text:
    David R. STRAUB, Sr. v. Krystal D. RICHARDSON, Attorney, and Richardson Law Firm, L.L.C.
    No. 2011 CA 1689.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2012.

      Dale R. Baringer, Baton Rouge, LA, for Plaintiff-Appellant David R. Straub, Sr.
    Connell L. Archey, Baton Rouge, LA, for Defendant-Appellee Krystal D. Richardson & Richardson Law Firm, L.L.C.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   PETTIGREW, J.

l?In this legal malpractice action, plaintiff appeals the trial court’s judgment granting defendants’ exception raising the objection of peremption and dismissing plaintiffs claims with prejudice. For the reasons that follow, we affirm.

FACTS

On July 14, 2008, plaintiff, David R. Straub, Sr., filed the instant petition alleging a legal malpractice claim against defendants, Krystal D. Richardson and the Richardson Law Firm, L.L.C. (collectively “Richardson”), arising out of Richardson’s representation of Mr. Straub in a suit to enforce a mortgage filed by Blue View Corporation (“Blue View”), as well as in a subsequent bankruptcy case. The facts that precipitated this lawsuit have been succinctly set forth in the record as follows:

On August 28, 2005, Blue View filed a Petition to Enforce Security Interest against Straub (the “Blue View Case”), alleging that Straub had defaulted on a third mortgage on Straub’s home given in favor of Blue View. That same day, Straub signed an Attorney/Client contract with Richardson, hiring Richardson to represent him in the Blue View Case. On October 28, 2005, Richardson filed an Answer in the Blue View Case and asserted that Straub’s liability to Blue View had been discharged in Straub’s 2000 chapter 7 bankruptcy.
Blue View filed a motion for summary judgment on January 28, 2006 and Richardson filed an opposition on behalf of Straub on March 3, 3006. On March 6, 2006, the Court held a hearing on, and granted, Blue View’s motion for summary judgment. Later that day, Richardson filed a Motion to Reconsider the granting of Blue View’s motion for summary judgment. Nonetheless, on April 12, 2006, judgment was rendered against Straub in favor of Blue View. Thereafter, Blue View sought the seizure of Straub’s home to satisfy the April 12, 2006 judgment and a sheriffs sale of Straub’s home was scheduled for July 26, 2006. On or about July 24, 2006, Richardson contacted Straub to inform him he had lost his case on the merits and that in order to save his home from foreclosure, he needed to file for bankruptcy. On July 25, 2006, Richardson filed a Chapter 13 bankruptcy on behalf of Straub (the “2006 Bankruptcy”). The filing fees for the 2006 Bankruptcy were not paid timely and thus, the 2006 Bankruptcy was dismissed on October 23, 2006.
Thereafter, on or about November 10, 2006, Richardson terminated the attorney client relationship with Straub due to his failure to pay her attorney fees. Also, in early November, 2006, Straub began seeking the assistance of new counsel. Richardson’s representation of Straub on all matters therefore concluded in November, 2006. Shortly thereafter, Straub engaged new counsel to file a new Chapter 13 bankruptcy on his behalf |s(the “2007 Bankruptcy”). The 2007 Bankruptcy is still pending. On April 10, 2007, Straub’s new attorney also filed, in the Blue View Case, a petition to annul the summary judgment rendered in favor of Blue View. Ultimately, the petition to annul was dismissed on an exception of no cause of action.
On July 14, 2008, Straub filed this lawsuit alleging various acts of legal malpractice by Richardson in connection with her representation of Straub in the Blue View Case and the 2006 Bankruptcy-

In response to Mr. Straub’s petition for damages, Richardson filed an exception raising the objection of peremption, arguing that Mr. Straub’s claims for legal malpractice against Richardson were per-empted pursuant to La. R.S. 9:5605. The matter proceeded to a hearing before the trial court on March 28, 2011, at which time argument and documentary evidence were presented. After considering same, the trial court rendered judgment granting Richardson’s peremption exception and dismissing Mr. Straub’s claims with prejudice. Judgment was signed in accordance with the trial court’s findings on April 11, 2011. This appeal by Mr. Straub followed, wherein he assigned the following specification of error for our review: “The trial court erred in sustaining the Exception of Peremption filed by [Richardson] and in holding that [11 U.S.C.A.] § 108 [] of the Bankruptcy Code did not apply to a Chapter 13 debtor in possession to extend the applicable peremptive period until two years after the filing of a Chapter 13 bankruptcy petition.”

DISCUSSION

On appeal, Mr. Straub urges this court to interpret 11 U.S.C.A. § 108 so that it applies to a Chapter 13 debtor such as himself and extends the peremptive period applicable to legal malpractice actions beyond the periods provided in La. R.S. 9:5605. While acknowledging there are no reported eases on whether § 108 applies to a Chapter |413 debtor, Mr. Straub notes the split among the bankruptcy court decisions on this very issue. Moreover, Mr. Straub directs this court’s attention to Stanley ex rel. Estate of Hale v. Trinch-ará, 579 F.3d 515 (5th Cir.2009), wherein the United States Fifth Circuit Court of Appeal determined that the legal malpractice claims brought by a bankruptcy trustee were governed by § 108 rather than by Louisiana’s one-year peremptive period.

Citing this court’s opinion in State v. Gonzalez-Perez, 2007-1813, p. 10 (La.App. 1 Cir. 2/27/08), 997 So.2d 1, 7, writ denied, 2009-0292 (La.12/18/09), 23 So.3d 930, Richardson asserts there is a presumption that Congress does not intend to preempt state law, unless it speaks with clarity otherwise. Richardson maintains that § 108 does not apply to the instant case because by the plain language of the statute, it only applies to a bankruptcy trustee and not to a debtor in possession. Further, Richardson contends that Mr. Straub was aware of his claims by November 2006, but chose not to file suit until July 2008. Thus, Richardson argues, pursuant to La. R.S. 9:5605 Mr. Straub’s claims are perempted.

We must first look to the well-established principle of statutory construction that absent clear evidence of a contrary legislative intention, a statute should be interpreted 15according to its plain language. Cleco Evangeline, LLC v. Louisiana Tax Com’n, 2001-2162, p. 5 (La.4/3/02), 813 So.2d 351, 354. 'When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. Civ.Code art. 9. With these principles in mind, we conclude that applying the plain language of 11 U.S.C.A. § 108 of the Bankruptcy Code, a Chapter 13 debtor is not entitled to the benefit of the § 108 two-year extension as is a bankruptcy trustee. Moreover, because there has been no declaration to the contrary, the presumption is that Congress did not intend to preempt state law with regard to this issue. See Gonzalez-Perez, 2007-1813 at 10, 997 So.2d at 7. However, our inquiry does not end here. We next turn to the consideration of whether Mr. Straub’s claims were perempted pursuant to La. R.S. 9:5605.

Peremption is a period of time fixed by law for the existence of a right. The right is extinguished upon the expiration of the peremptive period. La. Civ.Code art. 3458. When the peremptive period has run, the cause of action itself is extinguished unless timely exercised. State Through Div. of Admin, v. McInnis Bros. Const., 97-0742, p. 2 (La.10/21/97), 701 So.2d 937, 939. “Peremption may not be renounced, interrupted, or suspended.” La. Civ.Code art. 3461.

Peremption is considered a peremptory exception. La. Code Civ. Proc. art. 927. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Carter v. Hay-good, 2004-0646, p. 8 (La.1/19/05), 892 So.2d 1261, 1267. Peremption has been likened to prescription; namely, it is prescription that is not subject to interruption or suspension. See Flowers, Inc. v. Rausch, 364 So.2d 928, 931 (La.1978). As such, the following rules governing the burden of proof as to prescription apply to peremption.

If prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Carter, 2004-0646 at 9, 892 So.2d at 1267. If evidence is introduced at the hearing on the peremptory exception of prescription, the trial court’s findings of fact are reviewed under the manifest er-rorjclearly6 wrong standard of review. Id. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882-888 (La.1993).

In pertinent part, La. R.S. 9:5605 provides the peremptive period to initiate an action for legal malpractice as follows:

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

Thus, the applicable time limitations on legal malpractice actions are one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered, or, at the latest, within three years from the date of the alleged act, omission, or neglect. La. R.S. 9:5605(A). In other words, the latest one can file a legal malpractice action is three years from the date of the alleged act of malpractice, or one year from the date of discovery of the alleged act of malpractice, whichever occurs first. Paternostro v. LaRocca, 2001-0333, p. 5 (La.App. 1 Cir. 3/28/02), 813 So.2d 630, |7634. Prescription commences to run when a claimant knew or should have known of the existence of facts that would have enabled him to state a cause of action for legal malpractice. Id. The standard imposed is that of a reasonable man-any plaintiff who had knowledge of facts that would place a reasonable man on notice that malpractice may have been committed shall be held to have been subject to the commencement of prescription by virtue of such knowledge even though he asserts a limited ability to comprehend and evaluate the facts. Id.; Carroll v. Wolfe, 98-1910, p. 6 (La.App. 1 Cir. 9/24/99), 754 So.2d 1038, 1041. The focus is on the appropriateness of the claimant’s actions or inactions, and therefore, the inquiry becomes when would a reasonable man have been on notice that malpractice may have been committed. Patemostro, supra.

After considering the evidence in this case, the trial court gave the following oral reasons for judgment:

The suit arises from a legal malpractice claim asserted by the plaintiff against the defendant in connection with her representation of Straub in a suit to enforce a security interest filed by Blue View Corporation, as well as a subsequent bankruptcy. As a result of the alleged acts of legal malpractice in the Blue View matter and his 2006 bankruptcy, Mr. Straub contends that he suffered entry of an in personam judgment on a claim that was discharged in his 2000 Chapter 7 bankruptcy case, as well as the damages in the form of costs and attorney’s fees and emotional distress.
In the instant motion, the defendant contends that Straub’s claims for legal malpractice are preempted [sic] under [La. R.S.] 9:5605 which provides a one-year peremptive period for legal malpractice claims....
Accrual of the one-year peremptive period set forth in [La. R.S. 9:5605] commences when a claimant knew or should have known of the existence of the facts that would have enabled him to state a cause of action for legal malpractice. Ignorance of one’s right from those facts will not toll prescription. The reasonable man is used to determine whether the plaintiff had sufficient knowledge of the existence of those facts that would give legal rise to the malpractice action.
Mr. Straub began investigating possibly hiring a new counsel due to his dissatisfaction with the representation of Ms. Richardson in November of 2006; see the deposition of David Straub. Mr. Straub did, in fact, have knowledge which he alleges gives rise to the instant claims in 2006, as he was present in a meeting pertaining to his 2006 bankruptcy when Ms. Richardson was not. He became dissatisfied with Ms. Richardson and took steps to seek legal advice in 2006.
InThe instant suit was filed on July 14, 2008, more than 19 months after Mr. Straub first admits being dissatisfied with Ms. Richardson’s representation. Further, he admits that he felt it was a mistake on Ms. Richardson’s part to not appear at a bankruptcy meeting on September 18th, which was approximately 22 months before he filed suit.
The plaintiff relies on Section 108(A) of the Bankruptcy Code which has been previously held to preempt [La. R.S.] 9:5605 when applied to cases involving trustees. However, Mr. Straub is a Chapter 13 debtor and not a trustee. Accordingly, this Court finds that Section 108(A) of the Bankruptcy Code does not apply, and does not preempt [La. R.S.] 9:5605 in the instant suit.
The Court notes that [La. R.S.] 9:5605 clearly and unequivocably states that the one-year and three-year periods of limitation provided in subsection-A of this section are peremptive periods within the meaning of Civil Code article 3458, and, in accordance with Civil Code article 3461, may not be renounced, interrupted or suspended.
Accordingly, the Court is going to grant the exception of peremption dismissing the plaintiffs claims with prejudice at the plaintiffs costs.

The trial court concluded that Mr. Straub had sufficient knowledge of the alleged acts of malpractice by Richardson for more than one year prior to the filing of his petition. Based on our review of the record in this matter, we are satisfied that a reasonable factual basis exists for the trial court’s findings in this regard. Not only is the evidence overwhelmingly in support of the trial court’s conclusion, but also the trial court’s reasonable evaluations of credibility and reasonable inferences of fact must be afforded great deference. The trial court did not err in granting Richardson’s peremption and dismissing Mr. Straub’s claim with prejudice.

CONCLUSION

For the above and foregoing reasons, we affirm the April 11, 2011 judgment of the trial court. All costs associated with this appeal are assessed against plaintiff-appellant, David R. Straub, Sr.

AFFIRMED.

      . This brief recitation of the facts is taken from Richardson's Memorandum In Support Of Peremption, and all internal record references have been removed for clarity.

      . § 108 of the Bankruptcy Code provides, in pertinent part, as follows:
      (a) If applicable nonbankruptcy law, an order entered in a nonbankruptcy proceeding, or an agreement fixes a period within which the debtor may commence an action, and such period has not expired before the date of the filing of the petition, the trustee may commence such action only before the later of—
      (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or
      (2) two years after the order for relief.

      . See Estate of Carr ex rel. Carr v. U.S., 482 F.Supp.2d 842, 850 (W.D.Tex.2007) (finding that in the context of bankruptcies filed under Chapter 13, the extension offered by § 108 is available to trustees only and not to Chapter 13 debtors); In re Ranasinghe, 341 B.R. 556, 564-568 (Bankr.E.D.Va.2006) (detailing the issue of whether a Chapter 13 debtor is entitled to the § 108 extension and concluding that he is not); In re Craig, 1 B.R. 864, 865-866 (Bankr.E.D.Tenn.1980) (noting that § 108 was not meant to extend the time for debtors to file suit); In re McConnell, 390 B.R. 170, 179-180 (Bankr.W.D.Pa.2008) ("[although less clear than in the Chapter 11 context, there is no reason why Section 108 of the Bankruptcy Code should not also apply to Chapter 13 debtors-in-possession prosecuting estate property, as the debtor is the representative of the estate in prosecuting the action.”); Thomas v. GMAC Residential Funding Corp., 309 B.R. 453, 457 (D.Md.2004) (permitting chapter 13 debtor to invoke the 60-day extension of § 108 to preserve a claim for rescission under the Truth in Lending Act).

      .In Trinchará, the bankruptcy trustee brought legal malpractice claims against a law firm and attorneys who defended the debtor in a pre-petition civil rights action. The cause of action for legal malpractice arose in March 2001, the debtor filed bankruptcy in October 2001, and Louisiana's per-emptive statute expired in March 2002. The trustee filed the complaint in April 2002, after the peremptive statute expired, but before the § 108 extension period expired in October 2003. The district court granted summary judgment in favor of the attorneys, finding that Louisiana’s peremptive period, and not § 108, governed the estate’s malpractice claim. The Fifth Circuit reversed, finding that the malpractice claims were governed by § 108 rather than Louisiana's one-year per-emptive statute. Trinchará, 579 F.3d at 516. On appeal, the issue was framed as follows: “The question here is whether Louisiana's peremptive statute, which controls the estate's claim is somehow exempt from § 108 because of its status as a statute of repose.” Id. at 518. The court answered this question in the negative: "Because Congress expressed an overriding and unqualified interest in allowing bankruptcy trustees sufficient time to discover causes of action on behalf of their estates, we hold that § 108(a) of the Bankruptcy Code, 11 U.S.C. § 108(a), extended Louisiana's legal malpractice peremption period.” Id. at 516.


source: Caselaw Access Project

author: WELCH, J.

license: Public Domain

text:
    In the Matter of the SUCCESSION OF Ira DUNAWAY, Jr., Deceased. In the Matter of the Succession of Wilda Carter Dunaway, Deceased.
    Nos. 2011 CA 1747, 2011 CA 1748.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2012.

      Anne E. Tate, Bogalusa, LA, for Plaintiff-Appellee Jessica Vampran.
    James S. Knight, Franklinton, LA, for Defendant-Appellant Rob Richmond Dun-away.
    Before PETTIGREW, McCLENDON and WELCH, JJ.
   WELCH, J.

|2Rob R. Dunaway, in his capacity as the executor of the estate of Ira Dunaway, Jr. and the executor of the estate of Wildá Carter Dunaway, appeals a judgment of the trial court declaring the notarial testaments of both Ira and Wilda Dunaway null. Finding no error in the judgment of the trial court, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Ira and Wilda Dunaway were married on April 8, 1950, and had four children during their marriage: Rob Dunaway, Tim Dunaway, Dannie Gaye Dunaway Tassin and Ira Lynn Dunaway Vampran. Ira Lynn Vampran died on November 23, 2009, and was survived by one child, Jessica Vampran.

Ira Dunaway died on June 7, 2010, and less than sixty days later, on August 3, 2010, Wilda Dunaway died. On August 24, 2010, Rob Dunaway filed, in separate proceedings, petitions seeking to probate the notarial testaments of his parents that were dated February 18, 1999, and to be designated as the executor of the estates of his parents in accordance with those testaments. That same date, the trial court ordered that the testaments of Ira and Wilda Dunaway be given the effect of probate and executed in accordance with law, granted the administration of the estate, and confirmed Rob Dunaway as the executor of the succession of both Ira and Wilda Dunaway.

On September 8, 2010, Rob Dunaway filed, in both succession proceedings, a petition for declaratory judgment seeking a determination of the status of certain bank accounts, an interpretation of certain clauses used in the dispositive portion of both February 18, 1999 testaments, and the consolidation of the two suits. [.^Following a hearing, the trial court rendered declaratory judgment that the children of Ira and Wilda Dunaway who survived them (ie., Dannie Tassin, Rob Dunaway, and Tim Dunaway) would inherit the entirety of the estates of Ira and Wilda in equal shares.

Thereafter, Jessica Vampran filed a petition to annul the February 18,1999 testaments of both Ira and Wilda Dunaway on the basis that the testaments were not valid under Louisiana law because the attestation clauses of the testaments failed to satisfy the requirements of La. C.C. art. 1577. She also sought to have earlier testaments of Ira and Wilda Dunaway dated October 19, 1992, and of Wilda Dunaway dated June 14, 1993, declared null on the same basis. On April 15, 2011, the matter was heard before the trial court and taken under advisement. The trial court then issued written reasons for judgment declaring that the testaments of Ira and Wilda Dunaway dated October 19, 1992, and February 18, 1999, and the testament of Wilda Dunaway dated June 14, 1993, were null based on the inadequacy of the attestation clauses. A written judgment in conformity with the trial court’s written reasons was signed on May 3, 2011, and it is from this judgment that Rob Dunaway now appeals, contending that the trial court erred in declaring that the wills were invalid and arguing that the attestation clauses met the requirements of La. C.C. art. 1577.

LAW AND DISCUSSION

At the outset, we note that all of the testaments at issue are virtually identical, with the only difference being the dates on which they were executed, the designation of the executor/executrix for the succession, and the correction of a 1 .(typographical error in Ira Dunaway’s name. We also recognize that the testaments at issue purport to be notarial testaments, which are governed by the requirements of La. C.C. art. 1577.

Louisiana Civil Code article 1577 provides:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this_ day of_,_”

Thus, in order to be valid as to form, (1) the testator must declare or signify in the presence of a notary and two witnesses that the instrument is his last will and testament; (2) the testator must sign his name at the end of the testament and on each separate page; and (3) the notary and two witnesses must sign a declaration in the presence of each other and the testator attesting that the formalities of La. C.C. art. 1577(1) have been followed. Succession of Siverd, 2008-2383, 2008-2384 (La.App. 1st Cir.9/11/09), 24 So.3d 228, 230. The primary purpose of the statute authorizing this type of will is to afford a simplified means of making a testament whereby the authenticity of the act can be readily ascertained and fraudulent alteration of it will be most difficult. Succession of Richardson, 2005-0552 (La.App. 1st Cir.3/24/06), 934 So.2d 749, 751, writ denied, 2006-0896 (La.6/2/06), 929 So.2d 1265.

Moreover, although the intention of the testator as expressed in the testament must govern, the intent to make a testament, although clearly stated or proved, will 15be ineffectual unless the execution thereof complies with codal requirements. Succession of Hendricks, 2008-1914 (La.App. 1st Cir.9/23/09), 28 So.3d 1057, 1060, writ not considered, 2010-0480 (La.3/26/10), 29 So.3d 1256. A material deviation from the manner of execution prescribed by the code will be fatal to the validity of the testament. Id. The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null. La. C.C. art. 1578. Although its form is not sacrosanct, there must be an attestation clause, or clause of declaration signed by the witnesses and the notary. Succession of Richardson, 934 So.2d at 751. Where a will is merely notarized, such as a notary’s signature under a general “sworn and subscribed” clause, but there is no declaration signed by the notary, such a clause is not in compliance with La. C.C. art. 1577. Succession of Seal, 2010-0351, p. 4 (La.App. 1st Cir.9/10/2010) (unpublished), 46 So.3d 284, writ denied, 2010-2294 (La.1/28/11), 56 So.3d 964.

The dispositive portions of both of the testaments are contained on the first pages and were signed, respectively, by Ira and Wilda Dunaway, and the propriety of these portions of the testaments is not at issue in this appeal. Instead, the trial court, relying on this court’s decision in Succession of Seal, found that the notary’s attestation clause (like the attestation clauses at issue in Succession of Seal) failed to comply with La. C.C. art. 1577, and therefore, the testaments were null. Specifically, the trial court reasoned that the attestation clauses have “the witnesses being sworn and the witnesses (not the notary) making the declaration,” the attestation clauses said that “the testator, witnesses and ‘a [n]otary [pjublic witnessed the testator signing[,] [b]ut only the witnesses appear and make that declaration, not the notary,’” and the testator never “declare[d] that he|7she] [fisigned and declared that the document [was] his[/her] last will and testament ‘in the presence of a notary and two competent witnesses.’ ”

The attestation clauses of the testaments herein follow Ira and Wilda Dun-away’s signatures after the dispositive portions of their testaments. The first attestation clause is contained on the first page of the testament, and provides:

Signed, sealed, published and declared to be hisITher] Last Will and Testament by the within named Testator in the presence of us, who in his[/her] presence and at his[/her] request, and in the presence of each other, have hereunto subscribed our names as witnesses this 18 day of Feb., 1999.[]
(1) Janet D. Riley [signed ], Witness Franklinton, City LA [signed ] State
(2) Suzonne G. Jenkins [signed ], Witness Franklinton, City La [signed ] State
(3) Wendy Wood [signed ], Witness Franklinton, City La. [signed ] State[]

Although this clause sets forth that the testament was signed by the testator in the presence of the witnesses and declared to be the testator’s last will and testament, this clause fails to state that the testament was signed by the testator in the presence of a notary or that the witnesses themselves signed in the presence of the notary. Therefore, this clause fails to meet the requirements of La. C.C. art. 1577.

The next attestation clause is contained on the second page of the testament, which is entitled “AFFIDAVIT OF EXECUTION AND ATTESTATION,” and it provides:

I sign my name to this, my Will, and being duly sworn, declare that I sign voluntarily for the purposes expressed therein, and am of lawful age, of sound mind and under-no undue influence.
|7[Ira Dunaway Jr./Wilda C. Duna-way] [signed]
(Testator)

While this clause states that the testator has been “duly sworn” (presumably by a notary) and that the testator is signing and declaring the will to be his own, it does not state that it was actually signed in the presence of a notary and two witnesses, and is therefore, insufficient to meet the requirements of La. C.C. art. 1577.

An additional paragraph follows, which provides:

The undersigned witnesses being duly sworn, each declares that the Testator signed this Will consisting of one page with writing on both sides thereof, at the end thereof, and on each side thereof, in our presence, and signified, published and declared in our presence that this instrument is his/[her] Last Will and Testament, and that at the request of and in the presence of Tes[t]ator and in the presence of each other and in the presence of a Notary Public each has subscribed his/her name to this will as witness to Testator signing this 18 day of Feb , 1999, and to the best of his/her knowledge Testator is of lawful age, of sound mind and under no undue influence.
(1) Janet D. Riley [signed] residing at Franklinton, LA [signed]
(2) Suzonne G. Jenkins [signed] residing at Franklinton, La. [signed]
(3) Wendy Wood [signed] residing at Franklinton, La. [signed]
State of Louisiana
Parish of Washington
Subscribed, sworn and acknowledged before me by the Testator, [Ira Duna-way, Jr/Wilda Carter Dunaway, _, and Janet D. Riley, and Suzonne G. Jenkins, the witnesses this 18th day of Feb., 1999.
Barbara Miele [signed][]
Notary Public

This clause states that the testator signed the testament in the presence of the witnesses and declared the testament to be his last will and testament to the | ^witnesses. It also states that the witnesses signed the testament in the presence of the notary. However, this clause does not state that the testator signed the will in the presence of the notary, nor does it state that the testator specifically declared the testament to be his last will and testament to the notary or to the notary in the presence of two witnesses. Therefore, this clause fails to meet the requirements of La. C.C. art. 1577.

Furthermore, the “[s]ubscribed, sworn, and acknowledged” clause appears to be simply a general notarization of the will, rather than an attestation clause of the notary because the clause does not clearly state that the testator declared that the testament was his/her last will and testament in the presence of the notary or that the necessary signatures were signed in the presence of all persons, including the notary. As such, this clause is not in compliance with La. C.C. art. 1577.

Louisiana Civil Code article 1577 requires that the notary “shall sign” a declaration that: (1) the testator signed or declared in his presence that the instrument is his testament, (2) that the testator has signed the testament at the end and each other separate page, and (3) in the presence of the testator and each other, the notary has signed his name. See La. C.C. art. 1577(2). The attestation clauses in testaments at issue before us do not contain all of these requirements. Accordingly, we must conclude that the testaments are null, and the trial. court’s judgment declaring the testaments of Ira and Wilda Dunaway dated October 19, 1992 and February 18, 1999 and the testament of Wilda Dunaway dated June 14, 1993 null is affirmed.

CONCLUSION

For all of the above and foregoing reasons, the May 3, 2011 judgment of the trial court is affirmed.

All costs of this appeal are assessed to the appellant, Rob Dunaway.

AFFIRMED.

      . The clauses at issue in both wills provided: "I give all my estate to my [wife/husband]. In the event my said [wife/husband] shall predecease me or fails to survive me for sixty (60) days, I give all my estate to my children, if any, who survive me in equal shares, per stirpes. If I am survived by neither my [wife /husband], nor children, then I give my estate to: ...”

      . During a hearing on October 18, 2010, the trial court ordered the two succession proceedings consolidated. The October 18, 2010 minute entry reflects the trial court’s order, but there is no written order of consolidation in the record.

      .Jessica Vampran appealed this declaratory judgment, which is the subject of the companion case also rendered this date. See Succession of Dunaway, 2011-1487 c/w 2011-1488 (La.App. 1st Cir.5/2/12), 2012 WL 1550488 (unpublished).

      . In Succession of Seal, this court reviewed the specific language of the attestation clauses of the testament at issue and concluded that they failed to comply with La. C.C. art. 1577. Although this court’s decision in Succession of Seal was based on the particular language of the attestation clauses of the testaments in that case, we recognize that the attestation clauses in that case are very similar, but not identical, to the attestation clauses in this case.

      . The signatures of the witnesses in the October 19, 1992 testaments of Ira and Wilda Dunaway and the June 14, 1993 testament of Wilda Dunaway are dated respectively.

      . We recognize that different witnesses residing in different cities signed the October 19, 1992 testaments of Ira and Wilda Dunaway and the June 14, 1993 testament of Wilda Dunaway, but for the sake of brevity, the names and city of residences of those witnesses are not separately set forth herein.

      . We further recognize that a different notary public executed the October 19, 1992 testaments of Ira and Wilda Dunaway and the June 14, 1993 testament of Wilda Dunaway, but for the sake of brevity, the names of those notaries are not separately set forth herein.


author: STEWART, J. LOLLEY, J.,

text:
    Edward E. LLOYD, Individually and as the Natural Tutor of Edward Caldwell, a Minor, Cheryl Caldwell, Kimberly Jackson, Eldrick Caldwell and Roy Caldwell, Plaintiffs-Appellants v. SHADY LAKE NURSING HOME, INC., XYZ Insurance Company, Louisiana Nursing Home Association Malpractice and General Liability Trust, Louisiana Nursing Home Association of Professional and General Liability Trust, and the Estate of William P. DiMaggio, Defendants-Appellees.
    No. 47,025-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 9, 2012.

      The Jones Law Group, Monroe, LA, by Rosalind D. Jones, Frederick D. Jones, for Appellants.
    Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, LA, by Joseph J. Bailey, Jeremy C. Cedars, for Appellees.

      Before BROWN, WILLIAMS, STEWART, DREW and LOLLEY, JJ.
   STEWART, J.

|! Plaintiffs, the husband and children of Margaret Caldwell (“Caldwell”), appeal a judgment dismissing their wrongful death suit against the defendant, Shady Lake Nursing Home, Inc. (“Shady Lake”), for lack of subject matter jurisdiction and no right of action. The trial court found that workers’ compensation provides the plaintiffs’ exclusive remedy for the heart-related death suffered by Caldwell following an attack by William DiMaggio (“DiMaggio”), a resident of Shady Lake where she was employed as a certified nursing assistant (“CNA”). Finding no error in the trial court’s judgment, we affirm.

FACTS

The facts of this matter have been set forth by this court in Lloyd v. Shady Lake Nursing Home, Inc., 45,180 (La.App.2d Cir.8/25/10), 47 So.3d 609, (Brown, C. J., dissenting), and will not be repeated here. In Lloyd, this court exercised its supervisory jurisdiction to review a denial of a motion for summary judgment filed by Shady Lake on the same issue before us now, namely, whether the plaintiffs’ sole and exclusive remedy is under the workers’ compensation law or whether they may pursue a tort action. Based on the conflicting evidence in the record, this court found genuine issues of material fact as to whether Caldwell suffered a compen-sable heart-related death under the criteria set forth by La. R.S. 23:1021(8)(e) and whether Shady Lake committed an intentional act such that the exclusivity ^provision of the workers’ compensation law would not apply. Our affirmation of the trial court’s judgment left unresolved the issue of whether the plaintiffs’ exclusive remedy for Caldwell’s death is workers’ compensation.

In further proceedings before the trial court, Shady Lake filed an exception of no right of action as a supplement to the declinatory exception of lack of subject matter jurisdiction that it had filed on September 22, 2008. These exceptions placed again before the trial court the issue of whether the plaintiffs’ exclusive remedy is under workers’ compensation. At an evidentiary hearing, Shady Lake presented witnesses who testified and were cross-examined by counsel for the plaintiffs; however, the plaintiffs did not call any witnesses. Instead, plaintiffs sought to introduce the entire record into evidence. Shady Lake objected. It specifically argued that the depositions which had been offered in conjunction with the motions for summary judgment should not be allowed because some of the deponents had testified and any others could have been called as witnesses. The trial court agreed and limited plaintiffs to admitting into evidence Caldwell’s autopsy and certificate of death, DiMaggio’s medical records and indictment, and the transcript from the hearing on the motions for summary judgment.

In its written reasons for judgment, the trial court found that the intentional tort exception under La. R.S. 23:1032(A) did not apply and that |sCaldwell’s heart-related death satisfied the criteria of La. R.S. 23:1021(8)(e). Therefore, the trial court concluded that the plaintiffs’ sole remedy is under workers’ compensation. A judgment sustaining Shady Lake’s exceptions and dismissing the plaintiffs’ tort action was rendered May 5, 2011. The plaintiffs now appeal.

DISCUSSION

The plaintiffs seek review of whether the trial court erred in sustaining Shady Lake’s exception of lack of subject matter jurisdiction and in finding that their sole and exclusive remedy is under workers’ compensation.

The judgment sustained the exceptions of lack of subject matter jurisdiction and no right of action. The trial court explained that both exceptions presented the same issue and that resolution of the exception of lack of subject matter jurisdiction would be dispositive of the exception of no right of action. Plaintiffs’ appeal does not address the exception of no right of action. Thus, we will review this matter under the context of the exception of lack of subject matter jurisdiction only.

Plaintiffs argue that the exception of lack of subject matter jurisdiction simply reasserts the same issue addressed in Shady Lake’s motion for summary judgment and that Shady Lake’s motion was denied by the trial court, affirmed on appeal, and is now a final judgment. This argument is without merit.

The denial of a motion for summary judgment is merely an interlocutory ruling that does not bar reconsideration of the same issues |4raised in the unsuccessful motion. See State ex rel. Div. of Admin., Office of Risk Management v. National Union Fire Ins. Co. of Louisiana, 2010-0689 (La.App.1st Cir.2/11/11), 56 So.3d 1236, footnote 7, writ denied, 2011-0849 (La.6/3/11), 63 So.3d 1023; McIntyre v. St. Tammany Parish Sheriff, 2002-0700 (La.App.1st Cir.3/28/03), 844 So.2d 304; Murphy v. Hoffpauir, 540 So.2d 573 (La.App. 3d Cir.1989), writ denied, 544 So.2d 406 (La.1989). The denial of summary judgment did not produce any ruling on the issue of whether this matter belongs in workers’ compensation or tort that would constitute law of the case and did not preclude Shady Lake from raising the issue again before the trial court.

The district courts are vested with original jurisdiction over all civil and criminal matters unless the Constitution provides otherwise or except as provided by law for administrative agency determinations in worker’s compensation matters. La. Const. Art. V, Sec. 16. As a court of general jurisdiction, the district court has jurisdiction over a claim generally related to workers’ compensation unless the legislature, through some specific provision of the workers’ compensation act, designated the claim a workers’ compensation matter or otherwise granted hearing officers (workers’ compensation judges) authority to adjudicate the claim. Williams v. Midwest Employers Cas. Co., 28,118 (La.App.2d Cir.2/28/96), 669 So.2d 616, writ denied, 96-0820 (La.5/17/96), 673 So.2d 610. As indicated by the supreme court, the underlying issue of whether an accident is work-jrelateds and therefore belongs in workers’ compensation should be resolved pretrial by an exception, such as lack of subject matter jurisdiction or no right of action, or by a motion for summary judgment. Brewton v. Underwriters Insurance Co., 2002-2852 (La.6/27/03), 848 So.2d 586, footnote 2, (Johnson, J., concurring). Accordingly, the exception of lack of subject matter jurisdiction is an appropriate procedural vehicle for determining whether the plaintiffs’ exclusive remedy is workers’ compensation.

Where the lack of subject matter jurisdiction is not apparent on the face of the plaintiff’s petition, the burden is on the defendant to offer evidence in support of the exception. La. C.C.P. art. 930; Miller v. Harper, 99-316 (La.App.3d Cir.10/13/99), 747 So.2d 642; Crockett v. State, Through Dept. of Public Safety and Corrections, 97-2528 (La.App.1st Cir.11/6/98), 721 So.2d 1081, writ denied, 98-2997 (La.1/29/99), 736 So.2d 838. Here, the burden is on Shady Lake to prove that it is entitled to tort immunity under the workers’ compensation provisions. O’Regan v. Preferred Enterprises, Inc., 98-1602 (La.3/17/00), 758 So.2d 124, footnote 20.

|fiWhen evidence is introduced at a trial on an exception, appellate review is governed by the traditional rules applicable to its review of facts. Bates v. Allstate Ins. Co., 2010-0234 (La.App.4th Cir.9/29/10), 48 So.3d 1141. The trial court’s factual determinations will not be overturned in the absence of manifest error or unless they are clearly wrong. Stobart v. State, Through Dept. of Transportation and Development, 617 So.2d 880 (La.1993).

Intentional Tort Claim

Plaintiffs argue that their tort action based on Shady Lake’s intentional and negligent acts is not barred by the workers’ compensation exclusivity provision. They assert that Shady Lake knew DiMaggio was aggressive and combative, that it did nothing to protect Caldwell from his conduct, and that its failure to provide any protection was an intentional act that was substantially certain to cause injury to her.

Generally, if an employee receives a personal injury by accident arising out of and in the course of employment, the employer is required to pay compensation benefits. La. R.S. 23:1031(A); Lloyd, supra; Gooden v. B E & K Const., 33,457 (La.App.2d Cir.6/23/00), 764 So.2d 1206. Except for intentional acts, the rights and remedies afforded by workers’ compensation provide the exclusive means for redressing workplace injuries or compensa-ble sickness or disease. La. R.S. 23:1032(A)(1)(a); Lloyd, supra. Intentional torts are not covered by workers’ compensation; thus, a claim based on an intentional act is not barred by the workers’ compensation exclusivity provision.

|7In Lloyd, supra, we addressed the meaning of an intentional act as follows:

Intentional act under the workers’ compensation law means the same as intentional tort. White v. Monsanto Co., 585 So.2d 1205 (1991). The meaning of intent in the context of the exclusive remedy provision is that the defendant “either desires to bring about the physical results of his act, or believes they were substantially certain to follow from what he did.” Id. at 1208. Thus, intent refers to both consequences that are desired and those that are substantially certain to result from the defendant’s act. Id., citing Bazley v. Tortorich, 397 So.2d 475, 481 (La.1981).

Id. at 616.

Jurisprudence explains that “believing that someone may, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ compensation.” Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99), 731 So.2d 208; Reynolds v. Louisiana Plastic, 44,803 (La.App.2d Cir.10/28/09), 26 So.3d 149, writ denied, 2009-2805 (La.3/5/10), 28 So.3d 1013. Even gross negligence does not rise to the level of an intentional act. Reynolds, supra.

Shady Lake’s evidence established that DiMaggio resided there for no more than two weeks shortly after being discharged from Golden Age Senior Care Hospital (“Golden Age”). Medical records show that his discharge diagnoses included impulse control disorder, dementia and associated psychotic disorder from a closed head injury, and a history of chemical dependency and alcoholism. His discharge summary indicated that DiMaggio had infrequent explosive outbursts without provocation.

|sPrior to DiMaggio’s admission to Shady Lake, his condition was made known to the administrator, Don Temple (“Temple”), and the medical director, Dr. Joseph Bailey (“Dr. Bailey”). Temple was aware that DiMaggio had knocked holes in a wall during bath time while residing at another home. Since that had occurred, DiMaggio had been treated at Golden Age and released to return to nursing home care. Temple testified that he had received no reports of DiMaggio ever attacking anyone prior to the incident involving Caldwell. Temple noted that Shady Lake cared for patients with problems similar to DiMaggio’s. He believed that Shady Lake could provide care for DiMaggio without him presenting a danger to other residents or staff.

Temple testified that he neither wanted nor expected Caldwell to get hurt by DiMaggio. He was “totally shocked” by the attack on Caldwell and in no way felt that it was inevitable or certain that DiMaggio would injure anyone at Shady Lake.

Dr. Bailey testified that he knew that DiMaggio could have violent outbursts and had a history of not controlling himself at times. However, he and the discharging physician felt that DiMaggio could be managed in a nursing home setting without endangering anyone. Dr. Bailey was surprised by the incident that occurred and did not expect something like that to happen.

Chastity Spencer (“Spencer”), an LPN at Shady Lake, was aware that DiMaggio sometimes used foul language and that he had “jumped at” nursing assistants before the attack on Caldwell happened. Another LPN, | sChristie Simpson (“Simpson”), was in the process of preparing DiMaggio’s care plan based on his diagnoses and medications. She was aware that he had a tendency for combative behavior and verbal abuse, particularly at bath time. She defined combative as meaning that a patient resists care and may push, but that it does not necessarily include striking. She had no history of DiMaggio ever hitting anyone. She related the difficulties he posed in his initial days at Shady Lake. According to Simpson, DiMaggio wet himself and then did not want to change his clothes, he urinated on a wall, he threw a dinner tray off a table, and he “cussed” frequently. However, Simpson said that the nursing charts showed he was becoming more cooperative. He resided in a room with other residents, and there had been no complaints about him from them. She noted that Shady Lake has residents similar to DiMaggio and is able to provide care for them. Simpson was surprised at what happened between DiMaggio and Caldwell, and she did not know of anyone at Shady Lake who intended for Caldwell to be hurt by DiMaggio.

In Reeder v. Laks Corporation, 555 So.2d 7 (La.App. 1st Cir.1989), writs denied, 559 So.2d 142 (La.1990), workers’ compensation was determined to be the exclusive remedy for an employee of a nursing care facility who filed a tort suit for damages after being injured when hit by a mental patient. Noting that the plaintiff was employed to provide care for the patient and was in the course in and scope of her employment when injured, the court stated that these “types of work-related injuries are the very accidents covered by the worker’s compensation statute.” Id. at 10. The court also found that the allegations actually stated claims for negligent |insupervision and failure to provide a safe workplace and concluded that recovery for accidents due to unsafe work conditions is limited to workers’ compensation. Id.

The same result was reached in Manor v. Abbeville General Hospital, 2006-500 (La.App.3d Cir.9/27/06), 940 So.2d 888, when a nurse sued her employer for damages after being injured when a mental patient with known violent tendencies pushed her through a door. The court rejected the argument that the accident was substantially certain to occur because the hospital knew the patient was prone to violence, yet failed to do anything to prevent his violent acts. It found this interpretation of substantial certainty to be too broad for purposes of the intentional act exception to the workers’ compensation exclusivity provisions.

This ease presents facts remarkably similar to those in Manor, supra, and Reeder, supra, and we are constrained to reach the same conclusion as to the plaintiffs’ intentional tort claim. Our review shows that the intentional tort exception under La. R.S. 23:1032(A)(l)(a) does not apply. It is clear that Shady Lake knew of DiMaggio’s condition and propensity for combative behavior when it admitted him as a resident. However, DiMaggio had been released to return to nursing home care, and Shady Lake, which had residents with similar problems, believed that DiMaggio could be provided appropriate care in a nursing home setting.

It is also clear that the evidence falls short of establishing that Shady Lake either consciously desired to bring about Caldwell’s injury or death or believed that such was substantially certain to follow from DiMaggio’s [ ^ ^ admission as a resident. There is no evidence indicating that DiMaggio had ever attacked anyone before the attack on Caldwell. The heart of the plaintiffs’ claim is that knowing of DiMaggio’s condition, Shady Lake failed to take precautions to protect Caldwell from injury. This is, as in Reeder, supra, a claim of failure to provide a safe workplace and is recoverable under workers’ compensation.

We find no manifest error in the trial court’s factual findings and conclusion that the intentional act exception to the exclusive remedy rule of workers’ compensation does not apply.

Heart-related or Perivascular Injuries

Plaintiffs argue that they may still assert a negligence claim because Caldwell’s death was not the result of a work-related accident and is not compensable under workers’ compensation. They contend that the facts do not satisfy the heightened burden under La. R.S. 23:1021(8)(e) for proving that heart-related or perivascular injuries are compensable.

La. R.S. 23:1021(8)(e) states:

(e) Heart-related or perivascular injuries. A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

112Both of the above elements must be proven by clear and convincing evidence for a heart-related or perivascular injury, illness, or death to be compensable under workers’ compensation. Lloyd, supra; Gooden, supra. Proof by clear and convincing evidence means that the existence of the disputed fact is highly probable, that is, much more probable than its nonexistence. Gooden, supra.

The heightened burden of proof is intended to exclude from workers’ compensation coverage those employees who just happen to suffer a perivascular or heart-related injury at work. Id. When a worker has some personal risk, such as would predispose him to suffer a heart attack or stroke, the employment must be clearly shown to have increased the risk of injury for it to be compensable. Id.; Laumann v. Dulac Shipyard, Inc., 95-2269 (La.App.1st Cir.6/28/96), 676 So.2d 828, writ denied, 96-1986 (La.1/10/97), 685 So.2d 142.

First, we must determine whether it has been shown by clear and convincing evidence that Caldwell’s physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average CNA. It must be shown that Caldwell’s physical work stress went beyond what was usual, customary or regular for the average employee in her occupation. Harold v. La Belle Maison Apartments, 94-0889 (La.10/17/94), 643 So.2d 752; Gooden, supra. This is a question of fact that is determined by whether a reasonable person of usual sensibilities would find the stress “extraordinary.” Gooden, supra.

| isSpencer was the only witness to testify who was present when the attack occurred. Spencer was on duty that night at the nurses’ station. She recalled that Caldwell was cleaning the front area of the lobby when DiMaggio came to the lobby area. Spencer, whose back was turned to the area where Caldwell was working, heard Caldwell ask him to return to bed until the floor dried. DiMaggio replied using foul language and then Spencer heard sounds she described as tussling or a fight. She turned and jumped up upon seeing Caldwell and DiMaggio together and swinging at each other. Within seconds Spencer and other employees broke up the fight. DiMaggio was taken to his room. Spencer described Caldwell as being “very, very upset.” She went with Spencer to the nurses’ station to call Temple. Spencer noticed that Caldwell was wheezing and that her breathing was not good. Caldwell said she was OK, but her condition worsened. Spencer testified that they tried to get Caldwell into a car to transport her to a hospital, but she went back inside the nursing home and said she needed oxygen. Spencer went to get the oxygen tank and returned to find Caldwell collapsed in front of the nurses’ station. They began CPR and called for an ambulance.

Spencer testified that Caldwell was performing her normal duties when the incident with DiMaggio began. However, she testified that what occurred between DiMaggio and Caldwell was not normal physical activity for a CNA and was an unusual event. Spencer admitted that it is not uncommon for CNAs to be hit by patients in a nursing home and that such behavior usually occurs during patient care. However, Spencer explained |14that this was unusual and different due to the magnitude of the event. In seven years as a nurse, Spencer had never seen any similar altercation occur between a nursing home resident and employee. She testified that the altercation put an unusual amount of stress on everyone working that night.

Simpson also testified that it is not uncommon for a nursing home resident to hit a nurse. But she described the incident that occurred between DiMaggio and Caldwell as unexpected and very unusual. She noted that DiMaggio had not hit anyone before that night.

Temple also testified that it is not uncommon for elderly residents to hit nursing home employees who are trying to provide care for them. He had even been hit by a couple of residents. However, he explained that what DiMaggio did was uncommon and that it is not common for employees and residents to get into a fistfight. He described the event as “totally unusual.”

The trial court found that CNAs may occasionally be hit or pushed by elderly or confused patients, but this was a violent attack that forced Caldwell to defend herself. The trial court concluded that the attack by DiMaggio constituted extraordinary work stress. From our review of the record, we cannot say that this finding is manifestly erroneous.

We disagree with the plaintiffs’ argument that Caldwell’s physical work stress was not unusual or extraordinary because she was just mopping when DiMaggio attacked. It is apparent that a CNA’s duties also require interacting with and caring for patients at the nursing home. DiMaggio’s reaction to Caldwell asking him to return to his room until the floor dried 11fiand the fight that ensued constituted unusual and extraordinary physical work stress. While the testimony indicates that it is not uncommon for nursing home staff to be hit while caring for patients, the testimony establishes that what DiMaggio did was not typically experienced by the average CNA. The fight described by Spencer where both Caldwell and DiMaggio were swinging at each other was unusual and extraordinary physical work stress for a CNA, or other nurses, at Shady Lake.

Next, we must determine whether this physical work stress or exertion, rather than some other stress or preexisting condition, was the predominant and major cause of Caldwell’s death. The existence of a preexisting heart condition or risk factor alone will not prevent a heart-related or perivascular injury or death from being compensable under workers’ compensation. Harold, supra; Smith v. Kinder Retirement and Rehabilitation Center, 2006-1480 (La.App.3d Cir.4/4/07), 954 So.2d 365.

The pertinent witness offered by Shady Lake on this issue was Dr. Steven Hayne, who was accepted as an expert in forensic pathology. Dr. Hayne performed the autopsy on Caldwell. He noted that she had severe hypertensive heart disease, an enlarged heart, and moderate coronary artery disease with no more than 30 percent blockage. She was 54 years old and obese. There was a small cut on her tongue, which he related to her having been struck. He concluded that a blow to her face was the underlying cause of death with the immediate cause being heart disease and coronary artery disease. Stated another way, Caldwell died from a blunt force attack superimposed on hypertensive heart disease and coronary artery disease. 11(iDr. Hayne did not believe that Caldwell would have died that night if the attack by DiMaggio had not occurred. He testified that the predominant and major cause of her death was stress caused by the incident with DiMaggio.

When questioned by plaintiffs’ counsel, Dr. Hayne further explained that the fight with DiMaggio would not have resulted in Caldwell’s death if she had not had her preexisting conditions. Due to her large heart and small coronary arteries, she could not withstand the rapid heart rate and increased blood pressure caused by the stress from the attack. Dr. Hayne stated that the attack was a precipitating event that initiated the fatal chain of events that led to Caldwell’s death.

The record shows that Caldwell began having breathing problems almost immediately after the attack. Spencer noticed that Caldwell was wheezing and having difficulty breathing when she was on the phone with Temple after the attack. The record also shows that Caldwell’s condition quickly worsened.

The trial court’s finding that the attack was the predominant and major cause of Caldwell’s heart-related death is not manifestly erroneous. Dr. Hayne’s uncontra-dicted testimony was that physical work stress experienced by Caldwell from the fight with DiMaggio was the predominant and major cause of her heart-related death. Certainly Caldwell’s hypertensive heart disease and coronary artery disease were contributing factors to her death, but Dr. Hayne indicated that these conditions alone would not have caused her death that night. This is not a situation where Caldwell just happened to have a heart attack or stroke |17while performing her job. Rather, it was the stress from the attack that overwhelmed Caldwell’s already burdened cardiovascular system and led to her death.

Having proved both prongs of La. R.S. 23:1021(8)(e) by clear and convincing evidence, Shady Lake has demonstrated that Caldwell’s heart-related death is a com-pensable personal injury by accident arising out of and in the course of her employment.

In Lloyd, supra, we found that the conflicting evidence created issues of material fact that precluded summary judgment in favor of Shady Lake on whether the plaintiffs’ exclusive remedy is in workers’ compensation. Now that the trial court has conducted an evidentiary hearing on the exception of lack of subject matter jurisdiction and made findings of fact in favor of Shady Lake, our review under the manifest error standard compels that we affirm the trial court’s judgment and find that the plaintiffs’ exclusive remedy for Caldwell’s death is under workers’ compensation.

CONCLUSION

For the reasons explained, we affirm the trial court’s judgment sustaining Shady Lake’s exception of lack of subject matter jurisdiction and dismissing the plaintiffs’ suit. Costs of the appeal are assessed against the plaintiffs.

AFFIRMED.

LOLLEY, J., dissents with written reasons.

WILLIAMS, J., dissents for the reasons assigned by LOLLEY, J.

LOLLEY, J.,

dissenting.

hi respectfully dissent from the ruling of the majority in this case. I am of the opinion that the presented evidence clearly shows that the incident which resulted in the death of Mrs. Margaret Caldwell was clearly beyond workers’ compensation coverage and was clearly beyond what would be considered within the course and scope of employment.

The record reveals that the decedent Mrs. Margaret Caldwell was an employee of defendant Shady Lake Nursing Home, Lake Providence, Louisiana and was working within the course and scope of her employment when she was physically attacked by a resident of the nursing home, one William DiMaggio. As the result of this unprovoked attack Mrs. Caldwell suffered a fatal heart attack and passed away almost immediately.

I am of the opinion that this was not an unforeseen incident and that the heirs of the decedent are not limited to recovery only under the workers’ compensation statutes.

The record clearly reveals that William DiMaggio was a resident of Shady Lake Nursing Home on the date of the fatal incident only because he had been removed from one or more like facilities because of his propensities for violence. This alone should have placed the owners/managers/staff of Shady Lake Nursing Home on notice that DiMaggio was a problematic patient with a history of violence. The evidence and record contains no such warnings. Additionally, there is no evidence in the record that shows the nursing home took any measures to | ¡¡place the employees and staff on notice as to what DiMaggio’s tendencies and documented record were.

Shady Lake takes the position that it is not unusual at all for patients to be wandering around the halls of the nursing home at all hours of the day and night. This is unsupportable because obviously not every patient has the history of DiMaggio. The record clearly shows that he had been removed from at lest one other facility because of his aggressive and combative history. The owners/management of Shady Lake were fully aware of DiMaggio’s history but agreed to take him as a patient anyway.

■ On the date of the fatal event the decedent was working her normal shift and was in the process of mopping the floor in the area of the lobby. An employee of Shady Lake, Mrs. Spencer, was the only witness to the incident which led to the death of Mrs. Caldwell. The testimony revealed that she was working at her assigned station in the lobby area. She heard a verbal exchange between DiMaggio and the decedent. The next thing Spencer observed was that the two were involved in a physical altercation and were actually fighting. Staff obviously intervened, DiMaggio was returned to his room or wherever else he was allowed to roam at that hour of the day. Mrs. Caldwell remained in the lobby area having suffered a fatal heart attack as the direct result of the incident. A cursory review of the statutes and the particular and peculiar facts and present evidence of this case clearly shows that this event was not within the job description or employment expectations for any employee to have to defend themselves |sfrom the attack of a clearly deranged person with a well documented history of such conduct.

Immediately after the attack the nursing home staff removed DiMaggio from the immediate area. Mrs. Caldwell remained in the lobby area where she passed away as the result of this event.

As previously stated, DiMaggio came to Shady Lake after having been removed from at least one other facility because of lack of control and violent outbursts. The administration of Shady Lake was fully aware of this history yet elected to accept him as a resident and place him in the general population of the home. The record clearly outlines his activities from the date of admission until the fatal incident occurred.

The record also shows DiMaggio’s history with the psychiatrist Dr. Calvin Walker. DiMaggio was diagnosed as having impulse control disorder, dementia from closed head injury, psychotic disorder associated with closed head injury and a history of chemical dependency and alcoholism. The management of Shady Lake made the decision to accept him as a patient and place him in the general population even in view of these documented reports.

In no manner could the attack of DiMaggio on Mrs. Caldwell be considered within the course and scope of her employment with the nursing home. DiMaggio’s consistent tendencies were well documented and known to the ownership of the nursing home prior to his admission. The decision was made to admit him and place him in the general population despite this documented record. Tragically, Mrs. Caldwell was unknowing of LDiMaggio’s violent tendencies, was attacked, and paid with her life. When reviewing this evidence I am of the opinion that Mrs. Caldwell’s family and heirs should not be limited to recovery exclusively in worker’s compensation. Accordingly, I respectfully dissent.

      . Chief Judge Brown would have reversed the trial court’s judgment and rendered summary judgment in favor of Shady Lake.

      . As dicta, this court suggested that if Caldwell's heart-related death did not meet the criteria to be compensable under workers’ compensation, then the plaintiffs would not be bound by the exclusivity provisions of the workers’ compensation law and could pursue their negligence claims.

      . We note that judicial economy would have been better served if Shady Lake had proceeded to have a hearing on its exception of lack of subject matter jurisdiction filed with its answer on September 22, 2008, instead of filing a motion for summary judgment on the same essential issue.

      . In O’Regan, supra, the plaintiff first sought workers’ compensation, but her claim was denied for failure to prove that she suffered a compensable occupational disease. She then filed a tort suit. The employer responded with a motion for summary judgment on the grounds that the plaintiff’s sole remedy was in workers’ compensation. Addressing the burden of proof, the supreme court explained that when an employee seeks and is denied workers’ compensation and then files a tort suit, the burden remains with the employee to prove that her compensation claim was rejected "on the ground that the injury or disease was not within the exclusive coverage provisions of the Act.” Id. at 140. However, in footnote 20, the court further explained that if an employee first pursues a tort claim and the employer claims immunity under the workers’ compensation provisions, then "the employer has the burden of proving entitlement to immunity.” Id.


author: CHARLES R. JONES, Chief Judge.

text:
    Phil WILLIAMS v. The NEW ORLEANS ERNEST N. MORIAL CONVENTION CENTER.
    No. 2011-C-1412.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 2012.

      Michael M. Duran, Sr., Oats & Hudson, New Orleans, LA, for Relator.
    Phil Williams, New Orleans, LA, in Proper Person/Respondent.
    (Court composed of Chief Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Chief Judge.

| jThis matter is on remand from the Louisiana Supreme Court for briefing, argument and an opinion on the issue of whether the district court erred in denying the special motion to strike of the Relator, the New Orleans Ernest N. Morial Convention Center (“the Convention Center”). Finding that the district court did not err in denying the special motion to strike of the Convention Center, we affirm our previous denial of the writ application of the Convention Center.

Mr. Williams frequently worked at the Convention Center as a carpenter and in various other capacities with multiple companies or employers. While employed by Freeman Decorators as a carpenter, Mr. Williams was involved in an altercation with his supervisor Louis R. Duplantier, who was also employed by Freeman Decorators. Mr. Williams was subsequently fired by Freeman Decorators.

After the altercation, the Public Safety Director for the Convention Center, Joseph Hebert, conducted an investigation of the altercation by discussing the matter with Mr. Hebert’s own subordinate officers, the Safety Director of Freeman Decorators, and the Convention Center’s General Manager and Vice-President of Operations. The Convention Center maintains that Mr. Williams has a history of | ahaving multiple employment-related scuffles in the Convention Center. As a result of his investigation, Mr. Hebert recommended that Mr. Williams be denied further entry into the Convention Center, and that a “blow-up” size picture of Mr. Williams be posted at various security checkpoints in the Convention Center so that security would ensure that Mr. Williams was denied entry. This recommendation was implemented by the Convention Center.

In 2011, Mr. Williams sued the Convention Center alleging defamation and discrimination. The Convention Center filed an exception of no cause of action as to the discrimination claim, and a special motion to strike supported by an affidavit of Mr. Hebert as to the defamation claim. At the hearing of the exception and the motion to strike, the district court granted the exception of no cause of action. However, while considering the merits of the motion to strike, the district court elicited un-sworn testimony from Mr. Williams, who alleged that Mr. Duplantier attacked him at the Convention Center. Mr. Williams further argued that he pressed charges against Mr. Duplantier for assault and battery with the New Orleans Police Department, which he alleges is investigating the matter and has prepared a police report in connection therewith. He further argued that he works with 30 or 40 other companies in various capacities for events occurring at the Convention Center; therefore, being banned from the Convention Center has materially affected his ability to support himself. Mr. Williams argued that while he has been banned from the Convention Center, his alleged assailant is still granted access to the Convention Center. Thereupon, the district court granted the exception of no cause of action, but denied the special motion to strike.

|,sin October 2011, we denied the emergency writ application of the Convention Center, which sought review of the denial of its special motion to strike. Thereafter, the Convention Center filed a supervisory writ application with the Louisiana Supreme Court, which granted the writ application and remanded this matter to our court.

The Convention Center raises five (5) assignments of error:

1. The lower court erred as a matter of law in regarding La. C.C.P. Art. 971 as protecting only private citizens;
2. The district court erred as a matter of law in regarding the enforcement of internal security at the Convention Center as a private matter and not a public issue of public interest;
3. The district court erred as a matter of law in regarding the mere posting of Petitioner/Respondent’s photo and name — without any “defamatory statement” — as giving rise to a claim of defamation;
4. The district court erred as a matter of procedural law in basing its denial of the Convention Center’s article 971 motion to strike on whether a cause of action had been stated, or a question of fact raised, rather than on whether Mr. Williams “established a probability of success on the claim”; and
5. The district court erred as a matter of procedural law by disregarding the sworn affidavit testimony of the Mr. Hebert and by allowing Mr. Williams to testify, unsworn and uncross-examined, and thus to amplify his claim beyond his pleading.

“Appellate courts review special motions to strike with the de novo standard of review because it involves issues of law and examines whether the trial court was legally correct”. Melius v. Keiffer, 07-0189, p. 2 (La.App. 4 Cir. 3/12/08), 980 So.2d 167, 170, writ not considered, 08-1039 (La.8/29/08), 989 So.2d 90.

We will discuss the first and third assignments of error prior to addressing the remaining assignments of error jointly.

|4The first assignment of error raised by the Convention Center is that the district court erred as a matter of law in determining that La. C.C.P. art. 971 protects only private citizens. La. C.C.P. art. 971, entitled Special motion to strike, provides in pertinent part:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) “Act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Based upon our review of the instant writ application, the district court never held that art. 971 was inapplicable because the Convention Center could not be | .^considered a “person”. The district court held that “the conditional privilege afforded defendant [the Convention Center] pursuant to C.C.P. art. 971 is inapplicable to the facts of this case”. [Emphasis added]. Thus, if the privilege is afforded to the Convention Center, the district court was not holding that the Convention Center was not a “person” under art. 971, but quite the contrary.

Furthermore, we recognize that the Convention Center is a juridical person pursuant to La. C.C. art. 24, which provides that a juridical person is “an entity to which the law attributes personality, such as a corporation or a partnership”. As the Third Circuit explained in Hunt v. Town of New Llano, 05-1434, p. 3 (La.App. 3 Cir. 5/3/06), 930 So.2d 251, 254, writ denied, 06-1852 (La.10/27/06), 939 So.2d 1283 (citing La. C.C. art. 24 Comment (c)):

[according to civilian doctrine, juridical persons are classified either as private persons or public persons. A public person is governed by rules of public law; a private person is governed by rules of private law. The state and its political subdivisions have dual personality. At times they act as public persons in a sovereign capacity and at times as private persons in the capacity of a citizen or a private corporation.

The Convention Center, as a political subdivision of the State, is a person recognized under La. C.C.P. art. 971. Thus, this assignment of error is without merit.

The third assignment of error of the Convention Center is that the district court erred as a matter of law in regarding the mere posting of the photo and name of Mr. Williams — without any “defamatory statement” — as giving rise to a claim of defamation.

The burden of proof for a defamation claim is as follows:

“To prevail on a claim of defamation, plaintiff has the burden of proving by a preponderance of the evidence |6five essential elements: defamatory words, publication, falsity, malice and resulting injury. If even one of these elements is absent, the cause of action fails.” Sommer v. State, Dept. of Transp. and Development, 97-1929, p. 25 (La.App. 4 Cir. 3/29/00), 758 So.2d 923, 939, writ denied, 2000-1759, (La.10/27/00), 772 So.2d 122.

Lee v. Pennington, 02-0381, p. 10 (La.App. 4 Cir. 10/16/02), 880 So.2d 1037, 1044-45, writ denied, 02-2790 (La.1/24/03), 836 So.2d 52. “Defamation occurs through either libel or slander. Libel is defamation which is “expressed by print, writing, pictures, or signs,” while slander is communicated by “oral expressions or transitory gestures.” ” City of Natchitoches v. Employers Reinsurance Corp., 02-0147 (La.App. 3 Cir. 6/5/02), 819 So.2d 413, 417 (citing Black’s Law Dictionary 1388 (6th ed.1990)). [Emphasis added]. Defamation involves the invasion of a person’s interest in his or her reputation and good name. Sassone v. Elder, 92-1856 (La.10/18/93), 626 So.2d 345, 350 (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 111 (5th ed.1984)).

Our Supreme Court has recognized that there is a valid cause of action for defamation by implication or innuendo regarding the posting of photographs. It has held:

[P]hotographs and similar visual communications rarely themselves make an express assertion beyond the fact that what is portrayed is real. Thus, defamation by picture is usually established through implication, given the context in which the photograph appears.

Fitzgerald v. Tucker, 98-2313, p. 16 n. 11 (La.6/29/99), 737 So.2d 706, 720 (citing Robert D. Sack & Sandra S. Baron, Libel, Slander & Related Problems § 2.4.9 (2d ed. 1994 & Supp.1998)). [Emphasis added]. We recognize that under specific factual circumstances a valid cause of action for defamation by implication or innuendo can exist where a photograph has been posted without any | .¡written words. We find that the matter sub judice may be such an instance; therefore, this assignment of error is without merit.

Lastly, we will examine in conjunction the three (3) remaining assignments of error raised by the Convention Center which involve issues related to whether the Convention Center carried its burden of proof on the motion to strike. These issues are:

• Whether the district court erred as a matter of law in regarding the enforcement of internal security at the Convention Center as a private matter and not a public issue of public interest;
• Whether the district court erred as a matter of procedural law in basing its denial of the Convention Center’s article 971 motion to strike on whether a cause of action had been stated, or a question of fact raised, rather than on whether Mr. Williams “established a probability of success on the claim”; and
• Whether the district court erred as a matter of procedural law by disregarding the sworn affidavit testimony of Mr. Hebert and by allowing Mr. Williams to testify, unsworn and uncross-examined, and thus to amplify his claim beyond his pleading.

The Convention Center argues that the district court erred as a matter of law by regarding the enforcement of internal security at the Convention Center as a private matter and not a public issue of public interest. Indeed, the Convention Center invoked the special motion to strike pursuant to art. 971(F)(1) on the basis that Mr. Hebert was exercising his constitutional right of free speech in connection with a public issue or an issue of public interest; that issue being security.

The Convention Center argues that Mr. Hebert made a good faith determination that the alleged repeated disruptive behavior of Mr. Williams warranted his exclusion from the premises for the public good, and Mr. Hebert | ^enforced that determination by having Mr. Williams’ picture posted at security checkpoints.

In order to succeed on a special motion to strike, the movant must make a prima facie showing that the matter arises from an act in furtherance of his or her right of free speech or the right of petition and in relation to a public issue. Hunt v. Town of Llano, 05-1434, p. 2 (La.App. 3 Cir. 5/3/06), 930 So.2d 251, 254. In order to defeat the motion to strike, the plaintiff is then required to demonstrate a probability of success on his or her own claim. Id.

The district court in this matter found that it was dubious that security was the public issue involved because, if that was so, Mr. Duplantier would have also been banned from the building as he too was a participant in the scuffle. Furthermore, even if there was a security issue as to Mr. Williams, the district court questioned the appropriateness of posting the photo so that other people could draw adverse impressions of Mr. Williams and deprive him of a potential livelihood.

The Convention Center relies heavily upon the affidavit of Mr. Hebert to establish that this was a security issue, which leads us to the argument of the Convention Center that the district court disregarded the sworn affidavit testimony of Mr. Hebert. In his affidavit, Mr. Hebert indicates that he did not have first-hand knowledge of the alleged prior scuffles in which Mr. Williams was involved, nor did he have first-hand knowledge of the altercation between Mr. Williams and Mr. Du-plantier. This is evidenced by paragraphs 6 through 8 of his affidavit wherein he attested as follows:

6.Phil Williams and his behavior had been brought to my attention on one or more occasions prior to the “incident” at issue. Those instances involved multiple fracases 19between Plaintiff, his supervisor and other co-workers when he was employed by, and fired by, exhibition contractors GES and Freeman Decorating previously.
7. In connection with the “incident” referenced by the Plaintiff in his Petition, my involvement began when I was notified by my subordinate officers and by Nick Manson, Safety Director of Freeman Decorating Company, that yet another scuffle had occurred, this time with Plaintiff getting physical with his supervisor.
8. After being presented with the narratives of the officers and Mr. Manson’s description of Plaintiffs physical confrontation with a Freeman supervisor, and after considering what was in the best interests of the Convention Center, and the economic and public safety risks associated with Plaintiffs continued access to the premises, I conferred with MCC General Manager Bob Johnson and Bryan Hayden, Vice-President of Operations.

We further note that no incident reports prepared by the Convention Center documenting the prior altercations of Mr. Williams were submitted to the district court.

An affidavit must be based on personal knowledge, must set forth only facts admissible in evidence, and must show that the affiant is competent to testify to the matters contained therein. Ferguson v. Joiner, 95-924, p. 7 (La.App. 3 Cir. 12/13/95), 667 So.2d 1133, 1137; King’s Joint Venture v. Marino, 02-0847, p. 5 (La.App. 4 Cir. 9/25/02), 827 So.2d 521, 524, writ denied, 02-2761 (La.1/24/03), 836 So.2d 48; Reuther v. Smith, 05-0794 (La.App. 4 Cir. 2/15/06), 926 So.2d 9, 13-14.

We find that the affidavit of Mr. Hebert fails to meet these fundamental standards because he is not attesting to information based on his personal knowledge, but instead attests to information relayed to him by others. Thus, in being presented with a deficient affidavit, the district court had a basis for holding that the Convention Center did not make a prima facie showing 1 mthat this matter arises from an act in furtherance of his or her right of free speech or the right of petition and in relation to a public issue. The failure of the Convention Center to make a prima facie showing obviated the need for Mr. Williams to demonstrate a probability of success on his claim because the burden did not shift to him when the Convention Center failed to carry its burden of proof on the special motion to strike.

Lastly, we further find that the district court did err in eliciting testimony and/or explanations from Mr. Williams throughout the hearing. Mr. Williams, in consideration of his pro se status, should have been afforded the opportunity to brief his argument and to provide supporting documentation of his position to the court. This was an error on the part of the district court in conducting the hearing on the special motion to strike; however, this error does not change the fact that the Convention Center did not carry its burden of proof on the special motion to strike.

DECREE

For the foregoing reasons, we affirm our previous denial of the writ application of the Ernest N. Morial Convention Center.

WRIT DENIAL AFFIRMED

      . The instant writ application contains no proof of Mr. Williams being involved in prior altercations in the Convention Center.