text:
    KINDER GAS, INC. v. Gerald B. REYNOLDS and Mary J. Kauffmann.
    No. 11-1012.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.
    Rehearing Denied March 21, 2012.

      Donald D. Akers, Jr., Gibbens & Stevens, New Iberia, LA, Gladstone N. Jones, III, Eberhard D. Garrison, Kevin E. Hud-dell, H.S. Bartlett III, Andrew Jacoby, Jones, Swanson, Huddell & Garrison, LLC, New Orleans, LA, W. Jay Luneau, Luneau Law Office, Alexandria, LA, for Defendants/Plaintiffs in Reconvention/Ap-pellants, Gerald B. Reynolds, Robin Reynolds Lipari, Nancy Reynolds Landry, and Mary J. Kaufmann.
    Craig Ray Hill, Jones & Hill, Oberlin, LA, Morgan J. Well, Jr., Lee M. Peacocke, Larzelere Picou Wells Simpson Lonero, LLC, Metairie, LA, for Plaintiff/Defendant in Reconvention/Appellee, Kinder Gas, Inc.
    Paul J. Tellarico, Neblett, Beard & Ar-senault, Alexandria, LA, Joseph Ralph White, Stella C.C. Shackelford, Sharon L. Andrews, The White Law Firm, New Orleans, LA, for Defendant in Reconvention/Appellee, Hunt Dominion Corporation.
    Matthew J. Randazzo, III, Christopher B. Bailey, Demarcus J. Gordon, Gordon, Arata, McCollam, Duplantis & Eagan, LLC, New Orleans, LA, for Defendant in Reconvention/Appellee, Rosewood Resources, Inc.
    Stuart T. Welch, Joe B. Norman, Joseph I. Giarrusso III, Katherine Seegers Roth, Elisabeth Lorio Baer, Liskow & Lewis, APLC, New Orleans, LA, for Defendant in Reconvention/Appellee, XH, LLC.
    Court composed of OSWALD A. DECUIR, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Ijn this property contamination case, the landowners appeal the trial court’s grant of the exceptions of prescription and prematurity filed on behalf of the oil, gas, and mineral lessees. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Oliver B. Reynolds and Hunt Petroleum Corporation (Hunt Petroleum) entered into a surface lease on August 27, 1960, involving fifteen acres of property in Kinder, Louisiana. Upon the death of Mr. Reynolds, his children, Gerald B. Reynolds and Mary J. Kaufmann, succeeded him as the landowners and lessors of the property. Gerald B. Reynolds subsequently made a donation of a portion of his ownership interest in the property to his two daughters, Robin Reynolds Lipari and Nancy Reynolds Landry. Additionally, Hunt Petroleum was succeeded as lessee of the property by Hunt Dominion Corporation, Rosewood Resources, Inc., and XH, LLC (collectively, the Hunt entities), which entities later sold their interest in the lease to Kinder Gas Processing Corporation. Kinder Gas Processing Corporation, in turn, transferred its interest to Kinder Gas, Inc. (Kinder Gas), the Plaintiff and Defendant in Reconvention in the instant matter.

In March of 2010, Kinder Gas filed a Petition for Declaratory Judgment, seeking a declaration of “its rights, status and legal remedies” relative to the lease, naming as Defendants, Gerald B. Reynolds and Mary J. Kaufmann. In addition to other relief sought therein, Kinder Gas sought declaratory relief in the form of:

a judgment declaring that [P]laintiff/les-see shall not be liable unto lessor for any damage caused by lessee’s operation on said leased property and further that lessee shall not be required to do any work regarding restoring the leased premises to a condition other than that condition in which the property is at at the time of termination and after removal of such instillations therefrom pursuant to the contract.

l2On March 25, 2010, Gerald B. Reynolds and Mary J. Kaufmann filed an Answer and Reconventional Demand asserting that the subject “[ljease has been cancelled as a result of [Plaintiff’s breaches thereof.” Joining as Plaintiffs in Reconvention were Nancy Reynolds Landry and Robin Reynolds Lipari (collectively, the Reynolds Family). Named as Defendants in Recon-vention were XTO Energy, Inc., the Hunt entities, and Kinder Gas (collectively, the Gas Company Defendants). That pleading alleges, in relevant part:

Over the past sixty years[,] the Gas Company Defendants have constructed and operated various facilities on the property, including a main absorber, rich oil de-ethanizer, depropanizer, de-butanizer, still, recompression-refrigeration units, storage tanks, truck loading facilities, and gas dehydrators.
7.
The Reynolds Family seeks judgment against Kinder Gas, Inc. and the other Gas Company Defendants finding them liable for all damages to the property.
8.
The Reynolds Family’s property has been damaged by the Gas Company Defendants’ gas processing operations and by the spillage and/or disposal of toxic wastes on, in, and adjacent to the Reynolds Family’s property. This spillage and/or disposal, which has not been removed, occurred without [t]he Reynolds Family’s consent.
Ja?.
The Gas Company Defendants knew or should have known that their day-today operations on the property would cause the soil, surface waters, and groundwater of the Reynolds Family’s property to be contaminated with the hazardous and toxic substances. The Gas Company Defendants’ failure to timely remove or remediate this toxic pollution in the soils and groundwater of the Reynolds Family’s property has allowed the pollution to migrate and spread, thereby causing damages, including but not limited to contaminated soil and groundwater.

The Reynolds Family alleged that the Gas Company Defendants are liable in tort for the damages that their actions caused under a theory of strict liability and that their actions “created a continuing, ongoing and damaging nuisance to the Reynolds Family and their property. Further, the continued presence of wastes on the Reynolds Family’s lands constitutes a continuing trespass.” In addition to the tort claims asserted, the Reynolds Family alleged that the conduct of the Gas Company Defendants “constitutes a breach of the Olease” and has also breached “those standards imposed by the Louisiana Civil Code governing the conduct of prudent lessees.”

In response to the reconventional demand, the Gas Company Defendants plead various defenses, exceptions, and motions for summary judgment. Particularly, and relevant to the present appeal, the Gas Company Defendants filed exceptions of prescription relative to the tort claims asserted by the Reynolds Family and exceptions of prematurity relative to the breach of contract claims. Following a hearing on these exceptions, the trial court entered a judgment on May 31, 2011, dismissing the Reynolds Family’s tort claims as prescribed, dismissing the Reynolds Family’s contract claims as premature, and denying all other exceptions and motions for summary judgment as moot. The Reynolds Family appeals.

1 ¿ASSIGNMENTS OF ERROR

The Reynolds Family presents the following assignments of error for our review:

1. The district court erred in granting the [G]as [C]ompany [D]efendants’ exception[s] of prescription as to the Reynolds [FJamily’s tort claims on its finding that the Reynolds [Fjamily had “requisite knowledge of possible contamination on or before January 14, 2008,”1 ] when there is no evidence that the Reynolds [Fjamily had actual or constructive knowledge of actual or appreciable damages prior to the filing of [Kinder Gas’s] declaratory judgment action in March 2010.
2. The district court erred in granting the [GJas [CJompany [DJefendants’ exception[s] of prematurity as to the Reynolds [FJamily’s contract claims on finding that the surface lease was still in effect[,] and Kinder [Gas] still had ongoing operations at the facility,1 ] when the Supreme Court’s Marin [v. Exxon Mobil Corp., 09-2368 (La.10/19/10), 48 So.3d 234,] decision holds that the Civil Code does not bar claims for damages while a lease is ongoing.

LAW AND DISCUSSION

Exceptions of Prescription-Tort Claims

When “evidence is introduced at the hearing on [a] peremptory exception of prescription, the [trial] court’s findings of fact are reviewed under the manifest error-clearly "wrong standard of review.” Carter v. Haygood, 04-646, p. 9 (La.1/19/05), 892 So.2d 1261, 1267. “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.” Id.

McCain v. Cassidy, 11-124, p. 2 (La.App. 3 Cir. 6/8/11), 68 So.3d 631, 634. In the instant matter, evidence was introduced at the hearing on the exceptions of prescription. Therefore, we must decide if the trial court was manifestly erroneous or clearly wrong in its determination that the Reynolds Family’s tort claims had prescribed.

The trial court’s grant of the exceptions of prescription dismissed the Reynolds Family’s tort claims. “Delictual actions are subject to a liberative prescription of one year.” La.Civ.Code art. 3492. Additionally, “[w]hen damage | sis caused to immovable property, the one year prescription commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage.” La.Civ.Code art. 3493. The issue presented in the instant matter is: When did that prescriptive period commence? As set forth by our supreme court, “[s]pecifically regarding property damage claims, knowledge sufficient to start the running of prescription ‘is the acquisition of sufficient information, which, if pursued, will lead to the true condition of things.’ ” Marin, 48 So.3d at 246 (quoting Young v. Int’l Pape Co., 179 La. 803, 155 So. 231 (1934)).

Having considered the evidence adduced in this matter, and the relevant jurisprudence, the trial court provided the following as the basis for its decision (footnote omitted):

A review of the evidence in this matter makes clear that [Defendants/Plaintiffs in Reconvention] had the requisite knowledge of possible contamination on or before January 14, 2008, at the very latest.
Applying the holdings of Marin v. Exxon Mobil Corp., [09-2368 (La.10/19/10), 48 So.3d 234,] and Hogg v. Chevron USA, Inc., [09-2632 (La.7/6/10), 45 So.3d 991,] to this matter, the [Defendants/Plaintiffs in Reconvention] were required to file their tort action within one year of said date. Because they did not, and because the [c]ourt finds that the doctrine of contra non valentem does not apply in this matter, the [c]ourt is required to sustain the exceptions of prescription relative to the tort claims asserted herein.
Accordingly, the tort claims asserted herein by [Defendants/Plaintiffs in Re-convention] must be dismissed, as prescribed.

The date of January 14, 2008, relied upon by the trial court as the commencement of the prescriptive period, is the date a real estate appraiser, Leonard Pauley, who was retained by the Reynolds Family, extended an offer to Kinder Gas for its purchase of the property subject to the lease. This | ^correspondence, sent in the course of years of ongoing negotiations for the purchase of the property, reads, in pertinent part, as follows:

I have been advised that some environmental problems may be centered on the site. The problem!,] if any[,] has been created by your company and/or your predecessors. Due to the potential liability for the family and the apparent lack of consideration to the family regarding the appropriate valuefiease relationship until now when this lease is almost up, we have decided to offer two options to you. They are as follows:
The family owns approximately 26 acres in all. The only consideration the family will give at this juncture is a total sale or a lease of the entire track.
1. Sell the property. The selling price will be based on $44,000.00 per acre, or $44,000.00 x 26 acres = $1,144,000.00.
2. Lease the property. The lease would be based on 1% per month of $44,000.00 per acre x 26 acres = $11,440.00 per month x 12 = $137,280.00 per year. This would be a Triple Net Lease. The lease would contain a CPI clause adjusting the rental amount every 5 years with the lease never reducing below the primary term payments. The lease will be paid monthly. The value would be readjusted based on the Market Value Estimate every 10 years, or the primary term payments, which ever [sic] is higher.
We intend to either resolve this matter with you, or we are going to have Dr. John Bruza’s office with the USACE to conduct a complete investigation to insure that my clients are not faced with any unknown environmental problems. They will assist us at no cost to my clients.

Undisputedly, the Reynolds Family has been aware of surface oil stains on their property since 2003. They admit in brief to this court that Mary J. Kaufmann had personally seen “a few surface oil stains in one isolated portion of the property,” which observation lead to “the spec-tor of contamination as a bargaining ploy in unsuccessful property sale negotiations.” However, they argue that they “had no knowledge that there may be something other than the insignificant surface oil stains until Kinder [Gas] filed the underlying declaratory judgment action in this case in 2010[.]” The Reynolds Family argues that “[a] review of the 17full string of sporadic correspondence reveals the context of that letter to be part of an exchange of negotiating positions by the lessors and lessees regarding the value of their property proposals, not a substantive discussion of actual knowledge of actual contamination.” We agree that the substance of the January 14, 2008 letter must be viewed against the backdrop of what had transpired prior thereto in order to ascertain the extent of their knowledge, actual or constructive.

At the hearing on the exceptions of prescription, testimony and evidence was introduced establishing a time-line of the negotiations between the parties and the information relative to any contamination of the property that was discussed throughout. What follows is a brief summary thereof:

1997

The president of Kinder Gas, Thomas Manning, met with Gerald B. Reynolds and “discussed several things,” including the existence of a Phase Two environmental study “that showed a few things that [Kinder Gas] wanted to clean up” and that it was “in the process of cleaning them up.” Subsequently, discussions began for a potential purchase of the portion of the Reynolds Family property that Kinder Gas’s facility was located on.

2000

(1) Thomas Manning, on behalf of Kinder Gas, forwarded correspondence expressing the desire of Kinder Gas to purchase six acres of the property for $6,000. If so, “the remainder of the lease would be cancelled and both parties freed of its obligations.” One specific “term and condition!] of the proposed transaction would be” for “[b]oth parties [to] release and hold each other harmless for any 18damages occurring to their respective lands prior to the purchase date.”
(2) The attorney for Kinder Gas stated in communication to Mr. Ed Mouser, the attorney for the Reynolds Family, that he was proposing “a very lucrative offer” to purchase the property. Therein he explained that “[u]nder both the lease and environmental statutes [the Reynolds Family] would owe a fortune in clean[-]up costs once [Kinder Gas’s] lease was terminated.” However, “[w]ith this proposal, [the Reynolds Family] would be alleviated from the liability associated with environmental clean[-]up.”

2003

(1) Kinder Gas, via correspondence with Mary J. Kaufmann, referenced “one or two preliminary discussions in the past about [its] purchasing approximately six acres of land ([their] plant site) out of the fifteen acres covered by the lease.” It was proposed that, if the purchase was accomplished, “both parties would then release the other from the terms of the lease and the approximately nine acres not purchased would revert back to” the Reynolds Family.
(2) Mary J. Kaufmann personally “observed rusted equipment and a few small spots of soil that appeared to be oily adjacent to the side of the road and the fence[,]” and she “speculated that there might be spots of oily soil near the flare area which is located outside of the fenced boundary.”
(3)Mary J. Kaufmann responded to the proposed purchase by Kinder Gas stating that the Reynolds Family was unwilling to sell a six acre portion of the property. Her counter proposal was for Kinder Gas to ^purchase ten of the fifteen acres, to include the five-six acres of property that were currently fenced in, and, in addition thereto, the acreage south of the fenced acreage that “ENCOMPASS[ED] THE ORIGINAL GAS FLARE AND/OR LOCATION OF THE HYDROCARBON CONTAMINATION.” That correspondence further conditioned the sale upon the Kinder Gas’s “AGREEMENT TO ASSUME RESPONSIBILITY FOR CLEAN-UP AS MANDATED BY LA D.E.Q. AND/OR FEDERAL E.P.A. RULES.”

2007

Kinder Gas extended an offer to purchase ten acres of the property and proposed that two appraisals be done on the property which “would not include any equipment or any damage of contamination!,] but would be only the value of the land itself.”

2008

Leonard Pauley, Jr., having performed an appraisal of the property at the request of the Reynolds Family, directed a proposal to Kinder Gas for the sale or lease of the entire tract. For the entire twenty-six acre tract, the selling price was $44,000.00 per acre, for a total of $1,144,000.00. Alternatively, the lease price demanded was $11,440.00 per month, or an annual lease price of $137,280.00. Within his correspondence, Mr. Pauley stated that he had “been advised that some environmental problems may be centered on the site.” Mr. Pauley’s correspondence concludes, stating: “We intend to either resolve this matter with you, or we are going to have Dr. John Bruza’s office with the USACE to conduct a complete investigation to | ininsure that my clients are not faced with any unknown environmental problems.”

2009

As the fifty-years of renewal of the 1960 surface lease was approaching its end, Kinder Gas gave notice to the Reynolds Family of its intent to extend the lease for a period of two years, during which extension it would, among other things, “[c]lean up any environmental condition required by the Louisiana Department of Environmental Quality.” Alternatively, Kinder Gas indicated that it would consider a purchase of the portion of the property it was currently using.

In connection with the foregoing evidence, the parties argued in the trial court, as they do on appeal, the application of the law of prescription relating specifically to property contamination cases as set forth by our supreme court in Marin, 48 So.3d 234, and Hogg, 45 So.3d 991. Relying on the January 14, 2008 correspondence quoted above, the trial court held that the knowledge was sufficient to commence the prescriptive period under the dictates of Marin and Hogg. However, quoting the language of Marin, as to “actual or constructive knowledge of actual or appreciable damages,” the Reynolds Family maintains that “there is no evidence that the Reynolds [FJamily had actual or constructive knowledge of actual or appreciable damages prior to the filing of [Kinder Gas’s] declaratory judgment action in March 2010. To the contrary, it is their contention that “the only contamination about which the record here shows that the Reynolds [F]amily had actual or constructive knowledge is minor oil stains on the surface soil[.]” We disagree.

| nThe record is clear that dating as far back as the initial meeting between Thomas Manning and Gerald B. Reynolds in 1997, there was some discussion of contamination. According to the testimony of Mr. Manning, the Phase II Environmental Site Assessment was discussed, at least to some degree. From that time forward, contamination of the property was discussed on numerous occasions during the course of negotiations for the sale of the property. Indeed, there were repeated acknowledgments of contamination which was used by the Reynolds Family in their effort to obtain a significantly higher price for the property from Kinder Gas. These negotiations culminated with the January 14, 2008 letter relied upon by the trial court as evidence of “the requisite knowledge of possible contamination.” The knowledge of contamination, as repeatedly evidenced in the correspondence, triggered a duty to investigate the potential damage to the property and the legal requisite of filing suit within one year of acquiring that knowledge. This conclusion is wholly supported by our supreme court’s decisions in Marin and Hogg.

Contra Non Valentem

In an effort to avoid the dismissal of its tort claims, the Reynolds Family also argues that the doctrine of contra non valentem should have been applied, resulting in the interruption or suspension of the prescriptive period. Specifically, of the four categories of contra non valentem discussed by the court in Marin, they contend that the following are relevant in this case: “where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or ... where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiffs ignorance is not induced by the defendant.” The argument relative to contra non va-lentem raised by the Reynolds Family is that the Gas Company Defendants “withheld information” as to the | ^severity of the contamination and that they assured the Reynolds Family that it “was being cleaned up.” We disagree with the Reynolds Family’s contention that the doctrine of contra non valentem should apply in this case.

The record is void of any evidence that the Reynolds Family was prevented “from availing [itself] of [its] cause of action.” In fact, there was nothing preventing them from asserting a cause of action in tort as early as January 1998, or earlier. Instead, they elected to continue to negotiate for the sale of the property and use the contamination as a bargaining tool in the negotiations. Additionally, for the extensive reasons set forth above, the record establishes that the Reynolds Family had knowledge of the existence of contamination; thus, “the cause of action[,]” was “known” or “reasonably knowable” by January 1998, at the very latest.

Based upon the foregoing, we find that a reasonable factual basis exists in the record to support the trial court’s finding. Thus, we find that the trial court was not manifestly erroneous or clearly wrong in its determination. We, therefore, affirm the trial court’s grant of the exceptions of prescription on behalf of the Gas Company Defendants dismissing the tort claims asserted by the Reynolds Family.

Exceptions of Prematurity — Contractual Claims

Louisiana Code of Civil Procedure [A]rticle 926(A)(1) provides for the dilatory exception raising the objection of prematurity. Such an objection is intended to retard the progress of the action rather than defeat it. La.Code Civ. P. arts. 923 and 926. A suit is premature if it is brought before the right to enforce the claim sued on has accrued. La.Code Civ. P. art. 423. Prematurity is determined by the facts existing at the time suit is filed. Houghton v. Our Lady of the Lake Hosp. Inc., 03-0135, p. 5 (La.App. 1 Cir. 7/16/03), 859 So.2d 103, 106. Evidence may be introduced to support or controvert the exception, when the grounds do not appear from the petition. La.Code Civ. P. art. 930. The objection of prematurity raises the issue of whether the juridical cause of action has yet come into existence because some prerequisite condition has not been fulfilled. Bridges v. Smith, 01-2166, p. 4 (La.App. 1 Cir. 9/27/02), 832 So.2d 307, 310, writ denied, 02-2951 (La.2/14/03), 836 So.2d 121. The objection contemplates that the action was brought prior to some procedure or assigned time, and is usually utilized in cases where the applicable law or contract has provided a procedure for one aggrieved of a decision to seek relief before resorting to judicial action. Plaisance v. Davis, 03-0767, p. 6 (La.App. 1 Cir. 11/7/03), 868 So.2d 711, 716, writ denied, 03-3362 (La.2/13/04), 867 So.2d 699.

Harris v. Metro. Life Ins. Co., 09-34, pp. 10-11 (La.App. 1 Cir. 2/5/10), 35 So.3d 266, 274. “Prematurity is determined by the facts existing at the time the lawsuit is filed.” White v. St. Elizabeth B.C. Bd. of Dirs., 43,329, p. 3 (La.App. 2 Cir. 6/4/08), 986 So.2d 202, 204-05, writ denied, 08-1440 (La.10/10/08), 993 So.2d 1284 (citing Plaisance, 868 So.2d 711). Finally, “[w]e review a trial court’s denial of an exception of prematurity under the manifest error standard.” Granger v. Granger, 11-77, p. 4 (La.App. 3 Cir. 6/15/11), 69 So.3d 666, 669, writ denied, 11-1882 (La.9/16/11), 69 So.3d 1152 (citing Pinegar v. Harris, 08-1112 (La.App. 1 Cir. 6/12/09), 20 So.3d 1081).

Following the hearing on the exceptions of prematurity, the trial court held as follows:

The Reconventional Demand, filed March 25, 2011, also asserts contract claims for damages arising under the subject lease. At that time, the subject lease was in effect and the lessee, Kinder Gas, Inc., had [ongoing] operations upon the subject property.
A suit is premature if it is brought before the right to enforce the claim sued upon has accrued. La. [Code Civ.]P. art. 423. Prematurity is determined by the facts existing at the time a suit is filed. Sevier v. U.S. Fidelity & Guar. Co., 497 So.2d 1380 [ (La.1986) ]; Brister v. Southwest Louisiana Hosp. Ass’n, 624 So.2d 970 (La.App. 3d Cir.1993).
A review of the Reconventional Demand, and particularly its prayer, reveals that the claims asserted by [Plaintiffs in Reconvention] are contract claims involving the corporations’ purported obligation to restore the land on which the operations are [ongoing]. Therefore, applying the holding of Dore Energy Company [Corporation] v. Carter-Langham, Inc., et al[.], 901 So.2d 1238 (La.App. 3d Cir.2005) to this matter, the [R]econventional [P]emand as it relates to contract claims must be dismissed, without prejudice, as premature.

With respect to their contractual claims, the Reynolds Family asserts that the trial court’s reliance on Dore Energy Corporation, 901 So.2d 1238, is misplaced since, “[i]n Dore, the breach of lease claims were brought solely under the Mineral Code with regard to claims brought on a mineral lease, and specifically related to claims for restoration of the land.” Whereas, “[h]ere, the Reynolds [F]amily’s claims arise under a surface lease and are subject to the broader obligations in the Civil Code discussed by the [supreme court in] Mann[.]” The Reynolds Family concludes, therefore, that Mann does not preclude the present claims brought pursuant to the terms on an ongoing surface lease based on prematurity.

Undisputedly, in the instant matter, at the time the reconventional demand was filed, the lease was in effect. Our supreme court, in Corbello v. Iowa Production, 02-826 (La.2/25/03), 850 So.2d 686, held that the duty to restore leased property does not arise until the expiration of the lease. This court reached the same conclusion in Dore, recognizing that certain claims may be asserted during the existence of a lease; however, following Corbello, we held that claims involving obligations to restore the land on which operations are ongoing are premature. Mann does not change this result.

For the foregoing reasons, we cannot say that the trial court was manifestly erroneous or clearly wrong. We, therefore, affirm the trial court’s grant of the exceptions of prematurity and the dismissal, without prejudice, of the contractual claims asserted by the Reynolds Family.

| RECREE

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Gerald B. Reynolds, Robin Reynolds Lipari, Nancy Reynolds Landry, and Mary J. Kaufmann.

AFFIRMED.

      . Though Defendant’s name is listed as "Kauffmann” in the caption of these proceedings, this court notes that the spelling given in the Answer and Reconventional Demand filed on her behalf is "Kaufmann.”

      . The record contains some apparent procedural errors which were not raised in the trial court and are not relevant for purposes of this appeal. For example, although these individuals were not named as defendants in the Petition for Declaratory Judgment, they became parties to the litigation by initially appearing as Plaintiffs in Reconvention in the Answer and Reconventional Demand. We simply note same for the purpose of clarity in our identification of the parties.

      . Again, for purposes of clarity in this opinion, we note that these entities were initially brought into the litigation as Defendants in Reconvention; however, this too is a procedural error, as these claims should have been instituted via third party demands.

      . The Reconventional Demand asserts that ”[t]he Gas Company Defendants are lessees, assigns, joint venturers, and/or interest owners of the Lease Agreement, and are liable jointly and solidarily for all damages claimed herein.” The claims against XTO Energy, Inc. were subsequently dismissed without prejudice.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Johnnie Thomas GUNTER and Loretta Elizabeth LaCoste, as the Natural Tutrix of her Minor Child, Casey Elizabeth LaCoste v. JEFFERSON DAVIS PARISH and the Jefferson Davis Parish Sheriff's Department, Richard E. “Ricky” Edwards, Jr., individually, and in his Official Capacity as Sheriff of Jefferson Davis Parish Sheriff's Department, Terrie Guillory, Ivan Guillory, Mike Hill, Chad Romero, the Town of Lake Arthur, Cheryl Vincent, individually, and as Chief of Police of the Town of Lake Arthur, Leland Lassander, Jared Manuel, and Derrick Turner, Officers of the Town of Lake Arthur Police Department.
    No. 11-1018.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.
    Thomas Robert Shelton, Shelton Law Firm, Lafayette, LA, for Plaintiffs/Appellants, Johnnie Thomas Gunter and Lorrit-ta Elizabeth LaCoste, as the natural tutrix of her minor child, Casey Elizabeth La-Coste.
    John F. Wilkes, III, Joy C. Rabalais, Ray F. Lucas III, Erin N. Hargrave, Lafayette, LA, for Defendants/Appellees, Town of Lake Arthur; Chief Cheryl Vincent, individually and in her official capacity as Chief of Police of the Town of Lake Arthur; Officer Jared Manuel, individually and in his official capacity as a Police Officer for the Town of Lake Arthur; and Officer Leland Laseter, individually and in his official capacity as a Police Officer for the Town of Lake Arthur.
    David E. Marcantel, Marcantel, Marcan-tel, Wall, Pfeiffer & Stretcher, Jennings, LA, for Defendant, Derrick Turner.
    Lloyd Frederick Schroeder, II, Usry, Weeks & Matthews, New Orleans, LA, for Defendants, Richard E. “Ricky” Edwards, Terry Guillory, Ivan Guillory, and Chad Romero.
    Court composed of OSWALD A. DECUIR, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11 Plaintiffs, Johnnie Thomas Gunter and Lorritta Elizabeth LaCoste, as the natural tutrix of her minor child, Casey Elizabeth LaCoste, appeal the trial court’s grant of summary judgment in favor of Defendants, the Town of Lake Arthur (Lake Arthur); Chief Cheryl Vincent (Chief Vincent), individually and in her capacity as Chief of Police of the Town of Lake Arthur; Officer Jared Manuel (Officer Manuel), individually and in his official capacity as a police officer for the Town of Lake Arthur; and, Officer Leland Laseter (Officer Laseter), individually and in his capacity as a police officer for the Town of Lake Arthur, dismissing Plaintiffs’ claims against them. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

According to the allegations set forth in the Petition for Damages for Wrongful Death and Survival Action filed by Plaintiffs, Steven Thomas Gunter “was killed on June 9, 2007, in Lake Arthur, Louisiana, by one (1) or more of the Police [Djefen-dants, acting under ‘color of law[,’] as a result of shotgun wounds.... ” Plaintiffs’ petition asserts both a wrongful death and survival action against Lake Arthur, Chief Vincent, Officer Manuel, and Officer La-seter alleging that said Defendants were not properly trained to respond to an alleged domestic dispute and that said Defendants’ response to the alleged situation was negligent and caused Steven Gunter’s death.

Defendants filed a Motion for Summary Judgment on the issue of liability. Defendants’ motion argued that there were no genuine issues of material fact as to Plaintiffs’ claims against them, and, thus, they were entitled to summary judgment as a matter of law. Defendants offered the following exhibits as evidence in ^support of their motion: (A) the affidavit of Trooper Benjamin LaPoint; (B) the deposition of Chief Vincent; (C) the deposition of Deputy Terrie Guillory; (D) the deposition of Lorrita LaCoste; and, (E) the affidavit of Maydell Jones.

In their opposition to the motion filed by Defendants, Plaintiffs offered into evidence: (A) the deposition of Trooper Benjamin LaPoint; (B) Lake Arthur Police Department’s log; (C-l) the affidavit of Darby Trahan; (C-2) a video of the residence where Steven Gunter was shot; (D) the affidavit of Beth Trahan; (E) the affidavit of Johnnie Gunter; (F) the affidavit of Catherine Pettifield; and, (G) the deposition of Nona LaCoste.

A hearing was held on November 30, 2010, after which the trial court took the matter under advisement and allowed the parties to submit post-trial memoranda. The trial court issued written Reasons for Ruling on March 15, 2011, granting Defendants’ Motion for Summary Judgment. In its Reasons for Ruling, the trial court declared:

[T]he collective actions and responses of the TOWN OF LAKE ARTHUR were reasonable in light of the circumstances. Officer Laseter was called to the scene after a complaint of domestic disturbance by a neighbor. Upon his arrival, Ms. [LaCoste] stated that the decedent had thrown her from a truck and that he was now in the home. She also told Officer Laseter that Mr. Gunter was armed with a gun. Ms. [LaCoste] later stated that there was no problem or domestic disturbance. In the [c]ourt’s opinion, it was reasonable of Officer La-seter to attempt to question Mr. Gunter despite Ms. [LaCoste]’s claims that there had been no domestic disturbance. Ms. [LaCoste] presented the officer with conflicting statements about what had occurred prior to his arrival and that, coupled with the statement that Mr. Gunter was now armed, gave Officer Laseter a reasonable basis to question Mr. Gunter in order to determine that all parties were safe and no threat and/or violence would continue after his departure. When Mr. Gunter refused to cooperate, speak, or exit the home, it was reasonable that the officer would call for back-up to support his position. At no time did the officer forcibly enter the home; indeed, he only entered the home after having been provided a key by Ms. [LaCoste] who was a resident of the house with Mr. Gunter. The actions of the TOWN OF LAKE ARTHUR demonstrate that they had responded to a call of potential domestic violence and that they took every avenue available to them to discuss the matter peaceably and | snon-confrontationaI[ly] with both Ms. [LaCoste] and Mr. Gunter to assure themselves that no party was in danger. None of the personnel of the TOWN OF LAKE ARTHUR arrived at the home with the intention of causing harm to the decedent. For these reasons ... the Motion for Summary Judgment filed on behalf of the [Defendants, TOWN OF LAKE ARTHUR, is hereby granted.

A judgment dismissing Plaintiffs’ claims against Defendants was signed by the trial court on May 27, 2011. It is from this judgment that Plaintiffs appeal.

ASSIGNMENTS OF ERROR

Plaintiffs assert that the trial court erred in granting Defendants’ Motion for Summary Judgment because adequate discovery had not occurred, that the motion was premature, and that the trial court erred in ruling that Defendants’ actions prior to the shooting death of Steven Gun-ter were reasonable.

LAW AND DISCUSSION

“Appellate courts review summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, and in the light most favorable to the non-movant.” Yokum v. 615 Bourbon Street, L.L.C., p. 25 (La.2/26/08), 977 So.2d 859, 876 (citing Suire v. Lafayette City-Parish Consol. Gov’t., 04-1459 (La.4/12/05), 907 So.2d 37). Louisiana Code of Civil Procedure Article 966(A)(2) states “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action,” and this “procedure is favored and shall be construed to accomplish these ends.” “[I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact,” then judgment shall be granted as a matter of law in favor of the mover. La.Code Civ.P. art. 966(B) and (C). Defendants, as the movants herein, bear the initial burden of proof and must show that no genuine issue of material fact exists. See La.Code Civ.P. art. 966(C)(2). If | ¿Defendants successfully meet their burden, then the burden shifts to Plaintiffs to present factual support adequate to establish that they will be able to satisfy their evidentiary burden at trial. Id. If, however, Plaintiffs fail to produce the factual support necessary to establish that they will be able to satisfy their evidentiary burden of proof at trial, then there is no genuine issue of material fact. Id.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765-66.

Discovery

On the issue of whether the trial court erred in granting summary judgment because adequate discovery had not occurred, the record reflects that Plaintiffs filed suit on June 5, 2008. Defendants filed the Motion for Summary Judgment at issue herein on October 21, 2010, and the trial court scheduled the hearing of said motion for November 30, 2010. Plaintiffs did not request a continuance. Instead, Plaintiffs took the deposition of Trooper LaPoint on November 18, 2010, a copy of which was introduced into evidence at the hearing on the Motion for Summary Judgment.

Louisiana Code of Civil Procedure Article 966(A)(1) provides that a defendant may move for summary judgment “at any time.” Further, La.Code Civ.P. art. 966(C)(1) provides that “[a]fter adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law shall be granted.”

The provision for adequate discovery does not grant a party an absolute right to delay a decision on a motion for summary judgment until all discovery is complete. West v. Watson, 35,278 (La.App. 2 Cir. 10/31/01), 799 So.2d 1189, writ denied, 01-3179 (La.2/8/02), 809 So.2d 140. Unless the party opposing the motion for summary judgment shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there are no genuine issues of fact. Advance Products & Systems, Inc. v. Simon, 06-609 (La.App. 3 Cir. 12/6/06), 944 So.2d 788, writ denied, 07-26 (La.3/9/07), 949 So.2d 444. The abuse of discretion standard is used to determine if the trial court allowed adequate time for discovery. Id.

Prime Income Asset Mgmt., Inc. v. Tauzin, 07-1380, pp. 13-14 (La.App. 3 Cir. 4/30/08), 981 So.2d 897, 905-06. In the case before us, Defendants’ Motion for Summary Judgment was filed more than two years after suit was filed and three years after the incident in question. As such, on the facts presented in this case, and considering the fact that Plaintiffs did not seek a continuance of the hearing on the motion, we find no merit to Plaintiffs’ contention that the trial court erred in granting summary judgment because of inadequate discovery.

Liability

Plaintiffs allege that Defendants, Chief Vincent, Officer Manuel, and Officer La-seter, were not properly trained to handle such a situation and that their response to the situation was negligent and caused Steven Gunter’s death. Plaintiffs, in brief, argue that:

Neither [Chief Vincent], nor any officer acting directly under her [control], direction and/or supervision can be considered “sufficiently trained” when there is no established (written) operations or policy manual by which to measure “correctness!,”] adequacy, and, most importantly, [constitutionality in existence at the time of the incident in question.

Plaintiffs further contend that the manner in which the situation was handled by Defendants led to Steven Gunter’s death and, though none of the police officers for Lake Arthur who are Defendants herein actually shot and killed Steven Gunter, these Defendants share in the responsibility of his wrongful death.

Defendants counter that each law enforcement officer present on the date in question was POST (Peace Officer Standards and Training) certified. Defendants | fiargue, in brief, that “[t]he question of lack of proper training and/or negligent training or supervision is only relevant if there is a breach of the standard of duty of care.” Thus, Defendants contend that Plaintiffs offer no evidence to support their assertion “that the actions undertaken by the Lake Arthur Police Department ... on that fateful day were unreasonable.” Finally, Defendants assert that the trial court was correct in granting summary judgment because Plaintiffs failed to produce factual support sufficient to establish that they will be able to satisfy their evi-dentiary burden of proof at trial on a negligence cause of action. We agree.

The law pertaining to both the duty-risk analysis and the duty owed by police officers to the public was set forth by this court in Batiste v. Gutierrez, 06-911, pp. 3-4 (La.App. 3 Cir. 12/6/06), 944 So.2d 840, 843, writ denied, 07-44 (La.3/9/07), 949 So.2d 446 (quoting Wellman v. Evans, 03-1720, pp. 5-7 (La.App. 3 Cir. 6/16/04), 876 So.2d 954, 958-59, writ denied, 04-1760 (La.10/15/04), 883 So.2d 1057):

The liability of a police officer is determined using the duty/risk analysis. Mathieu v. Imperial Toy Corp., 94-952 (La.11/30/94), 646 So.2d 318. For a plaintiff to recover, he must prove the defendant had a duty to conform his conduct to a specific standard of care; he failed to conform his conduct to that standard; that substandard conduct was a cause-in-fact of the injury, the substandard conduct was a legal cause of the injury; and' damages. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Id. at 322.
A police officer, in carrying out his authority to enforce laws, has a duty to perform his function with due regard for the safety of all citizens who will be affected by his action. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606. An officer must act reasonably to protect life and limb, to refrain from causing injury or harm, and to exercise respect and concern for the well being of those he is employed to protect. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173. In considering whether an officer breached his duty, the court’s task is not to determine whether the officer should have acted differently or if there were better options available, but only to determine whether his actions were reasonable under the totality of the circumstances. Syne, 693 So.2d 1173; Mathieu, 646 So.2d 318.

Pursuant to our thorough de novo review of the evidence which was before the trial court, we conclude that the trial court was correct in holding that Plaintiffs failed to produce sufficient evidence to establish that they will be able to prove negligence on the part of these Defendants at trial; thus, no genuine issue of material fact exists. The Motion for Summary Judgment filed by Defendants was properly granted.

DECREE

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of Defendants, the Town of Lake Arthur; Chief Cheryl Vincent, individually and in her capacity as Chief of Police of the Town of Lake Arthur; Officer Jared Manuel, individually and in his official capacity as a police officer for the Town of Lake Arthur; and, Officer Leland Laseter, individually and in his capacity as a police officer for the Town of Lake Arthur, is affirmed. All costs of this appeal are assessed to Plaintiffs/Appellants, Johnnie Thomas Gunter and Lorritta Elizabeth LaCoste, as the natural tutrix of her minor child, Casey Elizabeth LaCoste.

AFFIRMED.

      . Though Plaintiff's name is listed as "Loretta” in the caption of these proceedings and in the briefs filed herein, this court notes that the spelling which conforms to the way in which she signs her name is "Lorritta.”


author: EZELL, Judge.

text:
    Viney J. SILAS v. SOWELA TECHNICAL COLLEGE.
    No. 11-1022.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Marcus Miller Zimmerman, Lake Charles, LA, for Plaintiff/Appellee, Viney J. Silas.

      Anthony Paul Palermo, Nicholas R. Bur-savich, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Defendant/Appellant, Sowela Technical College.
    Court composed of OSWALD A. DECUIR, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

|! Sowela Technical College (Sowela) appeals the decision of the workers’ compensation judge finding that Viney J. Silas suffered a workplace accident that required the payment of disability benefits. Sowela also appeals the awards of penalties and attorney fees for the failure to pay those benefits. Ms. Silas has answered the appeal, seeking additional attorney fees for work done on appeal. For the following reasons, we affirm the decision of the workers’ compensation judge.

Ms. Silas was employed by Sowela as a clinical nursing instructor on December 10, 2008, when she alleges she injured her knee pushing a large box of books. She continued work that day, but saw her primary care physician the next day for the pain. She continued to work until the Christmas holidays because the school was a nurse short. However, Ms. Silas claims she told her human resources manager and Sowela’s chancellor of the accident. This was not contradicted by Sowela. Her knee continued to get worse until her last day of work, January 4, 2009. She was referred to Dr. Geoffrey Collins, an orthopedic surgeon, who performed an arthroscopic procedure on her on January 27, 2009. He found that Ms. Silas had osteoarthritis, but with pain exceeding the expectations of that diagnosis. When this surgery did not help, Ms. Silas could not return to work. She was terminated on May 4, 2009. Dr. Collins later performed a partial knee replacement on May 13, 2009, which also did not alleviate the pain. Ms. Silas eventually filed this current claim for workers’ compensation in October, 2009. Subsequently, Ms. Silas had a complete knee replacement on February 23, 2010, performed by Dr. Vasilios Matthews. After that surgery, she was able to return to a similar position teaching, but only in a part-time manner.

The workers’ compensation judge found that Ms. Silas suffered a workplace accident, awarded temporary total disability benefits from January 4, 2009, until 1 ?April 14, 2010, when Ms. Silas returned to part-time work. He awarded supplemental earnings benefits (SEB) thereafter. The workers’ compensation judge also awarded Ms. Silas $4,000.00 in penalties for Sowe-la’s failure to timely pay benefits and $12,600.00 in attorney fees. From that decision, Sowela appeals.

Sowela asserts three assignments of error on appeal. It claims the workers’ compensation judge erred in finding an injury resulted from a workplace accident; in awarding Ms. Silas SEB; and in awarding penalties and attorney fees against it. Ms. Silas answers, seeking additional attorney fees for work done on appeal.

The standard for reviewing a workers’ compensation judge’s decision was discussed by this court in Butterfield v. Turner Industries, 06-1098, pp. 3-4 (La.App. 3 Cir. 2/7/07), 951 So.2d 476, 479, writ denied, 07-507 (La.4/27/07), 955 So.2d 692 (alteration in original):

In Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court stated:
In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).

This court, in Monceaux v. R & R Const., Inc., 05-533, p. 6 (La.App. 3 Cir. 12/30/05), 919 So.2d 795, 799-800, writs denied, 06-585 (La.5/5/06), 927 So.2d 325, 06-636 (La.5/5/06), 927 So.2d 317, noted the following:

The Louisiana Supreme Court, in Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992), expounded on what proof will satisfy an employee’s burden in proving a work-related injury:
A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers' Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson v. [Roadway Express, Inc., 588 So.2d 350 (La.1991) ]. Corroboration may also be provided by medical evidence. West, supra.
In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases).

While Ms. Silas’ accident was un-witnessed, her testimony regarding the accident and how it occurred was not contradicted in any way by Sowela. As noted by the workers’ compensation judge in his reasons for judgment, Ms. Silas stated she told her boss and human resources director about the accident. Sowela failed to depose them or call them as witnesses to rebut this claim. Furthermore,J^other than her near absent history to Dr. Collins, her medical records note that she told her other health care providers that she suffered a work injury on or around October 10, 2008, as she claims in this dispute. Finally, Dr. Collins noted that, while she did have osteoarthritis, that it could have been aggravated by an accident as described by Ms. Silas. After reviewing the record before this court, we are unable to find evidence that the workers’ compensation judge’s finding that Ms. Silas suffered a workplace injury is clearly erroneous.

Sowela next claims that the workers’ compensation judge erred in awarding Ms. Silas SEB after she was able to return to part-time work.

“The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra at 556. “In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee’s ability to earn a wage.” Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1009 (La. 1989) (quoting Gaspard v. St. Paul Fire and Marine Ins. Co., 483 So.2d 1037, 1039 (La.App. 3 Cir.1985)). It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employee’s community or reasonable geographic location. La. R.S. 23:1221(3)(c)(i); Banks, supra at 556; Daigle, supra at 1009.

Poissenot v. St. Bernard Parish Sheriff's Office, 09-2793, pp. 4-5 (La.1/9/11), 56 So.3d 170, 174 (alterations in original)(footnote omitted). “In determining whether a [workers’ compensation judge’s] finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine the record for all evidence that bears upon the |fiemployee’s inability to earn 90% or more of his pre-injury wages.” Seal v. Gaylord Container Corp., 97-688, p. 8 (La.12/2/97), 704 So.2d 1161, 1166.

Here, Ms. Silas testified that due to the need for quick responses, abrupt movements, and constant bending and stooping, she would be unable to return to fulltime work. This, again, was uncontradicted. While Dr. Collins encouraged her to return to work when her job was being threatened, he returned her only to light duty. And, this action was taken a few brief weeks before he performed a partial knee replacement on Ms. Silas. Dr. Matthews did not release her to full work. While her job title may be similar to that which she held at Sowela, it is clear from the record that Ms. Silas was not able to work full time and that the workers’ compensation judge was not manifestly erroneous in finding that she was unable to earn ninety percent of her pre-accident wages.

Finally, Sowela claims the workers’ compensation judge erred in awarding Ms. Silas penalties and attorney fees for its failure to pay her indemnity benefits. “The applicable standard of review in determining whether a defendant should be cast with penalties and attorney fees is the manifest error-clearly wrong standard.” Bennett v. Pilgrim’s Pride, 07-753, p. 10 (La.App. 3 Cir. 12/12/07), 972 So.2d 423, 429, writ denied, 08-103 (La.3/7/08), 977 So.2d 907. In Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890, the supreme court stated:

[T]o determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

The workers’ compensation judge found that Sowela was aware of Ms. Silas’ injury soon after it occurred based on her undisputed testimony, yet Sowela Rdid little to nothing in the way of either treatment or investigation of her claim over the next nine months until she filed her claim. Sowela simply let her exhaust her accumulated leave until it ran out, then fired her with no evidence her claims were false or exaggerated. Thereafter, Sowela seems to have solely relied on Ms. Silas’ arthritis to counter her claims. The law is clear that where an employer “fails to properly investigate a claim, it subjects itself to penalties and attorney fees.” Guillory v. Bofinger’s Tree Serv., 06-86, p. 15 (La.App. 1 Cir. 11/3/06), 950 So.2d 682, 692. Again, while she did have pre-exist-ing osteoarthritis, Dr. Collins testified that an accident such as hers could aggravate/precipitate the pain she suffered. The record before this court is devoid of any medical evidence that suggests Ms. Silas’ arthritis alone reasonably controverts her claim. Moreover, there is no evidence the workers’ compensation judge’s awards of penalties and attorney fees were manifestly erroneous. We note that Ms. Silas has answered this appeal seeking additional fees for work done on appeal. Considering our decision affirming the workers’ compensation judgment, Ms. Silas is entitled to additional attorney fees for work done on appeal, and same will be awarded.

For the above reasons, the ruling of the workers’ compensation judge is hereby affirmed. Ms. Silas is awarded additional attorney fees of $2,000.00 for work performed on this appeal.

AFFIRMED AND RENDERED.


author: SAUNDERS, Judge.

text:
    Marion E. BOURGEOIS, et al. v. LINDEN INTEREST.
    No. 11-1130.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.
    Rehearing Denied March 7, 2012.

      Burton Enoch Cestia Jr., Burton & Ces-tia, New Iberia, LA, for Defendants/Appel-lees, Linden Interest.
    Stephen Francis Mestayer, Attorney at Law, New Iberia, LA, for Plaintiff/Appellant, Marion E. Bourgeois, et al.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

11 This is a dispute over the boundary between two adjacent tracts of land and of ownership of an existing road that each tract owner uses for access to their land. The two tracts were created by a common ancestor’s partition in 1950. The property descriptions of the two tracts note that the center of the existing road and a canal are to be the boundary between them. Attached to that partition is a plat drawn by a civil engineer that depicted the boundary between the two tracts as a straight line between two points. Both groups of tract owners agree that the straight line does not accurately depict the road.

The trial court found that the straight line depicted on the plat was the boundary between the two tracts and that, while the parts of the existing road were owned by each group of owners dependent on the boundary it fixed, use and maintenance of the road were predial servitudes of each tract. We reverse and render judgment that the boundary between the two tracts is fixed according to the property descriptions because the plat was erroneous and that the road is jointly owned and is to be jointly maintained by the owners of the two tracts.

FACTS AND PROCEDURAL HISTORY:

On March 6, 1951, the eleven shareholders of St. Paul Bourgeois, Inc. liquidated the company assets consisting primarily of immovable properties situated in Iberia Parish. The eleven shareholders comprised five family branches of the Bourgeois family.

The shareholders then partitioned, by Act of Partition dated March 7, 1951, recorded in COB 196, under Entry Number 81325 of the public records of Iberia Parish, all of the said immovable properties into five groups. The shareholders hired T.F. Kramer, a civil engineer, to survey all of their properties for purposes of |2the Act of Partition. Kramer’s plats of the various tracts were attached to the Partition and made a part thereof.

A dispute arose between the owners of West Linden Plantation (West Linden) and East Linden Plantation (East Linden) regarding their common boundary. West Linden contends that the boundary between the two tracts of land is supposed to be a canal and the centerline of a road that separated the two tracts as according to the property descriptions for each tract. East Linden contends that the boundary is supposed to be a straight line between two points, A2 and Y, as depicted on the plats drawn by Kramer. On October 28, 2009, West Linden filed a petition for boundary action.

After a trial on the merits, the trial court reached a judgment in favor of East Linden that the boundary between the two tracts was a straight line between points A2 and Y. West Linden timely filed this appeal and asserts three assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court erred in failing to render a decision based on the intent of the parties to the original partition agreement, as reflected by a clear reading of the agreement and the other evidence produced by West Linden at the trial of this matter.
2. The trial court failed to take into consideration and recognize that the owners of West Linden physically possessed all of the land west of and up to the road since 1951, as owners, unequivocally, and within visible boundaries, and should also be recognized as owners of that property by virtue of acquisitive prescription.
|s3. The trial court erred in ruling that the private road which separates West Linden from East Linden is not owned jointly by the owners of West Linden and East Linden.

ASSIGNMENT OF ERROR NUMBER ONE:

West Linden contends in its first assignment of error that the trial court erred in failing to render a decision based on the intent of the parties to the original partition agreement, as reflected by a clear reading of that agreement and the other evidence produced by it at the trial of this matter. We find that this assignment of error has merit.

An appellate court may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). The Louisiana Supreme Court has set forth a two-part test for the reversal of a fact finder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court or jury, and (2) the appellate court must further determine that the record establishes the finding is clearly wrong or manifestly erroneous. Mart v. Hill, 505 So.2d 1120 (La.1987); Stobart v. State Through DOTH, 617 So.2d 880 (La.1993).
This dictates that a reviewing court must do more than simply review the record for some evidence which supports the finding of the trial court or jury. The reviewing court must review the record in its entirety to determine whether the trial court’s or jury’s finding was “manifestly erroneous” or “clearly wrong.” Stobart, 617 So.2d 880. Furthermore, the reviewing court must always keep in mind that if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even if convinced that had it been sitting as the trier of fact it would have weighed the evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106 (La.1990).

Kimbrough v. Hirsch, 98-967, pp. 5-6 (La.App. 3 Cir. 2/3/99), 736 So.2d 871, 875-76, writ denied, 99-613 (La.4/23/99), 742 So.2d 886.

Louisiana Civil Code Article 784 states that “[a] boundary is the line of separation between contiguous lands. A boundary marker is a natural or artificial object that marks on the ground the line of separation of contiguous lands.”

|4[T]he legal guides for determining a question of boundary, or the location of a land line, in the order of their importance and value, are: (1) [njatural monuments; (2) artificial monuments; (3) distances; (4) courses; and (5) quantity. But the controlling consideration is the intention of the party or parties.

Meyer v. Comegys, 147 La. 851, 858, 86 So. 307, 309 (1920).

Our supreme court, in Hurst v. Ricard, 514 So.2d 14, 17 (La.1987), reinforced that the primary objective in fixing a boundary “is to determine and implement the intention of the parties and that the rules of interpretation set forth in statutes and jurisprudence must be considered as auxiliary rather than as absolutely controlling.” In the case before us, East and West Linden’s tracts were given to each by the 1951 partition of a St. Paul Bourgeois’ land. Present in the record is the property description of the West Linden tract that indicates the line between East and West Linden travels from “Point Y on the east property line of the West Linden Plantation, thence S[outh] 41° 13' W[est] along a canal and the center line of a road dividing West Linden and East Linden Plantations ...” to point A2. Also present in the record is the property description of the East Linden tract that indicates the line between East and West Linden begins at “the center line of a road dividing West and East Linden Plantations, Point A2, thence N[orth] 42° E[ast] along the center line of said road ...” to point Y. The language of the property descriptions is clear. They fix the boundary between East and West Linden as lying between points A2 and Y along a canal and along the middle of the road that runs between the two tracts.

Additionally, the record contains the plat drawn for the 1951 partition, created by T.F. Kramer. The plat, to the contrary of the property descriptions, depicts a straight line as the common boundary for East and West Linden that runs between points A2 and Y. Thus, there is a conflict in the record as to what constitutes the boundary in dispute.

| r,The trial court set the boundary line between East and West Linden as the straight line as drawn in the plat. In its reasons for judgment, the trial court cited Lamson Petroleum Corp. v. Hallwood Petroleum, Inc., 00-695 (La.App. 3 Cir. 1/31/01), 824 So.2d 1194 for the jurispru-dentially accepted rule that when a property description conflicts with a plat or survey, the plat or survey prevails. Further, the trial court stated that the plat “clearly indicates that the property is divided by the A2 to Y line and not the centerline of the road.” Finally, the trial court opined that “the A2 to Y line was always intended to be the boundary line; otherwise these points had no reason to be part of the property description.”

The trial court is correct that Lamson Petroleum Corp. stands for the proposition that a plat or survey normally prevails over a conflicting property description. However, this court in Lamson Petroleum Corp. also stated that the general rule is not applicable when “it is very obvious that a [plat or] survey is wrong.” Id. at 1204.

We find that the record, when viewed in its entirety, establishes that the 1951 plat is wrong when depicting the boundary in dispute. Plaintiffs Exhibit 7 is a report of survey created on April 23, 1959 by Kramer, the civil engineer that drew the plat in 1951. In the report, Kramer addressed why the 1951 plat and the property descriptions were in conflict where he states:

[t]he reason for this discrepancy is that the line between West Linden Plantation and East Linden Plantation was not authorized and was[,] therefore[,] not sui'-veyed in the year 1950 by me. The owners of the land were aware of this condition. I was advised in 1950 that it was the intent of all the owners concerned that the center line of this plantation road, regardless of alignment, was to mark and define the property line separating West Linden Plantation and East Linden Plantation.

It is clear from Kramer’s report that the plat relied upon by the trial court was not accurate in its depiction of the boundary in dispute. Thus, the plat does | finot provide a reasonable basis for the trial court to disregard the property descriptions nor does it provide a reasonable basis to determine that the boundary in dispute is a straight line between points A2 and Y. Kramer, as the plat’s creator, explicitly states that the straight line depicted was not authorized or surveyed when it was drawn.

Moreover, the trial court’s statement that points A2 and Y can only be included in the property descriptions to create a straight line as the boundary between the two tracts is erroneous. Those two points are included in the property descriptions because it is at point A2 where the border of the West Linden tract intersects with a canal and then changes direction by approximately ninety degrees. Thus, A2 is a point where one “corner” of the West Linden tract is located. Likewise, point Y is a point where a common “corner” is created for both the East and West Linden tracts. We note that point Y is located directly in the center of the road that then ran and continues to run between the two tracts.

East Linden contends in brief that further evidence proving that the boundary was always intended to be a straight line between points A2 and Y is that the acreage listed in the 1951 partition for it to receive is accurate if a straight line is used. The trial court also mentioned this fact in its reasons for judgment stating, “in order to obtain the necessary acreage as reflected in the T.F. Kramer surveys, that portion of the land and road must be included in the Tract BM East Linden Plantation.”

This contention and statement by the trial court is also rebuked by evidence in the record. That evidence is in the form of two letters. The first is a letter written from St. Paul Bourgeois, III to Kramer that asks him, “[i]s it not a fact that for East Linden to receive its 436.77 Acres (Sheet 3 — April 1950) that a straight line be drawn from point TP to point A2’?” The second is Kramer’s letter written 17in response to this question that states “the acreage was not of prime importance insofar as the partition was concerned.”

Additionally, as noted above in his April 23,1959 report, Kramer did not survey the boundary between East and West Linden due to the request of the owners in 1950. Seemingly, he used the length of the straight line between A2 and Y in calculating the acreage of each tract that he listed in the plat. Thus, it stands to reason that a straight line results in the correct acreage listed on the plat.

Accordingly, we find that the trial court was manifestly erroneous in choosing to use the plat created by Kramer in order to fix the boundary between East and West Linden along a straight line between points A2 and Y. There is no reasonable basis for the trial court’s judgment and a thorough review of the record indicates that it is clearly wrong. Therefore, we reverse the trial court’s judgment that the boundary between East and West Linden is a straight line between points A2 and Y.

Further, we render judgment that the boundary between East and West Linden is fixed “along a canal and the center line of a road dividing West Linden and East Linden Plantations” according to the property descriptions. We fix this as the boundary because this was clearly the intention of the parties when the 1951 partition transpired. We reiterate that Kramer’s April 23, 1959 report states (emphasis added): “I was advised in 1950 that it was the intent of all the owners concerned that the center line of this plantation road, regardless of alignment, was to mark and define the property line separating West Linden Plantation and East Linden Plantation.” Kramer’s statement in his report is not controverted by any credible evidence in the record.

We note that this result is also harmonious with the jurisprudential guide for determining a boundary. A canal is either a natural or artificial monument. A road | sis an artificial monument. According to the value assigned when fixing a boundary, both warrant more value than a straight line between A2 and Y, which is a course, or acreage, which is a quantity.

ASSIGNMENT OF ERROR NUMBER TWO:

West Linden’s second assignment of error consists of an argument that the trial court failed to take into consideration and recognize that it physically possessed all of the land west of and up to the road since 1951, as owners, unequivocally, and within visible boundaries. Thus, according to West Linden, it should also be recognized as owners of that property by virtue of acquisitive prescription. We have already rendered judgment in Assignment of Error Number One that West Linden owns this land. Thus, this assignment of error is moot.

ASSIGNMENT OF ERROR NUMBER THREE:

In its final assignment of error, West Linden contends that the trial court erred in ruling that the private road which separates West Linden from East Linden is not owned jointly by the owners of West Linden and East Linden. Again, we find merit to this assignment.

‘When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La.Civ.Code art. 2046. “If the words of a contact are clear, explicit, and lead to no absurd results, it must be interpreted by reference to the ‘four corners’ of the document and no further interpretation can occur in search of the parties’ intent.” Hebert v. Ins. Ctr., Inc., 97-298, p. 5 (La.App. 3 Cir. 1/7/98), 706 So.2d 1007, 1011, writ denied, 98-353 (La.3/27/98), 716 So.2d 888.

Paragraph 19 of the 1951 partition states, in pertinent part:

it is recognized and agreed that the hard surfaced road (shown on Sheets 2 and 3 of the attached plats and maps), extending from State Highway 443 toward Lake Fausse Pointe, will remain the joint | property of ... owners of West Linden and East Linden, respectively, and shall be used and maintained jointly by the owners of East Linden and West Linden.

We find the language in Paragraph 19 to be clear and explicit. The road that we fixed as the boundary between East and West Linden is owned and maintained jointly. The trial court’s judgment is that Paragraph 19 creates a predial servitude for both East and West Linden to use the road and that ownership of portions of the road and adjacent lands was dependent on the straight line boundary it fixed between points A2 and Y. Our reversal of that judgment in Assignment of Error Number One renders the trial court’s determination regarding ownership of the road to be absurd. Thus, we reverse the trial court’s judgment delineating ownership of the road based on a straight line between points A2 and Y and render judgment that the road is owned and is to be maintained jointly by East and West Linden.

CONCLUSION:

West Linden raises three assignments of error. The first two concern the boundary between its tract and a tract of land owned by East Linden. We find merit in West Linden’s first assignment of error, reverse the trial court’s judgment fixing the boundary between the tracts of land as a straight line between points A2 and Y, and render judgment that the boundary between the two tracts is fixed according to the property descriptions, i.e. along a canal and center of the road separating the tracts. This finding renders West Linden’s second an assignment of error moot.

In its final assignment of error West Linden contends that the trial court erred in finding that the road between the two tracts of land was not jointly owned in interpreting Paragraph 19 of the 1950 partition. We found merit in this assignment, reversed the trial court’s judgment, and rendered judgment that East 11(1and West Linden jointly own and maintain the road separating their respective tracts. All costs of these proceedings are assessed to East Linden.

REVERSED AND RENDERED.