporations performed.

In her affidavit, Ms. Penney attests that she and plaintiff were paid the same salary from the date of the MSA until plaintiffs termination from employment on June 21, 2004. Once a motion for summary judgment has been properly supported by the moving party, the non-moving party’s failure to come forth with any competent evidence to show there is a material factual dispute dictates the granting of the motion. Schultz v. Guoth, 10-0348 (La.1/19/11), 57 So.3d 1002, 1006. Plaintiff has not produced any competent evidence to controvert Ms. Penney’s affidavit.

Plaintiff further argues that the trial court erred in failing to find that defendants had breached their fiduciary duties by wasting corporate assets, and by | ^failing to account for funds and accounts receivable. However, nowhere in this nearly 500-page record is there one piece of competent evidence to support these allegations. Rather, there are numerous, repetitive, conclusory statements by plaintiff that certain funds were missing. Plaintiff never came forth with any competent evidence to show how he determined that certain funds were missing. Plaintiff has not even shown what the salaries of Ms. Penney and Mr. Mazyck were, much less shown how they were exorbitant.

Having found the record void of any competent evidence that would enable plaintiff to carry his burden of proof on this issue, the trial court did not err in granting summary judgment in favor of defendants on this issue.

ASSIGNMENT OF ERROR NUMBER FOUR

In his final assignment of error, plaintiff asserts that the trial court erred in finding that plaintiff is not entitled to bring a derivative action for the wasting of corporate assets.

In this assignment of error, plaintiff argues that defendants fired a competent CEO (plaintiff) and replaced him with a manager (Mr. Mazyck) that “could not even obtain one contract without giving away the store” and who failed to identify the actual cost of labor and failed to identify or account for the loss of over $450,000 in cash. Plaintiff claims that the derivative claims were proven and the only question remaining is “how much corporate waste occurred.” Plaintiff concludes that any wasting of corporate assets is sufficient to maintain a derivative action.

A derivative action is “a suit asserted by a shareholder on the corporation’s behalf against a third party (usually a corporate officer) because of the corporation’s failure to take some action against the third party.” Black’s Law 11sDictionary (9th ed. 2009). After carefully reviewing plaintiffs original and first supplemental petition, we find that plaintiff has not filed a derivative action in this proceeding. In fact, in his opposition to defendants’ exceptions of no cause of action and no right of action, plaintiff stated that “[t]his is not a derivative action,” and that “it is a direct action against the Defendant Corporations for failing to pay a salary and for penalties on each of the checks as each accrues under Louisiana law.” Further, in said pleading, plaintiffs counsel asserted that this was clearly “not [a stockholder’s derivative action.]”

Further, under Florida law, a derivative action cannot be brought, as plaintiff has apparently attempted to do here, on behalf of an individual shareholder seeking damages for himself, rather than damages on behalf of the corporations. Fla. Stat. Ann. § 607.07401; Lanman Lithotech, Inc. v. Gurwitz, 478 So.2d 425, 427 (Fla. 5th DCA 1985). Also, it is apparent from the record that plaintiff has failed to satisfy certain specific procedural requirements imposed by Florida law before asserting a derivative action. Florida law requires that before a derivative action can be asserted, prior demand must be made on the board of directors of the corporation. Fla. Stat. Ann. § 607.07401. Dismissal of the action is permitted on motion of the corporation if a determination is made by the corporation in good faith after conducting a reasonable investigation that the maintenance of the derivative suit is not in thé interest of the corporation. Thus, even if we were to find that plaintiff |1fihas indeed asserted a derivative action in this proceeding, we would be required to find that plaintiff did not fulfill the procedural requirements before filing the derivative action, and thus his derivative action would be subject to dismissal on defendants’ motion for summary judgment.

This assignment of error is also without merit.

CONCLUSION

Having found the record void of any competent evidence to show that plaintiff will be able to carry his evidentiary burden at trial on the issues presented, the trial court correctly granted summary judgment in favor of defendants. Accordingly, the judgment of the trial court under review is hereby affirmed. Plaintiff is cast with all costs of this appeal.

AFFIRMED

      . This is plaintiffs percentage of ownership in the corporations as attested to by Ms. Penney in her affidavit filed by defendants in connection with their motion for summary judgment, although both plaintiff and defendants at various times in the record state that plaintiff owned 45 percent of the stock of the corporations.

      . This termination of plaintiff as a director of the corporations was followed up in writing on September 9, 2004 through two written consents of shareholders executed by Ms. Penney as the majority shareholder of the corporations.

      . Although not specifically addressed in his judgment, it is apparent from the record of this matter and the arguments of the parties, both in their briefs and during oral arguments before this Court, that the trial court determined that plaintiff had not asserted a derivative action in this proceeding.

      . Mousa v. Lauda Air Luftfahrt, A.G., 258 F.Supp.2d 1329, 1346 (S.D.Fla.2003); Hartley v. Ocean Reef Club, Inc., 476 So.2d 1327, 1328 (Fla. 3rd DCA 1985).

      . Although plaintiff argues in his brief that he "amended his claims to include the two defendants [MES] and [MESI] as nominal Plaintiffs to meet the requirements of the derivative action,” such amended claims were apparently filed by plaintiff in federal court while the case was pending there. The state trial court record before us reflects that only plaintiff's original petition and his first supplemental and amending petition were filed in and con- ■ sidered by the trial court in deciding defendants’ motion for summary judgment. Although plaintiff was permitted to file what he contends is a copy of the complete record of the federal proceeding in this Court, we are prohibited from considering such supplemental filing in this Court by plaintiff since plaintiff failed to properly and timely introduce such record of the federal proceeding in the trial court in defense of defendants’ motion for summary judgment.

      . This determination can be made either by "(a) A majority vote of independent directors present at a meeting of the board of directors, if the independent directors constitute a quorum; (b) A majority vote of a committee consisting of two or more independent directors appointed by a majority vote of independent directors present at a meeting of the board of directors, whether or not such independent directors constitute a quorum; or (c) a panel of one or more independent persons appointed by the court upon motion by the corporation.” Fla. Stat. Ann. § 607.07401.


text:
    Stacy REID-LOPEZ v. ALTERNATIVE SERVICE CONCEPT, LLC and A-Med Ambulance Services, Inc.
    No. 11-CA-933.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.
    S. Jacob Braud, Ballay, Braud & Colon, PLC, Belle Chasse, LA, for Plaintiff/Appellant.
    Roger A. Javier, Darcy E. Decker, The Javier Law Firm, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARION F. EDWARDS, Chief Judge.

12CIaimant/appeIlant, Stacy Reid-Lopez (“Reid-Lopez”), appeals a judgment of the Office of Workers’ Compensation finding that she had forfeited her right to workers’ compensation benefits under La. R.S. 23:1208 by misrepresentation and was not entitled to any benefits.

At trial, the parties stipulated that Reid-Lopez’s work-related accident occurred on July 9, 2008, while working for A-Med Ambulance Services, Inc. (“A-Med”), her employer, and that she received weekly indemnity payments of $522 from July 2008 through June 25, 2010.

Reid-Lopez, an emergency medical technician (“EMT”), testified that the present accident occurred when she tripped on stairs while leaving a patient’s home, falling backwards and hitting her head, back, neck, and shoulder. Since the accident, her neck, back, shoulder, and leg have been hurting. She received medical care from her employer, as well as indemnity benefits in the amount of |s$522 per week until the benefits ceased in June 2010. Medical benefits were also discontinued. She was told this was due to previous car accidents in which she was involved. Those accidents were “fender benders” for which she went to the emergency room (“ER”). Two of the accidents were over ten years ago and, for three of them, she was pregnant. During her employment as an EMT, she underwent physicals in which no impairments were found.

On cross-examination, she stated that the only issues with back pain prior to the accident in question involved going to the ER for a little accident. With her training, she would go to the ER whether or not she was hurting. Reid-Lopez did not recall being treated on September 9, 2004 for back pain suffered while pulling a patient from her unit. She was employed by A-Med as an EMT at that time. When presented with medical records evidencing this treatment, Reid-Lopez said it was nothing significant or critical. The records indicate that she was diagnosed with a lumbosacral strain and received medication as well as physical therapy three times. She was released to regular activity on September 20, 2004.

She testified that she had never had neck pain prior to the July 2008 accident. However, she was questioned about an auto accident in March 2008, when she complained about neck and back pain in the ER at St. Charles Hospital. Reid-Lopez testified again it was “nothing significant ... he told me that it was nothing and sent me home with Tylenol or whatever it was.” The hospital records indicate that Reid-Lopez complained of acute moderate pain in her head, both shoulders, and back. She was given prescriptions for To-radol and Flexeril and released.

She was also questioned about complaints of back pain in May of 2008; Reid-Lopez testified that she had just had hernia surgery, and she suffered back pain from being in bed too long.

l4Peggy Evans, claims adjuster for Alternative Service Concepts, testified that her company handled workers’ compensation claims for A-Med. Because Reid-Lopez’s injuries had increased at the end of claim, as opposed to when the claim began, Evans requested prior medical information to verify what injuries may have been pre-existing and what may have occurred at the accident. Further, after looking at the average weekly wage calculation, Evans determined that Reid-Lopez had been overpaid. Evans noted the auto accidents with similar complaints, as well as an accident just prior to the present claim, with the exact complaints. Reid-Lopez’s benefits were terminated due to the overpayment, as well as the fact that she had not been honest about her condition based on the medical records.

In her judgment, the judge found that Reid-Lopez testified that the only treatment she received for her back prior to the present accident were ER visits following multiple car accidents. However, the court determined that she had injured her back in September 2004, while working for A-Med, and further found that she had received physical therapy treatment on five occasions as a result. This latter finding was incorrect — therapy occurred three times. The judge also found that she had failed to disclose the previous injury, and she had been treated for her back at West Jefferson Hospital on January 28, 2007. The court also found that Reid-Lopez told her physician at Southern Surgical that she was suffering from back pain on May 7, 2008, prior to the accident, and that she failed to disclose these problems for the purpose of gaining workers’ compensation benefits. The court found that she willingly made false statements in violation of La. R.S. 23:1208 and forfeited her right to benefits. The court went on to find that “The reasons given by claimant at trial were unconvincing and proven to be false. It is clear that claimant withheld previous medical history of her back problems for the purpose of obtaining workers’ compensation benefits.”

| sUnder La. R.S. 23:1208:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

La. R.S. 23:1208 authorizes forfeiture of benefits upon proof that: (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The party who requests that the benefits be forfeited must show that the employee’s statements were not only false, but they must also show that the statements or misrepresentations were willful and deliberately done with the intent to obtain benefits. The burden of proof requires more than a mere showing of inconsistent statements or inadvertent omissions by the claimant. The issue of whether an employee forfeited her workers’ compensation benefits is one of fact, which is not to be reversed on appeal, absent manifest error.

The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. The manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in | r,demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. In applying the manifest error standard of review, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.

In the present ease, the trial court clearly found the testimony of Reid-Lopez not credible. The medical evidence in the record supports the findings of the trial court with regard to previous injuries suffered by Reid-Lopez and her failure to disclose such injuries and incidents to her employer. We find no manifest error in the determination by the trial court that Reid-Lopez willingly failed to disclose these problems for the purpose of gaming workers’ compensation benefits. As a result, she was not entitled to benefits.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED

      . Faulkner v. Better Serv., Inc., 10-867 (La.App. 5 Cir. 5/24/11), 67 So.3d 646, 656-57 (citing Gibbs v. Delasandro Painting and Decorating, 03-1144 (La.App. 5 Cir. 2/10/04), 868 So.2d 804, 809, writ denied, 04-0608 (La.4/23/04), 870 So.2d 308).

      . Id.

      . Id. (citing Sevin v. Greenbriar Nursing Home, 00-2794 (La.App. 1 Cir. 2/15/02), 807 So.2d 1179, 1181-82).

      . Sevin v. Greenbriar, supra (citing Hull v. Fluker Farms, 00-0757 (La.App. 1 Cir. 5/11/01), 787 So.2d 535, writ denied, 01-2291 (La. 11/16/01), 802 So.2d 612).

      . Sweeden v. Hunting Tubular Threading, Inc., 01-724 (La.App. 5 Cir. 12/12/01), 806 So.2d 728, 731 (citing Bruno v. Harbert Intern., Inc., 593 So.2d 357, 361 (La.1992)).

      . Lee v. Smith, 08-455 (La.App. 5 Cir. 12/16/08), 4 So.3d 100, 105.

      . Nelson v. Motiva, 04-2436 (La.App. 1 Cir. 12/22/05), 928 So.2d 34, 37.


text:
    Delores CASBORN v. JEFFERSON PARISH HOSPITAL DISTRICT NO. 1 d/b/a West Jefferson Medical Center, the Consolidated Road District A of the Parish of Jefferson, State of Louisiana.
    No. 11-CA-1020.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.

      Kevin M. Riley, Patrick G. Kehoe, Jr., Attorneys at Law, New Orleans, LA, for PlaintiffAppellant.
    William H. Voigt, A. Mark Flake, Gau-dry, Ranson, Higgins & Gremillion, LLC, Gretna, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Chief Judge.

12Plaintiff/appellant, Delores Casborn (“Ms. Casborn”), appeals from an adverse judgment of the trial court in which the court granted a defense motion for summary judgment and dismissed Ms. Cas-born’s trip and fall lawsuit against Consolidated Road District A of the Parish of Jefferson (“Road District”). We affirm.

Ms. Casborn was on her way to sit with a family member who was a patient at West Jefferson Medical Center when she caught her foot on an uneven concrete section of walkway next to the parking garage. Ms. Casborn fell, suffering injuries to her foot, neck, and shoulder. She filed this action against the Jefferson Parish Hospital District No. 1 d/b/a West Jefferson Medical Center and West Jefferson (“West Jefferson”) and the Road District.

West Jefferson filed an exception of vagueness and ambiguity and the Road District filed an answer to the lawsuit asserting a general denial of liability.

|sThe parties conducted discovery, after which the Road District filed a motion for summary judgment. The trial court held a hearing on the matter and granted the motion dismissing Ms. Casborn’s claims against the Road District with prejudice. It is that judgment which is before this Court for review.

A mover is entitled to a summary judgment only on a showing that there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law.

In its motion for summary judgment, the Road District argued that the sidewalk did not create an unreasonable risk of harm and also that there was no notice of the defect. In support of the motion, the Road District attached the General Liability Accident Report created by the Streets Department of Jefferson Parish, which shows that Ms. Casborn reported the trip and fall. The Road District also attached, as an exhibit, the response to Ms. Cas-born’s interrogatories in which it states that there were six requisitions for sidewalk repair from September 8, 2009 through October 80, 2009, but none referred to this particular area. The Road District also attached an affidavit of Director of Jefferson Parish Public Works Department Randy Nicholson from August 2005. In that affidavit, Mr. Nicholson stated that he reviewed the petition filed by Ms. Casborn in this action and the investigation report. Mr. Nicholson attested that he has access to the Public Works Office records regarding work orders, complaints, incident reports, and accident reports of all sidewalks and streets located in Jefferson Parish. After a review of all of the records for the period of January 2009 through the date of the affidavit for any sidewalk defects on the entirety of 1000 and 1100 blocks of Medical Center Boulevard, Mr. Nicholson found that, prior to Ms. Casborn’s complaint in September 2009, Jefferson Parish had not received any telephone calls, complaints, |4or reports of any defective conditions or resulting accidents at or near the concrete walkway next to the parking garage at West Jefferson where Ms. Casborn fell. Further, the records show that, in July 2009, Jefferson Parish performed some patching of holes with cold mix on Medical Center Boulevard at Tenth Street; however, not in the area in which Ms. Casborn fell. Documentation, including work orders, supports that affidavit.

In opposition to the motion for summary judgment, Ms. Casborn attaches her own affidavit in which she estimates a difference in the concrete sidewalk stones is about two inches in the place where she tripped. She has attached photos of the site to show the disparity of height. Ms. Casborn also stated that she returned to the accident site subsequent to the fall and noted that “some type of cement substance” has been placed at the site to eliminate the hazard. Photos of that repair work are also included. Ms. Casborn also offers the affidavit of Cassandra Richardson who was employed at West Jefferson Hospital at the time of the incident. Ms. Richardson stated that she is familiar with the sidewalk where Ms. Casborn fell and knows that one cement stone was higher than the one adjacent.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Specifically, an appellate court must ask the same questions as the district court: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. A genuine issue is a “triable issue.” A material fact is one that potentially insures or precludes recovery, affects a litigant’s ultimate success, |sor determines the outcome of the lawsuit. We must view the issue of whether a particular fact is material only in light of the substantive law applicable to the case.

The Road District is a public entity. In actions against a public entity, the plaintiff must establish that the thing which caused the damage was in the custody of the defendant, that the thing was defective because it had a condition which created an unreasonable risk of harm, that defendant had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and that the defect was a cause in fact of plaintiffs injuries.

Courts have adopted a risk-utility balancing test to determine whether a condition is unreasonably dangerous under which the trier of fact must balance the gravity and risk of harm against the individual and societal utility, and the cost and feasibility of repair. The vice or defect must be of such a nature as to constitute a dangerous condition that would be reasonably expected to cause injury to a prudent person using ordinary care under the circumstances. While there is no fixed rule regarding deviations of elevation in a sidewalk, deviations of one-half to two inches have not been held to present an unreasonable risk of harm. We find that, under the circumstances of the matter before us, after applying the risk-utility balancing test, the deviation in the sidewalk does not rise to the level of an unreasonably dangerous condition.

|rA plaintiff must also show notice. “Constructive notice shall mean the existence of facts which infer actual knowledge.” Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury.

Louisiana law provides two theories under which a public entity may be held liable for damages: negligence under La. C.C. art. 2315, and strict liability under La. C.C. art. 2317. Traditionally, these theories could be distinguished, because under strict liability, a plaintiff was relieved of proving that the owner or custodian of a thing which caused damage knew or should have known of the risk involved. However, with the enactment of La. R.S. 9:2800, the legislature has eviscerated this distinction in claims against public entities by requiring proof of actual or constructive knowledge of the defect which causes the damage under either theory. Thus, with respect to public entities, the burden of proof is the same under either theory.

Under the law of summary judgment, the initial burden of proof is with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his |7evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted.

In the matter before us, the trial court found that the mover, Road District, who will not bear the burden of proof at trial, has shown the absence of factual support for actual or constructive notice of the defect, an essential element of Ms. Casborn’s action. We agree. The Road District has produced testamentary and documentary evidence to show that it has no notice of the difference of height of the concrete sidewalk blocks where Ms. Cas-born fell. Ms. Casborn produced only her own testimony about the fall, photos of the defect, and an affidavit of a hospital worker that the sidewalk had been in that condition for some time before Ms. Cas-born fell. We do not find that to be enough factual support to show that she will be able to satisfy her evidentiary burden of proof at trial at trial regarding the essential element of actual or constructive notice.

For the foregoing reasons, we find the trial court’s grant of the motion for summary judgment filed by the Road District to be correct and we affirm that judgment. The matter is remanded for further proceedings.

AFFIRMED AND REMANDED

      . It appears from the record that West Jefferson’s exception is still undecided by the trial court.

      . La. C.C.P. art. 966(B).

      . Id.

      . Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751.

      . Meaux v. Wendy’s Intern., Inc., 10-111 (La.App. 5 Cir. 10/26/10), 51 So.3d 778, 783.

      . Hubbard v. Jefferson Parish Parks and Recreation, 10-24 (La.App. 5 Cir. 5/25/10), 40 So.3d 1106, 1110, writ denied, 10-1486 (La.10/1/10), 45 So.3d 1102.

      . La. R.S. 9:2800; Warden v. Richoux, 09-794 (La.App. 5 Cir. 3/23/10), 40 So.3d 139, 145, writ denied, 10-0921 (La.6/25/10), 38 So.3d 340.

      . Pryor v. Iberia Parish School Bd., 10-1683 (La.3/15/11), 60 So.3d 594, 596.

      . Daigle v. Parish of Jefferson, 08-1310 (La.App. 5 Cir. 12/8/09), 30 So.3d 55, 63, writ denied, 10-0044 (La.3/26/10), 29 So.3d 1262.

      . Chambers v. Village of Moreauville, 11-898 (La.1/24/12), 85 So.3d 593, and cases cited therein.

      . La. R.S. 9:2800(D).

      . Blount v. East Jefferson Gen. Hosp., 04-407 (La.App. 5 Cir. 10/12/04), 887 So.2d 535, 538.

      . Hubbard v. Jefferson Parish Parks and Recreation, supra, at 1110.

      . Id.

      . La. C.C.P. art. 966(C)(2); Meaux v. Wendy’s Intern., Inc., supra, at 782.


author: ROBERT A. CHAISSON, Judge.

text:
    Stacy BENSON Wife of and Jeffery Benson v. WOMEN’S AGLOW FELLOWSHIP, John Deanie, Deanie Holcomb, the City of Gretna, the Parish of Jefferson and Wildean Huff, Wife of and John L. Holcomb.
    No. 11-CA-1082.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 22, 2012.

      Thomas L. Smith, David A. Dalia, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Leonard M. D’Angelo, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and ROBERT A. CHAISSON.
   ROBERT A. CHAISSON, Judge.

1 {.This is an appeal by Stacy Benson, wife of and Jeffery Benson, plaintiffs-appellants, from a summary judgment dismissing with prejudice their claims against Wil-dean Huff, wife of and John L. Holcomb, and State Farm Fire and Casualty Co., their insurer, defendants-appellees, in this defective street curb action. For the following reasons we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

The facts are as follows. Stacy Benson had ridden with her mother-in-law to a church in Gretna, Louisiana, where a birthday party was being held for her niece. Her mother-in-law had parked her car at the curb in front of the defendants’ home, which was next door to the church property. As Ms. Benson approached the parked car on her departure from the gathering, she stepped into a depression in the cement curb and fell.

There is no question that the curb at issue here is the property of the City of Gretna, and is not owned by the Holcombs. Photographs of the site show that the curb is slanted down into the street. There is a small pipe running underground |3from the Holcombs’ property to the curb, and then through an expansion joint in the curb. This pipe serves to drain water from the defendants’ property into the street. However, the pipe is completely recessed into the expansion joint. It is positioned well below the top of the curb, and does not extend beyond the edge of the curb where it meets the street. At the time of the incident there was no water exiting the pipe, and no water from it was in the street. The photographs further show that several inches of the upper portion of the curb adjoining the expansion joint are broken out, thus forming a depression. Ms. Benson testified in deposition that she did not step on, or trip over the pipe, but instead turned her ankle when she stepped into the depression. She indicated that at the time, the depression was covered with dirt and grass, which her husband removed in order to photograph the joint and pipe.

Wildean Holcomb and her husband, John Holcomb, filed affidavits stating that the pipe was in place when they bought the property, that they had nothing to do with its installation, that they did not cause the chip in the curb, and that they did not maintain the curb or the adjoining street.

The Holcombs and their insurer urged a motion for summary judgment which was granted. This appeal followed.

LAW AND ANALYSIS

Summary judgment shall be granted where there is no dispute as to any material fact, and mover is entitled to judgment as a matter of law. La.C.C.P. art. 966(C). Where the moving party does not bear the burden of proof at trial, it is sufficient to point out to the court that there is an absence of factual support for one or more of the essential elements of the opposing party’s claim; thereafter, if the adverse party does not come forward with evidence to show that he will be able to meet his burden at trial, there is no genuine issue of material fact. La.C.C.P. art. |4966(C)(2). Supporting and opposing affidavits shall be made on personal knowledge, set forth facts as would be admissible in evidence, and show that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967. On appeal, de novo review is the proper standard to be utilized. Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783.

In Butkiewicz v. Evans, 6-236 (La.App. 5 Cir. 9/26/06), 943 So.2d 509, this court ruled that:

The burden for tort liability arising from a defect in a public sidewalk is generally with the municipality, not the adjoining landowner. Schully v. Hughes, 00-2605 p. 3 (La.App. 4 Cir. 6/5/02), 820 So.2d 1219, 1221 (and cases cited therein); Graham v. City of Shreveport, 38,953, p. 5 (La.App. 2 Cir. 9/22/04), 882 So.2d 718, 721. Further, an abutting property owner is not generally responsible for the repair or maintenance of a public sidewalk, except where the defect in the sidewalk was caused by the landowner. Schully, 00-2605 at p. 6, 820 So.2d at 1223; Graham, 38,953 at p. 5, 882 So.2d at 721.

In the present case, there is no dispute that the City of Gretna owns and is responsible for the curb. The issue as to the Holcombs is whether the alleged defect in the curb was caused by them. They stated under oath that they did not install the pipe, did not hire anyone to install the pipe, did not cause the chip in the curb, and do not maintain the curb or adjoining street. On this showing, it was incumbent on the plaintiffs to come forth with evidence which would show that they could bear their burden of proving at trial that the defendants did, in fact, cause the chip in the curb.

Plaintiffs submitted the affidavit of Jeffery Benson, Stacy Benson’s husband, wherein he stated that he did not witness the accident, but came on the scene almost immediately after his wife fell. He said he observed the pipe and the surrounding indentation that day, and returned the following day to take pictures of the scene. There is nothing in this affidavit which even remotely suggests that the 15Holcombs caused the indentation, or installed the pipe, and it does not raise any genuine issue of material fact on this point. Because the plaintiffs did not come forward with any evidence which would establish at trial an essential element of their claim, ie., that the adjoining landowners caused the defect, there is no genuine issue of material fact. In this circumstance, summary judgment was properly granted.

For the foregoing reasons, the summary judgment in favor of Wildean Huff, wife of and John L. Holcomb, and their insurer, State Farm Fire & Casualty Company, dismissing plaintiffs’ claims with prejudice, is hereby affirmed.

AFFIRMED