text:
    Michelle Hazard ROONEY v. David Joseph BECNEL.
    No. 11-CA-288.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Michelle Hazard Rooney, In Proper Person, Tampa, FL, Plaintiff/Appellee.
    David Joseph Becnel, In Proper Person, Montz, LA, Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   MARION F. EDWARDS, Chief Judge.

|2The present appeal is taken from a judgment granting custody of the minor child, Karoline Becnel, to her mother, the plaintiff/appellee, Michelle Hazard Rooney (“Rooney”), and granting visitation to her father, the defendant/appellant, David Joseph Becnel (“Becnel”).

The history of this contentious proceeding is as follows: Karoline Becnel was born on August 21, 2001 to Rooney, who, in December 2001, filed a Petition to Establish Paternity, Legal Custody, Child Support, and for Injunctive Relief against Becnel. In the petition, Rooney alleged that Becnel’s heavy use of prescription pain medication warranted that sole custody be granted to her. In addition to her request for child support, Rooney urged that Becnel had engaged in a series of harassing and threatening telephone calls, both at home as well as at her place of employment, and she prayed that an injunction be issued against him.

In answering the petition, Becnel confessed paternity, averring that he and Rooney had never married. He denied all other allegations of the petition and requested sole custody of Karoline. In his reeonventional demand, Becnel averred that Karoline was in danger with her babysitter, who was on narcotic pain medication. Becnel further contended that Ka-roline was exposed to second-hand smoke at her mother’s home, which was a danger to the child’s health. He ^requested immediate legal custody and averred that joint custody, with himself as the domiciliary parent, was in Karoline’s best interest.

The trial court ordered mediation proceedings and an interim judgment was rendered, ordering, among other things, that physical custody was to remain with Rooney pending further orders of the court and pending custody evaluations with Dr. Loretta Mbadugha. In a February 2003 Rule to Show Cause and Rule for Contempt filed by Rooney, it was alleged that Becnel failed to pay court-ordered child support and to visit with Karoline for over seven months. Rooney also urged that she desired to relocate to Alabama for employment purposes. Following a meeting in chambers in August with the parties and with Dr. Mbadugha, the trial judge awarded joint custody with Becnel as the domiciliary parent on August 22, 2003. The court, at that time, stated its determination was based on agreement of the parties and the recommendation of Dr. Mbadugha, although Dr. Mbadugha’s report is not in the record and does not appear to have been admitted into evidence. Further, it appears from testimony of both parties at the final custody hearing (see below) that the custody determination was made because Rooney had already moved out of state with Karoline and without the permission of the court. Rooney was awarded certain visitation. Family therapy with Dr. Mbadugha was ordered for all parties, but the issue of child support was held in abeyance pending re-evaluation. In February 2004, pursuant to a status conference, the August 22, 2003 judgment was to remain in effect.

In November 2005, Rooney filed a Rule to Change Custody and Ex Parte Emergency Order for Drug Testing, alleging that Becnel had become dependent on drugs and had begun taking methadone. According to Rooney, Becnel’s behavior had become erratic, and Karoline was at risk. Rooney asked that Becnel be immediately subjected to drug testing. She further averred that Becnel had allowed |4Karoline to move with her to Virginia prior to Hurricane Katrina, and Karoline had lived with her for some months. After the hurricane, Becnel demanded Karoline be returned to him, but Becnel’s housing was inadequate. She finally alleged that Becnel had been unemployed for several years and could not provide for the child’s needs.

The record indicates that Dr. Mbadugha was no longer in the area after Hurricane Katrina. In December 2005, the court appointed Dr. Claudia Schott to perform evaluations for custody purposes, and, in January 2006, the trial court issued an interim order ordering mental health evaluations of the parties, requiring the parties to submit to random drug testing, and continuing the rule to change custody. In May 2006, Rooney filed Rules for Contempt, to Amend Interim Order, for Telephone Access to Minor Child, and for Visitation. Rooney alleged that Becnel failed to appear for random drug tests and was, thus, in contempt of court. She averred that Becnel denied her telephone access to the child. An interim order addressing visitation and drug testing was issued, but there was no change in custody.

In May 2007, Dr. Schott issued the court-ordered report regarding custody and visitation. Dr. Schott recommended joint legal custody with Rooney as the domiciliary custodian. At this point, Rooney was residing in the state of Virginia while Karoline resided in Louisiana with her father. In August 2007, the parties appeared before a domestic hearing officer, who recommended joint legal custody with Rooney being designated as the domiciliary parent and proposed that Becnel would have certain visitation rights. The recommendations were adopted as the interim judgment of the court. Becnel objected to the recommendations, and a hearing was held.

15At the hearing, Dr. Schott testified regarding her report, concluding that the most important thing in the case was that Karoline be domiciled with her mother, regardless of where Rooney relocated. She also recommended that Becnel have a psychiatric evaluation because she was concerned about his emotional and mental functioning and his ability to care for Ka-roline.

For her report, Dr. Schott interviewed the parties, as well as Dr. Mbadugha; S.M. (Rooney’s older daughter, who is not Becnel’s child); members of both Rooney and Becnel’s respective families; and various other collateral persons. She also reviewed numerous school records, medical records, documents, and evaluations. She narrated extensive histories of the contentious relationship between Rooney and Becnel, as well as detailed personal histories of each party. At the time of the report, Karoline was living with her father, and Rooney was residing in Virginia. Following a mental status evaluation and clinical testing, Dr. Schott found that Rooney' presented essentially normal. Although Dr. Schott was concerned with the delinquency of S.M. and Rooney’s residency instabilities, she determined that Rooney was living a stable lifestyle, had a good job, and a more stable environment. Parenting classes were recommended.

According to the report, Becnel had a history of Major Depressive Disorder and Post-traumatic Stress Disorder following two automobile accidents. He was found to display affective instability and hypoma-nia. A psychiatric evaluation was recommended, along with parenting classes and individual therapy, “especially with regard to his hostility toward Rooney and the negative impact that this has on Karoline.” Dr. Schott was concerned with Becnel’s mood instability, impulsivity, social inappropriateness, and poor judgment, which interfere with his ability to meet Karoline’s emotional needs. Although Becnel was involved in the child’s education, clearly loved her, and had done his best for her, Dr. Schott was ^concerned with his extreme hostility toward Rooney and felt that this anger negatively affected his ability to foster the mother-daughter relationship. She concluded with her custody recommendation in favor of Rooney as the domiciliary parent. Dr. Schott also felt that Karoline perceived Becnel as himself requiring care.

Karen Hebert, Karoline’s preschool Head Start teacher in 2004, testified that, during the time the child was at school, and in Becnel’s custody, she often appeared dirty and her jacket had to be washed at school. At parent conferences, Becnel’s behavior was erratic, and Hebert refused to make a home visit because she was uncomfortable. Tonya Hoffman testified that Becnel was very involved in Karo-line’s kindergarten activities.

As a result of the hearing, a mental health expert was appointed to examine Becnel’s ability to care for Karoline. While the interim judgment remained in place, the permanent custody hearing was continued several times. Numerous pleadings and documents were filed by Becnel during this period, and visitation was addressed on a number of occasions. In September 2009, Becnel filed a Motion to Change Custody/Rule to Show Cause, alleging that Rooney was guilty of “gross neglect.”

The permanent custody matters were finally heard in March 2010, following which the court ruled that Rooney be granted permanent custody of Karoline. It is this judgment that is on appeal. Bec-nel generally asserts that Rooney did not carry her burden of proving by clear and convincing evidence that the permanent custody judgment is in the best interest of the child, citing Bergeron v. Bergeron. He also urges that the court did not consider the factors enunciated in La. C.C. art. 134.

l7At the custody hearing, both parties appeared in proper person, as they do on appeal. Karoline was domiciled with her mother pursuant to the interim decree. Following a conference in chambers, the court decided to proceed with the final custody determination, although Becnel admitted that he had not had his psychiatric evaluation because “the doctor refused to see [him].” Rooney submitted the 2007 report of Dr. Schott as evidence and testified that she provided a safe home and stable environment. Becnel cross-examined her regarding visitation and telephone access to Karoline. He also questioned her about the child’s school progress. Rooney testified that Karoline’s reading level was below normal but that she is in a program to remedy that problem. Becnel also questioned Rooney about the legal and emotional problems of her older daughter, S.M., who is not Becnel’s child. Becnel submitted a number of exhibits, including some documents regarding Karo-line’s grades; telephone records; and a 2005 traffic citation against Rooney for “child in front seat w/o belt.” He also testified briefly on his own behalf.

At the conclusion of the trial, the court adopted Dr. Schott’s report and awarded custody to Rooney with visitation to be worked out according to Dr. Schott’s recommendations.

In every custody case, the primary concern is the best interest of the child. Each case must be viewed in light of its own particular set of facts and circumstances with the paramount goal of reaching a decision that is in the best interest of the child. In regard to child custody matters, Louisiana appellate courts have articulated a standard of review which holds that the trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses; thus, a trial court’s determination in a child custody case is entitled |8to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion.

In the present case, the judgment of August 22, 2003 granting joint custody and naming Becnel as the domiciliary parent was not made pursuant to a hearing, but, rather, was a result of a meeting in chambers between the parties, Becnel’s attorney, and Dr. Mbadugha. In the transcript, the court stated that its order was made as a result of the agreement of the parties and the recommendation of Dr. Mbadugha, whose recommendation or report was not entered into evidence. The judgment merely states it would refer to Dr. Mbadugha’s plan in case of a “breakdown in communication” between the parties. Thus, it was a stipulated judgment, or “non-considered decree.” In cases where the underlying custody decree is a stipulated judgment, and the parties have consented to a custodial arrangement with no evidence as to parental fitness, the heavy burden of proof rule enunciated in Bergeron is inapplicable. Rather, a party seeking a modification of a consent decree must prove that there has been a material change of circumstances since the original (or previous) custody decree was entered and that the proposed modification is in the best interest of the child. In order to modify the prior arrangement, it was Rooney’s burden of proof to establish that a change of circumstances materially affecting the welfare of the child had occurred since the rendition of the August 22, 2003 judgment and, further, that the modification proposed by her was in the best interest of the child.

Factors that may be considered are set forth in La. C.C. art. 134, but the court is not bound to make a mechanical evaluation of each. Rather, a custody |adispute must be decided in light of its peculiar set of facts and the relationships involved in order to reach a decision that is in the best interest of the child.

In this case, at the time of the 2010 hearing, and pursuant to the interim judgment rendered that year, Karoline had been living with her mother since 2007. This fact alone constitutes a material change of circumstances since the prior decree. Further, the record discloses that Rooney carried her burden of proving that modification of the judgment was in Karo-line’s best interest. Although not detailed in this opinion, Dr. Schott’s evaluation, in particular as regards Becnel, was quite persuasive. The record is replete with evidence that Becnel’s mental and emotional state preclude him from being the proper custodial parent of this child. Although we realize that Becnel appeared at many instances in proper person and allow for this fact, the nature and content of his pleadings, as well as his cross-examination of Rooney, appear to amply support the diagnosis and recommendations of Dr. Schott. In this regard, we emphasize that Becnel did not obtain the psychiatric evaluation ordered by the court in 2007 and 2008.

In conclusion, we see no abuse of discretion in the judgment of the trial court in granting custody of Karoline to Rooney, with visitation for Becnel. The judgment is affirmed.

AFFIRMED

      . 492 So.2d 1193, 1200 (La.1986).

      . Schouest v. Schouest, 06-972 (La.App. 5 Cir. 5/29/07), 960 So.2d 285 (citing Zanco v. Zanco, 97-342 (La.App. 5 Cir. 11/12/97), 703 So.2d 745).

      . Schouest, supra.

      . Maxwell v. Stanley, 10-1049 (La.2/16/11), 57 So.3d 1193. Also, Silbernagel v. Silbemagel, 06-879 (La.App. 5 Cir. 4/11/07), 958 So.2d 13.

      . Maxwell, supra.

      . Earle v. Earle, 43,925 (La.App. 2 Cir. 12/3/08), 998 So.2d 828, writ denied, 09-0117 (La.2/13/09), 999 So.2d 1151; Richardson v.

        Richardson, 07-0430 (La.App. 4 Cir. 12/28/07), 974 So.2d 761.


source: Caselaw Access Project

author: MARION F. EDWARDS, Chief Judge.

license: Public Domain

text:
    John JAMES v. NATIONWIDE RESTORATION, LLC, Louisiana Construction and Industry Association, Darrell Byars, and RJ Builders, Inc.
    No. 11-CA-307.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Joseph G. Albe, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Nathan L. Schrantz, Daniel, Coker, Horton and Bell, Gulfport, MS, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Chief Judge.

12Plaintiff/appellant, John James (“James”), appeals a judgment of the Office of Workers’ Compensation granting an Exception of Lack of Subject Matter Jurisdiction in favor of defendant/appellee, Wayne Catalano (“Catalano”), dismissing the claims against Catalano with prejudice.

James filed a Disputed Claim for Compensation on September 9, 2009, alleging that he fell and sustained injuries while employed by subcontractor RJ Builders, Inc. (“RJ Builders”). Nationwide Restoration, LLC (“Nationwide”) was named as the main contractor and Catalano was designated as the president and owner of Nationwide. Subsequently, James filed a Motion for Leave of Court to File Supplemental and Amended Dispute Claim, alleging that Catalano and Nationwide were members of the Louisiana Construction and Industry Association (“LCIA”), which provided workers’ compensation coverage. The motion asserted that RJ Builders; its owner, Robert Exterstien; Catalano; and Nationwide were undercapitalized and failed to secure workers’ compensation coverage. Therefore, according to James, they should be held personally liable for all benefits to which James may be entitled. The motion was granted and the amending petition filed. A third amending petition was filed, urging that Nationwide was a member of LCIA and covered under its industry self-insured fund.

lain May 2010, Catalano, individually and d/b/a Nationwide, filed a Motion and Order to Recognize Automatic Stay Due to Bankruptcy Proceedings to Nationwide Restoration, LLC, alleging that Nationwide filed for Chapter 7 Bankruptcy and requesting the court to stay the proceedings. In June 2010, James moved to bifurcate the claims against Nationwide/Catalano, stating that there was possible coverage under the LCIA self-insured fund which, along with the other defendants, would be responsible for paying benefits. The court granted the motion. On June 22, 2010, the bankruptcy stay was lifted, allowing James to proceed solely against the LCIA fund and any other third party defendants. The stay was to remain in effect against Nationwide.

LCIA filed an answer, alleging in part that Nationwide, although a member of the Fund, did not notify it of the claimed accident and did not properly pay premiums due to the fund; thus, LCIA submitted that it did not owe coverage. Catalano filed a pleading entitled Exception of No Cause of Action and Motion for Summary Judgment, alleging that he individually was not James’ employer. He stated that he was one member of Nationwide. Cata-lano further urged that James had no individual cause of action against Nationwide for failure to provide compensation and that the court lacked subject matter jurisdiction to “pierce the corporate veil” against the individual members of Nationwide.

At the hearing on the Exceptions prior to trial, the trial court heard argument of counsel, and it granted the Exception of Lack of Subject Matter Jurisdiction.

On appeal, James argues that the Workers’ Compensation Court has jurisdiction to resolve any dispute as to whether the corporate veil protects the principals and owners of a corporation from liability, citing La. 23:1310.3.(F), which states:

Except as otherwise provided by R.S. 23:1101(B), 1361, and |41378(E), the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, group self-insurance indemnity contract disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or workers’ compensation insurers or self-insurance group funds for indemnification or contribution, concursus proceedings pursuant to Louisiana Code of Civil Procedure Articles 4651 et seq. concerning entitlement to workers’ compensation benefits, payment for medical treatment, or attorney fees arising out of an injury subject to this Chapter.

James avers that the Office of Workers’ Compensation (“OWC”) judges now have a “very broad and exclusive jurisdiction.” In his argument, it appears that James characterizes the issue as one of the jurisdiction of the workers’ compensation judge to decide whether a defendant is an employer. In the present instance, however, James has not sued Catalano as his employer. Rather, he seeks the court to determine that Catalano undercapital-ized Nationwide and failed to secure workers’ compensation coverage, thus resulting in the personal liability of Catalano.

“Except as otherwise authorized by [the constitution] or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters.” La. Const, art. V, § 16(A)(1). La. R.S. 23:1310.3 provides for the original jurisdiction afforded to the OWC under the Workers’ Compensation Act in La. R.S. 23:1310.3(E). That statute is quite specific and provides for jurisdiction by the workers’ compensation judge only for “claims or disputes arising out of’ the Act. Mere involvement of workers’ compensation issues is insufficient; such disputes may “relate to” workers’ compensation matters, |sbut they do not “arise out of’ the Act. If an issue arises out of the Workers’ Compensation Act, jurisdiction is vested in the OWC; however, if it merely relates to the compensation claim, the OWC does not have subject matter jurisdiction. The fact that it may be more judicially efficient to adjudicate a related demand in the same forum as the main demand is insufficient to confer subject matter jurisdiction.

Subject matter jurisdiction is “the legal power and authority of a court to hear and determine a particular class of actions or proceedings.” La. C.C.P. art. 2. The courts will not read La. R.S. 23:1310.3 more broadly than its explicit language since the general rule is that district courts are vested with original jurisdiction and exceptions to this general rule are to be narrowly construed. Where the claim asserted is provided for clearly in some legislation other than the Workers’ Compensation Act “there can be no question whether that claim ‘arises out of the WCA; it does not, for it arises out of a separate act of the legislature, entirely. Thus, original and exclusive jurisdiction over such a claim must rest with the district court, regardless of the claim’s ‘relation] to worker’s compensation in general....’”

As in Covington, supra, James’ rule seeks to have the hearing officer determine whether Catalano is the alter ego of Nationwide. While the issue relates generally to the underlying workers’ compensation claim, it does not arise out of the Workers’ Compensation Act. Rather, suits involving “piercing the corporate veil” or the “alter ego” doctrine fall under the Business Corporation Law, La. R.S. |fi12:l et seq. Such claims involve a determination of the relationship between a corporation and a shareholder and may arise in contexts other than workers’ compensation claims. The theory of piercing the corporate veil applies to limited liability companies and is not limited to corporations.

The district court has jurisdiction of an action of seeking to pierce the corporate veil under La. R.S. 12:1 et seq. Under the facts of the present case, we find that the trial court correctly granted the exception at issue, and we affirm the judgment.

AFFIRMED

      . Broussard Physical Therapy v. Family Dollar Stores, Inc., 08-1013 (La.12/2/08), 5 So.3d 812.

      . Id.

      . Ryan v. Blount Bros. Const., Inc., 40,845 (La.App. 2 Cir. 4/19/06), 927 So.2d 1242, writ denied, 06-1219 (La.9/15/06), 936 So.2d 1272.

      . See, Broussard, supra.

      . See, Gunderson v. F.A. Richard & Assoc., Inc., 07-331 (La.App. 3 Cir. 2/27/08), 977 So.2d 1128, writ denied, 08-1063 (La.9/19/08), 992 So.2d 953 (citing Covington v. A-Able Roofing, Inc., 95-1126 (La.App. 3 Cir. 3/6/96), 670 So.2d 611).

      . Gunderson, supra, at 1135 (citation omitted).

      . See, Covington v. A-Able Roofing Inc., supra.

      . Id.

      . Prasad v. Bullard, 10-291 (La.App. 5 Cir. 10/12/10), 51 So.3d 35 (citing ORX Resources, Inc. v. MBW Exploration, LLC, 09-662, p. 7 (La.App. 4 Cir. 2/10/10), 32 So.3d 931, 935, writ denied, 10-530 (La.5/7/10), 34 So.3d 862).


author: SUSAN M. CHEHARDY, Judge.

text:
    Michael G. LEWIS v. COMMISSIONER OF INSURANCE for the State of Louisiana, Department of Insurance, the State of Louisiana, and Southern United Fire Insurance Company.
    No. 11-CA-347.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Michael G. Lewis, Marrero, LA, Plaintiff/Appellant, In Proper Person.
    B. Scott Cowart, Gina Talluto Cursain, Attorneys at Law, New Orleans, LA, for Defendant/Appellee, Southern United Fire Insurance Company.
    James D. “Buddy” Caldwell, Attorney General, Lance S. Guest, Assistant Attorney General, Department of Justice, Litigation Division, New Orleans, LA, for Defendant/Appellee, the State of Louisiana, through the Department of Insurance and the Commissioner of Insurance for the State of Louisiana.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Judge.

IgThe plaintiff seeks reversal of the trial court’s denial of his motion to set aside a judgment of abandonment. We affirm.

FACTS

Michael Lewis, a former insurance agent, filed suit in January 2001 seeking damages for wrongful arrest from the Commissioner of Insurance of the State of Louisiana, the Louisiana Department of Insurance, the State of Louisiana (all hereafter collectively called “the State”), and Southern United Fire Insurance Company (hereafter called “SUFIC”).

In April 2010, SUFIC filed a motion to dismiss on grounds of abandonment, pursuant to La. C.C.P. art. 561, because no step in prosecution or defense of the case had occurred for over three years. The court signed an ex parte order on May 30, 2010 that dismissed SUFIC and stated that the matter is deemed abandoned as of March 1, 2010.

The plaintiff filed a timely motion to set aside the dismissal, pursuant to La. C.C.P. art. 561(4).

On June 10, 2010, the State filed its own motion to dismiss for abandonment, with an incorporated opposition to the plaintiffs motion to set aside | sthe judgment of abandonment. SUFIC also filed an opposition to the plaintiffs motion.

A hearing on the motions took place on July 30, 2010. At the hearing the plaintiff attempted to present evidence on the merits of his claim. The court advised him that the purpose of the hearing was to address only the issue of abandonment, and whether the judgment of abandonment should be set aside. The plaintiff asserted there had been activity in the case since March 2007, because he had hired an expert to review his files. The court advised him there was nothing in the case record showing any activity, saying, ‘Tour hiring of an expert to review records does not qualify as formal discovery.”

The plaintiff stated that SUFIC had not cooperated, because his files had been taken by SUFIC in May 1999 and were supposed to be returned to him by May 2001, but SUFIC did not return them. He claimed his attorney filed for discovery in March 2007, but SUFIC responded that the files were lost or misplaced. The plaintiff admitted there had been no further pleadings filed since March 2007. Nor had there been formal discovery after that date.

The court concluded that the judgment of abandonment was correctly signed and that there has been no prosecution of this case since March 2007. The court advised the plaintiff it was denying his request to set aside the judgment of abandonment.

The court then proceeded to address the State’s motion. The State advised there had been no filings regarding the State and the plaintiff since 2005. In response to questioning by the court, the plaintiff admitted there had been no activity on the record in the past three years. The court then granted the motion to dismiss as to the remaining defendants, based on the fact that there has been no |4formal discovery or no formal step in the prosecution of this case within the time limit prescribed by Article 561.

On August 17, 2010, the court signed a judgment that granted the State’s motion to dismiss for abandonment and stated that the matter is deemed abandoned as of March 1, 2010.

On September 10, 2010, the court signed a judgment that denied the plaintiff’s motion to set aside the judgment of abandonment. The judgment reiterated that the plaintiffs claims against SUFIC are dismissed with prejudice and the matter is deemed abandoned as of March 1, 2010.

The plaintiff filed a timely motion for appeal of both judgments.

LAW AND ANALYSIS

La. C.C.P. art. 561 states in pertinent part,

A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
(2) If a party whose action is declared or claimed to be abandoned proves that the failure to take a step in the prosecution or defense in the trial court or the failure to take any step in the prosecution or disposition of an appeal was caused by or was a direct result of Hurricane Katrina or Rita, an action originally initiated by the filing of a pleading prior to August 26, 2005, which has not previously been abandoned in accordance with the provisions of Subpara-graph (1) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years....
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. ...
|SB. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

On appeal the plaintiff raises the following assignments of error, which we quote from the plaintiffs pro se brief:

1. TRIAL COURT ERRED by granting abandonment where the defendants, through spoliation of relevant records, frustrated plaintiffs attempt to resolve factual disputes pri- or to trial.
2. TRIAL COURT ERRED by granting abandonment where defendants denied reasonable discovery causing plaintiff, during alleged running period of abandonment, to hire expert accountant to reconstruct records which were not produced.
3. TRIAL COURT ERRED by denying plaintiffs Motions to Set Aside Judgment of Abandonment.

The defendants contend that the abandonment article is self-executing and that the plaintiff failed to establish any exception to its ápplieation in this case.

We find' no merit to Assignments of Error No. 1 and No. 2. As the trial court pointed out at the hearing, the issue of the plaintiffs disputes with the defendants regarding production of records goes to the merits, which are not addressed in review of a judgment declaring an action abandoned. Nothing in the record reflects the discovery disputes or other activity past March 1, 2007.

With respect to Assignment of Error No. 3, on appeal the plaintiff raises for the first time the applicability of La. C.C.P. art. 561(A)(2), the clause regarding Hurricanes Katrina and Rita. The plaintiff argues that as a resident of Jefferson Parish, his ability to conduct business and to further the prosecution of this matter was disrupted by the storms and by his need to repair and recover after the storms. He asserts he should have the opportunity by remand to show that he qualifies [fiunder this article for a five-year rather than three-year abandonment period. ' He admits more than three years passed since the last action in the suit.

We find no merit to the plaintiffs invocation of the hurricane clause. Uniform Rules — Courts of Appeal, Rule 1-3, provides, “The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.” Although the plaintiff included the hurricane clause issue in his assignments. of error, he did not raise the hurricane clause either in his motion to set aside the dismissal or at the hearing.

Further, Article 561(A)(2) requires that the plaintiff prove “that the failure to take a step in the prosecution or defense in the trial court or the failure to take any step in the prosecution or disposition of an appeal was caused by or was a direct result of Hurricane Katrina or Rita.” The plaintiff failed to present any such evidence at the hearing.

As for the general issue of whether the matter was properly declared abandoned, the record shows that the plaintiff filed his petition in proper person on January 26, 2001. An attorney signed on as counsel for the plaintiff in April 2001. Pleadings were filed by the parties during 2001, 2002, 2003 and 2004, with the last pleading filed being a motion and order to substitute counsel for the plaintiff, filed on December 8, 2004 and signed by the judge on December 9, 2004.

On April 26, 2010, counsel for SUFIC filed an ex parte motion to dismiss on grounds of abandonment because no step in prosecution or defense of the action had been taken by the plaintiff or any defendant within the last three years. As set out in SUFIC’s memorandum in support of the motion to dismiss, the last step taken in the suit was on March 1, 2007, when SUFIC responded to the plaintiffs second supplemental request for production of documents. SUFIC averred that |7since March 1, 2007, no discovery has taken place, no document has been filed in court, and no other steps in the prosecution or defense of this action have taken place.

Article 561 requires three things: (1) that a party take some “step” in the prosecution or defense of the action; (2) that it be done in the trial court and, with the exception of formal discovery, on the record of the suit; and (3) that it be taken within three years of the last step taken by either party.

James v. Formosa Plastics Corp. of La., 2001-2056, p. 4 (La.4/3/02), 813 So.2d 335, 338.

A “step” for purposes of Article 561 is defined as “taking formal action before the court which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice.” Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010, p. 6 (La.5/15/01), 785 So.2d 779, 784. “Before the court” means that the step must appear in the court record. Turner v. Marine Inland Transp. Co., 06-342, p. 4 (La.App. 5 Cir. 10/31/06), 946 So.2d 185, 187.

“Article 561 provides that abandonment is self-executing; it occurs automatically upon the passing of three-years without a step being taken by either party, and it is effective without court order.” Id.

Abandonment takes place by operation of law. Reese v. Jackson, 37,268 (La.App. 2 Cir. 6/25/03), 850 So.2d 1011, 1014. “Under Article 561, there is no requirement that an ex parte motion for abandonment be served on opposing counsel before the trial court can validly enter a formal order of dismissal. The formal order of dismissal merely recognizes that which already has occurred through operation of law....” Id.

“Once abandonment has occurred, action by the plaintiff cannot breathe new life into the suit.” Clark, 2000-3010 at p. 15, 785 So.2d at 789.

| ^Considering the record before us, we find no basis on which to reverse the judgments. The trial court correctly determined that this action was abandoned.

For the foregoing reasons, the judgments are affirmed. Costs of this appeal are assessed against the plaintiff-appellant, Michael Lewis.

AFFIRMED


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Cristian ROMAN v. LRASIF CLAIMS MANAGEMENT and Conco Food Service.
    No. 11-CA-393.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Cristian Roman, Tampa, FL, Plaintiff/Appellant in Proper Person.
    René S. Paysse, Jr., Gloria T. Lastra, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|2The claimant in this worker’s compensation proceeding, Cristian Roman, appeals the judgment in favor of the defendant/employer, Consolidated Companies, Inc. d/b/a Conco Food Services (CONCO), granting summary judgment and dismissing Mr. Roman’s compensation claim with prejudice. Mr. Roman, who is unrepresented on appeal, specifies several errors, which we pretermit since we find merit to his argument that he did not receive notice of the motion for summary judgment hearing. For the following reasons, we reverse and remand.

Procedural History

On November 29, 2010, CONCO filed a motion for summary judgment seeking dismissal of the compensation claim. CON-CO moved for summary judgment urging that Mr. Roman forfeited his right to further benefits by violating La.R.S. 23:1208 (providing civil and criminal penalties for misrepresentations concerning benefit payments) and Mr. Roman, who had been paid indemnity |sbenefits during the period of his disability, was not entitled to additional benefits. Defense counsel certified that a copy of the motion, memorandum, and supporting documents was served by mail on opposing counsel. On that day, the Office of Worker’s Compensation (OWC) judge set the matter for hearing on January 7, 2011. The order requested service on Mr. Roman through his attorney of record, Brett E. Emmanuel. A few weeks after the OWC judge set the matter for hearing, however, Mr. Emmanuel filed a motion to withdraw as counsel on December 14, 2010. Mr. Emmanuel never filed any opposition to the motion for summary judgment. He represented that Mr. Roman had been “advised concerning the status of his claim” and that he advised Mr. Roman by means of the attached letter that he no longer represented Mr. Roman.

Two days later, the OWC judge signed an ex parte order granting the motion to withdraw. Mr. Emmanuel’s letter to Mr. Roman, dated December 15, 2010, advised Mr. Roman that he would no longer represent him. The letter stated that Mr. Emmanuel enclosed a copy of the notice of trial set for January 24, 2011. He further advised Mr. Roman that the motion for summary judgment was set for January 7, 2011. That letter is the only purported personal notice to Mr. Roman contained in the record since the order setting the date only requested service on Mr. Emmanuel. The attorney’s letter referenced “certified return receipt requested 7009 2820 0002 8821 9101” sent to Mr. Roman at 10110 Douglas Oak Circle, Apt. 202, Tampa, Florida 33610. There is no return receipt with that number contained in the record to indicate that Mr. Roman received notice of the hearing through counsel.

The matter came for hearing on January 7, 2011. Mr. Roman was not present. The OWC judge stated:

RNotice of this hearing was sent to Mr. Roman at his last known address. That mail has gone unclaimed. And what we are here to do this morning is hear a motion for summary judgment brought by the employer in this matter, which motion, in fact, is unopposed.

The record contains return receipts for certified mail, none of which indicate the Mr. Roman personally had notice of the hearing.

On the same date that Mr. Emmanuel filed the motion to withdraw, he also filed a petition for intervention. In his motion to withdraw, Mr. Emmanuel provided the court with Mr. Roman’s address: 10110 Douglas Oak Circle, Apt. 202, Tampa, Florida 33610 as well as his telephone number.

On December 22, 2010, the clerk sent copies by certified mail of the withdrawal and intervention to Mr. Roman, neither of which provided notice of the hearing date. That mailing, however, was undeliverable. Apparently the OWC judge was referring to the undeliverable mail advising of the withdrawal and intervention. The record reveals that the mail was sent to the wrong address: 10100 Douglas Oak, rather than 10110 Douglas Oak. The clerk resent these pleadings by certified mail to the correct address on January 5, 2011, two days before the hearing. According to the record, Mr. Roman received that mailing on January 10, 2011, after the hearing date.

The OWC judge rendered judgment on January 12, 2011. The clerk certified that she mailed that day, by certified mail, a copy to Mr. Roman at the 10110 address. According to the record, Mr. Roman received the notice of judgment on January 20, 2011. Mr. Roman filed a timely notice of appeal complaining that he never received notice of the hearing date.

Analysis

Mr. Roman asserts that he personally did not receive notice. He does not dispute that his counsel at the time was served with notice of the hearing.

IsCONCO responds that Mr. Roman received notice first through his former attorney of record when the attorney was served with notice of the hearing, and second when his attorney provided notice of the hearing date by his letter informing Mr. Roman he was withdrawing. There is however, no indication in the record that Mr. Roman ever received notification of the hearing date.

CONCO also relies on La. Admin Code, tit. 40, pt. I, § 5547 concerning withdrawal of counsel, urging that counsel complied with the procedure for withdrawal:

A. When an attorney seeks to obtain an ex parte order to withdraw as counsel for a party, he shall include in his application the last known address of the claimant along with a statement that he has given written notice to the party he was previously representing that he is no longer of counsel to him and of the status of the case on the court’s docket. The attorney shall certify to the court that he has given notice to all counsel of record at the same time and in the same manner as notification to the court. A copy of such written notice and certification shall be attached to the application for the ex parte order for withdrawal. An attorney who has been permitted by ex parte order to withdraw shall give notice of same to all parties.
B. Counsel of record who withdraws or is discharged prior to submission of the case, and desires to assert a claim for fees, must attach a statement to that effect and set forth the period of time during which his client was under his or her representation. Counsel shall also file a lien form, to be developed by the Director, identifying any lien he may have on the pending claim for payment of attorney fees.

Mr. Roman, however, does not challenge the OWC judge’s granting the motion to withdraw. Further, a statement by counsel that he has given written notice to the party of the status of the case is inadequate due process notice. That statement does not indicate that Mr. Roman received notice.

At the time the motion for summary judgment was filed in this matter, Mr. Emmanuel was counsel of record for Mr. Roman and could have been served on his behalf with any pleading subsequent to the filing of the original petition in ^accordance with La.C.C.P. arts. 1312-1314. However, shortly thereafter, counsel withdrew.

We find that in this circumstance counsel’s withdrawal before the hearing where the unrepresented litigant’s claim was dismissed without any indication in the record that the claimant received notice from the OWC judge, implicates due process cerns.

A judgment granting summary judgment is a final judgment. La.C.C.P. art. 968. “It is a basic principle of our legal system that a final judgment cannot be rendered against a party who has not been provided with proper notice.” Chaney v. Coastal Cargo, Inc., 98-1902, p. 4 (La.App. 4 Cir.1/20/99), 730 So.2d 971, 973

In the analogous case of Davis v. Dunn & Bush Const., 01-2472, p. 4 (La.App. 1 Cir. 4/9/03), 858 So.2d 451, 453, the OWC judge, as in this case, dismissed the litigant’s claim. The claimant in that case did not appear for trial. The First Circuit held that the claimant was entitled to written notice of trial when his attorney was allowed to withdraw. Davis held (footnotes omitted):

When a trial court provides written notice of a trial date to the attorney of record, but the attorney thereafter moves to withdraw as attorney of record, the trial court bears the responsibility of ensuring that the litigant receives notice of the pending trial in writing. The court can satisfy this notice requirement by reissuing the notice of trial to the unrepresented litigant directly. Otherwise, the court must receive reasonable proof that the withdrawing attorney has notified the client in writing of the trial date. This can be accomplished by attaching to the motion to withdraw a certified letter to the client or other evidence indicating the client has received unequivocal written notice of trial. If the record demonstrates that a litigant did not receive notice of trial, then he was denied procedural due process and fundamental fairness.
Id. at 3-4, 453.

In this case, the OWC attempted to ensure that Mr. Roman had notice of his counsel’s withdrawal but unfortunately that notice did not provide notice of the hearing date and it was sent to the wrong address. Moreover, the withdrawing 17attorney only submitted a statement that he mailed notice of the hearing to Mr. Roman and he did not present evidence that Mr. Roman received notice.

In Metro Gaming & Amusement Co. v. Deckbar & Grill, L.L.C., 07-546, p. 7 (La.App. 5 Cir. 12/11/07), 972 So.2d 1264, 1268, because the record did not reflect that the defendants received adequate notice of trial, we vacated the judgment of the trial court and remanded the matter for a new trial. Id. In that case, as in the present case, although the withdrawing counsel certified that he mailed notice of trial to his client, the record did not contain a return receipt indicating that the client received notice.

Deckbar is distinguishable in part because Deckbar considered two issues: whether the trial judge erred in granting the motion to withdraw (a consideration not present here), and whether the litigant had adequate notice of trial. On the issue of adequate notice, however, Deckbar governs here because as in Deckbar, there was no showing that the litigant received notice of the scheduled hearing.

In addition to proof that the mover is entitled to judgment under the substantive law, “courts have consistently found that the mover must also show that he has secured the judgment in accordance with the procedural law in order to have the summary judgment upheld on appeal.” Hornage v. Cleco Power, L.L.C., 04-1492, pp. 2-3 (La.App. 3 Cir. 4/6/05), 899 So.2d 153, 154 quoting Macaluso v. Macaluso, 99-935, p. 5 (La.App. 1 Cir. 5/12/00), 762 So.2d 180, 183. This is to ensure that all parties have an opportunity to be heard on the motion, and that each individual party can offer its own opposition to that motion. Magnon v. Miller, 06-321, p. 4 (La.App. 3 Cir. 9/27/06), 939 So.2d 658, 658 citing Hor-nage, 899 So.2d 153. “Moreover, procedural due process requires an opportunity to be heard, in addition to notice of the pendency of an action, and in conjunction therewith, adequate notice of the hearing is fundamental.” Lassere v. State, Dep’t of Health & Hosps., Office of Pub. Health, 00-306, p. 4 (La.App. 1 Cir. 3/28/01), 808 So.2d 513, 516.

The absence of notice to Mr. Roman amounts to a denial of his procedural due process right to be heard. See and compare: Jackson v. General Motors Truck Plant, 36,479, pp. 5-6 (La.App. 2 Cir. 10/23/02), 830 So.2d 426, 429; Darby v. U-Haul Co., 04-0129 (La.App. 4 Cir. 6/2/04), 876 So.2d 896.

Because of the due process implications inherent here, this Court finds that it has no alternative but to reverse the summary judgment and to remand for a new hearing on the motion, to be held after legally sufficient service of notice of the time and place of the hearing on Mr. Roman. We do not, however, intend, by doing so, to express any opinion regarding the merit of either the motion for summary judgment or Mr. Roman’s arguments in opposition. We hold only that Mr. Roman is entitled to notice and an opportunity to respond and present his position in compliance with La.C.C.P. art. 966.

Conclusion

The judgment of the OWC is reversed, and this matter is remanded to the OWC for further proceedings.

REVERSED AND REMANDED.

      . The instant case is distinguishable from Pyle v. Pyle, 00-55 (La.App. 3 Cir. 6/28/00), 769 So.2d 626, where the litigant had not provided the court with an address or phone number.

      . Art. 966(B) provides:
      The motion for summary judgment, memorandum in support thereof, and supporting affidavits shall be served within the time limits provided in District Court Rule 9.9. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1313 within the time limits provided in District Court Rule 9.9. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.


author: MARC E. JOHNSON, Judge.

text:
    Melissa MIGLIORE, Wife of/and George Migliore v. Javed I. GILL and Allstate Insurance Company.
    No. 11-CA-407.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.

      Barry J. Landry, Attorney at Law, Reserve, LA, for Plaintiff/Appellant.
    Joseph J. Lowenthal, Jr., Michael B. Depetrillo, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

1 {¡Plaintiffs, Melissa and George Migliore, appeal the granting of summary judgment in favor of defendant, Ochsner Clinic Foundation. For the reasons that follow, we affirm.

Plaintiffs filed a petition for damages on February 2, 2007 against Dr. Javed Gill and Allstate Ins. Co. for injuries Mr. Migl-iore allegedly sustained as the result of a February 8, 2006 automobile accident. Mr. Migliore alleged he was driving his motorcycle eastbound on River Road in Jefferson Parish when a 2001 Honda Odyssey driven by Dr. Gill made a left turn onto River Road from Deckbar Ave. into his path of travel. Mr. Migliore asserted he took evasive action to avoid the accident and drove his motorcycle off the roadway at which time he struck a traffic control sign and sustained serious injury to his shoulder, nervous system and psyche. Mrs. Migliore sought damages for loss of consortium.

Thereafter, plaintiffs filed a supplemental and amending petition adding Ochsner Clinic Foundation (“Ochsner”) as a defendant. Plaintiffs asserted Dr. Gill was in the course and scope of his employment with Ochsner at the time of the |.^accident and, thus, Ochsner was vicariously liable for Dr. Gill’s negligence. Plaintiffs specifically alleged Dr. Gill was “on call” at the time of the accident.

Plaintiffs subsequently filed a motion for partial summary judgment on the issue of Ochsner’s vicarious liability. Ochsner also filed a motion for summary judgment seeking dismissal of plaintiffs’ claim that it was vicariously liable for Dr. Gill’s negligence simply because Dr. Gill was “on call” at the time of the accident. After a hearing, the trial court denied plaintiffs’ motion for partial summary judgment and granted Ochsner’s motion for summary judgment dismissing plaintiffs’ claims against Ochs-ner with prejudice.

Plaintiffs filed the instant appeal seeking review of the granting of summary judgment in favor of Ochsner. They argue the trial court erred in finding Dr. Gill was not in the course and scope of his employment with Ochsner at the time of the accident. Plaintiffs maintain Dr. Gill’s “on call” status gave Ochsner significant control over his actions for purposes of vicarious liability.

Appellate courts review the granting or denial of a motion for summary judgment de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 98-2512 (La.7/5/94), 639 So.2d 730, 750. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored in the law. La. C.C.P. art. 966(A)(2); Robinson v. Jefferson Parish School Bd., 08-1224 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975.

A motion for summary judgment is properly granted when the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, show that there is no genuine issue of material fact such that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Facts are material |4if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764, 765 (per curiam). On appeal, this Court must consider whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Matthews v. Banner, 08-339 (La.App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163.

Employers are responsible for the damage caused by their employees in the exercise of the functions for which they are employed. La. C.C. art. 2320. An employer is only vicariously liable for an employee’s tortious conduct that is committed within the course and scope of employment. Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224, 226. The “course” of employment refers to time and place while the “scope” of employment refers to employment-related risk of injury. Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994, 996.

The Louisiana Supreme Court has explained:

Determination of the course and scope of employment is largely based on policy. The risks which are generated by an employee’s activities while serving his employer’s interests are properly allocated to the employer as a cost of engaging in the enterprise. However, when the party (the alleged employer) upon whom vicarious liability is sought to be imposed had only a marginal relationship with the act which generated the risk and did not benefit by it, the purpose of the policy falls, and the responsibility for preventing the risk is solely upon the tortfeasor who created the risk while performing the act.

Reed v. House of Decor, Inc., 468 So.2d 1159, 1162 (La.1985).

Whether an employee’s conduct is within the course and scope of his employment is a question answerable only by general rules, because of the myriad of contexts in which the question may arise. Generally, an employee’s conduct is within the course and scope of his employment “if the conduct is of the kind he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer.” | Orgeron, 639 So.2d at 226-27. The conduct must be “so closely connected in time, place, and causation to [the employee’s] employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer’s interest.” Baumeister, 673 So.2d at 996 (citations omitted).

The facts in the instant case are undisputed. Dr. Gill was employed by Ochsner as a pathologist. As a condition of his employment, Dr. Gill was required to be “on call” a certain number of weekends per month. On the day of the accident, he was “on call” from 5:00 p.m. until 8:00 a.m. the next morning. While “on call,” Dr. Gill was required to wear a beeper and respond immediately when called by Ochsner. He was expected to physically be at Ochsner within 30 minutes of receiving a call.

The accident at issue occurred around 8:05 p.m., which was during Dr. Gill’s “on call” shift. At the time of the accident, Dr. Gill was driving his own 2001 Honda Odyssey, which he personally insured, and was taking his son to his ex-wife’s house. Dr. Gill was never called to Ochsner during his “on call” shift that day.

Contrary to plaintiffs’ assertion, the mere fact an employee is “on call” does not automatically give rise to employer liability. Rather, an employee’s “on call” status simply gives rise to a question of whether the employee was acting within the scope of his employment at the time of the aeci-dent. As reasoned by the court in Thurmon v. Sellers, 62 S.W.3d 145, 154 (Tenn.Ct.App.2001), quoting Le Elder v. Rice, 21 Cal.App.4th 1604, 26 Cal.Rptr.2d 749 (1994):

Public policy would be ill-served by a rule establishing 24-hour employer liability for on-call employees, regardless of the nature of the employee’s activities at the time of an accident. Respondeat superior is imposed for three policy reasons: “(1) to prevent recurrence of the tortious conduct; (2) to give greater assurance of [^compensation for the victim; and (3) to ensure that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury.” [citations omitted] None of these goals would be legitimately accomplished by a rule establishing automatic 24-hour employer liability for 24-hour on-call employees. First, employer liability would not prevent a recurrence of the tortious conduct because an employer has no right to control the purely personal conduct of an employee. Second, although the deep pocket of an employer might give greater assurance of compensation for the victim, that desired economic end would be achieved inequitably because the victim’s losses would not be borne by the person who benefitted from the injury-producing activity.
Modern technology has changed the means by which we communicate. Beepers, pagers, facsimile machines and cellular phones keep us literally at a fingertip’s distance from one another. But on-call accessibility or availability of an employee does not transform his or her private activity into company business. The first question must always focus on scope of employment. Where the injury-producing activity is beyond that scope, no totality of other circumstances will result in respondeat superi- or liability.

Based on the facts in this case, we cannot say Dr. Gill was acting in the course and scope of his employment with Ochsner at the time of the accident even though he was “on call.” Dr. Gill was driving his own personal vehicle and was engaged in strictly personal activity that offered absolutely no benefit to Ochsner. Further, Ochsner had not exerted control over Dr. Gill at .the time of the accident. Dr. Gill had not been summoned by Ochsner at the time of the accident and was free to go about his day. The outcome may have been different if Dr. Gill had been involved in the accident while traveling to Ochsner in response to his employer’s request for his services.

We do not find Dr. Gill’s personal activities throughout the day while “on call” were closely connected to his employment duties so as to be regarded as a risk of harm fairly attributable to Ochsner. Moreover, a doctor’s “on call” status does not definitively result in the doctor reporting to work. In the present case, Dr. Gill was never required to report to work during his “on call” shift.

|7We are aware of the seemingly differences of opinion among and within the circuits regarding the issue of whether an “on call” employee is within the course and scope of his employment. See Soileau v. D & J Tire, Inc. 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979, where the employee was found to be in the course and scope of his employment where he drove a truck that was partially paid for by his employer and was used for company business, carried a beeper and was “on call” when he left work until 7:30 p.m.; Smith v. Rice, 613 So.2d 741 (La.App. 4th Cir.1993), where an “on call” police officer carrying a beeper and using an unmarked police car was found not to be in the course and scope of his employment when he was involved in an accident while picking up his wife and proceeding to a Saints game; and, Johnson v. Dufrene, 433 So.2d 1109 (La.App. 4th Cir.1983), writ denied, 441 So.2d 765 (La.1983), where an “on call” police officer was found to be in the course and scope of his employment when he was involved in an accident while driving an unmarked police car even though he was returning from his brother-in-law’s birthday party and driving his mother-in-law to her residence.

Despite any confusion these cases may cause regarding the issue sub judice, the instant case is distinguishable from the aforementioned cases in that Dr. Gill was driving a personal vehicle that was neither partially owned nor provided by his employer.

In determining whether an employee was in the course and scope of his employment, every case must be decided on its own facts. Under the circumstances of this case, we find Dr. Gill’s conduct was for purely personal concerns and did not benefit his employer; thus, he was not acting in the course and scope of his employment at the time of the accident.

IsDECREE

After conducting a de novo review, we find the trial court properly granted summary judgment in favor of defendant/ap-pellee, Ochsner Clinic Foundation, dismissing plaintiffs/appellants’ claims against Ochsner. Appellants are to bear the costs of this appeal.

AFFIRMED


text:
    Reginald ANOWI v. Cue T. NGUYEN, Phong T. Nguyen, Michael Hillaham, Newell Normand, XYZ Insurance Carrier and Prudential Property Casualty Insurance.
    No. 11-CA-468.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.
    Pius A. Obioha, Alistair A. Adkinson, Michal J. Harris, Law Offices of Pius A. Obioha & Associates, L.L.C., Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant, Reginald Anowi.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Judge.

|2The plaintiff appeals the dismissal of his lawsuit as prescribed. We affirm.

On December 18, 2009, Reginald Anowi filed suit against Cue T. Nguyen, Phong T. Nguyen, Prudential Property & Casualty Insurance Company (collectively “the Nguyen defendants”), and others. Anowi alleged that on March 19, 2003, his vehicle was rear-ended by a vehicle driven by Cue T. Nguyen.

Anowi alleged the December 18, 2009 petition was a refiling of his “initial timely filed suit [that] was recently dismissed without prejudice for failure to serve the defendant within 90 days.”

The Nguyen defendants filed an exception of prescription, in which they asserted the claims are prescribed by liberative prescription of one year, because the accident is alleged to have occurred on March 19, 2003, but this lawsuit was not filed until December 18, 2009.

In a memorandum in opposition to the exception, the plaintiff asserted that prescription had been interrupted by his prior suit, which was filed on October 30, 2003, and was dismissed for insufficiency of service of process on November 30, |s2009, without prejudice. (Hereafter we refer to the first suit as “Anowi /” and to the current suit as “Anowi II.”) The plaintiff argued that Anowi II is timely because prescription began to run anew from the date of dismissal of Anowi I, and Anowi II was filed on December 18, 2009, well within the one-year time period.

At hearing of the exception on June 30, 2010, the district court granted the exception without assigning reasons. The judgment dismissed all claims against the Nguyen defendants, with prejudice. The judgment recited that counsel for the defendants was present, but that counsel for the plaintiff was not present. The plaintiff sought a rehearing and/or a new trial, but the request was denied on September 15, 2010. This appeal ensued.

The plaintiff makes the following assignments of error:

(1) The trial court erred in granting an exception of prescription solely due to counsel’s non-attendance at its hearing regarding same; and

(2) The trial court erred in granting the Nguyen defendants’ exception of prescription because the prescriptive period regarding plaintiff-appellant’s claims was interrupted by a previously-filed lawsuit that was involuntarily dismissed without prejudice.

As to the first assignment, the plaintiff contends the trial court improperly dismissed the lawsuit simply because his counsel failed to appear at a hearing. He argues that despite his counsel’s nonappearance at the hearing, he filed an opposition to the exception, which served as evidence showing his claims are not prescribed. He asserts, “Counsel’s presence or lack thereof at any scheduled hearings did not change the law applicable to this case, which clearly dictated that the Nguyen defendants’ exception be denied. The Trial Court’s failure to so find was reversible error.”

|4The plaintiff admits the trial court’s judgment says nothing about counsel’s nonappearance as being a basis granting the exception.

The transcript shows that following a brief argument by defense counsel, who brought the exception, the trial judge stated only, “Your exception is granted.” The transcript of the hearing on the plaintiff’s motion for new trial shows that counsel for plaintiff also was absent from that hearing. The trial judge commented that he had reviewed the pleadings, but had not found anything that was new or that would cause him to change his mind and overturn his decision on the exception of prescription. The judge directed defense counsel to draw up a judgment immediately and to return with it to the courtroom for the judge to sign it. He instructed defense counsel to note in the judgment that plaintiffs counsel was absent.

Nothing in the transcript on the merits of the exception indicates that the reason for the granting of the exception was the absence of plaintiffs counsel from the hearing. Although the transcript of hearing on the motion for new trial shows the judge made note of the absence of plaintiffs counsel, the judge also noted there was nothing in the plaintiffs pleadings that would cause him to overturn his prior decision on the exception. We find the transcript establishes the trial court decided the exception of prescription on its merits and did not grant it because of the absence of plaintiffs counsel.

In the second assignment, the plaintiff contends his claims have not prescribed because the prescriptive period was interrupted from the date of filing the first lawsuit, October 30, 2003, until that suit was dismissed without prejudice in November 2009. At that point prescription began running anew. Since the second lawsuit was filed within one year of that date, the plaintiff contends the Nguyen defendants’ exception of prescription lacked merit.

| .-Delictual actions are subject to a limited prescription of one year, commencing from the day injury or damage is sustained. La. C.C. art. 3492. When a petition reveals on its face that prescription has run, the plaintiff has the burden of showing the suspension, interruption or renunciation of prescription. S.S. v. State ex rel. Dept. of Soc. Services, 2002-0831, p. 7 (La.12/4/02), 831 So.2d 926, 931.

At the hearing on the exception, no evidence was introduced. Defense counsel made a brief argument. Plaintiffs counsel had filed a memorandum in opposition to the exception that attached copies of documents from Anowi I, but he was absent from the hearing and therefore not available to introduce evidence. Thus, the transcript of the hearing contains neither testimony nor exhibits — no evidence.

Consequently, there is a fatal flaw in the evidence of record. None of the documents supporting the plaintiffs defense to the exception of prescription were properly before the trial court at the hearing on the exception. Although the plaintiff attached to his opposition memorandum copies of documents on which he relies to refute the exception of prescription, he failed to offer and introduce those documents into evidence at the hearing.

Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Gulf Coast Bank & Trust Co. v. Eckert, 95-156, p. 4 (La.App. 5 Cir. 5/30/95), 656 So.2d 1081, 1084, writ denied, 95-1632 (La.10/6/95), 661 So.2d 474.

In an adversary proceeding, a lawyer is not required to prove his opponent’s ease by presenting evidence on behalf of his opponent. State through Governor’s Special Comm’n on Educ. Services v. Dear, 532 So.2d 902, 904 (La.App. 5 Cir.1988).

| /‘When a plaintiffs petition shows on its face that the action is prescribed, the plaintiff who contends there has been a suspension or interruption of the running of prescription must allege and prove facts establishing the interruption.” Id. Here, the record contains no evidence to support the plaintiffs claim that this suit was not prescribed.

The judgment therefore is affirmed. Costs of this appeal are assessed against the plaintiff.

AFFIRMED

      . The other defendants were Newell Normand in his capacity as Sheriff of Jefferson Parish, and Michael Hillaham (collectively "the Sheriff”). Anowi alleged his car was also struck by a Jefferson Parish Sheriff’s Office vehicle operated by Officer Michael Hillaham. The Sheriff filed a motion to dismiss the suit for failure to request service within 90 days of commencement of the action, pursuant to La. R.S. 13:5107(D). The plaintiff voluntarily dismissed his claims against the Sheriff on May 25, 2009, with prejudice, reserving his rights to proceed against the remaining defendants.


text:
    STATE of Louisiana v. Lilronald WILLIAMS.
    No. 11-KA-65.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Plaintiff/App el-lee.
    Bruce G. Whittaker, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12Defendant, Lilronald Williams, appeals his convictions and sentences for two counts of armed robbery from the 24th Judicial District Court, Division “G”. For the following reasons, we vacate the sentences and remand the matter to the trial court for further proceedings.

On August 12, 2009, the Jefferson Parish District Attorney filed a bill of information which charged Defendant with two counts of armed robbery in violation of LSA-R.S. 14:64. Defendant pleaded not guilty to these charges at his arraignment on August 14, 2009. Jury selection for trial began on June 30, 2010. On July 1, 2010, a 12-person jury returned with a verdict of guilty as charged to both counts of armed robbery. On July 23, 2010, Defendant filed a motion for a new trial, arguing 1) the jury verdict was contrary to the law and evidence, 2) Defendant had discovered prejudicial error since the verdict, and 3) the ends of justice required a new trial.

Defendant was sentenced on September 17, 2010, to 25 years imprisonment |son each count, to run concurrently with each other. After sentencing, Defendant orally noted his intention to appeal the jury verdict. On October 15, 2010, Defendant filed a motion to reconsider sentence, arguing that his sentences were excessive and harsh. The order was signed by the trial judge on November 10, 2010; however, the order does not render a ruling. Instead, a handwritten notation is reflected on the order stating, “See order from En Banc[.]”

On appeal, Defendant alleges the trial court erred in charging the jury that less than a unanimous verdict was sufficient to convict him for an offense punishable by hard labor and in accepting a less than unanimous verdict. Defendant also challenges the excessiveness of his sentences.

A review of the record indicates Defendant filed a motion for a new trial on July 23, 2010. An unsigned order to show cause and an unsigned written order granting the new trial were included with the motion. However, no ruling on the motion for new trial is included in the record.

LSA-C.Cr.P. art. 853 provides that motions for a new trial must be filed and disposed of before sentencing. Defendant was sentenced on September 17, 2010. Thus, the trial court erred in failing to rule on the timely filed motion for new trial. The failure of a trial court to rule on a motion for new trial is an error patent. See, State v. Falcon, 06-798, p. 17 (La.App. 5 Cir. 3/13/07); 956 So.2d 650, 660.

In State v. Williams, 09-82 (La.App. 5 Cir. 12/29/09); 30 So.3d 975, without addressing the assigned errors on appeal, this Court recognized that the failure of the trial court to rule on a motion for new trial was an error that required the sentence to be vacated, and the matter remanded for a hearing on the new trial motion, reserving the defendant’s right to appeal his conviction and sentence in the event of an unfavorable ruling on the motion. See also, State v. Pettus, 10-742 (La.App. 5 Cir. 5/24/11); 66 So.3d 1192, where this Court explained,

Most recently, when faced with the lack of a ruling on defense motions for new trial and post verdict judgment of acquittal, this Court has returned to Randolph and, without addressing the merits of defendant’s assignments of error, vacated the defendant’s sentence and remanded for rulings on the motions, reserving to the defendant his right to appeal his conviction and sentence in the event of unfavorable rulings.

Id., 66 So.3d 1194 (citations omitted) (footnote added).

Under the guidance of Williams, Pettus and Randolph, we pretermit the assignments of error, vacate Defendant’s sentences, remand the case to the trial court for a ruling on Defendant’s motion for new trial. In the event the trial court denies Defendant’s motion for new trial, Defendant shall be resentenced, and his right to appeal his convictions and sentences shall be reserved.

SENTENCES VACATED; REMANDED WITH INSTRUCTIONS

      . In Defendant's brief, he indicates that the new trial motion was heard and denied on October 20, 2009, a date which is actually prior to trial. Although he specifically cites to the record, no ruling is reflected on the cited pages.

      . State v. Randolph, 409 So.2d 554 (La.1981) (per curiam), on rehearing (1982).


text:
    STATE of Louisiana v. George E. FLOWERS.
    No. 11-KA-376.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 13, 2011.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Appellee, State of Louisiana.
    Margaret S. Sollars, Attorney at Law, Thibodaux, LA, for Appellant, George E. Flowers.
    George Flowers, New Orleans, LA, in Proper Person.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

12Defendant George Flowers appeals his conviction and sentence for simple battery. Because defendant seeks review of his misdemeanor conviction for a crime not triable by jury, we dismiss this appeal for lack of jurisdiction.

La. Const. Art. V, § 10 states that the appellate jurisdiction of the courts of appeal extends to “all criminal cases triable by a jury [except capital cases]” and its supervisory jurisdiction exists “over cases which arise within its circuit [not otherwise provided by law].” See also, La.C.Cr.P. art. 912.1(B)(1); La.C.Cr.P. art. 912.1(C)(1). To be eligible for trial by jury, an accused must be faced with imprisonment for more than six months and/or a fíne of more than $1,000.00. La. C.Cr.P. art. 779(B).

Here, the defendant was originally charged with the felony offense of aggravated battery, in violation of La. R.S. 14:34, which is triable by jury. However, after a bench trial, the trial judge found defendant guilty of the responsive verdict of simple battery, a violation of La. R.S. 14:35, which is a misdemeanor offense not eligible for trial by jury. La.C.Cr.P. art. 779(B). Because this defendant was found guilty of an offense not triable by jury, this judgment is not an appealable judgment. Under La.C.Cr.P. art. 912.1(C)(1), an application for a writ of review is the proper mechanism for seeking judicial review of a conviction on an offense not triable by jury. See also, La. Const. Art. V, § 10.

Although recent panels of this Court have opted to convert matters like this, which are not subject to this Court’s appellate jurisdiction, to applications for writs of review, we decline to follow that trend in this matter. Cf. State v. Tate, 09-619, p. 3 (La.App. 5 Cir. 2/9/10), 38 So.3d 292, 295-96. "In an approach that we believe is more consistent with the constitutional delineation of the appellate court’s jurisdiction, we will not convert this matter to a supervisory writ application.

Accordingly, we dismiss the present appeal. State v. Suthon, 99-661 (La.App. 5 Cir. 10/29/99), 746 So.2d 240, 242. We reserve, however, Mr. Flowers’s right to file a proper application for supervisory writs, in compliance with U.R.C.A. Rule 4-3, within thirty days from the date of this decision. Further, we hereby construe the motion for appeal as a notice of intent to seek a supervisory writ so Mr. Flowers is not required to file a notice of intent nor obtain an order setting a return date pursuant to U.R.C.A. Rule 4-3.

APPEAL DISMISSED.

      . Under La. R.S. 14:34, a conviction for aggravated battery is punishable by imprisonment with or without hard labor for up to ten years and/or a fine of $5,000.00.

      . Under La. R.S. 14:35, an offender found guilty of simple battery faces no more than six months in prison nor a fine of $1,000.00.

      .For many years, this Court adhered to a firm policy declining to convert improper appeals into applications for supervisory writs. State v. Fleming, 01-1370 (La.App. 5 Cir. 5/29/02), 820 So.2d 1112, 1113; State v. Chess, 00-164 (La.App. 5 Cir. 6/27/00), 762 So.2d 1286; State v. Suthon, 99-661 (La.App. 5 Cir. 10/29/99), 746 So.2d 240; State v. Robinson, 97-686 (La.App. 5 Cir. 1/14/98), 707 So.2d 81. Although there are instances where the interests of justice support converting improperly-filed appeals to supervisory writs, such as State v. Trepagnier, 07-749 c/w 07-750 (La.App. 5 Cir. 3/11/08), 982 So.2d 185, conversion should be the exception, not the rule as it contradicts the authority granted to appellate courts by the supreme law of this state. "The constitution is the supreme law, to which all legislative acts and all ordinances, rules, and regulations of creatures of the legislature must yield.” Macon v. Costa, 437 So.2d 806, 810 (La.1983).