author: COOKS, Judge.

text:
    DENNIS TALBOT CONSTRUCTION COMPANY, INC. v. PRIVAT GENERAL CONTRACTORS, INC.
    No. 10-1300.
    Court of Appeal of Louisiana, Third Circuit.
    March 23, 2011.
    James M. Dill, The Dill Firm, A.P.L.C., Lafayette, LA, for Plaintiff/Appellant, Dennis Talbot Construction Company, Inc.
    Charles M. Rush, Lafayette, LA, for Defendant/Appellee, Privat General Contractors, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

_JjThis litigation arose from contracts entered into between Dennis Talbot Construction (hereafter Talbot) and Privat General Contractors (hereafter Privat) for construction of a St. Martin Bank and Trust building in Lafayette, Louisiana. Privat was the general contractor, on the project. Talbot had been retained to do site work, form and pour the building’s foundation, parking lot, sidewalks, curbing, islands, and other concrete work. In furtherance of these endeavors, on June 14, 2004, Talbot submitted two proposals to Privat:

(1) To form and pour a building slab with all materials necessary to complete the job for $44,000;
(2) To pour four inch, five inch and six inch concrete formed and poured slabs for the parking lot as well as the columns and islands for the drive-thru in the amount of $118,000.

The proposals were accepted. However, at the time of these proposals, Talbot was not a licensed contractor and under the law could only perform jobs under $50,000. Talbot eventually became licensed on August 31, 2004, approximately two months after work had begun.

Felicia Magnon, Privat’s bookkeeper, testified she began receiving calls in February 2005 concerning Talbot’s failure to pay vendors after he had been paid for the job. There were also concerns with Talbot’s frequent absences from the job site. Due to these concerns, Privat requested that Talbot sign a lien waiver. Talbot signed a lien waiver on February 9, 2005, indicating he had performed work and materials as of February 1, 2005 with an actual value of $89,746.74.

On March 29, 2005, Baldwin Redi-Mix Concrete notified St. Martin Bank that $42,176.32 was past due on the project. Privat maintained, in order to retain its relationship with St. Martin Bank and to prevent a lien from being filed, it was. |2necessary for Privat to borrow money to pay the invoice as well as a $1,000 service charge.

Privat retained the services of an attorney and, on May 9, 2005, sent a request to Talbot asking that he return to the job to complete it, advising him that Privat was subject to a penalty of $500 per day for late completion. The correspondence also noted that Talbot had collected payments totaling $105,500 (less retainage of $5,750), but still failed to pay vendors’ invoices totaling over $50,000. According to Privat, they ultimately paid vendors $57,502.43 (which included Baldwin Redi-Mix) to prevent liens on the property and incurred an additional $28,700 to finish Talbot’s work.

On August 24, 2005, Talbot submitted an invoice for the outstanding balancé claimed in the amount of $31,407.08. That bill was not paid by Privat. Talbot filed suit seeking payment of the outstanding balance. Privat filed a reeonventional demand in the matter seeking reimbursement for the payments made to satisfy Talbot’s obligation and to complete Talbot’s contract. Trial was held on the matter, after which the trial court took the matter under advisement. On June 4, 2010, the trial court rendered judgment dismissing Talbot’s claims, finding it did not meet its burden of proof. The trial court also specifically found Talbot and Privat both took part in an illegal act, i.e., Talbot’s undertaking of a job in excess of $50,000 without a licence. To that end, the trial court denied Privat’s reeonventional demand, finding the clean hands doctrine barred Privat from recovering against Talbot because Privat, as general contractor, had an affirmative duty to insure that its subcontractors were licensed. This appeal followed.

| .ANALYSIS

In its assignment of error, Talbot asserts the trial court erred when it held Talbot “was not able to recover due to a lack of license when the license was obtained prior to the bulk of the work being performed and the general contractor had knowledge.”

The testimony was uncontroverted that Talbot did not have a contractor’s license when he entered into the agreements to perform work on the contracted job. The trial court correctly noted that La.R.S. 37:2150-2175.6. requires that anyone undertaking a construction job in an amount greater than $50,000 have a license.

The two proposals submitted by Talbot on June 14, 2004, totaled $162,000. Talbot acknowledged he was aware of the licensing requirement. This court specifically noted “these licensing requirements may not by private agreement [be] set aside.” Hagberg v. John Bailey Contractor, 435 So.2d 580, 584 (La.App. 3 Cir.1983), writs denied, 444 So.2d 1245 (La.1984).

Talbot argues, as he did below, that one of the two June 14, 2004, proposals was only for $44,000, and that the bulk of the work performed by Talbot occurred after the license was obtained. The trial court addressed this argument in his reasons for judgment, finding as follows:

[Talbot] was required to obtain a license and his claim that the initial contract was for less than $50,000.00 is without merit. Section 1109 of the State Licensing Board for Contractor Rules and Regulations states ... “any division of a contract into parts less than $50,000 when combined is $50,000 or more, will be treated as one contract totaling the amount of these parts when combined.” The record reflects several contracts for this individual job and this individual site, which the Court finds to be applicable to Section 1109. Specifically, [Talbot]’s argument that at least two contracts, dated the same day, were for less than $50,000.00 is without merit and an obvious attempt to circumvent Louisiana law. [Talbot] knows or should have known of the law after 29 years of contracting. The facts are clear that he had met the threshold |,[amount and that a license was necessary.

We agree with the trial court’s reasoning on this issue. Nevertheless, Talbot asserts despite the fact that work on the jobs commenced prior to it securing the statutorily required license, our ruling in Hag-berg, 435 So.2d 580, affirms this right to recover in this case. Hagberg involved a construction dispute between a general contractor and subcontractor. We found that because the subcontractor did not have a proper license at the time the contract was formed, the contract was illegal and unenforceable. Id. at 584. However, relying on the Louisiana Supreme Court case of Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627 (1943), we permitted the subcontractor to recover his actual costs but not any overhead or profit. This was based upon equity and the theory of unjust enrichment. The Hagberg court explained:

The purpose of the licensing requirements is the protection of the general public “against the incompetent, inexperienced, unlawful and fraudulent acts of contractors.” LSA-R.S. 37:2150. This particular case does not present a situation of the type within the intended scope of protection of the licensing statute. Where incompetency or inexperience or fraudulence is not involved, the licensing statute can not be invoked to avoid payment of valid charges....
The crux of our consideration is that the licensing rules are not intended to permit the impoverishment-enrichment presented by the case at bar. For us to mechanically apply the general rule would result in inequity. If Hagberg had fraudulently obtained the contract, if he had been inexperienced at the work he performed, or, if his work had been substandard, our decision would be otherwise; but such is not he case.

Id. at 586-87.

Relying on La.Civ.Code art.1965, this Court reasoned plaintiff therein was entitled to recover under a theory of unjust enrichment, particularly considering the general | .^contractor had included work performed by plaintiff to secure payment for the job, and the licensing issue was not raised until fifteen months after plaintiff commenced work.

We find the facts in this case are significantly distinguishable from those present in Hagberg. Talbot acknowledged having twenty-two years of experience as a contractor, and being familiar with the law requiring a contractor’s license to perform jobs valued in excess of $50,000. Despite this, Talbot entered into contracts totaling over $150,000 without a license. Talbot also signed a lien waiver on February 9, 2005, despite knowledge that Baldwin Redi-Mix Concrete was owed $42,176.32. The trial court may well have felt these two instances met the “fraudulently obtained” contract exception this court spoke of in Hagberg.

Further, the trial court was presented with testimony of alleged substandard work performed by Talbot. Ronald Ayo, the architect for the Bank in this matter, testified Talbot’s work was substandard and that he did not complete the scope of his work satisfactorily. Ayo specifically testified there were numerous items that were not completed or needed further attention. The trial court also specifically noted it found “very credible” the testimony of Paul Durand, St. Martin Bank’s president, who stated Talbot was rarely at the job site. Therefore, the trial court reasonably could have found Talbot fell within the substandard work exception we also detailed in Hagberg.

Further, there were other distinguishing factors from Talbot in this case and the plaintiff in Hagberg. Although Talbot insisted it was ordered off the job, the record contained testimony from Privat and other parties that Talbot abandoned the job before it was fully completed, leaving Privat to complete the unfinished work at | fisubstantial cost. Also, as opposed to the contractor in Hagberg which received no payment whatsoever for its work, Talbot received the majority of the bid amount.

For the above set forth reasons, we find the trial court was reasonable in finding Talbot, unlike the plaintiff in Hagberg, was not entitled to recover under theories of equity and unjust enrichment. Our finding on this issue renders the alternative issues presented in Privat’s brief moot.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to plaintiff-appel-lee, Dennis Talbot Construction Company, Inc.

AFFIRMED.

      . Privat's brief opposed Talbot’s assignment of error. It also argued in the alternative that if we found merit in Talbot’s assignment of error that recovery should be allowed to Talbot under theories of equity or unjust enrichment, it should be allowed to proceed with its reconventional demand which was denied because the trial court found Privat was barred from recovery by the "clean hands doctrine.”


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    Harold LEE v. STATE of Louisiana through The DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, et al.
    No. 10-1013.
    Court of Appeal of Louisiana, Third Circuit.
    March 30, 2011.
    L. Frederick Schroeder, II, Craig E. Frosch, Jason P. Wixom, Usry, Weeks & Matthews, New Orleans, Louisiana, for Defendant/Appellee, William Earl Hilton.
    Steven Patrick Mansour, Attorney at Law, Alexandria, LA, for defendant/appel-lee, Rapides Parish Police Jury.
    John Albert Ellis, Assistant Attorney General, Louisiana Department of Justice, Monroe, LA, for Defendant/Appellee, State of Louisiana, through the Department of Public Safety and Corrections.
    S. Marie Johnson, Attorney at Law, New Iberia, LA, for PlaintiffiAppellant, Harold Lee.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| plaintiff, Harold Lee, appeals from a grant of summary judgment in favor of the State of Louisiana, through the Department of Safety and Corrections (the DOC). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff was an inmate committed to the custody of the DOC. As the end of his term of incarceration was approaching, Plaintiff requested, and was granted, permission to participate in a work release program administered by William Hinton, the then-Sheriff of Rapides Parish (Sheriff Hinton). Plaintiff was injured on September 10, 2006, while working for Lumber Investors, Inc., at one of its facilities located in Alexandria, Louisiana, as part of the work release program. According to his petition for damages, Plaintiff was unloading bundles of lumber with a forklift. Each bundle consisted of approximately ninety two by twelve boards held together with several straps or bands. He had cut the bands off the ends of one bundle and was cutting the middle band when within “a matter of seconds, several of the large, heavy boards came crashing down” on his right leg, fracturing it in several places. Plaintiff was hospitalized for thirteen days, during which time he underwent several surgeries.

As a result of his injuries, Plaintiff filed suit against the DOC; Rapides Parish, through the Rapides Parish Police Jury (the Police Jury); and Sheriff Hinton. In January of 2010, the DOC filed a motion for summary judgment seeking to have Plaintiffs claims against it dismissed on the basis that, as a work release inmate, 12Plaintiff was not an employee of the State, but instead an employee of his private employer, Lumber Investors, Inc., whose exclusive remedy for any workplace injury was in workers’ compensation.

Following a July 12, 2010 hearing, the trial court granted summary judgment in favor of the DOC, dismissing “all of Plaintiffs claims arising from the incident that occurred on or about September 10, 2006, that are the subject of the instant lawsuit” with prejudice. All costs of the hearing were taxed to Plaintiff.

Plaintiff timely appealed and is before this court asserting two assignments of error. First, Plaintiff claims that the trial court erred in granting summary judgment in favor of the DOC because genuine issues of material fact remained regarding whether the DOC owed him a duty to protect him from the harm he suffered and whether that duty was breached. Second, Plaintiff asserts that the trial court erred in granting the exception of no cause of action asserted by the DOC in its motion for summary judgment.

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 98-2512 (La.7/5/94), 689 So.2d 730. A motion for summary judgment will be granted if 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 and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Summary judgment is Isfavored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La. Code Civ.P. art. 966(A)(2).

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[F]acts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits.

Smith, 639 So.2d at 751 (citations omitted).

Duty is a question of law. The duty issue may be appropriate for resolution by summary judgment. However, summary judgment is proper, in such instances, only when it is clear no duty exists as a matter of law; and, the facts or credibility of the witnesses are not in dispute.

Parish v. L.M. Daigle Oil Co., Inc., 98-1716, pp. 2-3 (La.App. 3 Cir.6/23/99), 742 So.2d 18, 20 (citations omitted). See also Washington v. State, Dep’t of Transp. and Dev., 95-14 (La.App. 3 Cir.7/5/95), 663 So.2d 47, writ denied, 95-2012 (La.11/13/95), 664 So.2d 405.

The basis of DOC’s motion for summary judgment was the holding of Rogers v. Louisiana Department of Corrections, 43,000 (LaApp. 2 Cir.4/30/08), 982 So.2d 252, writ denied, 08-1178 (La.9/19/08), 992 So.2d 931. Marcus Rogers was an inmate incarcerated in the custody of the DOC and housed in the Webster Parish Jail. He was killed when a forklift that he was operating while working at Springhill Pallet Company (Springhill) as part of a work release program tipped over. Thereafter, a wrongful death and survivor action was filed on behalf of Rogers’ two minor children against the DOC; the Webster Parish Sheriffs Office; Springhill; and Labor Finders, an employment service that had secured Rogers’ employment with Spring-hill. The plaintiffs alleged that “the accident was caused by the gross negligence of the | .(defendants” in that they “failed to properly supervise the decedent to ensure that he was provided a safe work environment”; “failed to make certain that the decedent was employed in a position for which he was qualified”; and “failed to give the decedent the necessary training and supervision to avoid being placed in a position which created a substantial risk of death or great bodily harm to himself or others.” Id. at 255.

Springhill filed a motion for summary judgment arguing that the plaintiffs’ sole remedy was under the Louisiana Workers’ Compensation Act (the WCA). The plaintiffs opposed the motion, asserting that genuine issues of material fact remained, such as “whether inmates can be considered employees of the defendants for the purpose of the exclusivity provisions of the WCA” and “whether the defendants acted intentionally by virtue of their negligence, thereby contributing to the decedent’s injuries and allowing the plaintiffs to seek compensation for their damages outside the scope of the WCA.” Id. at 255-56.

In analyzing the issues before it, the Rogers court noted the following:

[Louisiana Revised Statutes] 15:711 authorizes the work release program for certain inmates and specifies that it is to be administered by the sheriff of the parish where the inmate is housed. Work release inmates are not deemed to be employees of the state, but are considered the employees of their private employer and are entitled to workers’ compensation benefits.

Id. at 257 (citations omitted). The second circuit then determined that Springhill proved that it was Rogers’ special employer and that the plaintiffs’ exclusive remedy against it was in workers’ compensation, thus reversing the trial court’s denial of Springhill’s motion for summary judgment. In response to the plaintiffs’ claim that they had pled facts sufficient to entitle them to recover full tort damages against Springhill under the intentional acts exception of the WCA, the second circuit noted |fithat Rogers had advised his supervisor at Springhill that he had prior experience in operating a forklift and that his supervisor had observed Rogers’ ability to do so before permitting him to perform that job. As such, the appellate court found that plaintiffs’ allegations “simply do not rise to the level of an intentional act.” Id. at 260.

Attached as an exhibit to the DOC’s motion for summary judgment was a copy of Plaintiffs deposition that was taken on July 26, 2007. Therein, Plaintiff stated that he had requested participation in the work release program in order to “have some money to get myself established” once he was released from incarceration. The DOC noted in its motion Plaintiffs acknowledgment that he was receiving workers’ compensation benefits in conjunction with the accident that is the subject of this lawsuit and that those benefits were the source of his income.

Plaintiff did not file a memorandum in opposition to DOC’s motion for summary judgment. Nevertheless, an attorney did appear on his behalf at the July 12, 2010 hearing on the motion. According to the transcript from that hearing, Plaintiffs attorney argued that a question remained as to whether the DOC owed Plaintiff a duty to insure that he was working in a safe environment while participating in the work release program. In his brief to this court, Plaintiff contends that because the DOC was not his employer, it could not claim entitlement “to the protections of the exclusivity provisions of the workers’ compensation scheme” if we were to determine that the DOC breached any duty owed to him.

We are cognizant of the fact that in Rogers, 982 So.2d 252, the DOC had been released from the lawsuit pursuant to an exception of no cause of action before the trial court ruled on Springhill’s motion for summary judgment and, thus, the DOC Lwas no longer a party when the second circuit heard the appeal. Nonetheless, we are convinced that the principles enunciated in Rogers with regard to work release inmates not being employees of the State are applicable to the matter before us.

The cases cited by Plaintiff in support of his assertion that the DOC owes a duty to provide inmates with a safe place to work are distinguishable from the matter before us because the inmates in those cases were injured while working on the property of the penal institution where they were incarcerated rather than being injured while participating in a work release program. See Brewington v. La. Dep’t of Corr., 447 So.2d 1184 (La.App. 3 Cir.), writ denied, 449 So.2d 1348 (La.1984) and Reed v. State Dep’t of Corr., 351 So.2d 788 (La.App. 1 Cir.1977).

Plaintiff contends that the trial court erred in allowing the DOC to assert what he characterizes as a “defense of no cause of action” in the context of a motion for summary judgment. He offers no jurisprudence in support of this assertion. On the other hand, the DOC has cited numerous cases wherein appellate courts have affirmed various trial courts’ grant of summary judgment regarding the issue of the exclusive remedy provisions of the WCA. See, e.g., Broussard v. Smith, 08-473 (La.App. 3 Cir.12/3/08), 999 So.2d 1171; Bonds v. Byrd, 33,777 (La.App. 2 Cir. 8/23/00), 765 So.2d 1205; Fox v. Commercial Union Ins. Co., 413 So.2d 679 (La.App. 3 Cir.1982).

There is simply no question that a motion for summary judgment is an appropriate vehicle within which to raise the issue of the exclusive remedy provisions of the WCA. Further, duty is a question of law that may be resolved by summary judgment when neither the facts nor the credibility of witnesses are in dispute and when it is clear that no duty is owed as a matter of law. Parish, 742 So.2d 18.

| ^Plaintiffs assignments of error lack merit. The trial court did not err in granting summary judgment in favor of the DOC and dismissing Plaintiffs claims against it.

DECREE

The judgment rendered on July 12, 2010 in favor of the State of Louisiana, through the Department of Safety and Corrections, dismissing Harold Lee’s claims against it with prejudice is affirmed. All costs of this appeal are assessed against Harold Lee.

AFFIRMED.

      . Plaintiff had originally named the Rapides Parish Sheriff's Office as a defendant; however, the trial court granted an exception of no cause of action brought by that entity and dismissed Plaintiff's case against it in a judgment dated January 29, 2007. Thereafter, Plaintiff filed a first supplemental and amending petition removing the Rapides Parish Sheriff's Office as a defendant and naming Sheriff Hinton as a defendant. Later, Plaintiff filed a second supplemental and amending petition to name “Rapides Parish, through the Rapides Parish Police Jury” in place of "Rap-ides Parish.”

      . The Police Jury and Sheriff Hinton both filed motions for summary judgment in February 2010 seeking to have Plaintiff’s claims against them dismissed. By judgment dated May 6, 2010, the trial court granted summary judgment in favor of the Police Jury and Sheriff Hinton. That judgment is not at issue in this appeal.


author: TERRI F. LOVE, Judge.

text:
    SAFEGUARD STORAGE PROPERTIES, L.L.C., and its Subsidiaries, Safeguard GP, L.L.C., Safeguard Capital Fund, L.P., Safeguard GP II, L.L.C., Safeguard Carrollwood, L.P., Safeguard GP III, L.L.C., Safeguard Wabash, L.P., Safeguard GP IV, L.L.C., Safeguard Illinois I, L.P., et al. v. DONAHUE FAVRET CONTRACTORS, INC., Mapp Construction, L.L.C., Liberty Insurance Underwriters, Pituminous Insurance Company, Lexington Insurance Company, Pacific Insurance Company, Axis-Bermuda Insurance Company, AWAC Insurance Company, AISLIC Insurance Company, et al. Safeguard Storage Properties, L.L.C., and its Subsidiaries, Safeguard GP, L.L.C., et al. v. Donahue Favret Contractors, Inc., Mapp Construction, L.L.C., et al.
    Nos. 2010-CA-0673, 2010-CA-0855.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 31, 2011.
    Rehearing Denied May 9, 2011.

      James M. Garner, Peter L. Hilbert, Jr., Darnell Bludworth, Sharonda R. Williams, Mary Beth Akin, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for Safeguard Storage Properties, L.L.C., et al.
    Robert I. Siegel, Andrew A. Braun, Elizabeth A. Chickering, Gieger Laborde & Laperouse, LLC, New Orleans, LA, for Lexington Insurance Company & American International Specialty Lines Insurance Company.
    H. Alston Johnson, III, Daina Bray, Phelps Dunbar LLP, Baton Rouge, LA, and John M. Futrell, Richard M. Perles, Patricia C. Penton, Lee Futrell & Perles, L.L.P., New Orleans, LA, and David E. Walker, Robert P. Arnold, Douglas E. Feldman, Walker Wilcox Matousek LLP, Chicago, IL, for Certain Underwriters at Lloyd’s.
    H. Alston Johnson, III, Daina Bray, Phelps Dunbar LLP, Baton Rouge, LA, for Insurers other than Lexington Insurance Company and American International Specialty Lines Insurance Company.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

| ¶ This appeal arises from a dispute over insurance coverage relative to alleged Hurricane Katrina damage to a self-storage business. The Plaintiffs sought recovery for lost business development opportunities for thirty-seven future stores for thirty-nine years. The trial court granted several motions for partial summary judgment dismissing the Plaintiffs’ claims against all of the insurance company defendants except for one. However, the trial court denied a motion for partial summary .judgment regarding the insurance coverage provided to the Plaintiffs by Certain Underwriters at Lloyd’s of London because it found that genuine issues of material facts exist as to what coverage the insurance slips provided.

We find that the trial court erroneously issued an amended judgment containing a substantive change and declare the amended judgment an absolute nullity. Further, we find that the trial court erred by dismissing the Plaintiffs’ claims for lost business opportunities because genuine issues of material fact exist as to the possibility of lost business development opportunities and reverse in part and remand in part for further proceedings consistent with this opinion. However, the trial court correctly interpreted the period of recovery provisions in the insurance policy and properly granted a partial motion for summary judgment on 12said period. Lastly, we find that the trial court correctly denied the motion for partial summary judgment regarding the insurance coverage provided by Certain Underwriters at Lloyd’s of London and deny the writ.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Safeguard Storage Properties, L.L.C. (“Safeguard”), a self-storage company, partnered with Prime Property Fund (“PPF”), a fund comprised of institutional investors advised by Morgan Stanley Real Estate Advisor, Inc. (“MSREA”). On May 31, 2005; PPF acquired an interest of approximately 93 percent in Safeguard in exchange for $391 million of debt and equity capital. Safeguard alleges that due diligence performed prior to the partnership concluded that Safeguard would develop a minimum of twelve to fifteen new self-storage locations each year. These findings allegedly assisted PPF in its decision to invest $391 million in Safeguard. However, Safeguard claims that its proposed developments were curtailed by the devastation of Hurricane Katrina.

Prior to Hurricane Katrina, Safeguard conducted market evaluations on five potential markets: New York City/New Jersey, Philadelphia, South Florida, South Chicago, and Baltimore/Washington, D.C. and pinpointed trade zones, which were two to three square mile areas within the potential markets that exhibit the demographic characteristics and market demand parameters required for a potential site. Safeguard alleges it had nineteen new developments in process when | .¡Hurricane Katrina struck. From August 29, 2005, through the end of that year, Safeguard allegedly had an inventory of forty-seven potential projects in fifty-four trade zones, nine projects in the underwriting stage, and eighteen projects at the letter of intent (“LOI”) or negotiation of contract stage.

Hurricane Katrina damaged Safeguard’s New Orleans area facilities and interrupted the business operations of Safeguard’s corporate office and national call center located at 111 Veterans Memorial Boulevard (“Heritage Plaza”) in Metairie, Louisiana. Heritage Plaza, including Safeguard’s office space, sustained approximately $30 million in damages. Safeguard alleges that it could not reoccupy its space in Heritage Plaza until late November 2005. Subsequently, Safeguard relocated its centralized call center to Chicago, Illinois, and the accounting and management team relocated to a temporary space in Atlanta, Georgia. The damaged Safeguard locations, including Heritage Plaza, were insured under MSREA’s property insurance program with Lexington Insurance Company (“Lexington”) as the primary layer of insurance of $25 million and multiple layers of excess insurance.

Safeguard filed a petition for declaratory judgment and damages against Donahue Favret Contractors, Inc. (“Donahue”), Mapp Construction, L.L.C. (“Mapp”), and all of the insurers of Safeguard and Mapp seeking monetary damages against companies contracted to repair Safeguard’s properties, payments on policies from its excess insurers due to Hurricane Katrina damages, and penalties and attorneys’ fees pursuant to La. R.S. 22:658 and La. R.S. 22.T220. Safeguard also sought monetary damages for lost business opportunities for the business locations Safeguard was allegedly unable to open due to Hurricane |4Katrina from Lexington and its excess insurers, (collectively referred to as “Defendant Insurers”). Safeguard’s claims against Donahue, Mapp, and their insurers were stayed.

The Defendant Insurers’ filed motions for partial summary judgment asserting that Safeguard’s lost business opportunities claims for forty years of profits from thirty-six stores that would have allegedly been built but for Hurricane Katrina were too speculative as a matter of law, that Safeguard could only recover damages sustained during the applicable period of recovery, and regarding the application of the period of recovery. Safeguard subsequently filed a motion for partial summary judgment asserting that its claims for lost business developments and development income streams were covered by insurance. Numerous oppositions and cross-motions for partial summary judgment to the various motions for partial summary judgment followed.

Lloyd’s filed a motion for partial summary judgment asserting that the “policy wording” controls the rights and obligations of it and Safeguard. Safeguard filed a motion for partial summary judgment regarding the “nature and effect” of Lloyd’s coverage slips (“Slips”). Subsequent oppositions and cross-motions were filed.

laFollowing a hearing on the multiple motions for partial summary judgment between Safeguard and the Defendant Insurers, the trial court granted the Defendant Insurers’ motion for partial summary judgment as to lost business opportunities because Safeguard’s claims were too “speculative” and cross-motion for partial summary judgment on Safeguard’s lost business opportunity claim. The trial court then denied Safeguard’s re-urged motion for partial summary judgment regarding business interruption coverage for loss of development. The trial court also granted the Defendant Insurers’ motion for partial summary judgment regarding the period of recovery and denied Safeguard’s corresponding re-urged motion. Finally, the trial court declared moot the following motions for partial summary judgment: Defendant Insurers’ motion for partial summary judgment on causation for lost development opportunities due to direct loss damage or destruction to insured property for which damage the Defendant Insurers have accepted coverage; motion for partial summary judgment on Safeguard’s burden of proof on its business interruption claim; motion for partial summary judgment on Safeguard’s lost business opportunities based on mold exclusions, and Safeguard’s motion for partial summary judgment regarding the burden of proof under the all risks insurance policies issued by the Defendant Insurers. Safeguard appealed.

The trial court then issued an amended judgment excluding Lloyd’s from the Defendant Insurers referred to in the original judgment because it mistakenly used the noun “defendant” without specificity. The trial court stated that Lloyd’s “did not formally acknowledge and/or adopt the insurance contract which is the subject | fiof this litigation” and that whether or not Lloyd’s would be included in the results of the original judgment depended upon the trial court’s “ruling on the slip/binder issue.” Lloyd’s filed an assignment of errors contained in the amended judgment, which included that the trial court was divested of jurisdiction to issue the amended judgment, La. C.C.P. art. 1951 does not permit substantive changes in an amended judgment, and that the Slips versus manuscript issue was not material to the disposed of motions. Lloyd’s and Safeguard both filed motions for devolutive appeals from the amended judgment.

Safeguard asserts that the trial court erred for the following five reasons: 1) by granting the Defendant Insurers’ partial motions for summary judgment finding that recovery for lost business opportunities was not available, 2) by granting the Defendant Insurers’ partial motion for summary judgment regarding the period of recovery, 3) by declaring Safeguard’s partial motion for summary judgment as to the burden of proof moot, 4) by excluding additional evidence, and 5) that if this Court vacates the trial court’s amended judgment, then the trial court erred by granting the partial motions for summary judgment as to all of insurers because Lloyd’s should be excluded.

Lloyd’s asserts that the trial court erred by amending the original judgment because La. C.C.P. art. 2088 divested the jurisdiction of the trial court, by making substantive changes to the original judgment in violation of La. C.C.P. art. 1951, and because the insurance Slips were not material to the motions disposed of by the judgment.

Safeguard and Lloyd’s filed a motion for summary judgment and crossjmotion7 for summary judgment, respectively, regarding Safeguard’s and Lloyd’s intended meaning of business interruption coverage in the Marsh Manuscript Form and the Slips. The trial court denied both motions for summary judgment because the parties’ intent was unclear from the binder and no formal insurance policy was issued. Given the trial court’s previous ruling that Lloyd’s issued Slips and not a formal insurance contract, the trial court stated that

questions of fact exist as to who drafted the binder. Also, whether gross earnings has an ordinary meaning or a technical one would depend upon facts adduced from the experts. At the very least, it would depend upon the credibility of the experts which should be weighed by the trier of facts. Further, this Court believes that the central issue posed by the litigants does not lend itself to resolution by a motion for partial summary judgment. The central issue is: “What was contemplated by the parties” when the’ binders were negotiated?

Lloyd’s devolutive appeal followed.

Lloyd’s asserts that the trial court committed the following six errors: 1) by proceeding with the January 19, 2010 hearing because the previous trial court’s ruling rendered the cross-motions for summary judgment moot; 2) by failing to find that Morgan Stanley and Lloyd’s intended that the Marsh Manuscript Form, as amended, was controlling; 3) by failing to find that the Marsh Manuscript Form governed the contractual relationáhip between Safeguard and Lloyd’s; 4) by finding that genuine issues of material fact exist as to being bound only by the Slips and not the Marsh Manuscript Form; 5) by failing to render in Lloyd’s favor as to the policy because Safeguard did not offer any factual evidence to contradict Lloyd’s position; and 6) by finding that genuine issues of material fact exist as to |Rwho drafted the Slips and the meaning of the terms contained in the Slips.

AMENDED JUDGMENT

Lloyd’s asserts that the trial court was divested of jurisdiction, pursuant to La. C.C.P. art. 2088, once the original judgment was issued and was thereby prohibited from issuing the amended judgment, which constitutes an absolute nullity. La. C.C.P. art. 2088 provides:

A. The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
(1) Allow the taking of a deposition, as provided in article 1433;
(2) Extend the return day of the appeal, as provided in Article 2125;
(3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
(4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;
(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
(6) Grant an appeal to another party;
(7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
(8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;
(9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or
(10) Set and tax costs and expert witness fees.
B. In the case of a suspensive appeal, when the appeal bond is not timely filed and the suspensive appeal is thereby not perfected, the trial court maintains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in an eviction case.

19However, La. C.C.P. art. 1951 permits the trial court to amend a final judgment at any time “[t]o alter the phraseology of the judgment, but not the substance; or ... [t]o correct errors of calculation.” “[A] judgment may be amended by the court only if the amendment takes nothing from or adds nothing to the original judgment.” Paragon Lofts Condo. Owners Ass’n, Inc. v. Paragon Lofts, L.L.C., 10-0419, p. 1 (La.App. 4 Cir. 1/14/11), 55 So.3d 970, 972. “[W]hen an amendment to a judgment adds to, subtracts from, or in any way affects the substance of the judgment, such judgment may not be amended under LSA-C.C.P. art. 1951.” Preston Oil Co. v. Transcon. Gas Pipe Line Carp., 594 So.2d 908, 911 (La.App. 1st Cir.1991). The trial court may change the substance of the original judgment in three ways: “1) the timely motion for new trial; 2) timely appeal; or 3) petition or action for nullity.” Paragon, 10-0419, p. 1, 55 So.3d 970, 972.

This Court concluded that a trial court was prohibited from issuing an amended judgment because jurisdiction was divested once an order of appeal was granted. Harvey v. Traylor, 96-1321 (La.App. 4 Cir.2/5/97), 688 So.2d 1324, 1329. “Furthermore, changing the name of a party cast in judgment is a substantive change prohibited by Code of Civil Procedure article 1951.” Id. This Court also held that the addition of a party to a judgment in an amended judgment constituted an absolute nullity. Paragon, 10-0419, p. 1, 55 So.3d 970, 972.

The trial court stated that “it clearly erred in phraseology when it simply used the collective nouns to refer to plaintiffs and defendants without naming what specific entities comprised the plaintiff group and the defendant group” and used Wagenvoord Broad. Co. v. Blanchard, 261 So.2d 257 (La.App. 4th Cir.1972) for | ipsupport. However, Wagenvoord dealt with the misspelling of a name, not defining which parties prevailed on a motion for partial summary judgment. 261 So.2d at 259.

In the case sub judice, the trial court judge amended the original judgment to exclude Lloyd’s from the granting of the motions for partial summary judgment. Meaning, Lloyd’s originally prevailed on the motions for partial summary judgment, but after the amended judgment, Lloyd’s was excluded from the prevailing class of Defendant Insurers. Thus, given the statutory divestiture of jurisdiction coupled with the jurisprudential interpretation of La. C.C.P. art. 1951, we find that the change excluding Lloyd’s from the “defendants” was substantive. Therefore, we declare that the amended judgment is an absolute nullity.

STANDARD OF REVIEW

Motions for summary judgment are reviewed with the de novo standard of review utilizing the same criteria as the trial court. Manichia v. Mahoney, 10-0087, p. 4 (La.App. 4 Cir.8/4/10), 45 So.Sd 618, 620. “The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action” and “is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). “[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 as to material fact, and that mover is entitled to judgment as a matter of law” then a motion for summary judgment will be granted. La. C.C.P. art. 966(B). The burden of proof remains with the mover. La. C.C.P. art. 966(C)(2).

However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on|uthe motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.

La. C.C.P. art. 966(C)(2). The adverse party must “produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial” or there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

“As this court has explained, a ‘genuine issue’ is a ‘triable issue,’ or one as to which reasonable persons could disagree.” Hogg v. Chevron USA, Inc., 09-2632, p. 6 (La.7/6/10), 45 So.3d 991, 997, quoting Champagne v. Ward, 03-3211, p. 5 (La.1/19/05), 893 So.2d 773, 777. A fact is material when “the existence or non-existence of which may be essential to a cause of action under the applicable theory of recovery.” Id.

LOST BUSINESS OPPORTUNITIES

The trial court stated that Safeguard’s claim for lost business opportunities consisted of “speculation” and was not “actual loss sustained.” Safeguard avers that the trial court erred by granting the Defendant Insurers’ motion for partial summary judgment asserting that Safeguard’s claim for lost business opportunities was too speculative as a matter of law. This assertion presents a res nova issue for this Court because Safeguard seeks insurance coverage for thirty-seven self-storage facilities that it would have allegedly built and thirty-nine years of operation of said facilities. The Defendant Insurers contend that Safeguard focuses on the contractual provisions on appeal rather than the claim being too speculative as a matter of law. We address both approaches to Safeguard’s claim for lost business opportunities below.

112Contractual Interpretation

The interpretation of contracts is governed by statutes. “A contract is formed by the consent of the parties established through offer and acceptance.” La. C.C. art. 1927. “An acceptance not in accordance with the terms of the offer is deemed to be a counteroffer.” La. C.C. art. 1943. “Whether or not a contract is ambiguous is a question of law.” Pope v. Khalaileh, 05-0027, p. 5 (La.App. 4 Cir. 6/1/05), 905 So.2d 1149, 1152.

“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. C.C. art. 2046. If doubt exists and “cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text,” or, if in standard form, it must be interpreted “in favor of the other party.” La. C.C. art. 2056. “A doubtful provision must” also “be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties.” La. C.C. art. 2053. “Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning.” Bonin v. Westport Ins. Corp., 05-0886, p. 5, (La.5/17/06), 930 So.2d 906, 910.

The insurance contract contained the following pertinent language:

B. Business Interruption
(1) Loss resulting from necessary interruption of business conducted by the Insured, caused by direct physical loss, damage, or destruction by any of the perils covered herein diming the term of this policy to real or personal property as described in Clause 7.A. and subject to the Company’s acceptance of coverage for the Damage. 11S(2) If such loss occurs during the term of this policy, it shall be adjusted on the basis of ACTUAL LOSS SUSTAINED by the Insured directly resulting from such interruption of business, consisting of the net profit which is thereby prevented from being earned and all charges and expenses only to the extent that these must necessarily continue during the interruption of business and only to the extent to which such charges and expenses would have been earned had no loss occurred.

(Emphasis added). The following provision provided that the experience of the business would be determined in the following manner:

(5) Experience of the Business
(a) In determining the amount of net profit, charges, and expenses covered hereunder for the purposes of ascertaining the amount of loss sustained, due consideration shall be given to the experience of the business before the date of damage or destruction and to the probable experience therefore had no loss occurred.

Thus, the actual loss sustained could include Safeguard’s claim for lost business opportunities if it proved that it suffered an actual loss from the opportunities, as defined in the above provision, within the two limited periods of recovery as outlined below. We cannot determine as a matter of law that a portion of Safeguard’s claims for lost business opportunities was not covered by the Defendant Insurers. Therefore, we find that the trial court erred as a matter of law in finding that Safeguard’s alleged business opportunities consisted of speculation and not as possible proof of actual loss sustained.

Alleged Speculative Evidence

Defendant Insurers bore the burden of proving that no genuine issues of material fact existed as to Safeguard’s claim for lost business opportunities. They assert that Safeguard “never earned a net profit for any year, and had a ‘poor’ track 114record of meeting projected start dates for new developments.” In support of their contention, they cite cases regarding speculative evidence of lost earnings. However, the majority of the cases cited were post-trial, which presents a different procedural posture from the case sub judice because those plaintiffs presented evidence of lost earnings wherein the fact finder concluded that the evidence submitted was insufficient. We find that the Defendant Insurers failed to carry their burden of proof on summary judgment and reverse.

“A ‘projection’ of earnings is an accepted method of calculating business interruption loss.” Cotton Bros. Baking Co., Inc. v. Indus. Risk Insurers, 774 F.Supp. 1009, 1028 (W.D.La.1989). “Our courts have held that although awards may not be based on speculation or conjecture, nonethéless, lost profits are recoverable when proven with reasonable certainty.” Ellwest Stereo Theatres, Inc. v. Davilla, 436 So.2d 1285, 1288 (La.App. 4th Cir. 1983). “Customary or foreseeable profit may be resorted to as a measure of damage where there is no direct evidence of the exact extent of loss.” Id. “A claim for loss of profits will not be supported by mere estimates of loss.” Wasco, Inc. v. Econ. Dev. Unit, Inc., 461 So.2d 1055, 1057 (La.App. 4th Cir.1984). “Although the absence of independent corroborative evidence is not always fatal, the lack of even a minimal degree of detail and specificity in the plaintiffs testimony, regarding the issue of lost profits, would preclude recovery of this item of damages.” Id.

Safeguard states that it developed thirty-eight new storage facilities from 2001 to May 31, 2005. Safeguard contends that it sustained lost business opportunity income due to its alleged inability to build thirty-seven new storage facilities and should receive insurance proceeds as do plaintiffs for future lost wages. Safeguard presented market research conducted into the development of hBthe thirty-seven future storage facilities as well as financial reports and expert opinions.

J. Stuart Wood, a Safeguard expert, stated in his deposition that Safeguard was in a “much worse position” than if the damage from Hurricane Katrina did not happen. Mr. Wood posited that a conservative estimate for Safeguard’s lost business opportunities was $332,500,000 in net income. Safeguard also presented the expert reports of Bert Verdigets to substantiate the loss of business opportunities. Mr. Verdigets’ estimated that Safeguard’s lost business opportunity claim valued $276,764,519 or $308,559,000, when utilizing the net cash flow basis or gross cash flow basis, respectively. Mr. Verdigets stated in his deposition that he would not state that a certain number of developments were lost due to Hurricane Katrina. Further, he stated, “I don’t think there’s anybody besides God that could tell you but for Katrina this development was missed at this location.” The Defendant Insurers contend that Mr. Verdigets’ estimate of Safeguard’s lost business opportunities would place Safeguard in a better financial position than if Hurricane Katrina never occurred. However, the determination of whether to agree with Mr. Verdigets’ estimates is a credibility determination for the finder of fact, as well as the determination of how much, if any, money to award for lost business opportunities that are found to have occurred during the two periods of recovery.

The Defendant Insurers presented evidence intended to prove that no genuine issues of material fact exist regarding Safeguard’s claim for lost business opportunities because the alleged future stores did not have specific addresses and the loss was, therefore, too speculative. However, attacking the credibility of Safeguard’s expert reports regarding the loss of business opportunities and determining the monetary amount of lost business opportunities, which is an | ^intensely factual determination, are suitable issues for a trial on the merits.

This Court does not contend that Safeguard will succeed on its claim, nor do we find that Safeguard is entitled to recover allegedly lost revenues for thirty-nine years. However, when viewing the evidence in the light most favorable to Safeguard, we find that genuine issues of material fact exist as to whether Safeguard incurred a loss of business opportunities during the two • applicable recovery periods. Therefore, the trial court erred in granting the Defendant Insurers’ motion for partial summary judgment and we reverse and remand for further proceedings.

PERIOD OF RECOVERY

Safeguard contends that the trial court erred in granting the Defendant Insurers’ partial motion for summary judgment regarding the applicable period of recovery. Safeguard further avers that “[t]he construction adopted renders portions of the wording without meaning and ignores the grammatical structure of the provision.”

The trial court stated in its reasons for judgment that

All parties agree that, under the Period of Recovery clause, the losses that Safeguard may recover under the policy are limited to those incurred during the two defined time periods, the Initial Period and the Extended Period. Therefore, the only task before the Court is to construe the policy so as to define the beginning and ending of these two periods.
All parties also agree that the Period of Recovery clause is clear and unambiguous. The Court agrees. The Court finds that the Initial Period begins at the time of loss and ends when the damaged insured properties could have been repaired, replaced, or rebuilt if done with diligence and dispatch, or when the business reopens. Obviously, the Initial Period is meant to protect the insured from its loss income while it repairs its damaged property. Similarly, the Extended Period begins when the damaged properties are actually repaired (or when the |17insurers’ liability for repairs would otherwise end) and ends when the business returns to pre-loss conditions, but in all events no more than one year in total. Plainly, this Extended Period protects the insured for a limited period of time after it restores its damaged property and needs to bring its business back up to pre-loss conditions.
Safeguard contends it was covered by both the Initial Period and the Extended Period simultaneously until it actually repaired or replaced its damaged property (which it argues was the date it relocated its headquarters to Atlanta permanently in November 2006, and thereafter continues to be covered by the Extended Period until the applicable prescriptive period expires (which it argues will be ten years after the loss, or August 29, 2015), and further for an additional year thereafter, through August 29, 2016. Safeguard’s claim then, is that it should receive “business interruption” recovery for more than a decade after its business was interrupted. The Court finds Safeguard’s view to be a strained interpretation of the policies. It is not consistent with the “clear and unambiguous” language of the policies.
In light of the foregoing, Defendant Insurers’ Motion for Partial Summary Judgment on Application of the Period of Recovery is GRANTED. The Plaintiffs Re-urged Motion for Partial Summary Judgment Regarding Period of Recovery for Business Interruption Losses is DENIED.
The applicable provision states:
E. Provisions Applicable to Business Interruption, Extra Expense, and Rental Value
(1) Period of Recovery: The length of time for which loss may be claimed:
(a) shall not exceed such length of time as would be required with the exercise of due diligence and dispatch to rebuild, repair, or replace such part of the property as had been destroyed or damaged;
(b) and, such additional length of time to restore the Insured’s business to the condition that would have existed had no loss occurred, commencing with the later of the following dates:
i. the date on which the liability of the Insurer for loss or damage would otherwise terminate; or
ii. the date on which repair, replacement, or rebuilding of such | isPart of the property as has been damaged is actually completed; but in no event for more than one year thereafter from said later commencement date;
iii. with respect to alterations, additions, and property while in the course of construction, erection, installation, or assembly, shall be determined as provided in (a) above, but such determined length of time shall be applied to the experience of the business after the business has reached its planned level of production or level of business operation;
iv.and shall commence with the date of such loss or damage and shall not be limited by the date of expiration of this policy.

Safeguard asserts that the initial period extended from the date of Hurricane Katrina until the Atlanta office space was “back to steady state operations” in September 2007. The Defendant Insurers contend that the initial period ended when Safeguard returned to the damaged office space in Heritage Plaza.

As to the extended period, Safeguard interprets the language to mean that the extended period begins on the date of Hurricane Katrina and extends to “ ‘such additional period of time to restore the insured’s business to the condition that would have existed had no loss occurred’ which period ‘shall not be limited by the date of the expiration of the policy.’ ” Under this interpretation, Safeguard states that the extended period extends to “at least as long as the damage period claimed by Safeguard here, which is through April 2009.”

We find that the contractual provisions are clear and unambiguous. The initial period of recovery begins at the time of loss and ends when the damaged insured properties could have been repaired, replaced, or rebuilt if done with | ^diligence and dispatch, or when the business reopens. The extended period begins when the damaged properties are actually repaired (or when the insurers’ liability for repairs would otherwise end) and ends when the business returns to pre-loss conditions, but in all events no more than one year in total. Interpreting the contractual clause regarding the period of recovery to include coverage through 2016 would give the contractual language an absurd meaning with absurd consequences, which is in contravention of Louisiana statutory contractual interpretation. However, we find that the actual dates upon which the initial period of recovery concluded and when the extended period of recovery began are questions of fact to be determined at trial. Accordingly, we do not find that the trial court erred in granting the Defendant Insurers’ partial motion for summary judgment, which asserted that Safeguard’s business interruption insurance would cover the initial time needed to repair the property damage with due diligence and dispatch and a separate extended period of no more than one year.

Because we declared the amended judgment an absolute nullity and found that genuine issues of material fact exist as to Safeguard’s claims for lost business opportunities, we pretermit the discussion of the remainder of Safeguard’s assignments of error.

LLOYD’S DISPUTED COVERAGE THROUGH SLIPS

In the consolidated appeal, Lloyd’s asserts that the Slips are subject to the Marsh Manuscript Form by language and reference, that no genuine issues of material fact exist as to the fact that it and Safeguard contemplated being bound by 12nthe Marsh Manuscript Form, and various other assignments of error regarding whether the trial court properly denied its motion for partial summary judgment.

La. C.C.P. art. 1915 Certification

As mentioned in the previous footnote, Lloyd’s motion for devolutive appeal sought to appeal an interlocutory judgment. Although the trial court certified the judgment denying Lloyd’s motion for partial summary judgment as final and appealable pursuant to La. C.C.P. art. 1915(B)(1), the denial of a summary judgment cannot be certified as final and ap-pealable. Yokum, 07-0676, p. 6, 981 So.2d at 730. Therefore, the judgment Lloyd’s seeks to reverse remains interlocutory, which is subject to this Court’s supervisory jurisdiction. This Court is not time-barred from converting Lloyd’s appeal into an application for supervisory writ if the motion for devolutive appeal was filed within thirty days of the notice of judgment. See Rule 4-3, Uniform Rules, Courts of Appeal.

The judgment was rendered on February 18, 2010. The notice of signing of judgment was mailed on February 19, 2010, which was a Friday. The date of the act, i.e., the mailing of the notice of judgment, does not begin the time period computation for a time delay. La. C.C.P. art. 5059. Saturday and Sunday, February 19-20, 2010, were legal holidays and also did not start the computation of the time delay. La. R.S. 1:55. Accordingly, the thirty-day time period began to run on Monday, February 22, 2010. The thirty-day time period ended on March 23, 2010. However, Lloyd’s filed the motion for de-volutive appeal on March 26, 2010. Therefore, Lloyd’s motion for devolutive appeal was not filed within the time period for filing an application for supervisory writ.

However, Rule 4-3 of the Uniform Rules, Courts of Appeal, states that “[a]n application not filed in the appellate court within the time so fixed or extended _j2ishall not be considered, in the absence of a showing that the delay in filing was not due to the applicant’s fault.” While case law exists establishing that a denial of a summary judgment cannot be certified as final and appealable, Lloyd’s relied upon the trial court judge, who certified the judgment as final and appealable and granted the motion for devolutive appeal, which was filed within the proper time period for a devolutive appeal. Therefore, we exercise our discretion and convert Lloyd’s appeal into an application for supervisory review.

Merits

The trial court stated that

this Court finds that the questions involved are not simply questions of law. For instance, questions of fact exist as to who drafted the binder. Also, whether gross earnings has an ordinary meaning or a technical one would depend upon facts adduced from the experts. At the very least, it would depend upon the credibility of the experts which should be weighed by the trier of facts. Further, this Court believes that the central issue posed by the litigants does not lend itself to resolution by a motion for partial summary judgment. The central issue is: “What was contemplated by the parties” when the binders were negotiated?
This question, necessarily, invokes the issue of intent. This Court is mindful that a summary judgment is a favored procedural device. However, summary judgment is only warranted when reasonable minds must inevitably conclude that mover is entitled to judgment as a matter of law. Further, the mover for summary judgment must show that it is quite clear what truth is and exclude any real doubt as to existence of material fact. Nancy Waller, wife of and Patrick Dempsey v. Automotive Casualty Ins., et al, 680 So.2d 675 (La.App. 1st Cir.1996). (Emphasis added). When “intent” is the focal issue, rarely can one determine through a summary judgment, quite clearly what truth is. This difficulty is enhanced when the court tries to fathom intent with an ambiguous binder and an unissued policy.

(footnote omitted). The trial court also stated that “there are some serious questions about what time frame applies to the binder.” We agree.

| ^Lloyd’s did not issue a formal insurance policy. However, Lloyd’s did have the Slips, the American equivalent of an insurance binder. Louisiana provides that “[a] ‘binder’ is used to bind insurance temporarily pending the issuance of the policy.” La. R.S. 22:870. “Although the cover note or binder is sufficient to evidence a contract, it does not stand independent from the policy.” Donaldson v. United Cmty. Ins. Co., 98-1187, p. 11 (La.App. 3 Cir.2/10/99), 741 So.2d 676, 683. Louisiana jurisprudence provides that “[t]he effect given to a binder is always a question of intent of the parties.” Id.

“Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature.” La. C.C. art. 1848. However, “[p]arol evidence is admissible to show that a written agreement was incomplete and not intended by the parties to exhibit the entire agreement.” United Investors Life Ins. Co. v. Alexander, 27,466, p. 3 (La.App. 2 Cir.11/1/95), 662 So.2d 831, 833. “[I]t is equally well established that testimonial evidence may be admitted to show that the written agreement was incomplete and was not intended by the parties to exhibit the entire agreement.” Guilbeau v. C & D Reprographics-Lafayette, Inc., 568 So.2d 206, 211 (La.App. 3rd Cir.1990).

As mentioned above, a binder is not a complete stand-alone contract and determining the parties’ intent is a necessary component of interpreting a binder. The record reflects that the two Marsh U.S. representatives did not agree to a final policy wording sent by Beazley Management Limited (“Beazley”), acting as Lloyd’s lead underwriter. Thus, again, a final policy with finalized policy wording was never issued.

Lloyd’s contends that the Slips alone govern and that the parties clearly intended that the Marsh Manuscript Form be incorporated by reference. However, | ^Safeguard contends that Lloyd’s assertion that usage of the term “wordings” refers to the Marsh Manuscript Form is misplaced because it actually refers “to an anticipated formal policy that Underwriters never issued.” Safeguard also avers that once the Slips were “scratched” by the underwriters, the negotiation phase began. Amanda Good, a wordings manager for Beazley, stated in her deposition that she could not say that there was a final agreement to the wordings between Marsh and Beazley.

Therefore, like the trial court, we find that the interpretation of the Slips and the parties’ intent is not clearly discernable, which presents factual questions suitable for the trier of fact after weighing the credibility of the evidence and testimony presented at trial. Thus, we find that genuine issues of material fact exist as to whether the parties intended to be bound by the proposed policy language and Marsh Manuscript Form after Beazley’s second round of changes and deny the writ.

DECREE

Accordingly, for the aforementioned reasons, we declare the amended judgment an absolute nullity due to the substantive change. We further find that the trial court erroneously granted the Defendant Insurers’ motion for partial summary judgment relative to lost business opportunities and reverse and remand. However, the trial court properly granted the Defendant Insurers’ motion for partial summary judgment regarding the applicable period of recovery. Lastly, we find that the trial court did not err in denying Lloyd’s motion for partial summary judgment regarding whether the language contained in the Slips govern [^Safeguard’s coverage and deny the writ.

WRIT DENIED; AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Safeguard Storage Properties, L.L.C. (“Safeguard”) also refers to the following plaintiffs unless specificity is required: Safeguard Capital Fund, L.P.; Safeguard Carroll-wood, L.P.; Safeguard E. Williamsburg, L.L.C.; Safeguard Fifteen, L.L.C.; Safeguard FL I, L.L.C.; Safeguard Fourteen Partners; Safeguard GP, L.L.C.; Safeguard GP II, L.L.C.; Safeguard GP III, L.L.C.; Safeguard GP IV, L.L.C.; Safeguard GP V, L.L.C.; Safeguard Hollis, L.L.C.; Safeguard Illinois I, L.P.; Safeguard Mountainside, L.P.; Safeguard N.Y. I, L.L.C.; Safeguard N.Y. II, L.L.C.; Safeguard Operations, L.L.C.; Safeguard PA I, L.L.C.; Safeguard PA II, L.L.C.; Safeguard Properties, L.L.C.; Safeguard Properties II, L.L.C.; Safeguard Properties III, L.L.C.; Safeguard Thirteen Partners; Safeguard TRS, L.L.C.; Safeguard Wabash, L.P.; SDG Palm Harbor Holding, L.L.C.; ■ Sixteen Front Parcel, L.L.C.; Sixteen Rear Parcel, L.L.C.; and Stewart Storage Holding, L.L.C.

      . Safeguard alleges that the development strategy of twelve to fifteen new locations a year was consistent with past practice.

      . Liberty International Underwriters, and Bituminous Insurance Company ("Bituminous”)as insurers of Mapp.

      . The statutes are now numbered La. R.S. 22:1892 and La. R.S. 22:1973, respectively.

      . Ace American Insurance Company ("Ace”), Allied World Assurance Company ("Allied”), American International Specialty Lines Insurance Company ("AISLIC”), Axis Reinsurance Company ("Axis”), Axis Specialty Limited ("ASL”), Certain Underwriters at Lloyd’s of London ("Lloyd’s”), Continental Casualty Company ("Continental”), Federal Insurance Company ("Federal”), Great Lakes UK d/b/a Great Lakes Reinsurance (UK), PLC ("Great Lakes”), Illinois Union Insurance Company ("Illinois”), International Insurance Company of Hannover ("International”), Liberty Mutual Group ("LMG”), Employers Insurance Company of Wausau ("Employers”), Pacific Insurance Company, Ltd. ("Pacific”), SR International Business Insurance Company, Ltd. ("SR”), and XL Insurance America, Inc. ("XL”).

      .The Defendant Insurers also filed motions for partial summary judgment regarding Safeguard’s burden of proof for the business interruption claim, the causation of claims for lost business opportunities due to direct loss, and Safeguard’s lost business opportunities based on mold exclusions. Safeguard also filed a motion for partial summary judgment against Lexington regarding an alleged bad faith adjustment. Numerous exceptions were also filed by the Defendant Insurers. However, none of the above mentioned documents form the basis of the appeal.

      . Slips are the European equivalent of the American usage of an insurance binder.

      . The trial court designated the original interlocutory judgment as final and appealable pursuant to La. C.C.P. art. 1915(B)(1).

      . Safeguard filed an opposed motion to amend the judgment to correct a clerical error contained in the original judgment after appealing the original judgment. However, the trial court disregarded the motion and issued the amended judgment ex proprio motu.

      .The trial court designated the amended interlocutory judgment as final and appeal-able pursuant to La. C.C.P. art. 1915(B)(1).

      . The trial court designated the original interlocutory judgment as final and appealable pursuant to La. C.C.P. art. 1915(B)(1). However, this Court notes a procedural error, as the denial of a motion for summary judgment is not appealable even if certified as final by the trial court judge. Yokum v. Van Calsem, 07-0676, p. 6 (La.App. 4 Cir.3/26/08), 981 So.2d 725, 730. Therefore, the judgment Lloyd’s seeks to reverse remains interlocutory, which is subject to this Court’s supervisory jurisdiction.

      . The trial court, in granting the partial motion for summary judgment did not determine a timeline for the initial or extended periods.

      . The proposed form circulated between MSREA and its broker, Marsh US, for 2004 renewal submissions. Marsh presented the Marsh Manuscript Form to Beazley Management Limited, as Lloyd’s lead underwriter. Marsh UK acted on MSREA’s behalf with Lloyd’s, as it was an authorized Lloyd’s broker in London.

      . The trier of fact, while discerning the intent of the parties, will determine what time frame the parties intended and how the parties intended to utilize the term "gross earnings” after weighing the testimony presented at trial.