source: Caselaw Access Project

author: DENNIS R. BAGNERIS, SR., Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of P.L.
    No. 2011-CA-1173.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Ali Pearson, Juvenile Regional Services, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., and Judge TERRI F. LOVE).
   DENNIS R. BAGNERIS, SR., Judge.

hP.L. appeals the judgment of the Juvenile Court for the Parish of Orleans denying his motion to suppress the evidence. P.L. requests that this Court vacate the adjudication of delinquency on the grounds that his motion to suppress should have been granted. For the following reasons, we affirm.

Facts/Procedural History

The State filed a delinquency petition charging P.L. with violating La. R.S. 14:108, resisting an officer, and La. R.S. 14:95.8, illegal possession of a handgun by a juvenile. P.L. filed a motion to suppress the evidence, which the juvenile court deferred to the adjudication hearing. On June 1, 2011, the juvenile court held the adjudication hearing.

Officer Mitchell testified that he was on patrol duty in the St. Roch area the night of February 25, 2011, and that he was following Officer Watson when a citizen stopped Officer Watson’s vehicle. Officer Mitchell stated that he also approached Officer Watson’s vehicle and learned from the citizen that three black males were in the backyard of an abandoned residence and the citizen could hear some sort of commotion. Officer Mitchell testified that the citizen believed the three males to be juveniles and further described one male as wearing a black ⅛⅛⅛⅛ and dark colored jeans and the other two males as wearing white t-shirts and dark colored pants. After obtaining this information, Officer Mitchell and the other patrol officers proceeded to the abandoned residence to see what was going on considering that it was after curfew hours for juveniles.

As the officers approached the abandoned residence, Officer Mitchell testified that they could hear noises emanating from the backyard of the abandoned residence. Officer Mitchell noted that he shined his flashlight towards the backyard as another officer turned the patrol vehicle’s spotlight on the area. Officer Mitchell stated that he observed several subjects in the backyard. Officer Mitchell stated that he requested that the individuals come to where the officers were. At that point, two of the subjects ran, and Officer Mitchell testified that he chased them. Officer Mitchell stated that the two individuals who ran were black males and one was wearing a white t-shirt and the other was wearing a white tank shirt.

Officer Mitchell revealed that as he chased the two individuals, they turned into an empty lot and one of them withdrew an object from his pants. Officer Mitchell recognized the object as the magazine to a semi-automatic weapon. Officer Mitchell testified that he watched as the individual tossed the weapon into the empty lot and continued running. Officer Mitchell stated that he managed to cut off the individual who tossed the weapon. Officer Mitchell testified that when that individual saw Officer Mitchell with his gun drawn and was ordered to the ground, the individual complied and was placed under arrest. In court, Officer Mitchell positively identified P.L. as the individual who tossed the weapon and that was placed under arrest. Officer Mitchell testified that he did not conduct any fingerprint or DNA analysis on the gun to compare it to P.L.

IsOfficer Mitchell reviewed pictures taken of the abandoned residence and the area where the arrest took place. Officer Mitchell revealed that the “MMG” located on the abandoned residence was the logo for the Mad Mafia Gang. Officer Mitchell testified that the complainant did not provide a name or address and that he believed that the complainant did not want to be recognized because he lived in the neighborhood and feared retaliation from the gang.

After Officer Mitchell testified, the parties argued the motion to suppress. The juvenile court denied the motion to suppress, finding that the officers possessed reasonable suspicion based on the information received from the complainant of individuals that appeared to be juveniles in an abandoned yard, late at night, after curfew, in addition to the flight and other circumstances. Thereafter, the juvenile court continued with the adjudication hearing.

At the adjudication hearing, Officer Watson testified that she was on patrol duty the night of February 25, 2011, in the area near Music and N. Galvez. Officer Watson revealed that she is familiar with the neighborhood as she used to live nearby and still attends church in the neighborhood. Officer Watson stated that an individual approached her vehicle and made a motion with his hand. Officer Watson stated that she exited her vehicle and learned that three individuals, who appeared to be juveniles, were in the backyard of an abandoned residence. After learning this information, Officer Watson testified that she and the other officers proceeded to the abandoned residence. Officer Watson testified that she keeps her window rolled down when she is in on patrol, and as they approached the abandoned residence, she could hear a rattling noise. Officer Watson shined her spotlight down the alleyway to the rear of the abandoned residence and observed three individuals who fit the description provided by the complainant climbing on |4a chain link fence. Officer Watson stated that as she began to exit her vehicle, two of the individuals took off running. Officer Watson noticed Officer Mitchell in pursuit of the two, re-entered her vehicle, and followed to lend assistance to Officer Mitchell. Officer Watson testified that she did not see P.L. with a gun.

Next, at trial, P.L. called Terry Green to testify. Mr. Green stated that he and P.L. had been friends for about two years. Mr. Green testified that on February 25, 2011, he spent time with P.L. during the day and that P.L. was wearing a tank top and some jeans. Mr. Green stated that P.L. did not have a gun or any bulge. Mr. Green testified that later that night, he received a telephone call from P.L. telling him to come to a residence where P.L. was hanging out with some girls. Mr. Green stated that he proceeded to the area and about eight or nine people were hanging out on the corner. Shortly after he arrived, Mr. Green testified that the police arrived and that when P.L. saw the police, he ran. Mr. Green testified that when the police appeared, P.L. was in the front of the house, on the steps, talking to some girls.

P.L. testified that the police have bothered him in the past and that he is afraid of the police. P.L. stated that on February 25, 2011, he was talking to some girls at 2005 St. Roch and that ten or eleven people were out in front of the residence. P.L. testified that he was never in the backyard of the residence. P.L. stated that when the police appeared and shined their light, he took off running. P.L. stated that he was scared when the officer drew his gun, so he ran. P.L. stated that he did not have a gun.

|sThe juvenile court adjudicated P.L. delinquent, finding P.L. committed the offenses of flight from an officer and illegal possession of a handgun by a juvenile.

Standard of Review

A trial judge’s ruling on a motion to suppress the evidence is entitled to great weight, because the trial judge has the opportunity to observe the witnesses and weigh the credibility of their testimony. State of Louisiana in the Interest of J.S., 2008-1401, p. 4 (La.App. 4 Cir. 2/18/09), 6 So.3d 904, 908. The State bears the burden of proving the admissibility of all evidence seized without a warrant during a hearing on a motion to suppress. La.C.Cr.P. art. 703(D); State v. Howard, 2000-2405, p. 3 (La.App. 4 Cir. 4/11/01), 787 So.2d 404, 407.

Discussion

P.L. argues the juvenile court erred in denying the motion to suppress, thereby admitting evidence obtained as the result of an unlawful arrest and obtained in violation of the U.S. and Louisiana Constitutions.

The Fourth Amendment of the U.S. Constitution and Art. I, § 5 of the Louisiana Constitution protect persons from unreasonable searches and seizures. In discussing searches and seizures, this Court recently noted:

In an effort to discourage police misconduct, evidence recovered as a result of an unconstitutional search or seizure is inadmissible. State v. Tucker, 626 So.2d 707, 710 (La.1993); State v. Sykes, [20]04-1199, 04-0947, p. 4 (La.App. 4 Cir. 3/9/05), 900 So.2d 156, 158. Thus, evidence abandoned by a citizen and recovered by the police as a direct result
of an unconstitutional seizure may not be used in a resulting prosecution against the citizen. Tucker, 626 So.2d at 710; State v. Chopin, 372 So.2d 1222, 1224 (La.1979). If, however, a citizen abandons or otherwise disposes of property prior to any unlawful intrusion into the citizen’s right to be free from governmental interference, then the property may be lawfully seized and used against the citizen in a resulting prosecution. Tucker, 626 So.2d at 710; Sykes, [20]04-1199, 04-0947, p. 4, 900 So.2d at 159-160; Chopin, 372 So.2d at 1224; State v. Ryan, 358 So.2d 1274, 1275 (La.1978).

State of Louisiana in the Interest of J.S., 2008-1401, pp. 4-5, 6 So.3d at 908.

A police officer may make a lawful stop of a person in a public place without a warrant when he reasonably suspects the person is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions. La.C.Cr.P. art. 215.1. A tip received from a citizen may provide the police with the required reasonable suspicion. Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000).

P.L. argues that the individual reporting suspicious behavior provided an anonymous tip which did not bestow upon the police reasonable suspicion to make an investigatory stop. P.L. argues that the tip provided to the police was from an anonymous complainant that was unknown to the officers. P.L. cites Florida v. J.L. in support of his argument. In that case, the Court noted that “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.” Florida v. J.L., 529 U.S. at 270, 120 S.Ct. at 1378. However, the Court went on to state that “there are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.’ ” Id. In J.L., an anonymous caller reported to the police that a young black male in a plaid shirt at a particular bus stop was carrying a gun. Id., 529 U.S. at 271, 120 S.Ct. 1375. Officers arrived approximately six minutes after the tip was received and noticed three young men at the bus stop, one in a plaid shirt. There was nothing to indicate that any were engaged in illegal activity or were carrying weapons. Yet, one officer approached J.L. and told him to put his hands on the bus stop, frisked him, and recovered a gun. Id. The Florida Supreme Court held the search invalid under the Fourth Amendment. Id., 529 U.S. at 274, 120 S.Ct. at 1380. The U.S. Supreme Court affirmed, holding that an anonymous tip lacking indicia of reliability does not justify a stop and frisk. Id.

In State v. Howard, this Court reviewed several cases in which anonymous tip were provided and summarized them as follows:

In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the U.S. Supreme Court found that a police officer had reasonable suspicion to make an investigatory stop of a person seated in a nearby parked car, where the officer had just received a tip from a known reliable informant that the person was carrying narcotics, as well as a gun in his waistband. The court distinguished the case from one involving an anonymous informant, noting that the informant, who had given the tip in person, may well have been subject to arrest for making a false complaint had the investigation proved the tip unfounded.
In State v. Smiley, 99-0065 (La.App. 4 Cir. 3/3/99), 729 So.2d 743, writ denied, 99-0914 (La.5/14/99), 743 So.2d 651, two police officers on Bourbon Street were approached by an “unknown” citizen, who reported that an individual in a nearby truck had just tried to sell him drugs. As the officers observed the truck, three individuals exited the truck and went into a nearby bar. The unknown citizen identified one of them as the individual who had tried to sell him drugs. This court held that under those facts police had reasonable suspicion to detain the individual to investigate the citizen’s complaint. Even though the complaint came from an “unknown” citizen, the circumstances surrounding the giving of it indicated a certain degree of trustworthiness.
In State v. Fayard, 537 So.2d 347 (La.App. 4 Cir.1988), writ denied, 541 So.2d 871 (La.1989), the doorman of a lounge alerted a police officer working a paid detail that he felt a gun on the defendant’s person when the defendant bumped into him. A lounge patron also informed the officer that the defendant resembled a man wanted for recent boat thefts in the area. A backup officer subsequently observed a bulge under the defendant’s jacket, confirming for him the information received in the initial complaint by the doorman. This court held that this evidence was sufficient to justify an investigatory stop.
In State v. Mims, 98-2572 (La.App. 4 Cir. 9/22/99), 752 So.2d 192, a police officer received information from a “registered” informant, of unknown reliability, that a particularly described individual was selling cocaine on St. Louis Street, between Bourbon and Burgundy Streets, in the French Quarter. The officer went to the location fifteen minutes later, saw an individual fitting the description | ^given by the informant, and made an investigatory stop. This court held that merely verifying a clothing description given by a “registered” informant of unknown reliability was not sufficient corroborating evidence in and of itself to justify the stop.

State v. Howard, 2000-2405, pp. 5-6, 787 So.2d at 408-409.

After considering the law and the cases cited above, the Howard court went on to find that the tip received by the officers therein provided reasonable suspicion to justify a stop of the defendant. State v. Howard, 2000-2405, pp. 7-8, 787 So.2d at 409. That tip was provided by a person the officers stopped as she appeared visibly upset. Id., p. 6, 787 So.2d at 409. The officers learned that a person named “Jamal”, wearing blue jeans and a white t-shirt, had attempted to sell her daughter drugs. The complainant reported to the police that she had informed individuals in the area not to sell drugs to her daughter as her daughter was a recovering drug addict. The officers stated that they canvassed the area, and in a short time came upon the defendant, who fit the description. The officers stopped the defendant and conducted a pat down. One officer noticed the defendant looking nervous and observed the defendant attempting to place his hand in his right pocket several times. The officer felt the outside of the pocket and detected what he believed, from his experience, to be contraband. The officer removed the object, which proved to be crack cocaine. Mr. Howard argued that the complainant was an “uncooperative tipster of unknown reliability.” Id., p. 7, 787 So.2d at 409. The Court noted that while the complainant was not a known, reliable informant, she was not an anonymous tipster, such as a telephone tipster. Further, the Court stated it was understandable that the citizen did not wish to give any further information, perhaps fearing retaliation, recognizing the harsh realities for those living in drug-infested areas. The Court found that her reticence should |9not undermine her credibility and found that the officers had no reason to doubt her information. Id.

As in Howard, the officers herein received a tip from a complainant in person, not an anonymous telephone tip. The complainant herein, who lived in the neighborhood, did not wish to be identified for fear of retaliation. The juvenile court judge heard testimony that gang insignia appeared on the abandoned house where P.L. and the others were found. The officers had no reason to doubt the credibility of the information provided to them by the complainant. Thus, the tip provided the officers with reasonable suspicion to conduct a stop pursuant to La.C.Cr.P. art. 215.1.

In further distinction from Florida v. J.L., the officers corroborated the tip that was received from the complainant herein. The officers proceeded to the address provided by the complainant. The officers noted the house was abandoned and that there were individuals fitting the provided description in the backyard. The officers possessed reasonable suspicion that the individuals were committing a trespass. While P.L. argues that there were no signs posted on the abandoned house, there is no requirement that signs forbidding entrance be posted. Indeed, the law provides that “no person shall enter upon immovable property owned by another without express, legal, or implied authorization.” La. R.S. 14:63. As the immovable property was abandoned, the officers possessed reasonable suspicion that the individuals in the backyard did not possess express, legal, or implied authority to be there.

In addition to his argument regarding the tip, P.L. also argued that flight from an officer does not provide sufficient justification for an investigatory stop. P.L. argues that his hour of arrest was 8:10 p.m., so the officers had no reason to | ,nbelieve that he was out after curfew. Further, P.L. submits that there was no evidence that he had committed a crime, was committing a crime, or was about to commit a crime. P.L. argues there were no “No Trespassing” signs on the abandoned residence and no other indication that his presence in the backyard of home, owned by no one, was prohibited.- P.L.’s argument is specious. While there is no proof in the record that the abandoned residence contained a “No Trespassing” sign, the law requires that a person not enter immovable property without authorization, whether a sign is posted or not. The record lacked proof that P.L. possessed authority, express, legal, or implied, to be in the backyard of the abandoned residence. P.L. correctly notes that flight from an officer alone is insufficient to justify an investigatory stop, but unprovoked flight at the sight of an officer is a factor which may contribute to the finding of reasonable cause for a stop. State v. Alvarez, 2009-0328, p. 3 (La.3/16/10), 31 So.3d 1022, 1024.

"While the record lacks proof as to the time of the arrest, the record contains a risk assessment instrument which stated that the time of intake was 8:56 p.m. Thus, we conclude the arrest occurred shortly before 8:56 p.m. While the officers may not have had reason to believe that P.L. was out after curfew, they had reason to believe that he was committing a criminal trespass as the residence was abandoned. The belief that a criminal trespass was being committed, along with the unprovoked flight at the sight of the officers, provided the officers with reasonable cause to conduct an investigatory stop.

In this case, there was no unlawful intrusion into P.L.’s right to be free from governmental interference. Officer Mitchell possessed reasonable cause to conduct an investigatory stop. Thus, at the time that P.L. abandoned the semi-automatic handgun, Officer Mitchell possessed the right to seize the semi-jautomaticn handgun. As the semi-automatic handgun was lawfully seized, there was no error in the use of it against P.L. in the resulting prosecution.'-

We find that the juvenile court did not abuse its discretion in denying the motion to suppress evidence as the officers’ possessed reasonable suspicion to conduct a stop of P.L. and lawfully seized the semiautomatic handgun abandoned by P.L. Therefore, P.L.’s adjudication as a delinquent must be affirmed.

Errors Patent

However, our review of the record reveals one error patent which must be addressed. In State of Louisiana in the Interest of A.H., 2010-1673, p. 9 (La.App. 4 Cir. 4/20/11), 65 So.3d 679, 685, we determined that conducting an error patent review in juvenile delinquency cases was warranted.

La. Ch.C. art. 844 provides that the petition utilized to commence a juvenile delinquency proceeding must be verified. The petition utilized to commence the proceedings against P.L. herein is unverified. However, in State in the Interest of A.H., we found that the prosecution of A.H. ratified the unverified petition. State in the Interest of A.H., 2010-1673, p. 9, 65 So.3d at 685. Additionally, the Supreme Court has noted that the proper remedy for a lack of a signature on a petition is a motion to quash. If the motion to quash is not filed, the error is waived. State v. White, 404 So.2d 1202, 1205 (La.1981).

Thus, while our review determined that the State failed to obtain a verification of the petition, we find that the prosecution of P.L. ratified the unverified petition. Further, P.L. failed to file a motion to quash the petition. Therefore, we deem the error to be harmless.

112Pecree

Accordingly, we affirm the district court’s denial of P.L.’s motion to suppress and affirm the adjudication of delinquency for the offenses of flight from an officer and illegal possession of a handgun by a juvenile.

AFFIRMED

      . P.L. testified that he was injured when a police officer hit him with a radio. P.L. testified that he went to the hospital on February 25, 2001, after being arrested. However, no argument was presented in the appellant’s brief regarding the alleged injuries.


author:
JAMES F. McKAY, III, Judge.
      BONIN, J.,

text:
    Ronald WEBER and Linda Weber v. CANAL INDEMNITY COMPANY, Sears, Roebuck and Co., Elite A/C Service LLC and Clayton Bourgeois.
    No. 2011-CA-0852.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 2012.

      Ginger K. Deforest, Law Office of Ginger K. Deforest, Robert P. Charbonnet, Jr., Charbonnet Law Firm, L.L.C., Metair-ie, LA, James S. Rees III, Law Firm of James S. Rees III, Covington, LA, C. William Emory, Wilton E. Bland, III, Moule-doux, Bland, Legrand & Brackett, New Orleans, LA, for Plaintiffs/Appellants.
    John David Ziober, Brad M. Boudreaux, Guglielmo Marks Schutte Terhoeve & Love, Baton Rouge, LA, for Defendant/Ap-pellee, Sears Home Improvement Products, Inc.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge PAUL A. BONIN).
   JAMES F. McKAY, III, Judge.

Bin this tort action, the plaintiffs, Ronald and Linda Weber, appeal the trial court’s granting of summary judgment in favor of the defendant, Sears Home Improvement Products, Inc. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Rhodessa Price purchased an air conditioning unit from Sears and paid Sears to install the unit. Sears called on Elite A/C Service, LLC to do the installation. Clayton Bourgeois and Glenn Bourgeois were the Elite employees sent to the Price residence in order to install the unit.

Ms. Price asked her neighbor, Ronald Weber, to look over the job because he had experience in construction. Mr. Weber had some concerns about the job; he expressed these concerns to the Elite employees as well as to Steve Johnson, the Heating, Ventilation, Air Conditioning Project Manager and Project Coordinator for Sears. In response to Mr. Weber’s concerns, Mr. Johnson came to the Price home and Mr. Weber informed him that the air conditioner had been placed where Ms. Price could not get out of her house. After Mr. Johnson had left, Clayton |2Bourgeois and Mr. Weber were involved in some sort of physical altercation. As a result, Mr. Weber sustained several facial fractures which required multiple surgeries.

Mr. Weber and his wife, Linda, filed a personal injury lawsuit, which included a claim for Mrs. Weber’s loss of consortium, against Clayton Bourgeois, Elite, Sears, and Canal Indemnity Company (the CGL liability insurer for Elite). Sears answered the suit, denying liability, and asserted that Clayton Bourgeois and Elite were independent contractors. The plaintiffs filed a motion for partial summary judgment (and for declaratory relief), seeking a ruling that: (1) Sears is an employer of Clayton Bourgeois and is vicariously liable for any fault of Clayton Bourgeois; and (2) that Clayton Bourgeois was acting in the course and scope of his employment with Sears at the time of the fight and any fault by Clayton Bourgeois, to be determined at a later date, must be imputed to Sears. Sears then filed a cross motion for summary judgment, seeking a determination that: (1) Elite is an independent contractor of Sears such that Sears would have no vicarious liability; (2) Clayton Bourgeois was not a “borrowed employee” of Sears; and (3) that plaintiffs cannot prevail on their claim against Sears for negligent hiring/screening of Clayton Bourgeois.

On April 15, 2011, the trial court heard the motions for summary judgment. The trial court found that Clayton Bourgeois was not a borrowed employee of |sSears and that an independent 'contractor relationship between Sears and Clayton Bourgeois existed. The trial court denied the plaintiffs’ motion for partial summary judgment but granted Sears’s motion for summary judgment, which resulted in the dismissal of the plaintiffs’ claims against Sears. The plaintiffs now appeal.

DISCUSSION

On appeal, the plaintiffs raise the following assignments of error: (1) the trial judge erred in denying plaintiffs’ motion for summary judgment and/or declaratory relief that Elite, specifically Clayton Bourgeois, was a borrowed and/or co-employee of Sears in contravention of established case law, derived from vicarious liability;

(2) the trial judge erred in denying plaintiffs’ motion for summary judgment and/or declaratory relief that whatever happened in the altercation (which should be decided by a jury), Mr. Bourgeois was acting in the course and scope of his employment since all evidence suggests that the only interaction between the two men was related to the installation of the A/C job; (3) the trial judge applied the wrong summary judgment standard by denying plaintiffs’ motion for summary judgment on the course and scope issue on the grounds that, notwithstanding a complete lack of evidentia-ry support, one could theorize Mr. Weber could have called Mr. Bourgeois pejorative names; and (4) the trial judge erred in stating several times that she saw material issues of fact regarding the two issues before her which she stated should be decided by a jury and then, granting ]4summary judgment to Sears on the same issues which she declared were jury issues.

The plaintiffs’ first three assignments of error are not properly before this Court. The denial of summary judgment is an interlocutory judgment, which is not ap-pealable. Only final judgments are ap-pealable, unless the law expressly provides that an interlocutory judgment is appeal-able. See La. C.C.P. art. 2083(A) and (C). Louisiana Code of Civil Procedure Article 968 states that “[a]n appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment.”

The plaintiffs’ final assignment of error, dealing with the trial court’s granting of Sears’s motion for summary judgment and the dismissal of the plaintiffs’ claims against Sears, is properly before this Court.

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1182. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. Two Feathers Enterprises, Inc. v. First National Bank of Commerce, 98-0465 (La.App. 4 Cir. 10/14/98), 720 So.2d 398, 400. This procedure is now favored and shall be construed to accomplish those ends. La. C.C.P. art. 966 A(2).

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the |saffidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. If the court finds that a genuine issue of material fact exists, summary judgment must be rejected. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, the party opposing the motion must “make a showing sufficient to establish existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial.” La. C.C.P. art. 966(C).

Although Sears argues that there was a written contract deeming Elite an independent contractor, this is not determinative of whether a borrowed employee situation exists. The circumstances surrounding the relationship govern. See Morgan v. ABC Mfr., 97-0956 (La.5/1/98), 710 So.2d 1077, 1080. Sears sold the air conditioning unit and arranged for Elite to do the installation. Sears exercised some oversight of the jobs it assigned to Elite; in the instant case, this is evidenced by Mr. Johnson’s going to the job site. Sears also conducted background checks on potential employees of Elite. Clearly, this creates a question as to whether Clayton Bourgeois was a borrowed employee of Sears at the time of his altercation with Mr. Weber.

If Clayton Bourgeois was a borrowed employee of Sears, there is also a question as to whether he was in the course and scope of his employment at the fitime of the altercation. To determine course and scope, courts look at whether the employee’s conduct was closely related in time, place, and causation to his employment. Verneuil v. Poirier, 589 So.2d 1202 (La.App. 4 Cir.1991). It is alleged that Clayton Bourgeois attacked Mr. Weber because he believed that Mr. Weber was going to call Mr. Johnson to complain about the installation job. Accordingly, whether Clayton Bourgeois was in the course and scope of his employment is a question of fact.

Because there are genuine issues of material fact concerning whether Clayton Bourgeois was a borrowed employee of Sears and whether he was in the course and scope of his employment at the time of the altercation, Sears’s motion for summary judgment should not have been granted.

CONCLUSION

For the above and foregoing reasons, the trial court’s granting of Sears’s motion for summary judgment is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

BONIN, J., concurs with reasons.

BONIN, J.,

concurs with reasons.

|¶1 join in the majority’s reversal of the summary judgment rendered in favor of Sears because there are genuine issues of material fact which preclude summary judgment either for Sears or for Mr. Weber. But I disagree with the majority’s statement that we cannot consider the correctness of the trial court’s judgment denying Mr. Weber’s motion for summary judgment. While it is true that the denial of a summary judgment is a non-appeal-able interlocutory judgment, it may be considered on assignments of error raised on appeal of a final appealable summary judgment under La. C.C.P. art. 1915 A. “When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment.” Roger A. Stetter, Louisiana Civil Appellate Procedure, § 3:32 (2010-2011 ed.). See also id., § 3:35 (“Denial of a motion for summary judgment may be reviewed on appeal of a final judgment in the suit ... However, the issue must have been argued and passed on by the court in its ruling denying plaintiffs’ motion for summary judgment in order to be reviewed on appeal.”) Of course, had we considered the interlocutory judgment, we would have found it to be correct for the same reason we found the final judgment incorrect: a genuine issues of material fact exist precluding summary judgment.

      . Sears also asserted a cross claim against Elite and Clayton Bourgeois and a third party demand against Glenn Bourgeois for contractual indemnity and defense as well as for coverage by Canal under its CGL policy. Those claims were reserved in the judgment dismissing the plaintiffs' claims against Sears and are not at issue in this appeal.


author: DANIEL L. DYSART, Judge.

text:
    Douglas JOUBERT and Lillian Legardeur v. CITY OF NEW ORLEANS, DEPARTMENT OF OFFICE OF SAFETY & PERMIT, et al.
    No. 2011-CA-0854.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 11, 2012.
    Rehearing Denied Jan. 25, 2012.

      Miles G. Trapolin, Trapolin Law Firm, New Orleans, LA, for Plaintiff/Appellant.
    J. Rand Smith, Jr., The Chouest Law Firm, Metairie, LA, for Property Consolidation, Inc., Entropy Enterprises, Ltd.
    John 0. Pieksen, Jr., John Pieksen & Associates, LLC, New Orleans, LA, for South Jefferson Davis Parkway, LLC.
    Stephanie M. Bridges, Assistant City Attorney, Kimlin S. Lee, James B. Mullaly, Deputy City Attorneys, New Orleans, LA, for City of New Orleans.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

bln this appeal, plaintiffs contend that the trial court erred in granting the defendants’ Motions for Summary Judgment and dismissing their lawsuits. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiffs filed two lawsuits to halt the permitting of non-conforming multiunit buildings and to shut down a nineteen-room boarding house. The plaintiffs also appealed to the trial court two decisions of the City’s Board of Zoning Adjustments (“BZA”). In addition, one of the defendants filed an appeal to the trial court from a decision of the BZA. These five cases were consolidated. The parties filed Cross Motions for Summary Judgment. The trial court ruled in favor of the defendants, granting summary judgment and dismissing the plaintiffs’ motions.

The instant appeal concerns five New Orleans properties: 209 South Jefferson Davis Parkway, 312-314 South Jefferson Davis Parkway, 316-318 South Jefferson Davis Parkway, 320-322 South Jefferson Davis Parkway, and a nineteenjroom2 rooming house. 209 South Jefferson Davis Parkway is owned by Defendant/Appellee, South Jefferson Davis Parkway, LLC (“SJDP”). The undisputed facts indicate that SJDP was the owner of a five-plex at 209 South Jefferson Davis Parkway, and as of August 29, 2005, the premises enjoyed a “non-conforming use” status.

After Hurricane Katrina, the City issued 3 permits to 209 South Jefferson Davis Parkway: a commercial, emergency permit dated March 9, 2006; a mechanical permit dated February 28, 2007, and an electrical permit dated March 23, 2007. The City’s ACCELA permit manager website printout dated April 7, 2008 indicated that all three permits were active as of that date. The property was completed and occupied by February 1, 2008.

The properties located at 312-314, 316— 318 and 322 South Jefferson Davis Parkway are owned by Property Consolidation, Inc. 312-314 South Jefferson Davis Parkway, a five-plex; 316-318 South Jefferson Davis Parkway, a seven-plex; and 320-322 South Jefferson Davis Parkway, a seven-plex, all enjoyed nonconforming use status as of August 29, 2005. The City issued a permit to repair 322 South Jefferson Davis Parkway on March 1, 2006. Permits were issued for 312-314 South Jefferson Davis Parkway and 316-318 South Jefferson Davis Parkway on March 2, 2006. 312-314 South Jefferson Davis Parkway was completed and inhabited by March 1, 2007; 316-318 South Jefferson Davis |sParkway has been continuously inhabited since 1998; and 322 South Jefferson Davis Parkway was completed and inhabited by August 24, 2007.

DISCUSSION

Summary judgments are reviewed de novo. Kimpton Hotel & Rest. Group, Inc. v. Liberty Mut. Fire Ins. Co., 07-1209, p. 3 (La.App. 4 Cir. 12/19/07), 974 So.2d 72, 75. Appellate courts use 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.” Supreme Sens, and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638.

Plaintiffs/Appellants contend that the defendants have failed to make timely repairs as required by the City’s Comprehensive Zoning Ordinance (“CZO”) Section 13.3.2 “Vacancy as Discontinuance,” which was amended in 1998. Plaintiffs argue that consistent with the 1998 changes to CZO Section 13.2, the partial use of a building (i.e. one unit of a five-plex) does not preserve the nonconforming use for the entire building (i.e. the other 4 units).

The plaintiffs’ argument fails to recognize the mandate of La. R.S. 33:4882, which expressly provides that non-conforming use properties damaged by j^Hurricane Katrina cannot lose their use status for two years from the date of the storm. The statute provides, in pertinent part:

Notwithstanding any provision of law or municipal or parish ordinance or resolution to the contrary, the governing authority of any municipality or parish or agency of any such municipality or parish shall not allow and shall not cause any building or land to lose its nonconforming use status because, during all or part of the period of August 29, 2005 through August 28, 2007, as a result of damage caused by Hurricane Katrina or Hurricane Rita, it is temporarily vacant or operations normally carried on in such building or on such land have been temporarily discontinued.

Plaintiffs further argue that 33:4882 is preemptive and, following this court’s decision in Williams v. Parish of St. Bernard, 10-0397 (La.App. 4 Cir. 10/13/10), 49 So.3d 520, the owner had “at most” two years after Hurricane Katrina to obtain permits and repair the properties. Appellants’ interpretation of 33:4882 would lead to the conclusion that it is more restrictive than the pre-Katrina law. As such, reading 33:4882 in connection with BZA 13.3.2, defendants had two years to apply for a restoration permit and one year to complete repair. 312-314 South Jefferson Davis Parkway, 316-318 South Jefferson Davis Parkway and 320-322 South Jefferson Davis Parkway were all permitted and completed within the period following Hurricane Katrina. 209 South Jefferson Davis Parkway was permitted March 9, 2006 but not occupied until February 1, 2008. However, Williams recognized in dicta that “the City of New Orleans Board of Zoning Adjustment (“BZA”) is authorized to grant additional extensions to the restoration permit beyond the initial two year period.” Williams, supra, 10-0397, p. 9, 49 So.3d at 525.

Thus, all four properties were properly permitted and continue to enjoy their nonconforming use status. There is no genuine issue of material fact concerning |sthe property owners’ retention of their nonconforming use status, because they applied for and received their building permits within the period afforded them by La. R.S. 33:4882, along with any extensions of restoration permits granted under the authority vested in the City of New Orleans BZA. These assignments of error have no merit.

Plaintiffs next contend that the trial court erred in concluding that Entropy Enterprises, Ltd. (“Entropy”) operates its nineteen-room boarding house as a legally non-conforming use, and is exempt from the City Health and Sanitation Ordinances by operation of law. Plaintiffs argue that New Orleans has the power to regulate all rooming houses, and did not cede this authority to the State simply because the property has more than fifteen rooms. Citing the Louisiana Constitution of 1974, Article VI, Section 4, plaintiffs opine that the City’s power to regulate its own affairs is granted to it by through the issuance of a Home Rule Charter. This Charter grants the City the power to regulate all rooming houses located in the city, not just rooming houses that have less than 15 rooms. Entropy violates every city ordinance governing rooming houses; as such, it should be enjoined from operating, plaintiffs claim.

The City’s Municipal Code specifies that the Department of Environmental Health regulates the laws concerning rooming houses. Section 30-1321 of the Municipal Code states, in part, that a “[rjooming house ... means a building ... containing sleeping rooms where lodging or lodging and meals are provided for five or more unrelated persons but containing less than fifteen | ^sleeping rooms ...” Therefore, in accordance with this definition, the City’s Department of Environmental Health can only regulate rooming houses that have less than fifteen rooms. Entropy’s rooming house has nineteen rooms, and is not subject to these regulations.

Title 51, Part XV, Section 101 et seq. of the Louisiana Administrative Code sets forth the sanitary code regulations for all hotels, lodging houses, and boarding houses in the State of Louisiana. A lodging house, which is analogous to a rooming house, is defined as “a building where persons are supplied with, and charged for, sleeping accommodations but not meals.” Entropy’s rooming house has nineteen rooms. As such, it is governed by the regulations set forth in Title 51, Part XV, Section 101 of the Louisiana Administrative Code.

The trial court correctly ruled that because the rooming house has more than fifteen rooms, it is exempt from City Health and Sanitation Ordinances. This is true because city ordinances do not presently give city regulators the authority to apply city health and sanitation ordinances to a rooming house of more than fifteen rooms. This assignment of error is without merit.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . ACCELA is a government enterprise management software providing a centralized approach to permitting and land management, planning, licensing, and enforcement activities. It allows city employees to input data to a centralized database and access current information about a particular application or permit.

      . La. R.S. 33:4882 became effective on June 29, 2006.


author: EDWIN A. LOMBARD, Judge.

text:
    David LAPENE v. DEPARTMENT OF POLICE.
    No. 2011-CA-0902.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 25, 2012.
    Frank G. DeSalvo, Frank G. DeSalvo, APLC, New Orleans, LA, for Plaintiff/Appellant.
    Victor L. Papai, Jr., Deputy City Attorney, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

| tThis appeal is from a decision of the Civil Service Commission of the City of New Orleans upholding the termination of the plaintiflyappellant, David Lapene, by the New Orleans Police Department (NOPD). After review of the record in light of the applicable law and arguments of the parties, we affirm the decision of the Civil Service Commission.

Relevant Facts and Procedural History

On the evening of February 5, 2008, Damon Tobias was struck in the face in front of the Beach Corner Bar and Grill in the 4900 block of Canal Street in New Orleans. The ensuing investigation revealed that the plaintiff, an off-duty NOPD police officer, was the person who struck Mr. Tobias without provocation or consent. Accordingly, the NOPD suspended him for five days for violation of internal regulations regarding truthfulness, for one day for violation of internal regulations regarding professionalism, and terminated him for violation of internal regulations regarding adherence to the law for committing simple battery. He filed a timely appeal with the Civil Service Commission.

At the hearing on December 1, 2009, the appointing authority (the NOPD) called two fact witnesses, Mr. Tobias and Kesa Holmes, as well as Sergeant Darryl [gWatson, the investigating officer of the NOPD Public Integrity Bureau, and Warren Riley, the Superintendent of Police, NOPD.

Mr. Tobias testified he was certain the plaintiff struck him during the altercation at the Beach Corner Bar and Grill because he was the person closest to him. Ms. Holmes testified that she and a group of RTA co-workers, including Mr. Tobias, were playing pool at the Beach Corner Bar and Grill when a verbal altercation arose. She and her co-workers left the establishment and, as she was standing in front of the building, she observed the plaintiff hit Mr. Tobias in the face. Her immediate reaction was to run down the street to get away from the violence but she subsequently returned to the scene.

Sergeant Darryl Watson of the NOPD Public Integrity Bureau, testified that he investigated the 2008 incident as a result of the complaint filed by Ms. Holmes who stated that she observed a white male with dark spikey hair and a black t-shirt with writing on it strike her friend, Mr. Tobias, as he walked out of the Beach Corner Bar and Grill. Sergeant Watson related that, while at the scene that night, Ms. Holmes pointed Officer Lapene out to police officers who were standing around but “nobody did anything. They just let him walk away.”

Superintendent Warren Riley testified that Ms. Holmes was “100 percent sure” in identifying Officer Lapene in a photographic line-up as the person who struck Mr. Tobias in the face and, accordingly, based on the totality of the circumstances it was his decision to dismiss Officer La-pene.

The plaintiff presented several witnesses at the hearing. Sergeant Sherman Mush-att testified that he was called to the scene as a result of a dispatch and when |she spoke to Ms. Holmes she was unable to provide a description of the person who struck Mr. Tobias. The plaintiff testified that he was standing outside the bar when someone struck Mr. Tobias from behind but that he did not see who threw the punch. The matter was remanded for further testimony from Vernita Rainey, a coworker of Ms. Holmes and Mr. Tobias. Ms. Rainey, although personally served, failed to appear on April 15, 2010, and again on April 29, 2010. On February 21, 2011, the Commission allowed the plaintiff to make her deposition testimony part of the record. In her deposition statement, Ms. Rainey conceded that she was not there- at the time of the incident but declared that Ms. Holmes and Mr. Tobias “didn’t see who hit Tobias” because “[t]hey told me this themselves.”

Based on the record, the Civil Service Commission denied the plaintiffs appeal, finding Ms. Holmes live testimony more credible than the deposition testimony of a witness who refused to testify before the Commission and subject herself to cross-examination. The plaintiff filed this timely appeal.

Applicable Law

The appointing authority (the employer of an employee in the classified civil service) is charged with the operation of his or her department and it is within his or her discretion to discipline an employee for sufficient cause. Joseph v. Department of Health, 389 So.2d 739, 741 (La.App. 4 Cir.1980). Legal cause exists for disciplinary action of an employee in the classified civil service whenever the employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Civil Service Rule 1.5.2.01; Cittadino v. Department of Police, 558 So.2d 1311 (La.App. 4 Cir.1990). The appointing authority has the burden of proving the impairment by a preponderance of the Uevidence. See La. Const. Art. X, § 8(A); Cittadino, supra (appointing authority has the burden of proving by the preponderance of the evidence the occurrence of the complained of activity and that the conduct complained of impaired the efficiency of the public service); see also Saacks v. City of New Orleans, 95-2074 (La.App. 4 Cir. 3/24/1997), 687 So.2d 432, 440 (citation omitted) (the burden of proof in a Civil Service hearing is less than in a criminal proceedings; the facts must be clearly established but need not be established beyond a reasonable doubt).

Based on the facts presented, the Civil Service Commission determines whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. The Civil Service Commission has a duty to decide independently from the facts presented whether the appointing authority has a good or lawful cause for taking disciplinary action and, if so, whether punishment imposed is commensurate with the dereliction. Walters v. Department of Police of New Orleans, 454 So.2d 106 (La.1984).

A reviewing court should affirm the Civil Service Commission conclusion as to existence or cause for dismissal of a permanent status public employee when the decision is not arbitrary, capricious, or an abuse of the Commission’s discretion. Cit-tadino, supra. “Arbitrary or capricious” is defined as the lack of a rational basis for the action taken. Shields v. City of Shreveport, 579 So.2d 961 (1991). When there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, i.e., when there are two permissible views of evidence, the fact finder’s choice cannot be manifestly erroneous. Saacks, 687 So.2d at 440.

_[¿Discussion

In his appeal to this court, the plaintiff argues only that the Commission was manifestly erroneous in finding Ms. Holmes testimony credible. The plaintiff asserts that “one must only look at the testimony of the witnesses in the case to see that the testimony at the hearing was fabricated” because on the night of the incident the witnesses were unable to identify the plaintiff as the perpetrator. In support of this argument, the plaintiff points to the statements of “Specialist Larry Lafitte and Sgt. Kenneth Kennedy, national guardsmen,” who, according to the plaintiff, “each gave statements that neither Mr. Tobias or [sic] Ms. Holmes were able to identify who struck Mr. Tobias.” In addition, the plaintiff argues that the Commission should have relied on the Ms. Rainey’s statement produced by the plaintiff.

A review of the statements made by Louisiana National Guard Members Larry Lafitte and Kenneth Kennedy, refutes the plaintiff’s assertion. Mr. Kennedy states that the “the female” (apparently Ms. Holmes) described the perpetrator and “even pointed him out as he walked ... [t]hat guy right there; y’all letting him go.” Similarly, Mr. Lafitte stated that the female (again, apparently Ms. Holmes) “was saying that it wasn’t right, that uh I think she pointed out somebody and said that she [sic] had tried to swing the pool stick at her or something.”

Conclusion

The appointing authority clearly sustained its burden of establishing that good cause supports the termination of the plaintiff. Ms. Holmes’s testimony identified the plaintiff as the person who struck Mr. Tobias. In addition, the statements of two members of the National Guard (submitted into evidence by the plaintiff) indicate that Ms. Holmes’ attempts to point out the plaintiff to his fellow Rpolice officers on the scene were ignored. Moreover, the plaintiffs testimony that he (an experienced police officer) was standing next to Mr. Tobias when he was hit but saw nothing and took no action to detain the perpetrator is unconvincing. Accordingly, we do not find that the Commission’s decision to give more weight to Ms. Holmes’ testimony than to the deposition statement of a non-witness arbitrary or capricious.

The decision of the Civil Service Commission is affirmed.

AFFIRMED.

      . This testimony, as noted in the Commission decision, was contrary to the victim's consistent statements during the investigation that he did not know who struck him.


text:
    JEFFERSON DOOR COMPANY, INC. v. CRAGMAR CONSTRUCTION, L.L.C. and Angela Juneau Adams Wife of/and Ryan D. Adams.
    No. 2011-CA-1122.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 25, 2012.

      Roy M. Bowes, Joshua Mathews, Joaquin Shepherd, Roy M. Bowes & Associates, Gretna, LA, for PlaintiffAppellant.
    Kevin M. McGlone, Martha Y. Curtis, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge JOY C. LOBRANO).
   EDWIN A. LOMBARD, Judge.

h This appeal is from the dismissal of the suit to enforce a subcontractor’s lien filed by Jefferson Door Company, Inc. against Angela and Ryan Adams. After a review of the record in light of the applicable law, the trial court judgment granting the defendant’s Exception of Prematurity is affirmed.

Relevant Facts and Procedural History

In 2009, the defendants, Angela and Ryans Adams hired Cragmar Construction, L.L.C. (“Cragmar”) as the general contractor to construct their principal residence at 6223 General Diaz Street in Orleans Parish. The plaintiff, Jefferson Door Company, Inc., furnished materials for the project to Cragmar pursuant to a credit application with personal guaranty signed by Craig Martin, an authorized representative of Cragmar. The materials were used into the Adamses’ residence but, although Cragmar was paid in accordance with the construction contract, Cragmar failed to pay the plaintiff the principal amount due of $37,623.98 and related charges.

|2Between July 2, 2009, and October 20, 2009, the Adamses paid Cragmar $344,592.92 to satisfy invoices for the construction of the Adamses’ home. However, although the materials furnished by the plaintiff were used in the Adamses’ residence, the plaintiff was not paid. Accordingly, the plaintiff sent a collection notice on December 2, 2009 to the Adamses demanding payment of $48,314.22, which included service and attorney fees per its agreement with Cragmar. On December 11, 2009, the Adamses terminated the contract with Cragmar on their home and recorded a notice of termination in the Orleans Parish mortgage records. On December 28, 2009, plaintiff filed a Lien Affidavit against the Adamses’ property in the Orleans Parish mortgage records.

On December 23, 2010, the plaintiff filed its petition in the Civil District Court for the Parish of Orleans to enforce a statement of claim or privilege and breach of contract/open account naming as defendants, Cragmar and the Adamses, relying on its Lien Affidavit. Subsequently, the Adamses filed the “Defendants’ Verified Dilatory Exception of Prematurity, Peremptory Exception of No Cause of Action, and Alternatively, Motion for Summary Judgment” at issue in this appeal.

After a hearing held on March 31, 2010, the trial court issued a written judgment signed on April 8, 2010, which stated that the “Defendants’ Verified Dilatory Exception of Prematurity, Peremptory Exception of No Cause of Action, and Alternatively, Motion for Summary Judgment be granted.” The judgment further ordered the dismissal of the Adamses from the case, and the cancellation and removal of Jefferson’s invalid Lien Affidavit.

[¡¡On appeal, the plaintiff assigns as error: (1) the trial court’s determination that the Lien Affidavit filed by the plaintiff on December 28, 2009, was not a valid lien because it failed to reasonably itemize the elements comprising the obligation pursuant to La. R.S. 9:4822(G)(4) of the Private Works Act; and (2) the trial court’s finding that the Lien Affidavit filed by the plaintiff on December 28, 2009 was not a valid lien because it attempted to secure amounts not owed.

Discussion

Although the judgment appears to grant the exception of prematurity, the exception of no cause of action, and alternatively, the motion for summary judgment, the first issue to be determined is whether the exception of prematurity was properly granted because if the action was prematurely filed, then all further actions are nullified. The Adamses’ exception of prematurity asserted that the plaintiff had not preserved its privilege under the Private Works Act.

A suit is premature if it is brought before the right to enforce it accrues. La.Code Civ. Proc. Art. 423; see also Moreno v. Entergy Corp., 10-2268, p. 3 (La.2/18/11), 64 So.3d 761, 763, citing La.Code Civ. Proc. Art. 926 (The dilatory exception of prematurity questions whether the cause of action has matured to the point where it is ripe for judicial determination.) “Prematurity is determined by the facts existing at the time the suit is filed.” Sevier v. U.S. Fidelity & Guar. Co., 497 So.2d 1380, 1382 (La.1986). Evidence may be introduced to support or controvert the exception, when the grounds do not appear from the petition. La.Code Civ. Proc. Art. 930. We review a judgment sustaining a dilatory exception of prematurity for manifest error. See Pinegar v. Harris, 08-1112, p. 10 (La.App. 1 Cir. 6/12/09), 20 So.3d 1081, 1088.

[^Louisiana Revised Statute 9:4822(G) of the Private Works Act states the following:

G. A statement of a claim or privilege:

(1) Shall be in writing
(2) Shall be signed by the person asserting the same or his representative.
(3) Shall reasonable identify the immovable with respect to which the work was performed....
(4) Shall set forth the amount and nature of the obligation giving rise to the claim or privilege and reasonably itemize the elements comprising it including the person for whom the contract was performed, material supplied or services rendered.

“The Louisiana Private Works Act was enacted to facilitate construction of improvements on immovable property and does so by granting to subcontractors, among others, two rights to facilitate recovery of the costs of their work from the owner with whom they lack privity of contract.” Byron Montz, Inc. v. Conco Construction, Inc., 02-0195, p. 6 (La.App. 4 Cir. 7/24/02), 824 So.2d 498, 502. The first of these rights is presented in Louisiana Revised Statute 9:4802(A)(1), which particularly provides that subcontractors have a claim against the owner and a claim against the contractor to secure payment of obligations arising out of the performance of work under the contract. Louisiana Revised Statute 9:4802(B) provides the second right, which states that, “[t]he claims against the owner shall be secured by a privilege on the immovable on which the work was performed.” However, the claim and privilege that the Louisiana Private Works Act affords the subcontractor is limited by La. R.S. 9:4823(A), which provides, in pertinent part, that “a claim against the owner and the privilege securing it granted by R.S. 9:4802 is extinguished if: (1) the claimant or holder of the privilege does not preserve it as required by R.S. 9:4822.”

Un interpreting statutes granting liens and privileges for working materials furnished, courts have generally construed the statutes strictly against the claimant. P.H.A.C. Services, Inc. v. Seaways International, Inc., 403 So.2d 1199, 1202 (La.1981). According to Comments 1981 to La. R.S. 9:4822(G), the purpose of filing a lien affidavit “is to give notice to the owner (and contractor) of the existence of the claim and to give notice to persons who may deal with the owner that a privilege is claimed on the property.... Technical defects in the notice should not defeat the claim as long as the notice is adequate to serve the purposes intended.”

In this case, the trial court found that the Adamses were “correct in that the lien is deficient as to its failure to itemize the materials and that it seeks to secure payments that the Adamses do not owe as there is no privity of Contract between the Adamses and Jefferson.” Accordingly, we must determine whether the lien requirements were correctly followed, and if they were not, whether the violation is purely a technical objection or a legitimate violation causing the lien to fail.

The Lien Affidavit at issue contains the following language:

JEFFERSON DOOR COMPANY, INC., a Louisiana Corporation domiciled in the Parish of Jefferson, with mailing address of P.O. Box 220, Harvey, La. 70059 sold to CRAGMAR CONSTRUCTION, L.L.C., 3343 Metairie Rd., Shite 7, Metairie, LA 70001, certain materials consisting of but not limited to trim, millwork, etc., for the agreed remaining principal balance of $37,623.98 and accrued service charges of $879.36 from September 11, 2009 through December 7, 2009, for a total due of $38,503.34, plus service charges at the rate of 18% per annum ($18.55 per diem) from December 8, 2009, until paid in full, all expenses incurred in the collection of all monies due and reasonable attorneys’ fees of not less than 25% of the entire sum due as will appear from the itemized statement of account attached hereto....
That the said account represents materials sold and delivered to the aforesaid contractor and/or real property owners for use in and, which now forms a part of the construction of additions and renovations and/or improvements at the following described property, to-wit:
b;All the buildings and improvements thereon and bearing a municipal street address of 6223 General Diaz, New Orleans, LA 70124, Lakeview, Second District, Square No. 268, Lot S, more particularly described in the legal description of said property which is attached hereto and marked for identification herewith as Exhibit “A.”

The following document attached to the Lien Affidavit states as follows:

ITEMIZED STATEMENT OF ACCOUNT
Before me, the undersigned authority, duly qualified and commissioned in and for the Parish of Jefferson and therein residing, personally came and appeared: JOHN W. VAN DERVORT, an authorized representative of JEFFERSON DOOR COMPANY, INC., who, being first duly sworn by me, Notary, deposed:
That he is an authorized representative of JEFFERSON DOOR COMPANY, INC. and as such is personally familiar with the accounts of CRAGMAR CONSTRUCTION, L.L.C., who is known by JEFFERSON DOOR COMPANY, INC. to be the general eontractor(s) of the property situated at Municipal address 6223 General Diaz, New Orleans, LA 70124, and as more particularly described in the attached Lien Affidavit; based upon information and belief, THE PROPERTY OWNERS’ NAMES ARE ANGELA JUNEAU ADAMS wife of/ and RYAN D. ADAMS, with current mailing address of 209 Rose St., Metair-ie, LA 70005; and that various materials were delivered to the aforesaid real property for use and incorporation into the above mentioned property, as more particularly itemized on the attached invoices for the prices shown thereon representing a total principal balance of $37,623.98 and accrued service charges of $879.36 from September 11, 2009 through December 7, 2009, for a total •due of $38,503.34, plus service charges at the rate of 18% per annum ($18.55 per diem) from December 8, 2009, until paid in full, all expenses incurred in the collection of all monies due and reasonable attorneys’ fees of not less than 25% of the entire sum due all of which are made part hereof as though copied in extenso. [Emphasis in original.]

No invoices are in fact attached to the itemized statement although the statement says they are.

|7It is undisputed that Jefferson’s statement of claim has satisfied the first three of the four requirements of La.Rev.Stat. 9:4822(G) and that the document was filed timely pursuant to La.Rev.Stat. 9:4822(E). Jefferson’s statement of claim is in writing, signed by an authorized representative of the company, reasonably identifies the immovable with respect to which the materials were supplied, and was filed within thirty days from when the defendants filed the notice of termination. Accordingly, the only issue before us is whether the plaintiff met the last requirement of La. R.S. 9:4822(G)(4), to render the Lien Affidavit valid.

After review of the record in light of Comments .1981 to La. R.S. 9:4822(G), we do not find that the Lien Affidavit fulfills the requirements of the statute, specifically to “reasonably itemize the elements comprising it including ... material supplied ... ”. Clearly, the reference in the Lien Affidavit to “certain materials consisting of but not limited to trim, millwork, etc.” is not the requisite reasonable itemization of materials for purposes of the statutory requirements. (Emphasis added.) Moreover, although the attached Itemized Statement of Account states that the plaintiff provided “various materials” that would be “more particularly itemized on the attached invoices,” the referenced invoices are not attached. In consequence, the Lien Affidavit did not meet the requisites listed in the statute.

Clearly, without the referenced invoices attached, the notice is inadequate to preserve the claim or privilege. Thus, the plaintiffs failure to fulfill the legal requirements is not a mere technical defect. Accordingly, because the lien is invalid, the exception of prematurity was properly granted in favor of the Adamses. Because no privity of contract exists between the plaintiff and the [ ¡Adamses, by the virtue of the granting of the exception of prematurity, the plaintiff has no cause of action against the Adamses.

Conclusion

Upon review of the record in light of the applicable law, we find that the trial court did not err in granting the Adamses’ exception for prematurity and, accordingly, affirm that portion of the trial court’s judgment. However, because the dismissal of a lawsuit on an exception of prematurity is necessarily without prejudice, the judgment is amended to dismiss the claims without prejudice. See La.Code Civ. Proc. art. 933; see also Rausch v. Hanberry, 377 So.2d 901 (La.App. 4th Cir.1979). (A suit subject to dismissal for premature filing must be dismissed without prejudice).

Finally, because the action was filed prematurely against the Adamses, to the extent that the trial court’s judgment granted the exception of no cause of action and/or the motion for summary judgment; that portion of the judgment is vacated. Accordingly, the judgment is vacated in part, amended in part, and as amended, affirmed.

AFFIRMED AS AMENDED.

      . Of the total sum paid by the Adamses to Cragmar, $188,664.42 turned up missing and is the subject of felony charges filed by the Orleans Parish District Attorney's Office against the authorized representative of Crag-mar, Craig Martin. Mr. Martin pled guilty to these charges.


text:
    Sam BUA v. DEPARTMENT OF POLICE.
    No. 2011-CA-1043.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 25, 2012.
    Frank G. DeSalvo, Frank G. DeSalvo, APLC, New Orleans, LA, for Plaintiff/Appellant.
    Victor L. Papai, Jr., Deputy City Attorney, Nolan P. Lambert, Chief Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

|! This matter stems from a class action originally filed on behalf of six plaintiffs, all sergeants for the New Orleans Police Department (hereinafter “NOPD”), who each served as the commander of a platoon during some time period between 1996 and 1998. These plaintiffs maintained that the duties they were performing were those of the rank of lieutenant and notified the Director of Civil Service that they were working out of class, and were therefore entitled to additional compensation under the Civil Service rules. An investigation by the Civil Service Commission (hereinafter “Commission”) confirmed the plaintiffs’ position and the Commission granted them back pay pursuant to Civil Service Rule III, Section 4.1.

The police officers then filed a motion to reconsider, arguing that the Commission rules also required the NOPD fill the vacant lieutenants’ positions by making promotions. The Commission issued an opinion finding that it could not order the NOPD to promote them because the Commission could not determine if the plaintiffs would have been chosen to fill the vacant positions.

12That decision was appealed to the district court and subsequently to this Court. In Appeal from a Ruling of the Civil Service Commission for the City of New Orleans in the Matter of Bua v. Department of Police, 04-0564, 04-0565 (La.App. 4 Cir. 2/2/05), 894 So.2d 1214, an opinion from which the above facts were taken, this Court affirmed the Commission’s decision to grant plaintiffs supplemental pay.

Samuel Bua held the permanent classified position of sergeant, and was found to be working in a higher classification without proper compensation. Along with the other plaintiffs, he was found to be owed increased compensation. Pay rates were determined and stipulated to by each side, and the individual back pay and emoluments issues were resolved.

Mr. Bua, the only remaining plaintiff, argues in his only assignment of error, that he should have been paid his terminal leave pay at the higher lieutenant’s rate, rather than a sergeant’s pay rate. The Commission denied Mr. Bua’s request citing the Rules of the Civil Service Commission, City of New Orleans, Rule III, Section 4.1(d).

STANDARD OF REVIEW:

Except in cases of alleged discrimination, the burden of proof on appeal, as to the facts, shall be on the Appointing Authority under Civil Service Rule II, § 4.4 and § 4.8. In a civil service case, the appellate court’s review of the findings of fact is governed by the manifest error or clearly erroneous standard. Terry v. Department of Police, 2008-1486, p.2 (La.App.10/7/09), 28 So.3d 974, 975, citing Goins v. Department of Police, 570 So.2d 93 (La.App. 4 Cir.1990).

The Terry court further noted:

|s“Where the [Civil Service] Commission’s decisions involve jurisdiction, procedure, and interpretation of laws and regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard.” Walton v. French Market Corporation, 94-2457, p. 3 (La.App. 4 Cir. 4/26/95), 654 So.2d 885, 887.
A mixed question of fact and law should be accorded great deference by the reviewing court under the manifest error standard of review. Brasseaux v. Town of Mamou, 99-1584, pp. 7-8 (La.1/19/00), 752 So.2d 815, 820-21.

Terry, 08-1436, pp. 2-3, 23 So.3d at 975-976; also see Russell v. Mosquito Control Bd., 06-0346, p. 8 (La.App. 4 Cir. 9/27/06), 941 So.2d 634, 639-40.

DISCUSSION:

The rule, which plaintiff argues the Commission erroneously relied upon, states:

If, while performing work in a higher classification, the employee is separated from the service, any payment of terminal leave shall be paid in accordance with the employee’s rate of pay in his or her permanent (primary) classification.

Mr. Bua argues that he did not separate from the department while performing work at a higher classification, and therefore the rule does not apply to his situation. It is Mr. Bua’s position that the rule was implemented to render to a person who leaves the job while working in a higher classification the same benefits as if he had been in fact promoted. He notes that he was not promoted because the “Lieutenant’s list was killed despite twenty five open positions being available at the time.”

Mr. Bua does not direct this Court to any Commission rule that would cover this allegedly unique situation.

|4In its ruling of May 23, 2011, the Commission stated: “Mr. Bua retired from the police department in his permanent classification of police sergeant. Therefore, consistent with our rules, the Appointing Authority properly paid him all accrued leave at the appropriate rate.”

There is nothing in this record to indicate that Mr. Bua was ever promoted to the rank of lieutenant. Rather, it appears from the record and history of this case that he performed the work of a lieutenant for a brief period of time, and that he was justly compensated.

Therefore, applying the proper standard of review and noting that Mr. Bua cites to no legal authority for his position, we find that the ruling of the Commission dated May 23, 2011, is affirmed.

AFFIRMED