author: GAIDRY, J.

text:
    Jacqueline COOK v. AMERICAN GATEWAY BANK and Glen Daigle.
    No. 2010 CA 0295.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2010.

      Benn Hamilton, Baton Rouge, LA, for Plaintiff/Appellant Jacqueline Cook.
    M. Lenore Feeney, Baton Rouge, LA, for Defendants/Appellees American Gateway Bank and Glen Daigle.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   GAIDRY, J.

|2A former employee of a bank appeals a summary judgment dismissing her claims for damages against her former employer and her former supervisor for defamation, intentional infliction of emotional distress, negligent misrepresentation, and other alleged wrongful acts. For the following reasons, we affirm the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff, Jacqueline Cook, was employed as assistant branch manager at the Port Allen, Louisiana branch of American Gateway Bank (the bank). Prior to her promotion to that position on June 13, 2005, she was the branch’s vault teller. Her supervisor was Glen Daigle, the bank’s branch manager. Although her new job duties did not include operating the main vault and maintaining its contents, plaintiff continued to perform the vault teller’s duties while the new vault teller, Elaine Canezaro, was on extended family leave and for a period of time after her return to work. The duties of the vault teller included preparation of shipments of currency to the Federal Reserve Bank.

While acting as vault teller, plaintiff prepared a shipment of $72,000.00 in currency for delivery by courier to the Federal Reserve Bank on June 21, 2005. On June 22, 2005, the shipment was returned by courier from the Federal Reserve Bank for noncompliance with its packaging and labeling rules. By that time, Ms. Canezaro had returned to her duties as vault teller. As she had not prepared the shipment, she declined to sign the receipt accepting delivery, and plaintiff signed for the shipment and placed the money in her coin vault of her teller drawer pending its reprocessing for shipment.

|sOn June 28, 2005, or about a week after the shipment of currency had been returned to the bank, Ms. Canezaro happened to mention that fact and the reason for the return to Jacqueline Smith, the bank’s district manager, who was working at the branch office that day. The same day, two other employees advised Ms. Smith that a “ticket” or accounting entry for the returned $72,000.00 shipment had not been received for entry in the branch’s general ledger. Ms. Smith and Mr. Daigle then went to the main vault to audit the returned shipment, but were informed by Ms. Canezaro that the money had been placed by plaintiff in her coin vault. As plaintiff had left early that day, it was necessary for Ms. Smith and Mr. Daigle to retrieve a duplicate set of keys from a lock box in the main vault to open plaintiffs coin vault.

The returned shipment was found in plaintiffs coin vault The shipment was contained in four sealed clear bags, permitting counting of the banded packages of currency without opening the bags. One bag still bore the original shipment date, two bore the following week’s scheduled date of shipment, and one had no date. The latter bag contained ten-dollar bills. Ten-dollar bills were banded for shipment to the Federal Reserve Bank in packets or “s traps” of 100 bills, with ten “s traps” making up one “brick.” Half of a ten-strap “brick” was missing from that bag, a fact obvious from a simple visual inspection and comparison with another complete “brick.” The total amount of missing currency was $5,000.00.

Upon discovering that $5,000.00 was missing from the returned $72,000.00 shipment, Ms. Smith and Mr. Daigle instituted a search for the missing funds, beginning with plaintiffs teller drawer. Upon opening the teller drawer, they observed a five-strap half-“brick” of ten-dollar bills, resembling the other in the coin vault and bearing the original shipment |4delivery date stamped on it. They originally believed that the missing $5,000.00 had been found, but upon auditing the balance of plaintiffs teller drawer, they discovered that the total amount of money balanced with the recorded balance.

The bank had written “Cash Procedures” that included a “teller drawer maximum cash limit” policy, under which the maximum amount of cash that any employee employed over six months could keep in a teller drawer was $27,000.00 or $28,000.00. The following day, Ms. Smith and Mr. Daigle met with plaintiff and discussed the situation. They again audited her teller drawer in her presence, with the same result. They also advised her that the returned shipment in her drawer’s coin vault was short $5,000.00, but plaintiff denied any knowledge of its whereabouts. Ms. Smith also confronted plaintiff about keeping more money in her coin vault than was permitted by the “teller drawer maximum cash limit” policy, as well as plaintiffs failure to prepare general ledger entries or tickets for the returned $72,000.00.

Plaintiff was then advised to turn in her bank keys and to go home, and that she would be advised of the outcome of the investigation. Ms. Smith and another bank employee then opened each bag of the returned shipment and again counted the money. They also conducted a thorough search of , the branch premises, but did not find the missing funds.

According to Mr. Daigle, plaintiff left a “threatening” telephone message for him the following morning, to the effect that “by the time she was finished with [him][he] would not have a job.” The bank had a detailed written “Teller Cash Outage Policy” setting out the procedures to be | .^followed, including employee disciplinary action, for various levels of cash shortages or losses (“outages”). For outages of $400.00 or more, the management had the discretion to impose discipline “up to and including termination.” Mr. Ricky Sparks, the bank’s chief administrative officer, later made the decision to terminate plaintiffs employment for violation of the written outage policy. Plaintiff was advised either that day or the next day that her employment was terminated.

The bank’s management also adhered to an unwritten internal management policy requiring that an unexplained outage of approximately $1,500.00 or more be reported to law enforcement authorities for appropriate investigation. The loss was thereupon reported to the Port Allen police department for investigation. Detective Eric Frank was assigned the investigation. He went to the bank, where he met with Mr. Daigle and other involved employees and reviewed the bank’s procedures. Based upon his investigation, Detective Frank determined that probable cause existed for plaintiffs arrest. On July 11, 2005, he met with plaintiff at her home and arrested her. Upon being placed under arrest, plaintiff reportedly advised Detective Frank that “bank policies had been broken and would ‘come to light’ during a trial.” On August 31, 2005, plaintiff was charged with felony theft.

Plaintiff filed suit on June 10, 2006, naming the bank and Mr. Daigle as defendants. She alleged that she was arrested because Mr. Daigle advised law enforcement officers that she stole $5,000.00 from the bank, despite the fact that no internal audit had been conducted and the absence of any witnesses to the theft. She further claimed that Mr. Daigle terminated her employment based upon the alleged theft and that the bank pursued her criminal prosecution for the charge of felony theft. Plaintiff sought general | (,and special damages based upon “[djefa-mation of character, libel and slander,” “[ijntentional infliction of mental anguish and emotional distress,” “negligent misrepresentation and/or presentation of false information to law enforcement agents,” and other alleged wrongs committed by defendants.

On July 5, 2006, defendants filed their joint answer to plaintiffs petition, generally denying its allegations and their liability. They further affirmatively alleged that any statements made on their behalf concerning plaintiff were subject to a conditional or qualified privilege and that any such statements were true. Defendants also pleaded plaintiffs contributory negligence and fault in failing to follow the proper procedures for handling money.

On August 15, 2008, defendants filed a combined motion for summary judgment and peremptory exception of no cause of action, seeking the dismissal of plaintiffs claims. Attached as exhibits to the motion were the depositions of Mr. Daigle and other bank employees, the deposition of Detective Frank, excerpts from the' deposition of plaintiff, and the affidavit of Mr. Sparks.

Defendants’ motion and exception were originally fixed for hearing on October 15, 2008, but the hearing was continued to November 12, 2008. In opposition to the motion and exception, plaintiff filed her own affidavit on October 24, 2008. On the scheduled hearing date, the trial court heard the motion and exception and took them under advisement for decision. For reasons not apparent from the record, the motion and exception were again heard and argument by counsel presented on February 11, 2009. The trial court thereupon took the matter under advisement again for decision.

On August 25, 2009, the trial court rendered and signed its judgment, granting the motion for summary judgment in favor of the bank. On August |728, 2009, defendants filed a motion to amend the summary judgment to reflect that the motion was also granted in Mr. Daigle’s favor. On September 18, 2009, the trial court signed an order amending the summary judgment as requested. After plaintiff instituted this appeal, we issued a Rule to Show Cause Order to the parties, emphasizing that the judgment as amended lacked appropriate decretal language dismissing plaintiffs claims and therefore did not constitute a final appealable judgment. On defendants’ motion, the trial court signed another amended judgment on March 1, 2010, adding the necessary de-cretal language.

Plaintiff now appeals, contending that the trial court “abused its discretion” and committed an error of law in granting summary judgment and dismissing her petition and cause of action.

DISCUSSION

Summary Judgment

Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court’s determination of the issues. Peak Performance Physical Therapy & Fitness, LLC v. Hibernia Corp., 07-2206, p. 5 (La.App. 1st Cir.6/6708), 992 So.2d 527, 580, writ denied, 08-1478 (La.10/3/08), 992 So.2d 1018. The summary judgment procedure is expressly favored in the law, and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A)(2). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The mover has the burden of proof that he is entitled to summary judgment. See La. C.C.P. art 966(CX2). If the mover will not bear the |8burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent’s claim, action, or defense. La. C.C.P. art. 966(CX2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B).

Because of their chilling effect on the exercise of freedom of speech, defamation actions have been found particularly susceptible to summary judgment Kennedy v. Sheriff of E. Baton Rouge, 05-1418, p. 25 (La.7/10/06), 935 So.2d 669, 686. Summary judgment, being favored in the law, is a useful procedural tool and an effective screening device to eliminate un meritorious defamation actions that threaten the exercise of First Amendment rights. Id.

The Evidence

Our prior summary of the factual background is derived from the depositions of Mr. Daigle, Ms. Smith, Ms. Canezaro, Detective Frank, and plaintiff filed in the record by defendants, in addition to the pleadings. The evidence in the record also includes the following.

Detective Frank testified in his deposition that he made the decision to arrest plaintiff for the theft of the missing $5,000.00, based upon the totality of the evidence discovered during his investigation, including plaintiffs own statements to him. According to Detective Frank, plaintiff confirmed that |ashe personally packaged the original $72,000.00 shipment, received the shipment upon its return, and repackaged the currency contained in the new bags found in her coin vault, including the sealed bag missing $5,000.00. Her statements and those of the other employees interviewed indicated that she had the exclusive custody of the returned shipment from the time of its return until the loss was discovered by Ms. Smith and Mr. Dai-gle. He confirmed that no one from the bank ever stated that plaintiff stole the missing funds, nor did they express any opinion or suggestion that she was a suspect, and that his belief that she was the likely suspect was based upon the facts revealed in his own investigation and his own conclusions based upon those facts.

In his affidavit, Mr. Sparks identified himself as the chief administrative officer of the bank since 2005. He confirmed that the bank had an unwritten internal policy requiring that any significant, unexplained loss or “outage” of approximately $1,500.00 or more be referred for police investigation after the bank had conducted its own internal investigation. In line with that policy, he directed another bank employee to contact the Port Allen police department. Mr. Sparks attested that he spoke with Detective Frank and stated “that he was not asking that charges be pressed against anyone.” Mr. Sparks also attested that after Detective Frank’s own investigation was complete, he told Mr. Sparks that he suspected plaintiff had taken the missing funds and would be charged, and that he then advised Detective Frank that neither he nor the bank nor other employees were asking or suggesting that such action be taken. Mr. Sparks confirmed that |inthe missing $5,000.00 was never located. Finally, he affirmed that he made the decision to terminate plaintiffs employment for violation of the bank’s written outage policy relating to outages of $400.00 or more and the teller drawer maximum cash limit policy, and that such discipline was appropriate for conduct resulting in a $5,000.00 loss.

In her affidavit, plaintiff recounted her version of various events leading up to her termination. Although differing in minor details from the versions of events set forth in the other employees’ depositions, her account accorded with them in most relevant respects. Plaintiff confirmed that she was terminated by Mr. Sparks (not Mr. Daigle) for violation of the bank’s written outage and teller drawer maximum cash limit policies. However, she denied in her affidavit that she stole or misplaced $5,000.00 from the bank and further denied violating the bank’s written policies. Finally, she claimed in her affidavit that Detective Frank told her on the date she was arrested that Mr. Daigle had stated that she must have taken the missing money since it could not be found and had been in her possession.

Defamation and “Negligent Misrepresentation ”

The centerpiece of plaintiffs claims is her claim that defendants defamed her. Plaintiff also alleges that defendants are liable to her by reason of their “[n]egligent misrepresentation and/or presentation of false information to law enforcement agents.” Strictly speaking, the tort theory of negligent misrepresentation is founded upon the following requisite elements: (1) a legal duty on the defendant’s part to supply correct information to the plaintiff, (2) a breach of that duty; and (3) damages to the plaintiff as a result of his justifiable reliance upon the misrepresentation. Busby v. Parish Nat’l Bank, 464 So.2d 374, 377 (La.App. 1st Cir.), writ denied, 467 So.2d 1132 (La.1985). (Emphasis added.) An action properly [n characterized as being based upon “negligent representation” is thus more akin to one based upon detrimental reliance. Plaintiffs claim therefore does not represent a true claim for negligent representation, which would require that the false or incorrect representation be made to her and that she justifiably rely upon it, suffering damages thereby.

To the extent that plaintiff may have properly asserted a claim based upon defendants’ alleged “negligent misrepresentation,” the elements of that claim would logically be subsumed within those of her related defamation claim, as both are based upon the identical communications supposedly made by defendants and the same operative facts. Accordingly, the following discussion is pertinent to both the defamation and “negligent misrepresentation” claims.

Words that convey an element of personal disgrace, dishonesty, or disrepute are defamatory. Costello v. Hardy, 03-1146, p. 13 (La.1/21/04), 864 So.2d 129, 140. The question of whether the words convey a particular meaning that is defamatory is ultimately a legal question. Id. Four elements are necessary to establish a claim for defamation: (1) a false and defamatory statement concerning another, (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Kennedy, 05-1418 at p. 4, 935 So.2d at 674. (Emphasis added.) The element of fault is generally referred to in the jurisprudence as malice, actual or implied. Costello, 03-1146 at p. 12, 864 So.2d at 139. If even one of those elements is found lacking, the cause of action fails. Kennedy, 05-1418 at p. 16, 935 So.2d at 681.

In Louisiana, defamatory words have been classified as either words that are defamatory per se or words susceptible of a defamatory meaning. Costello, 03-1146 at p. 13, 864 So.2d at 140. Words that expressly or h ¿implicitly accuse another of criminal conduct, or that by their very nature tend to injure one’s personal or professional reputation, even without considering extrinsic facts or surrounding circumstances, are considered defamatory per se. Id., 03-1146 at pp. 13-14, 864 So.2d at 140. When a plaintiff proves publication of words that are defamatory per se, the elements of falsity and malice (or fault) are presumed, but may be rebutted by the defendant Id., 03-1146 at p. 14, 864 So.2d at 140. When the words are not defamatory per se, a plaintiff must prove, in addition to defamatory meaning and publication, the elements of falsity, malice (or fault), and injury. Id.

In Louisiana, privilege relating to a communication is a defense to a defamation action. Kennedy, 05-1418 at p. 16, 935 So.2d at 681. Conditional privilege is an affirmative defense to a cause of action for defamation that must be affirmatively or specially pleaded in a defendant’s answer. See Costello, 03-1146 at p. 16 n. 13, 864 So.2d at 142 n. 13, and La. C.C.P. art. 1005. The defense is founded upon the principle that as a matter of public policy, in order to encourage the free communication of views in certain defined instances, a person is sometimes justified in communicating defamatory information to others without incurring liability. Kennedy, 05-1418 at p. 16, 935 So.2d at 681, citing Toomer v. Breaux, 146 So.2d 723, 725 (La.App. 3rd Cir.1962).

Privileged communications may be either. (1) absolute (such as statements by judges in judicial proceedings or legislators in legislative proceedings) or (2) conditional, or qualified. Kennedy, 05-1418 at p. 16, 935 So.2d at 681. The basic elements of a conditional privilege are: (1) good faith; (2) an interest to be upheld; (3) a statement limited in scope, to that interest; (4) a proper occasion for the communication of the statement; and 11S(5) publication in a proper manner and to proper parties only. Id., 05-1418 at p. 17, 93S So.2d at 682, citing Madison v. Bolton, 234 La. 997, 1013 n. 7, 102 So.2d 433, 439 n. 7 (La.1958).

The analysis of whether a conditional privilege exists is a two-step process. Kennedy, 05-1418 at pp. 17-18, 935 So.2d at 682. First, it must be determined as a matter of law whether the circumstances in which a communication was made satisfy the legal requirements for invoking the conditional privilege. Smith v. Our Lady of the Lake Hosp. Inc., 93-2512, p. 18 (La.7/5/94), 639 So.2d 730, 745. The second step requires a determination of whether the privilege was abused, which requires a factual determination that malice or lack of good faith existed. Id.

A good faith report to law enforcement officers of suspected criminal activity may appropriately be characterized as speech on a matter of public concern. See Kennedy, 05-1418 at p. 9, 935 So.2d at 677. Louisiana courts have recognized that the public has an interest in possible criminal activity being brought to the attention of the proper authorities, and have extended a conditional privilege to reports made in good faith. Id., 05-1418 at p. 19, 935 So.2d at 683. The conditional privilege is abused if the publisher (a) knows the matter to be false; or (b) acts in reckless disregard as to its truth or falsity. Id., 05-1418 at p. 22, 935 So.2d at 684.

In a case involving a private individual allegedly injured by a defamatory statement in a matter of public concern, the applicable standard of fault, or malice, is the following:

One who publishes a false and defamatory communication concerning a private person ... is subject to liability, if, but only if, he
(a) knows that the statement is false and that it defames the other,
114(b) acts in reckless disregard of these matters, or
(c) acts negligently in failing to ascertain them.

Kennedy, 05-1418 at p. 15, 935 So.2d at 681, citing Restatement (Second) of Torts § 580B.

To establish reckless disregard of the truth, a plaintiff must prove that the publication was deliberately falsified, published despite the defendant’s awareness of probable falsity, or the defendant in fact entertained serious doubts as to the truth of his publication. Kennedy, 05-1418 at pp. 28-9, 935 So.2d at 688. Even proof of gross negligence in the publication of a false statement is insufficient to prove reckless disregard under this standard. Id., 05-1418 at p. 29, 935 So.2d at 688. Mere negligence in determining the falsity of a statement (or lack of reasonable grounds for believing it to be true) is insufficient to prove abuse of the conditional privilege for communication of alleged wrongful acts to an official authorized to protect the public from such acts. Id., 05-1418 at p. 22, 935 So.2d at 684.

Plaintiff contends that there is genuine factual dispute as to whether the unwritten internal policy for reporting significant unexplained outages to law enforcement authorities actually existed and whether she violated either the written outage policy or the teller drawer maximum cash limit policy, and that such dispute precludes summary judgment. We disagree. A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Smith, 93-2512 at p. 27, 639 So.2d at 751. While the foregoing factual circumstances might conceivably be considered material for other purposes, such as a claim for improper discharge, they are only peripherally related to the issues presented in the context of this action. The existence of the unwritten internal policy has no real relevance to the issue of whether plaintiff was defamed or | ^otherwise damaged by the bank’s reporting of the loss to the police. And any factual dispute regarding plaintiffs violation of the bank’s operating policies has no bearing on the determination of the essential elements of her claim for defamation for allegedly being accused of theft.

Most of the remaining factual issues that plaintiff contends are genuinely disputed also relate to her violation of the bank’s policies and her custody and responsibility for the returned currency, issues that relate to her conduct rather than to the alleged conduct of defendants that forms the basis of her action. Plaintiffs actual guilt for theft or violation of her employer’s policies is not at issue for purposes of determining if summary judgment was appropriate; what is at issue here is defendants’ liability to plaintiff under the theories of recovery alleged, including their essential elements.

More importantly, however, plaintiff also insists that there remains genuine issue as to the material fact of whether any bank employee explicitly or implicitly stated that she stole the missing funds. Again, we disagree. Plaintiff points to only one single communication from Mr. Daigle that could arguably be considered a defamatory accusation of criminal conduct, that being a purported statement made to her by Detective Frank that Mr. Daigle told him “that plaintiff must have taken the money since it could not be found, and it was in plaintiffs possession at all times.” Detective Frank’s purported statement to that effect, offered to prove the truth of its contents, was set form only in plaintiffs own affidavit. Unfortunately for plaintiff, the described statement by Detective Frank reported in her affidavit is hearsay and is not admissible in evidence. See La. C.E. arts. 801(C) and 802. Louisiana Code of Civil Procedure article 967(A) provides that “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in 11Sevidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” (Emphasis added.) Thus, the hearsay statement may not be considered for purposes of summary judgment.

Significantly, plaintiffs primary argument is that in their written statements provided to Detective Frank, Mr. Daigle, Ms. Smith, and Ms. Canezaro “[s]nidely ... implicated thievery to the plaintiff, without coming right out and saying so.” Those purported implicit accusations of theft are unidentified, and, based upon our review of the record, unproven. The employees* statements are narrative accounts of the relevant circumstances and conversations among the involved bank employees, including plaintiff, following the return of the currency sent to the Federal Reserve Bank and the discovery of the missing funds; there are no criminal accusations or suggestions of guilt, expressions of opinion, or references to “stolen” money or “theft.” Even if Mr. Daigle or another bank representative would have expressly described plaintiff as a possible suspect in the loss and characterized the loss as a theft, and even if it is assumed that such a statement would have been defamatory per se (and also procedurally admissible), the statement would clearly have been privileged under the circumstances. See Jalou II, Inc. v. Liner, 10-0048, p. 12 (La.App. 1st Cir.6/16/10), 43 So.3d 1023.

The depositions and affidavits filed on behalf of defendants affirmatively refuted plaintiffs allegations of defamatory accusations by other bank employees. Plaintiff presented only her own affidavit in opposition to the defendants’ evidence. In her deposition, filed by defendants, plaintiff admitted that she had no personal knowledge of the content of any communication from Mr. Daigle or any employee, agent, or other representative of the bank to Detective Frank concerning her or the |17missing money. Thus, her own sworn deposition testimony served to negate any personal knowledge on her part of any such communication in her affidavit. Plaintiff having failed to establish a genuine issue of material fact relating to any communication of a non-privileged defamatory statement or any malice on the part of defendants, her cause of action for defamation must fail. Summary judgment was appropriate as to her defamation claim and, to the extent it might constitute a distinct claim, her claim for negligent misrepresentation.

Intentional Inñiction of Emotional Distress, False Imprisonment, and Malicious Prosecution

A plaintiff seeking damages for intentional infliction of emotional distress must establish three elements: (1) that the defendant’s conduct was extreme and outrageous; (2) that the emotional distress suffered was severe; and (3) mat the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. Cortes v. Lynch, 02-1498, p. 9 (La.App. 1st Cir.5/9/03), 846 So.2d 945, 951, citing White v. Monsanto Co., 585 So.2d 1205, 1209 (La.1991). The required conduct under the first element “must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” White, 585 So.2d at 1209.

The same legal considerations that justify the defense of conditional privilege for reports of suspected criminal activity also compel the conclusion that such a report, made in good faith and founded upon reasonable suspicions, simply cannot constitute “extreme and outrageous” conduct under the foregoing standard. See, e.g., Taylor v. Johnson, 00-1660, pp. 4-5 (La.App. 3rd Cir.4/18/01), 796 So.2d 11, 14, writ denied, 01-1486 (La.8/31/01), 795 So.2d 1212. Liability for intentional infliction of emotional distress does not attach where the defendant has done no more than to insist upon his legal rights in a permissible way, even though he is aware that such insistence is certain to cause emotional stress. White, 585 So.2d at 1210. Similarly, liability cannot be based upon a privileged communication on a matter of public concern, a good faith report of a suspected or possible criminal act, as such reports should be encouraged as promoting the public interest in the suppression of crime and enforcement of the law.

Our de novo review of the record confirms that plaintiff utterly failed to meet her burden to establish any genuine issue of material fact tending to support a finding of extreme and outrageous conduct under the first element of the tort of intentional infliction of emotional distress. That claim was thus appropriately dismissed.

As previously noted, plaintiff alleged in her petition that she was arrested and charged with felony theft because of supposed statements provided to law enforcement by Mr. Daigle that she stole $5,000.00, and that the accusation was false. In the prayer of her petition, plaintiff claimed that she is entitled to damages by reason of defendants’ actions in “causing her false arrest and imprisonment.”

Our de novo review of the i-ec-ord demonstrates that plaintiff has failed to establish any genuine factual issue supporting a claim for false arrest and imprisonment against defendants. The tort of false arrest or false imprisonment occurs when one arrests and restrains another against his will and without statutory authority. Kennedy, 05-1418 at p. 32, 935 So.2d at 690. There are two essential elements: (1) detention of the person; and (2) the unlawfulness of the detention. Id. It is undisputed that plaintiff was 119never actually or constructively detained or restricted in her movements by defendants, and that she was not arrested on the bank premises. It is likewise clear from Detective Frank’s deposition that the decision to arrest plaintiff was his alone, and that neither Mr. Daigle nor any other bank representative requested, suggested, or otherwise “caused” her arrest. Summary judgment was appropriately rendered as to this claim as well. See Kennedy, 05-1418 at p. 32, 935 So.2d at 689-90; Taylor, 00-1660 at pp. 4-5, 796 So.2d at 13-14; and Mitchell v. Villien, 08-1470, pp. 21-3 (La.App. 4th Cir.8/26/09), 19 So.3d 557, 572-73, writ denied, 09-2111 (La.12/11/09), 23 So.3d 923.

Plaintiffs petition assert’s a claim for malicious prosecution, although that particular theory of recovery was never specifically identified by plaintiff as such. She alleged that she “was arrested and charged with [flelony [t]heft primarily because of statements made and information given to law enforcement authorities by [Mr.] Daigle.” She also alleged that the bank “has pursued criminal proceedings against [her] which has [sic ] required her to retain a criminal defense attorney.”

Malicious prosecution actions have never been favored in our law, and the plaintiff in such an action must clearly establish that the forms of justice have been perverted to the gratification of private malice and the willful oppression of the innocent Johnson v. Pearce, 313 So.2d 812, 816 (La.1975). An action for malicious prosecution of a criminal proceeding, such as that asserted by plaintiff here, requires the following elements: (1) the commencement or continuance of an original criminal proceeding; (2) its legal causation by the present defendant against the plaintiff, who was the defendant in the criminal proceeding; (3) the bona fide termination of the criminal proceeding in favor of the present plaintiff; (4) the absence of |enprobabIe cause for the criminal proceeding; (5) malice; and (6) damage to the plaintiff, conforming to legal standards. Miller v. E. Baton Rouge Parish Sheriff's Dep’t, 511 So.2d 446, 452 (La.1987).

In a malicious prosecution action, there must be malice in fact. Id, 511 So.2d at 453. Malice may be inferred from lack of probable cause or a finding of reckless disregard for the other person’s rights. Id. Our prior observations as to the absence of malice in discussing plaintiffs defamation claim are relevant here. In light of the undisputed facts in the record, defendants adequately rebutted plaintiffs conclusory allegations of malice, and plaintiff failed to affirmatively put forth competent evidence on that element of her malicious prosecution claim sufficient to defeat summary judgment.

■ Plaintiff has further failed to show . that she can likely prevail as to the issue of causation for any claim of malicious prosecution. Here, the bank employees merely. reported the substantial monetary loss to the police in accordance with the bank’s internal policy requiring such a report, and the police department thereupon conducted its own independent investigation. In light of the uncontroverted deposition testimony of Detective Frank and Mr. Daigle and the sworn statements in Mr. Sparks’s affidavit, “any chain of causation regarding plaintiffs subsequent detention was broken,” because “[t]he decision to detain plaintiff was made by the independent actions and investigation” of Detective Frank. See Kennedy, 05-1418 at p. 32 n. 20, 935 So.2d at 690 n. 20. See also Mitchell, 08-1470 at pp. 21-3, 19 So.3d at 572-73, and Adams v. Harrah’s Bossier City Inv. Co., LLC, 41,468, pp. 5-6 (La.App. 2nd Cir.1/10/07), 948 So.2d 317, 320, writ denied, 07-0639 (La.5/11/07), 955 So.2d 1281. Summary judgment was clearly appropriate as to 121 any malicious prosecution claim as well as the defamation and related claims. See Jalou II, 10-0048 at pp. 26-7, 43 So.3d at 1026.

CONCLUSION

In summary, defendants met their initial burden of establishing absence of factual support for essential elements of all of plaintiffs various claims, thereby shifting the burden to plaintiff to show that summary judgment was inappropriate. Plaintiff failed to put forth factual support sufficient to establish that she could probably meet her burden of proof at trial on essential elements of her claims of defamation, intentional infliction of emotional distress, and negligent misrepresentation, as well as those for any claims for false arrest and malicious prosecution. Based upon our de novo review of the record, it is our conclusion that the trial court did not err in rendering summary judgment in favor of defendants.

DECREE

The summary judgment in favor of the defendants-appellees, American Gateway Bank and Glen Daigle, dismissing the cause of action of the plaintiff-appellant, Jacquéline Cook, is hereby affirmed. All costs of this appeal are assessed to the plaintiff-appellant.

AFFIRMED.

WELCH, J. concurs without reasons.

      . Including the half-"brick” in the total, plaintiff’s teller drawer should have held a surplus of $5,000.00 above its recorded balance. If the $5,000.00 half-"brick” in fact came from the returned $72,000.00 shipment, then plaintiff's teller drawer was short $5,000.00 before the half-"brick” was placed in it.

      . Detective Frank also testified that he had personally investigated a prior incident at the same branch bank involving another loss of $5,000.00. Plaintiff was also involved in that incident, in which the sum was discovered to be missing from a transfer of funds from plaintiff to another bank employee. According to Detective Frank, no arrests were made in connection with that loss, because the transferred funds had not been kept secure from access by other employees besides plaintiff and the recipient after the transfer was made.

      . Additionally, we note that there is no evidence in the record showing that títere was a bona fide termination of the criminal proceeding in plaintiff's favor. In her appellate brief, plaintiff asserts that the proceeding against her has not yet been set for trial.


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    STATE of Louisiana In the Interest of C.S.
    No. 2010CJ0687.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 2010.

      Russell C. Monroe, Greensburg, LA, for Plaintiffs-Appellants L.D. and F.D.
    Vanessa R. Williams, Hammond, LA, for Defendant-Appellee B.R.
    Before KUHN, PETTIGREW, and WELCH, JJ.
   KUHN, J.

12Appellants, L.D. and F.D., the adoptive parents of the child, C.S., have suspensively appealed the juvenile court’s judgment, which granted specified, supervised visitation to the biological father of C.S. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

C.S. was born on January 26, 2005. Her parents, M.S. and B.R., apparently never married. B.R.’s paternity was established after a test determined he was the biological father. Six weeks after birth, C.S. entered the home of the maternal grandmother, F.D., and her husband, L.D., who have been caretakers and the source of support for C.S. since that time. A Department of Social Services, Office of Community Service case was opened in the matter, and a termination of parental rights hearing was scheduled.

On November 17, 2006, the juvenile court judge overseeing the termination proceeding signed a consent judgment in which the parental rights of M.S. and B.R. were “terminated so that the child (C.S.) may be adopted by [L.D.] and [F.D.] with an open adoption.” L.D. and F.D. were expressly “granted the permanent care, custody and control of the minor child ... subject to reasonable, supervised visitation by [M.S.] and [B.R.], to be supervised by the court should the parties be unable to agree to the visitation schedule.” The consent judgment was submitted and signed by the attorney for L.D. and F.D. and approved as to form and content by the biological parents’ counsel.

|sOn May 21, 2007, a final decree of adoption was rendered in favor of L.D. and F.D., and the child’s last name was changed to theirs.

On July 9, 2007, B.R. filed a rule for a detailed visitation and, on October 19, 2007, M.S. filed her rule seeking the same relief for herself. Each rule stated that M.S. and B.R. had agreed to voluntarily terminate their parental rights with the understanding that they would have regular visitation with C.S. Because both M.S. and B.R. have other children, they hoped that regular visitation would foster relationships between C.S. and her half-brothers and half-sisters. According to the allegations in their rules, in voluntarily surrendering their respective parental rights, each parent understood that visitation would commence as supervised and hopefully move to unsupervised. Although visitation worked well for awhile, they each alleged in their rules that L.D. and F.D. refused to set a fixed visitation schedule, requiring B.R. and M.S. to initiate weekly contact to determine appropriate times. Over time, L.D. and F.D. refused M.S. and B.R. visitation with C.S. and would not return B.R.’s calls.

A hearing was held on B.R.’s rule on October 5, 2007. In a judgment signed on November 9, 2007, the juvenile court ordered “that B.R. shall be granted supervised visitation of the minor child, [C.S.], two Thursdays per month for one hour during the month of October, 2007. The tentative time shall be from 6:30 p.m. until 7:30 p.m.” The judgment additionally ordered “that B.R. shall be granted supervised visitation of the minor child, [C.S.], two Thursdays per month for two hours during the months of November and December of 2007 or until changed by this Honorable Court. The tentative time shall be from 5:30 p.m. until 147:30 p.m.” Lastly, the judgment ordered “that this matter shall be reviewed on December 7, 2007 at 9:00 a.m.”

On November 21, 2007, L.D. and F.D. filed peremptory exceptions raising objections of no cause and no right of action directed against the rules filed by M.S. and B.R. The hearing on the exceptions was held on December 7, 2007, after which the juvenile court overruled the exceptions, stating that it did not rule on what may be in the best interest of the child since that issue was not presented.

On December 19, 2007, L.D. and F.D. filed with this court an application for a supervisory writ seeking a reversal of the juvenile court’s ruling. The juvenile court stayed “all further proceedings in this matter ... pending the resolution of said writ application.” On the same day that they sought a writ application, L.D. and F.D. also filed a suspensive appeal of the juvenile court’s November 9, 2007 judgment ordering specified, supervised visitation in favor of B.R.

On April 1, 2008, this court denied the writ application. Another panel of this court stated:

WRIT DENIED. The Consent Judgment dated November 17, 2006, terminated the parental rights of the biological parents so that |athe minor child could be adopted with an open adoption, and the adoptive parents were granted the permanent custody of the child subject to reasonable supervised visitation by the biological parents to be supervised by the court if the parties were unable to agree. In light of the Consent Judgment, we find that the trial court did not abuse its discretion in denying relators’ Exceptions of No Cause and No Right of Action.

State in the Interest of C.S., 2008-0164 (La.App. 1st Cir.4/1/08) (an unpublished writ action).

On February 24, 2010, a deputy for the clerk of court certified a true, correct and complete record. And on April 23, 2010, this court certified the timely lodging and perfecting of the appeal of the November 9, 2007 judgment.

DISCUSSION

Appellants contend the November 9, 2007 judgment “grant[s] visitation to the biological parents.” We initially note that the record clearly shows the only matter taken up at the October 5, 2007 hearing was B.R.’s rule. Thus, appellants have overstated the scope of the judgment they have appealed to include M.S. Insofar as the provisions of the judgment, it contains four paragraphs. The first orders a Court Appointed Special Advocate (CASA) representative “to supervise the visitation” of C.S. with B.R. The second and third paragraphs order “that B.R. shall be granted supervised visitation” for specified dates and times in October, November and December 2007. The final paragraph sets a review of “this matter” for December 7, 2007.

|Jn challenging the juvenile court’s determination that B.R. was entitled to supervised visitation with C.S., L.D. and F.D., contend that with the final decree of adoption, any post-termination continuing contact set forth in the judgment that terminated B.R.’s parental rights ceased to operate as a matter of law. Specifically, they aver that this result follows from an application of La. Ch.C. arts. 1038 and 1037.1, as well as the provisions of La. C.C. art. 199. Additionally, they urge that the requirements for the limited post-adoption contact permitted under La. Ch.C. art. 1269.3 have not been fulfilled.

According to the relevant provisions of La. Ch.C. art. 1038:

A final judgment terminating parental rights relieves the child and the parent against whom the judgment is rendered of all of their legal duties and divests them of all of their legal rights with regard to one another except as provided in Article 1037.1..............

]7La. Ch.C. art. 1037.1 provides:

A.Subsequent to a termination of parental rights judgment when custody is granted to the department, the court may order continuing contact between the child and the parent, sibling, or other biological relative. The court may grant such an order only after it makes finding of fact that continuing contact is in the best interest of the child. The court may receive expert testimony on the issue of continuing contact.
B. Any order for continuing contact shall remain in effect until the order is modified in accordance with Paragraph C of this Article, or the final decree of adoption is rendered.
C. Any order of continuing contact remains modifiable and shall be reviewed in the subsequent hearings required by Chapter 10 of this Title.

And La. C.C. art. 199 states:

Upon adoption, the adopting parent becomes the parent of the child for all purposes and the filiation between the child and his legal parent is terminated, except as otherwise provided by law. The adopted child and his descendants retain the right to inherit from his former legal parent and the relatives of that parent.

Preliminarily, we find that La. Ch.C. art. 1037.1 is inapplicable as it addresses “continuing contact” subsequent to a termination of parental rights judgment when custody is granted to the department. The 2006 consent judgment that terminated B.R.’s parental rights granted the permanent care, custody, and control of C.S. to L.D. and F.D., not to the Louisiana Department of Social Services. See La. Ch.C. art. 1008(6). Additionally, as noted in the 1997 Official Comment (b) to Article 1087.1, the term “continued contact” is used rather than “visitation” in order to minimize any possible construction that reciprocal rights between parent and child are created. And Official Comment (a) points out that with regard to the continued contact referenced in Article 1037.1, maintaining some limited contact with the parent may be critical to the child’s adjustment in Isfoster care while awaiting transition to a permanent home through adoption. Thus, the continuing contact addressed in Article 1037.1 differs significantly from the “supervised visitation” provided for in the November 2006 consent judgment. Insofar as an application of La. C.C. art. 199, appellants have correctly asserted that the filiation between the child, C.S., and her legal parent, B.R., was terminated when she was adopted in 2007, but in light of the provisions of the consent judgment, that is not the end of our discussion since Article 199 recognizes exceptions to the termination when provided by law.

As we have already noted, this matter commenced as an involuntary termination of parental rights. But by agreement of the parties, a consent judgment was entered into.

A compromise agreement that forms the basis for a consent judgment gets its binding force and effect from the consent of the parties Nungesser v. Nungesser, 95-2298, p. 3 (La.App. 1st Cir.6/28/96), 694 So.2d 312, 314. The interpretation of the consent judgment (i.e. the contract between the parties) is the determination of the common intent of the parties. La. C.C. art. 2045; Nungesser, 95-2298 at pp. 3-4, 694 So.2d at 314. Each provision in the contract is interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. When the words of a contract are clear and explicit and lead to no absurd consequences, the intent of the parties is to be determined by the words of the contract. Id., 95-2298 at p. 4, 694 So.2d at 314.

Our examination of the consent judgment entered into by the parties expressly noted that all parties and their attorneys were present in court; it was signed by the attorneys; and, according to the juvenile court judge overseeing the | {¡proceeding, it was rendered after reviewing the testimony of the parties and witnesses, representation of counsel, the agreement reached by the parties, and the pleadings. It clearly and unambiguously stated that L.D. and F.D. were “granted the permanent care, custody and control of the minor child ... subject to reasonable, supervised visitation by [M.S.] and [B.R.], to be supervised by the court should the parties be unable to agree to the visitation schedule.” (Emphasis added.) Therefore, the provisions of the consent judgment should be enforced according to its terms. We note that the visitation specified in the consent judgment does not violate public policy. See La. Ch.C. art. 1269.1 (permitting contact between the adopted child and biological relatives).

L.D. and F.D.’s assertion that the provisions of La. Ch.C. art. 1269.3 preclude visitation by B.R. likewise fails. Article 1269.3, which permits continuing contact agreements and specifies the requisites for such agreements, provides in relevant part:

A. Every post-adoption contact agreement shall be in writing and signed by the adopting parents and by any adult granted contact.
E. Every agreement, in order to be enforceable in accordance with Article 1269.8, must recite the following declarations:
(1) The parties have freely and voluntarily entered into the agreement and it reflects their intent to be bound by its terms, unless later modified by a replacement agreement or by court order.
(2) The ... parent ... by blood ..., or his representative, if any, has been counseled and advised ... by counsel, or by other appropriate professional about the meaning of these declarations and the effects of a continuing contact agreement and each has had the opportunity to have the agreement reviewed by his counsel.
(3) The ... parent ... by blood ..., or his representative, has been informed and understands that upon the execution of the agreement, any dispute or litigation regarding its terms shall not | inaffect the validity of any surrender, termination of parental rights, adoption, or custody of the adopted child.
(4) The adopting parents have been informed and understand that the ... parent ... by blood ... may seek enforcement of the terms of the agreement in accordance with Article 1269.8.

The assertion made by L.D. and F.D. overlooks that Article 1269.8 applies to post-adoption agreements. The consent judgment providing B.R. with supervised visitation was entered into simultaneously with the termination of his parental rights and prior to the adoption of C.S. by L.D. and F.D. Indeed, L.D. and F.D. were expressly granted the permanent care, custody, and control of C.S. subject to reasonable, supervised visitation. Accordingly, appellants’ reliance on Article 1269.3 is misplaced.

DECREE

Considering the foregoing and this court’s earlier ruling on the writ, the juvenile court’s judgment is affirmed. Appeal costs are assessed against L.D. and F.D.

AFFIRMED.

      . As provided in La. U.R.C.A. Rule 5-2. we refer to the parties in this termination of parental rights/adoption case by their initials to protect the interests of the child and to ensure confidentiality.

      . Although B.R.’s rule had been heard and judgment rendered, the exceptions against B.R. were apparently directed to the court’s order of review of the rule filed by B.R. pursuant to the November 9, 2007 judgment.

      . On December 7, 2007, the juvenile court judge signed a document entitled "Judgment and Reasons for Judgment,” detailing his reasons for overruling the exceptions. On December 19, 2007, the juvenile court judge signed another document entitled "Amended Judgment and Reasons for Judgment.” Except for the dates, the two documents appear to be identical. A document entitled, "Judgment,” overruling the exceptions without reasons, was signed on January 18, 2008.

      . The record shows that a notice of judgment of the November 9, 2007 judgment was never issued by the clerk of court for the juvenile court. Thus, appellants' appeal was timely. See La. C.C.P. arts. 1913, 1974, and 2123; see also Ch.C. art. 1261.

      . While the juvenile court’s order granting an appeal of the November 9, 2007 judgment set the return date in this appeal for February 18, 2008, nothing in the record explains the reason that it was not certified by a deputy for the clerk of the district court until over two years after the return date.

      . Courts will not decide abstract, hypothetical, or moot controversies, or render advisory opinions. However, there are exceptions to the mootness doctrine. In particular, a court should consider whether there is any reasonable expectation that the complained-of conduct will recur. Louisiana State Bd. of Nursing v. Gautreaux, 2009-1758, pp. 2-3 (La.App. 1st Cir.6/11/10), 39 So.3d 806. Because the challenged action was too short to be fully litigated prior to the lapse of the visitation ordered in the November 9, 2007 judgment, and while the dates for the specified visitation have lapsed, since there was, at the time the appeal was filed, a reasonable expectation that L.D. and F.D. would be subjected to further orders of supervised visitation of C.S. by B.R., we find that it falls within the perimeters of the exceptions to the mootness doctrine. See Louisiana State Bd. of Nursing, 2009-1758 atp. 3, 39 So.3d at 812.

      . In brief, appellants refer to the former provisions of La. C.C. art. 214, as they appeared pursuant to La. Acts 1995, No. 1185, § 1. Article 214 was amended by La. Acts 2008. No. 351, § 1 and presently addresses adult adoptions. La. C.C. art. 199 was enacted pursuant to La. Acts 2009, No. 3, § 1, which provided that the provisions of the act relative to the enactment of Article 199 were "curative and remedial and therefore shall be applied retroactively to January 1, 2009.” Thus, we substitute the provisions of Article 199 in addressing appellants’ assertions about Article 214.

      . Although in brief, appellants cite La. Ch.C. art. 1269.2, by La. Acts 2008, No. 583, § 2, that article was redesignated as La. Ch.C. art. 1269.3. And while Article 1269.2 was amended prior to its redesignation, that amendment did not affect the provisions relied upon by appellants in asserting their argument.

      .The provisions of La. Ch.C. art. 1038 are similar to the provisions of former La. C.C. art. 214 that appellants rely upon in challenging the November 9, 2007 judgment in that former Article 214C provided, "the blood parents or parents and all other blood relatives of the adopted person ... are relieved of all of their legal duties and divested of all of their legal rights with regard to the adopted person.”

      . Under the law-of-the-case doctrine, an appellate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same case. Capitol House Preservation Co., LLC. v. Ferryman Consultants, Inc., 98-2216, p. 6 n.8 (La.App. 1st Cir.11/5/99), 745 So.2d 1194. 1197 n.8, writ denied, 99-3446 (La.2/11/00), 754 So.2d 937. This doctrine applies with equal force to writ decisions as it does to judgments rendered at the conclusion of the appellate process. Dupre v. Maynard, 96-1183, p. 3 (La.App. 1st Cir.3/27/97), 692 So.2d 36. 38, writ denied, 97-1508 (La.9/26/97), 701 So.2d 986.

      . Because a best-interest determination has not been undertaken of the rights derivative from the consent judgment, if the supervised visitation that the parties agreed to is no longer in the best interest of CS, nothing precludes appellants from bringing a rule against BR (and MS) to terminate visitation.


author: GUIDRY, J.

text:
    Daniel FOUQUET v. DAIQUIRIS & CREAMS OF MANDEVILLE, L.L.C., ABC Insurance Company, Bryce Hemstad & XYZ Insurance Company.
    No. 2010 CA 0233.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 13, 2010.

      Alex J. Peragine, Rebecca R. Urland, Covington, LA, for Plaintiff/Appellant Daniel F.ouquet.
    Amos H. Davis, Baton Rouge, LA, for Defendant/Appellee Colony Insurance Company.
    Robert A. Barnett, New Orleans, LA, for Defendant/Appellee Daiquiris & Creams of Mandeville, L.L.C.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

[2A bar patron appeals a summary judgment rendered in favor of the bar’s liability insurer. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On or about March 23, 2008, Daniel Fou-quet was stabbed several times by Bryce Hemstad, while a patron at a bar called Daiquiris & Creams, in Mandeville, Louisiana. As a result of the incident, Mr. Fou-quet filed a petition for damages against Mr. Hemstad, Daiquiris & Creams of Mandeville, L.L.C. (“Daiquiris & Creams”), and their respective liability insurers. Colony Insurance Company (“Colony”) intervened in the action to assert that it had issued a commercial general liability (CGL) policy to . Daiquiris & Creams that was in effect on the date of the incident sued upon. In conjunction with its intervention, Colony also filed a motion for summary judgment, asserting that based on certain exclusions in the CGL policy issued to Daiquiris & Creams, there was no coverage under the policy for Mr. Fouquet’s claims; therefore, it was not liable. Thereafter, Mr. Fouquet amended his petition to add Colony as a defendant in its capacity as the liability insurer of Daiquiris & Creams and to assert additional allegations of negligence against Daiquiris & Creams.

Following a hearing on Colony’s motion for summary judgment, the trial court granted the motion and dismissed Colony from Mr. Fouquet’s suit by a judgment signed April 16, 2009. Mr. Fouquet devol-utively appeals that judgment.

ASSIGNMENTS OF ERROR

In his brief on appeal, Mr. Fouquet submits the following assignments of error:

I. The Trial Court erred in not following ... the “Eight-Corners Rule” and not strictly construing the Policy against Colony.

II. The Trial Court erred in granting Colony’s motion for summary judgment because not all of Mr. Fou-quet’s claims in the Petition Rare beyond the scope of coverage provided by the Policy.

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Lieux v. Mitchell, 06-0382, p. 9 (La.App. 1st Cir.12/28/06), 951 So.2d 307, 314, writ denied, 07-0905 (La.6/15/07), 958 So.2d 1199. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Independent Fire insurance Company v. Sunbeam Corporation, 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230-231.

When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing there is no genuine issue of material fact remains with the party bring the motion. See La. C.C.P. art. 966(C)(2); Buck’s Run Enterprises, Inc. v. Mapp Construction, Inc., 99-3054, p. 4 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431. An insurer seeking to avoid coverage through summary judgment bears the burden of proving some exclusion applies to preclude coverage. Lewis v. Jabbar, 08-1051, p. 5 (La.App. 1st Cir.1/12/09), 5 So.3d 250, 254-55.

A fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Smith v. Our Lady of the Lake Hospital Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Charlet v. Legislature of the State of Louisiana, 97-0212, p. 7 (La.App. 1st Cir.6/29/98), 713 So.2d 1199, 1203, writs denied, 98-2023, 98-2026 (La.11/13/98), 730 So.2d 934.

Moreover, interpretation of an insurance policy is usually a legal question that can properly be resolved by means of a motion for summary judgment. Miller v. Superior Shipyard and Fabrication, Inc., 01-2683, p. 4 (La.App. 1st Cir.11/8/02), 836 So.2d 200, 203. However, summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy under which coverage could be afforded when applied to the undisputed material facts shown by the evidence supporting the motion. Reynolds v. Select Properties, Ltd., 93-1480, p. 2 (La.4/11/94), 634 So.2d 1180, 1183.

INSURANCE COVERAGE

An insurance policy is a contract between the parties and should be construed using the general rules of contractual interpretation. If the words of the policy are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent, and the agreement must be enforced as written. La. C.C. art. 2046; Davenport v. Prudential Property & Casualty Insurance Co., 03-2593, pp. 3-4 (La.App. 1st Cir.10/29/04), 897 So.2d 98, 101, writ denied, 04-2900 (La.2/4/05), 893 So.2d 882. Unless the words of the policy have acquired a technical meaning, they are to be construed using their plain, ordinary, and generally prevailing meaning. See La. C.C. art. 2047; Bennett v. Ragon, 04-0706, p. 6 (La.App. 1st Cir.3/24/05), 907 So.2d 116, 120.

Moreover, as observed by this court in Sensebe v. Canal Indemnity Company, 09-1325, p. 6 (La.App. 1st Cir.2/24/10), 35 So.3d 1122, 1125-26, writ granted, 10-0703 (La.6/25/10), 38 So.3d 358 (citations omitted):

An insurer has the burden of proving that a loss falls within a policy exclusion. Additionally, in determining whether an exclusion applies to preclude coverage, courts are guided by the well-recognized | ¿rule that an exclusionary clause in an insurance policy must be strictly construed. Nonetheless, an insurance policy, including its exclusions, should not be interpreted in an unreasonable or strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion.

DISCUSSION

In this appeal, Mr. Fouquet basically objects to the trial court’s determination that two exclusions in the CGL policy Colony issued to Daiquiris & Creams completely bar coverage for his claims. The two exclusions provide, in pertinent part:

ASSAULT, BATTERY OR ASSAULT AND BATTERY EXCLUSION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
A. SECTION 1—COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY, 2. Exclusions ... [is] amended and the following added:
Assault, Battery or Assault and Battery
This insurance does not apply to damages or expenses due to “bodily injury”, “property damage” ... arising out of or resulting from:
(1) “Assault”, “Battery” or “Assault and Battery” committed by any person;
(2) The failure to suppress or prevent “Assault”, “Battery” or “Assault and Battery” by any person;
(3) The failure to provide an environment safe from “Assault”, “Battery” or “Assault and Battery”;
(4) The failure to warn of the dangers of the environment which could contribute to “Assault”, “Battery” or “Assault and Battery”;
(5) “Assault”, “Battery” or “Assault and Battery” arising out of the negligent hiring, supervision, or training of any person;
(6) The use of any force to protect persons or property whether or not the “bodily injury” or “property damage” or “personal and advertising injury” was intended from the standpoint of the insured or committed by or at the direction of the insured.
B. SECTION V — DEFINITIONS is amended and the following is added:
| fi“ Assault” means:
a. an act creating an apprehension in another of immediate harmful or offensive contact, or
b. an attempt to commit a “Battery”.
“Battery” means an act which brings about harmful or offensive contact to another or anything connected to another.
“Assault and Battery” means the combination of “Assault” and a “Battery”.

WEAPONS EXCLUSION

This endorsement modifies- insurance provided under the following:

COMMERCIAL GENERAL LIABILITY COVERAGE PART
SECTION I — COVERAGES, COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY,
2. Exclusions is amended and the following added:
Use of Weapons
This insurance does not apply to “bodily injury”, “property damage” or “personal and advertising injury” arising out of or resulting from the possession, ownership, maintenance, use of or threatened use of a lethal weapon, including but not limited to firearms by any person.

Mr. Fouquet acknowledges that the aforementioned exclusions do bar coverage for some of the acts of negligence that he alleges Daiquiris & Creams committed; nevertheless, he contends that the exclusions do not apply to bar coverage for the following acts of negligence alleged:

1) Failure to prevent/control the number of repeated criminal incidents at its business;
2) Failure to act as a reasonable and/or prudent person would under the same or similar circumstances, with similar professional responsibility;
3) Failure to assist Plaintiff;
4) Failure to render first aid; and
5) Failure to seek assistance, such as by calling emergency services.

We find the plaintiffs argument to be misdirected, due to the fact that he reads the exclusionary language too narrowly and focuses solely on the negligence precluded. He fails to recognize that the exclusions bar coverage based not just on |7the type of negligence asserted, but more specifically, they deny coverage.for “bodily injury” stemming from the specified types of negligence.

In its motion for summary judgment, Colony asserted that “it cannot be held liable as a matter of law under the undisputed facts of the case for the injuries allegedly sustained by plaintiff.” Both the assault and battery and weapons exclusions provide “[t]his insurance does not apply to ... ‘bodily injur/, ‘property damage’ ... arising out of or resulting from” as prefatory language. All the evidence submitted and facts alleged by the plaintiff regarding the injuries he sustained relate to and are a direct result of the battery committed by Mr. Hemstad. Mr. Fouquet did not present any evidence or allege any facts to establish he sustained any separate injuries as a result of the alleged acts of negligence specified above. Hence, as the only “bodily injuries” alleged are those stemming from the actual stabbing, those injuries clearly fall within the ambit of both the assault and battery and weapons exclusions. In the absence of some allegations and evidence to establish that Mr. Fouquet was additionally damaged or injured as a result of the specifically identified alleged acts of negligence enumerated above, the assault and battery and weapons exclusions bar coverage for the bodily injuries claimed by Mr. Fouquet.

CONCLUSION

For the reasons stated, the summary judgment rendered in favor of Colony Insurance Company is affirmed. All costs of this appeal are cast to the plaintiff, Daniel Fouquet.

AFFIRMED.


author: DAVID S. GORBATY, Judge.

text:
    LOUISIANA STADIUM & EXPOSITION DISTRICT, State of Louisiana, Travelers Property Casualty Company of America as Subrogee to the Rights of the New Orleans Louisiana Saints, LLC, and Travelers Excess and Surplus Lines Company as Subrogee to the Rights of SMG Partnership v. BFS DIVERSIFIED PRODUCTS, LLC, Bridgestone Americas Holding, Inc., Horizon Group of New England, Inc., National Fire Insurance Company of Hartford, Johnson Controls, Inc. E-Tek, Inc., Rooftech Consultants, Inc., IMC Consulting Engineers, Inc., et al.
    No. 2010-CA-0587.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 15, 2010.

      Reed S. Minkin, Joseph P. Guichet, Ralph S. Hubbard, III, Lugenbuhl Whea-ton Peck Rankin & Hubbard, New Orleans, LA, for Defendant/Appellee, United States Fidelity & Guaranty Company.
    John A. Stewart, Jr., Hulse & Wanek, New Orleans, LA, for Appellants, Rooftech Consultants, Inc., and U.S. Specialty Insurance Company.
    Court composed of Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY.
   DAVID S. GORBATY, Judge.

| ¶ RoofTeeh Consultants, Inc. (RoofTeeh) and U.S. Specialty Insurance Company (U.S.Specialty) appeal three judgments of the district court whereby a motion for new trial was granted to United States Fidelity & Guaranty Company (USF & G) and claims by U.S. Specialty and RoofTeeh against USF & G for an obligation to defend RoofTeeh, reimbursement of expenses or costs, and/or bad faith were dismissed, with prejudice. For the following reasons, we affirm.

PROCEDURAL HISTORY:

The underlying facts of this matter are simple: The roof of the Louisiana Super-dome was virtually destroyed by Hurricane Katrina. Following the storm, the Louisiana Stadium & Exposition District and its insurers filed suit against Roof-Tech, its insurers and others for deficient design of the roof that was placed on the structure in 2000, 2001 and 2002. U.S. Specialty, RoofTech’s professional liability insurer, provided a defense to RoofTeeh pursuant to the terms of the policy. USF & G, RoofTech’s commercial general liability insurer, refused to provide a defense.

| ?RoofTech subsequently filed a third party demand against USF & G asserting its right to a defense and indemnity, and for attorneys’ fees and penalties for failure to honor its obligations under the policy. U.S. Specialty settled the claims of plaintiffs against RoofTeeh, and joined Roof-Tech in demanding relief from USF & G.

In August 2009, the trial court heard cross-motions for partial summary judgment filed by the parties. RoofTeeh and U.S. Specialty were seeking a judgment requiring USF & G to reimburse the costs paid for defending RoofTeeh, with interest, and for penalties and attorneys’ fees for failure to defend. USF & G filed a cross motion seeking a summary judgment declaring that it owed no duty to defend RoofTeeh and that it had not acted in bad faith in denying such defense. USF & G further urged that if the trial court found that it did owe a duty to defend, the defense costs should be allocated between it and U.S. Specialty on a pro rata basis.

The trial court initially ruled that USF & G did owe a duty to defend RoofTeeh, but that USF & G had not acted in bad faith. The issue of costs was taken under advisement, and on September 21, 2009, the trial court ruled that the costs to defend RoofTeeh should be allocated between the two insurers on a pro rata basis based on policy limits.

USF & G moved for a new trial on the duty to defend issue, and RoofTeeh and U.S. Specialty moved for a new trial on the bad faith and allocation of costs issues. Again taking the matters under advisement, on December 2, 2009, the trial Iscourt granted USF & G’s motion for new trial, holding that USF & G had no duty to defend RoofTech based on the professional services exclusion in the USF & G policy. Subsequently, judgments were rendered dismissing all claims by RoofTech and U.S. Specialty for bad faith and reimbursement of defense costs. U.S. Specialty and Roof-Tech timely appealed the granting of the new trial and the dismissal of their claims against USF & G.

LAW AND ANALYSIS:

Whether a liability insurer has a duty to defend its insured is determined by application of the “eight corners” rule, which means that the court must look at the four corners of the petition and the four corners of the policy in question. See, e.g., Johnson v. Misirci, 06-1136 (La.App. 4 Cir. 3/28/07), 955 So.2d 715; Mossy Motors, Inc., v. Cameras America, 04-0726 (La.App. 4 Cir. 3/2/05), 898 So.2d 602; also see Bryant v. Motwani, 96-1351 (La.App.4 Cir.10/30/96), 683 So.2d 880. “The duty to defend is determined solely from the plaintiffs pleadings and the face of the policy, without consideration of extraneous evidence.” Motwani, 96-1351, 683 So.2d at 884.

The petitions filed herein reveal the following:

SMG Partnership, the entity that operates and manages the Superdome, hired an architectural firm to design and engineer a new roof for the Superdome in 2000. That architectural firm in turn hired subcontractors to act as consultants, among l4other things, in the construction of the new roof. RoofTech was retained as a roofing consultant. The architect and consultants designed and managed the roof project, by aiding in the performance of the work, including analyzing roofing system alternatives, developing an installation plan for components of the roof, monitoring the installation and rendering advice regarding the project. Five roofing system alternatives were developed, with one ultimately being chosen.

Other companies hired by the architect actually installed the new roofing system. Part way through the installation, consultants (one of which was RoofTech), recommended a change in the way the layers of roof were adhered to the building. This recommendation was accepted and utilized. Despite the fact that the wind speeds recorded for Hurricane Katrina were within the parameters for the roofing system’s performance, the roof failed.

Count Five of the First Supplemental, Amending and Superseding Petition, captioned “Professional Negligence,” asserts:

The Architect and Consultants participated in, advised and made recommendations regarding all aspects of the Roofing System evaluation, design and installation. Plaintiffs relied on the Architect’s and Consultants’ professional advice in making decisions related to the Roof Project. The Roofing System ultimately failed, in whole or in part, due to work negligently performed by and/or advice negligently rendered by the Architect and Consultants. The Architect and Consultants were negligent, inter alia, in rendering improper and/or unsound professional advice related to the Roof Project, and are liable for all damages to Plaintiffs.

RoofTech attempts to cloud the issue by-suggesting that not all of the services it performed were professional in nature and, therefore, the “non-|professionals” services should be covered by the commercial general liability policy issued by USF & G. For example, inspection and monitoring services did not require any professional level of expertise. RoofTech argues that monitoring simply means to watch over and supervise which requires no special skills or training. This argument is ludicrous. Plaintiffs were relying on the special skills and training of RoofTech’s employees in the area of roofing, particularly on a job of this magnitude. If one follows RoofTech’s argument to its absurd result, then a plumber’s helper would be qualified to inspect and monitor the project because he would only have to see that the work was being done, not that it was being performed in compliance with the specifications.

It is clear to this Court that the various petitions and allegations contained therein relative to RoofTech indicate that Roof-Tech was hired to serve in a professional service capacity, which logically included monitoring the work and assuring that it was done correctly.

An endorsement to the policy issued by USF & G to RoofTech, which changes the definition of professional services as contained in the original policy, states: “ ‘Professional services’ mean [sic] any service requiring specialized skill or training.” The liability coverage part of the policy states in Section L, entitled “Professional Services,” “(1) This insurance does not apply to ‘bodily injury’, ‘property damage’, or ‘personal injury’ or ‘advertising injury5 arising out of any rendering of, or failure to render, any ‘professional services’ by or on behalf of any insui’ed.”

The Supreme Court distinguished between coverage under a professional services policy and a commercial general liability policy in McCarthy v. Berman, 95-1456 (La.2/28/96), 668 So.2d 721. In that case, a plaintiff argued that the | abroad language of the defendant’s commercial general liability (CGL) policy covered her injuries, which she sustained as a result of treatment by the defendant chiropractor. The Fifth Circuit Court of Appeal had addressed the merits of the case and agreed with the plaintiff that the language contained in “liabilities covered” section of the policy was broad enough to encompass the claims brought by the plaintiff. McCarthy v. Berman, 94-778 (La.App. 5 Cir. 5/10/95), 656 So.2d 717. Justice Lem-mon, writing for the Supreme Court, set aside that judgment and granted the CGL insurer’s summary judgment. Justice Lemmon explained:

“This exclusion is typical of the professional services exclusion generally found in comprehensive business liability policies, because coverage for such exposure is provided by special policies. Special policies covering professional liability do not replace comprehensive general liability insurance, but provide protection for professional errors and omissions that are usually excluded by comprehensive general liability policies.”

McCarthy, 95-1456, 668 So.2d at 724 (internal citations omitted).

After examining the four corners of the petitions filed in this matter and the four corners of the policy in question, it is clear that the professional services exclusion contained in the USF & G policy is applicable. RoofTech was hired for its expertise in the specialized roofing business; it is not far-reaching to find that all of the services it rendered in connection with this three-year massive project were professional in nature.

Accordingly, we find the trial court did not err in granting USF & G’s motion for new trial, and the subsequent grant of summary judgment in its favor. The remaining assignments of error averred on behalf of RoofTeeh and U.S. Specialty are thereby rendered moot.

AFFIRMED.

      . In writ No. 2010-C-0136, a panel of this Court gave U.S. Specialty permission to include in its appeal an assignment of error as to the trial court’s September 21, 2009 ruling on allocation of costs. This is not an appeal-able issue since it was a denial of a summary judgment. However, because we are affirming the judgments on appeal, the issue of allocation of costs becomes moot.


author: MICHAEL E. KIRBY, Judge.

text:
    Cathy Warner HILL v. Douglas HILL.
    No. 2008-CA-1281.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 15, 2010.

      Cathy W. Hill, Memphis, TN, In Proper Person, Plaintiff/Appellant.
    Michelle E. Scott-Bennett, Gretna, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge, PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

[, Plaintiff, Cathy Warner Hill, appeals the trial court’s June 6, 2008 judgment denying her rule for contempt of court and ordering the termination of garnishment of her ex-husband, Douglas Hill, Sr.’s Social Security income. For reasons that follow, we affirm.

This appeal involves a rule for contempt of court filed by Mrs. Hill against her ex-husband, defendant Douglas Hill, Sr., on August 8, 2007. In the rule, Mrs. Hill argued that Mr. Hill should be held in contempt of court for violating several judgments of the trial court. Specifically, Mrs. Hill alleged that Mr. Hill has failed to pay all amounts owed to her, including amounts for child support arrearages, attorney’s fees, medical expenses and rental income. Following a hearing, the trial court rendered judgment, denying Mrs. Hill’s rule for contempt and terminating the garnishment of Mr. Hill’s Social Security income. Mrs. Hill now appeals, arguing that the trial court erred in denying her rule for contempt.

LOn the issue of child support, Mr. Hill was found to be in arrears in the amount of $10,835.00, plus interest, in a judgment signed on September 19, 2002. He was ordered in that judgment to make monthly payments to Mrs. Hill in the amount of $710.00 to satisfy that obligation. In an income assignment order granted at the request of Mrs. Hill on April 8, 2004, she stated that $6,685.00 of the $10,835.00 ar-rearage remained unpaid. Mrs. Hill’s request for an income assignment order was filed on April 6, 2004. In her rule for contempt filed on August 8, 2007, Mrs. Hill alleged that Mr. Hill still owes $28,542.02, plus interest, in child support arrearages.

The record shows that the youngest child of the parties reached the age of majority in June 2002. Mr. Hill’s child support obligation terminated at that time. See La. R.S. 9:315.22 B. In her subsequent request for an income assignment order filed in April 2004, Mrs. Hill stated that only $6,685.00 of the child support arrear-age, plus interest, remained due at that time. Because the 2004 request for the income assignment order was filed after the youngest child reached the age of majority, Mrs. Hill cannot now claim that Mr. Hill is in arrears for an amount greater than $6,685.00 plus interest.

As noted by the trial court in reasons for judgment, Mr. Hill has been paying his child support arrearages since April 2004 until the trial court’s judgment on June 6, 2008 through a garnishment of his Social Security income. In her 2007 rule for contempt, Mrs. Hill acknowledged that she had received $8,265.00 in direct payment from Mr. Hill and $28,630.00 through garnishment of Mr. Hill’s lsSocial Security income. At the hearing in this matter held on January 9, 2008, Mrs. Hill testified that she was still receiving $519.00 per month from the garnishment of Mr. Hill’s Social Security income.

We find no merit in Mrs. Hill’s argument that Mr. Hill still owes her money for child support arrearages. To the contrary, the record shows that the amounts received by Mrs. Hill from Mr. Hill greatly exceeded the $10,835.00 plus interest in child support arrearages found to be owed by Mr. Hill in the trial court’s September 19, 2002 judgment, which was rendered after Mr. Hill’s child support obligation ended pursuant to La. R.S. 9:315.22B.

Mrs. Hill also alleged in her rule for contempt that she was still owed $1,500.00 in attorney’s fees by Mr. Hill. This amount represents orders directed to Mr. Hill to pay attorney’s fees in the amount of $500.00 by judgment of August 27, 1998, $500.00 by judgment of September 29, 2000 and $500.00 by judgment of September 19, 2002. The trial court found that Mr. Hill satisfied his obligation for payment of these attorney’s fees to Mrs. Hill through his overpayment of child support. We agree with the trial court. There is no merit in Mrs. Hill’s argument.

Mrs. Hill also alleged that Mr. Hill was ordered to pay her $7,000.00 from the proceeds of the sale of property located at 1339 Alabo Street in New Orleans. She alleged that this amount was to be paid toward the satisfaction of his child support arrearages. The record shows that by judgment dated September 19, 2002, Mr. Hill was ordered pay Mrs. Hill $7,000.00 of the proceeds from the sale of the Alabo Street property. However, as noted by the trial court, Mrs. Hill testified that |4Mr. Hill paid her $5,000.00 of the $7,000.00 sale proceeds. The trial court found that the balance of $2,000.00 has been satisfied through the overpayment of the child support arrearages. We find no error with the trial court’s finding on this issue.

Mrs. Hill also alleged that Mr. Hill should be found in contempt of court for failure to pay his 50% share of the children’s medical expenses as ordered by the trial court. In her rule for contempt, Mrs. Hill claimed that she has incurred $10,103.00 in medical expenses for her children, and that Mr. Hill owes her $5,051.50 for his share.

A consent judgment agreed to by the parties on January 30,1996 and signed by the trial court on June 11, 1997 ordered that Mr. Hill and Mrs. Hill were to each be responsible for the payment of 50% of the reasonable medical expenses incurred on behalf of their children. At trial in this matter, Mrs. Hill testified that Mr. Hill has not paid her any money for the children’s medical expenses. However, as noted by the trial court in reasons for judgment, Mrs. Hill did not produce any medical bills or other documentation regarding medical expenses, and could not recall what types of treatment her children received or the dates on which her children were treated. Mr. Hill testified that Mrs. Hill never presented him with any medical bills for the children. Because Mrs. Hill failed to present sufficient evidence to substantiate this claim, we find no merit in her argument that Mr. Hill owes her $5,051.50 for the children’s medical expenses.

1 ^Finally, Mrs. Hill alleged that Mr. Hill should be found in contempt of court for failure to pay her rental income from property owned by the parties at 833-835 Tupelo Street in New Orleans. The trial court found that Mrs. Hill’s claim for rent that was allegedly to be paid to her by Mr. Hill has prescribed. We agree.

La. C.C. Article 3494 states that an action for arrearages of rent is subject to a liberative prescription of three years. The consent judgment agreed to by the parties on January 30,1996 and signed by the trial court on June 11, 1997 ordered that Mrs. Hill was to receive $350.00 per month representing the rental of one-half of the Tu-pelo Street property. She was also to receive any subsequent increase in rent. She was also ordered to receive $30.00 from the rental of the other half of the property, with Mr. Hill receiving $250.00 per month for that half of the property.

However, in a subsequent judgment signed on July 25, 1997, the trial court ordered the tenants of the rental property to tender the rent directly to Mrs. Hill from that date forward until further orders of the court. Mr. Hill was ordered to tender to Mrs. Hill the sum of $1,065.00 representing rental income collected by him prior to the July 1997 judgment.

In accordance with La. C.C. Article 3494, Mrs. Hill had three years from the judgment signed on July 25, 1997 to pursue a claim against Mr. Hill for arrearages of rent. She did not do so. Therefore, her claim for unpaid rent has prescribed.

l(;We find no error in the trial court’s finding that Mr. Hill has satisfied all of his financial obligations to Mrs. Hill. For the reasons stated above, we affirm the trial court judgment.

AFFIRMED.

      . Mrs. Hill filed her own appeal brief without assistance of counsel. Her brief does not include assignments of error, but the gist of her argument is that the trial court erred in denying her rule for contempt against Mr. Hill. Mrs. Hill’s current counsel filed a motion to enroll as counsel of record less than one week prior to the submission of this appeal. The motion was granted.