author: PEATROSS, J.

text:
    Anita Pattra CHRETIEN, Plaintiff-Appellant v. Marlowe THOMAS, et al., Defendant-Appellee.
    No. 45,762-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.

      Simmons, Morris & Carroll, L.L.C., Shreveport, LA By: B. Trey Morris, Andrew C. Jacobs, for Appellant.
    Marlowe Thomas, pro se.
    Zelda Tucker, for Appellee, Allstate Insurance Co.
    Phelps Dunbar LLP, by Marshall M. Redmon, Hunter R. Bertrand, for Appel-lee, Stonington Insurance Co.
    Ayres, Warren, Shelton & Williams, by Jason Poe, Lee H. Ayres, for Appellee, Blakey Auto Plex, LLC.
    Offices of Michael L. Stewart, by Joseph H. Barbarino, Jeff R. Rytlewski, for Ap-pellee, Property & Casualty Ins. Co. of Hartford.
    Before CARAWAY, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

|2In this insurance coverage dispute, Plaintiff Anita Pattra Chretien appeals the summary judgment of the trial court finding as a matter of law that Marlowe Thomas, the driver of a vehicle involved in an automobile accident with Plaintiff, was not an insured under a commercial garage policy. For the reasons stated herein, we affirm.

FACTS

On May 4, 2007, Marlowe Thomas was involved in an automobile accident with Plaintiff Anita Pattra Chretien. Thomas was driving a “loaner” truck owned and provided to him by Blakey Auto Plex, LLC (“Blakey”). The course of events leading up to the accident are as follows. Earlier that day, Thomas brought a Grey Ford F-350 Crew Cab to Blakey for service. Apparently, Blakey believed that the grey truck was owned by Thomas’ [^employer, Horton Construction Company (“Horton”). The grey truck was actually owned by Thomas’ girlfriend, Temica Lowe, and was listed as a covered vehicle under a policy issued by Allstate Insurance Company (“Allstate”). Thomas resided with Lowe and had express permission to drive the grey truck.

Blakey provided Thomas with a Red Ford F-350 Crew Cab to drive while the grey truck was being serviced, desiring that Thomas show the red truck to his employer as a potential purchase from Bla-key. Stonington Insurance Company (“Stonington”) provided commercial garage coverage to Blakey. The garage policy excluded coverage for customers of Bla-key if the customer had other insurance available.

As stated, Thomas was involved in an accident with Plaintiff while driving the red “loaner” truck. Plaintiff sued, inter alia, Thomas, Blakey, Stonington and Allstate for damages she sustained in the accident. Cross motions for summary judgment were filed on the issue of coverage of both the Stonington and Allstate policies. Stonington sought summary judgment declaring that there was no coverage under its garage policy because Thomas was a customer of Blakey and had other insurance available under the Allstate policy. As previously stated, the tidal court granted summary judgment in favor of Stonington and Plaintiff appeals.

\ ¿DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern, the district court’s consideration of whether summary judgment is appropriate. Elliott v. Continental Cas. Co., 06-1505 (La.2/22/07), 949 So.2d 1247. When determining whether or not a policy affords coverage for an incident, it is the burden of the insured to prove the incident falls within the policy’s terms. On the other hand, the insurer bears the burden of proving the applicability of an exclusionary clause within a policy. Broadmoor Anderson v. National Union Fire Ins. Co. of Louisiana, 40,096 (La.App.2d Cir.9/28/05), 912 So.2d 400, unit denied, 05-2462 (La.3/24/06), 925 So.2d 1239.

Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Elliott, supra, citing Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180.

An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Elliott, supra. The parties’ intent, as reflected by [sthe words of the policy, determines the extent of coverage. Id. Words and phrases used in a policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. An insurance policy should not be interpreted in an unreasonable or a 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. Where the language in the policy is clear, unambiguous and expressive of the intent of the parties, the agreement must be enforced as written. Id. If, however, after applying the other rules of construction an ambiguity remains, the ambiguous provision is to be construed against the drafter and in favor of the insured. Id.

The purpose of liability insurance is to afford the insured protection from damage claims. Policies, therefore, should be construed to effect, and not to deny, coverage. Thus, a provision which seeks to narrow the insurer’s obligation is strictly construed against the insurer; and, if the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied. It is equally well settled, however, that, subject to the above rules of interpretation, insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public 1 fipolicy. Elliott, supra, citing Commercial Union Insurance Co. v. Advance Coating Co., 351 So.2d 1183 (La.1977).

The rule of strict construction does not authorize a perversion of language, or the exercise of inventive powers, for the purpose of creating an ambiguity where none exists, nor does it authorize the court to make a new contract for the parties or disregard the evidence as expressed, or to refine away terms of a contract expressed with sufficient clearness to convey the plain meaning of the parties. Elliott, supra; Commercial Union Insurance Co., supra. Thus, for summary judgment to be warranted, there must be no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Elliott, supra.

The limiting provision in the commercial garage policy issued by Stonington to Blakey is a commonly found provision that expressly excludes customers of an automobile dealership in its definition of an insured, unless the customer does not have liability insurance of his own or is statutorily underinsured. Alexander v. Cornett, 42,147 (La.App.2d Cir.7/11/07), 961 So.2d 622, writ denied, 07-1681 (La.11/2/07), 966 So.2d 603. In addition, La. R.S. 22:1291 provides that the driver’s personal liability policy is primary in “test drive” circumstances at auto dealerships and these garage ^policies are designed to meet the minimum liability insurance requirements under the state’s compulsory insurance law by providing liability insurance in cases where the driver is uninsured or underin-sured.

In the case sub judice, there is no disagreement that Thomas is an insured under the policy that Lowe had with Allstate. He was listed as a resident and had Lowe’s express permission to drive the vehicle. Likewise, as the trial judge pointed out, there is no dispute that the Allstate policy was primary. Since Thomas did have other available coverage, this case turns on the sole issue of whether or not Thomas was a customer of Blakey. Plaintiff argues on appeal that Thomas is not a “customer” as contemplated in the policy limitation because he was not the owner of the grey truck and was not the purchaser of the services provided by Blakey. Plaintiff further points out that Horton, not Thomas, was invoiced by Blakey for the services provided on the truck. Plaintiff argues that either Horton or Lowe might be customers of Blakey, but the common meaning of the term “customer” should not be expanded to include Thomas. We disagree. Thomas delivered the grey truck to Blakey and requested that the truck be serviced. Thomas accepted from Blakey a “loaner” vehicle to drive while the services were completed. Thomas clearly falls within the class of persons defined as “customers” for the purposes of the clear and unambiguous limiting provision in the | ¡jStonington garage policy. See McKay v. W & J Farms, 45,284 (La.App.2d Cir.5/9/10) 86 So.3d 1157, writ denied, 10-1363 (La.9/24/10), 45 So.3d 1078, and cases cited therein. Thus, Thomas is not an insured and the trial court properly granted summary judgment finding no coverage under the Stonington policy.

CONCLUSION

For the foregoing reasons, the summary judgment in favor of Stonington Insurance Company is affirmed. Costs of this appeal are assessed to Plaintiff Anita Pattra Chretien.

AFFIRMED.

      . Renumbered from R.S. 22:671 by Acts 2008, No. 415, § 1, eff. Jan. 1, 2009. Added by Acts 1988, No. 756, § 1. Amended by Acts 1997, No. 1060, § 1.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    Claude Edward SPARKS and Linda G. Sparks, Plaintiffs-Appellants v. UNITED TITLE & ABSTRACT, LLC and First American Title Insurance Company, Defendants-Appellees.
    No. 45,766-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.
    Robert I. Thompson, III, Shreveport, LA, for Appellants, Claude Edward Sparks and Linda G. Sparks.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, Shreveport, LA by L. David Cromwell, Joseph S. Woodley, for Appellee First American Title Insurance Company.

      Mayer, Smith & Roberts, Shreveport, LA by Steven E. Soileau, for Appellee, United Title and Abstract, LLC.
    Before STEWART, MOORE and LOLLEY, JJ.
   STEWART, J.

[¡.The plaintiffs, Claude Edward Sparks and Linda G. Sparks (“the Sparks”), appeal a summary judgment dismissing their claims of negligence and breach of a title insurance contract against the defendants, United Title & Abstract, LLC, (“United Title”), and First American Title Insurance Company (“First American”). The issue presented is the same as that addressed in Thomas v. Lewis, 475 So.2d 52 (La.App. 2d Cir.1985), namely, “whether the exercise of an option to renew in a recorded lease is required to be recorded to have effect as to third party purchasers of the property.” Id., at 54. We now |sreaffirm our prior decision and hold that the exercise of an option to renew contained in a recorded lease need not be recorded to be effective against third parties. Accordingly, we affirm the trial court’s judgment.

FACTS

On June 5, 2009, the Sparks filed suit against United Title and First American. According to the petition, the Sparks had purchased tracts of land totaling 10 acres in Caddo Parish from Glenda Fay Smith Eppes, Wilbert Leon Smith, Gary Wayne Smith, Theresa Lyn Smith Raymond, and David Ray Smith (referred to collectively as “the sellers”). The Sparks and the sellers had agreed that the Sparks would receive 75% of the mineral rights, with 25% reserved by the sellers. However, the deed prepared by United Title stated that the sellers reserved 75% of the mineral rights. The petition further alleged that XTO Energy, Inc., (“XTO”), offered the Sparks $20,000 per acre to lease the mineral rights. However, when the title examination by XTO revealed that the Sparks had only a 25% interest in the mineral rights, XTO refused to enter the lease. The Sparks contacted United Title, which prepared and filed an Act of Correction on November 7, 2008. By then, XTO was no longer |4leasing mineral interests, and the Sparks were deprived of $150,000, the amount they would have received for their 75% ownership of the mineral rights over the 10 acres if XTO had paid $20,000 per acre for a lease. The Sparks claimed this loss as damages due to United Title’s negligence in preparing the deed and First American’s breach of the title insurance policy, which allegedly contained the same error.

After answering, United Title and First American filed an exception of no cause of action on the basis that the Sparks’ petition really alleged negligent interference with contractual relations, which they asserted is not recognized as a cause of action under the law of this state. The defendants also filed a motion for summary judgment asserting that the Sparks would not be able to meet the evidentiary burden of proving that the error in the reservation of mineral rights caused their damages. They asserted that the only proof of loss was Claude Sparks’ unsubstantiated allegations regarding XTO’s offer.

Shortly after filing the motion for summary judgment, the defendants supplemented the motion to assert that the Sparks had sustained no damages due to the fact that they had no mineral rights to lease to XTO. At the time of the Sparks’ purchase of the 10 acres, |fithe mineral rights were subject to a recorded mineral lease granted by the sellers in favor of St. Mary Land & Exploration Co., (“St. Mary”), on August 22, 2005, which is hereafter referred to as the “St. Mary lease.” Though the St. Mary lease had a primary term of three years and was to expire on August 22, 2008, it included an option for the lessee (St.Mary) to renew for an additional two years by payment of an additional bonus of two-thirds the original bonus before the end of the primary term. St. Mary exercised the option to renew on March 31, 2008, by paying the additional bonus payment to the sellers. Therefore, the lease was extended for an additional two years until August 22, 2010. To support the motion for summary judgment, the defendants offered the affidavit of Steve Causey, St. Mary’s senior landman who exercised the option to extend the lease, a copy of the letter Causey sent to the sellers on March 31, 2008, regarding the extension of the lease, and a copy of the bonus check paid to the sellers for the lease extension.

In opposing the motion for summary judgment, the Sparks offered the affidavit of Teresa Mercer, who had spoken with Claude Sparks about leasing his mineral interests on behalf of XTO and who discovered the error in the reservation of mineral rights recited in the Indeed. Mercer’s affidavit also stated that her title examination revealed “an old lease which had expired earlier in 2008” and that there were no recorded extensions or renewals of the lease. The Sparks asserted that because the extension of the St. Mary lease was not recorded, it was not effective against them or XTO.

On January 27, 2010, the trial court ruled in favor of the defendants on their motion for summary judgment. The trial court’s reasons stated that the St. Mary lease, which was recorded in the public records, included an extension provision. Just as there is no requirement that notice of production must be recorded to extend a lease, there is no requirement that an automatic extension under the lease be noticed in the public records. With a “modicum of investigation,” XTO should have discovered the extension provision, which provided notice of a potential claim against the property, and the fact that the St. Mary lease had been extended. Citing La. R.S. 9:2721(C) and referring to Thomas, supra, the trial court concluded that the Sparks could not have entered a mineral lease with XTO because the property was already subject to the recorded St. Mary lease. Accordingly, the Sparks would not be able to prove that the 17error attributed to United Title and First American caused them damages.

Because it granted the motion for summary judgment, the trial court did not address the defendants’ peremptory exception of no cause of action. Judgment dismissing the Sparks’ claims was rendered on February 10, 2010. The Sparks now appeal.

DISCUSSION

As in all summary judgment matters, we conduct a de novo review on appeal. Town of Haynesville, Inc. v. Entergy Corp., 36,519 (La.App.2d Cir.1/31/03), 840 So.2d 597, mit denied, 2003-0627 (La.6/6/03), 845 So.2d 1090; Green v. State Farm General Ins. Co., 35,775 (La.App.2d Cir.4/23/02), 835 So.2d 2. Summary judgment is appropriate when the pleadings, answers to interrogatories, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(B).

The Sparks argue that the trial court erred in granting summary judgment and in following Thomas, supra. They assert that Thomas, supra, is inconsistent with McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909), at odds with the Louisiana Public Records Doctrine in general, and not followed by the fourth circuit. The Sparks conclude that Thomas, supra, should be overruled and the summary judgment reversed. We disagree.

In Thomas, supra, the plaintiffs, who were the owners of a shopping center, sought the eviction of the defendants, who were tenants. The defendants had leased space from the shopping center’s prior owners. The lease, which included options to renew for additional terms, was recorded. The option to renew was exercised prior to the purchase of the shopping center by the plaintiffs, but renewal of the lease was not reflected in the public records. As such, the plaintiffs asserted that the defendants did not have a valid lease and that they were not bound as a third party purchaser by the unrecorded extension. This court affirmed the trial court’s judgment enforcing the lease against the plaintiffs.

The opinion addressed the public records doctrine as follows:

On the basis of the public records doctrine, third persons need only to look to the public records to determine adverse claims. McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909). All persons are held to have constructive notice of the existence and contents of recorded instruments affecting immovable property. Where a recorded instrument has language that fairly puts a third 19person on inquiry as to the title and he does not avail himself of the means and facilities at hand to obtain knowledge of the true facts, he is to be considered as having bought at his own peril. [Citations omitted.] When one is put on inquiry as to title, availing one’s self of “means and facilities at hand” requires an examination of any necessary public records, but not a wide ranging search of unrecorded documents. [Citation omitted.]

Id., at 54. The court then found that the public records included a valid recorded lease containing an option to renew; that even though its primary term had expired, the lease was mentioned in the documents by which the plaintiffs acquired the shopping center; and that based on these facts, the plaintiffs were put on notice that the lease remained in effect after its primary term. Thus, the court held that “the exercise of an option to renew under a recorded lease need not be recorded in order to have effect against third persons” as the “option to renew puts the purchaser on notice of a potential claim against the property.” Id., at 55-56.

The foundation of the Thomas opinion is that third persons need only look to the public records to determine adverse claims. As expressed in McDuffie, supra, unrecorded interests affecting immovable property shall be null and void except between the parties. In Thomas, supra, as in this case, the public records disclosed |10the lease affecting the immovable property. Neither Thomas, supra, nor this matter involves unrecorded interests. By looking to the public records, the Sparks, and later XTO, could have discovered the lease and the fact that it included an option to renew. Thus, the adverse claim against the property was determinable from the public records.

The Thomas opinion also discussed Julius Gindi and Sons, Inc. v. E.J.W. Enterprises, Inc., 438 So.2d 594 (La.App. 4th Cir.1983), a case relied upon by the Sparks. In Thomas, supra, this court specifically disapproved the Gindi holding to the extent it conflicted with the Thomas holding. The fourth circuit in both Gindi, supra, and Avenue Plaza, L.L.C. v. Falgoust, 94-2491 (La.App. 4th Cir.4/26/95), 654 So.2d 838, writ denied, 95-1302 (La.6/30/95), 657 So.2d 1040, reached conclusions contrary to that in Thomas, sup ra, by holding that the exercise of an option to renew must be recorded to affect a third party. While we recognize the disagreement, we find no basis to change our prior holding in Thomas, supra, and find that it is fully supported by the law of registry.

La. R.S. 9:2721(0 states:

C. Anyone who acquires immovable property in this state, whether by sale, sheriffs sale, giving in | T1payment, or in any other manner, which property is subject to a recorded lease agreement that is not divested by the acquisition, shall take the property subject to all of the provisions of the lease, including any provision for payment of a commission to a leasing agent or other third party, provided that the lease was recorded prior to the recordation of the document which establishes the rights of the person who acquires the property. Such document shall include but is not limited to a mortgage, option to purchase, or other writing.

Upon acquiring the immovable property that was the subject of the recorded St. Mary lease, the Sparks took the property subject to all the provisions in the lease. The St. Mary lease included an option for the lessee to renew the lease for an additional two years by payment of an additional bonus before the end of the primary term. As provided in La. R.S. 9:2721(C), the Sparks acquired the property subject to the renewal provision in the recorded lease.

Even if St. Mary had not yet acted upon the option to renew at the time the Sparks acquired the property, it could have done so at any time prior to the expiration of the lease’s primary term on August 22, 2008, thereby binding the Sparks for an additional two years and preventing them from taking advantage of XTO’s offer. Here, though, St. Mary had exercised the option to renew on March 31, 2008, prior to the sale of the property to the Sparks. Upon acquiring 112the property through the sale, the Sparks were bound to recognize the rights under the recorded St. Mary lease and were no longer third persons as to that lease. As explained in La. C.C. art. 3343, “A person who by contract assumes an obligation or is bound by contract to recognize a right is not a third person with respect to the obligation or right or to the instrument creating or establishing it.” Moreover, the cash sale deed evidencing the Sparks’ purchase of the acreage provided that the sale was “[sjubject to any restrictions, easements, and servitudes of record.” The St. Mary lease was clearly a restriction on the property at the time of the sale.

What is most significant for this matter is that the exercise of the option to renew included in the recorded lease need not be noticed in the public records to be effective as to third persons. La. C.C. art. 3339, enacted by Acts 2005, No. 169, § 1, effective July 1, 2006, as part of the legislative revision and restatement of the law of registry, states:

A matter of capacity or authority, the occurrence of a suspensive or a resoluto-ry condition, the exercise of an option or right of first refusal, a tacit acceptance, a termination of rights that depends upon the occurrence of a condition, and a similar matter pertaining to rights and obligations evidenced by a recorded instrument are effective |1Bas to a third person although not evidenced of record.

The option to renew was evidenced by the recorded St. Mary lease; thus, pursuant to La. C.C. art. 3339, the exercise of the option to renew need not be evidenced of record to be effective as to a third person. Article 3339 reflects the Thomas decision by recognizing that a recorded document that contains an option, such as an option to renew a lease, suffices to put third persons on notice of a potential adverse claim against the property arising from the possible exercise of the option.

The St. Mary lease was recorded and in effect when the Sparks purchased the property. The Sparks acquired the property subject to the provisions of the recorded St. Mary lease, including the option to renew for an additional two years. Moreover, the option to renew included in the recorded lease sufficed as notice of the possibility that the lease had been or would be extended. As discussed, the exercise of the option to renew did not have to be recorded to be effective as to third persons so long as the option to renew was included in the recorded lease.

114The summary judgment filings show that St. Mary exercised the option to renew prior to the Sparks’ purchase. The lease was extended for an additional two-year term. Consequently, the Sparks had no mineral rights to lease to XTO in 2008 and cannot attribute the damages complained of to error on the part of United Title or First American. Because the record shows that there is no genuine issue of material fact and that the defendants are entitled to judgment as a matter of law, summary judgment is appropriate.

CONCLUSION

For the reasons stated, the trial court’s judgment is affirmed. Costs of appeal are assessed against the appellants, Claude Edward Sparks and Linda G. Sparks.

AFFIRMED.


author: MOORE, J.

text:
    SOUTHERN INDUSTRIAL CONTRACTORS, LLC, Plaintiff-Appellant v. WESTERN BUILDERS OF AMARILLO, INC. and John Hoychick, Jr., Defendant-Appellees.
    No. 45,779-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.

      Breazeale, Sachse & Wilson, LLP, Baton Rouge, LA by Steven B. Loeb, Jordan C. Faircloth, for Appellant.
    Hayes, Harkey, Smith & Cascio, LLP, Monroe, LA by Thomas M. Hayes, III, Clint R. Hanchey, for Appellees.
    Before STEWART, MOORE and LOLLEY, JJ.
   MOORE, J.

|2Southern Industrial Contractors (“Southern”) appeals a summary judgment that dismissed its claims against Western Builders of Amarillo Inc. and Western Builders’ attorney, John Hoychick Jr. We affirm.

Procedural Background

In previous litigation in the Fifth JDC, Western Builders, represented by Hoy-chick, sued Southern and other defendants, including Aztec Paving. In August 2006 the parties jointly moved to seal the record and simultaneously executed a settlement agreement containing a confidentiality clause:

Further, as a material part of the settlement, Western, its representatives, * ⅞ * an(j ⅛ attorneys covenant and agree not to initiate contact with or share or reveal any information * * * concerning this lawsuit or the terms of this settlement with any creditor of Defendants or other third party, other than to respond to any inquiry by reporting that the case was resolved by agreement!.]

According to Southern, in August 2009, Hoychick sent a letter to attorney Charles Tutt advising that Western Builders had sued Southern. He further told Tutt:

While Western Builders did not get all of its judgment, it received a substantial portion of it. Part of the ongoing litigation was showing that the various defendants were in a conspiracy to hide assets and that Aztec Paving and Southern * * ⅜ were actUally one in the same.

Southern filed the instant suit against Western Builders and Hoychick in the Fifth JDC eight days later, alleging that both defendants breached the confidentiality clause. Southern alleged that this breach caused it to be disqualified from bidding on a Caddo-Bossier Parishes Port Commission project, and demanded damages equal to the profits it would have earned had it won the contract.

Hoychick filed a motion for summary judgment; Western Builders, represented by the same counsel, later filed its own motion for summary judgment which virtually mirrored Hoyehick’s. In support, they filed Tutt’s affidavit. Tutt, counsel for the Port Commission, stated that he had defended the Commission in suits filed by Southern and its principals, Samuel and Thuy P. Estis, for breach of contract and personal injury; in the course of | ..¡discovery he learned that Southern also operated under the name of Aztec Paving; when he heard that Western Builders had sued Southern and Aztec Paving, he asked Hoychick about the case; Hoychick responded, but aside from saying that the claim had been settled, gave him (Tutt) only information he already knew. Tutt also averred that the Commission rejected Southern’s bid not because of Hoychick’s disclosures but because the bid was nonre-sponsive.

Southern opposed the motions, arguing that summary judgment was improper because no discovery had been taken. On the merits, it argued that regardless of what Tutt already knew, Hoychick breached the confidentiality clause by disclosing that Western Builders received a “substantial portion” of its claim and that Southern and Aztec Paving “were in a conspiracy to hide assets.” Southern suggests that this left genuine issues such as why Hoychick wrote the letter, whether he forgot about the confidentiality clause or maliciously flouted it, and whether he intended to support Tutt’s effort to disqualify Southern from the port project. In support, Southern attached the affidavit of its principal, Samuel Estis, who stated that to his personal knowledge, Tutt published Hoy-chick’s disclosures to third parties, thereby damaging his company’s reputation.

In response, Western Builders and Hoy-chick argued that Southern failed to allege what additional discovery was needed; defamation was an unauthorized expansion of the pleadings; and Estis’s affidavit was hearsay of which he could not have personal knowledge. They also argued that Tutt’s affidavit was completely uncontra-dicted.

After a hearing in February 2010, the district court issued a 5’/2-page opinion granting summary judgment. Southern has appealed, raising one assignment of error.

Applicable Law

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief sought by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. Summary judgment shall 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 14entitled to judgment as a matter of law. La. C.G.P. art. 966 B. After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966 C(l). While parties should be given a fair opportunity to present their claims, there is no absolute right to delay action on a motion for summary judgment until discovery is completed. Johnson v. Littleton, 45,328 (La.App. 2 Cir. 5/19/10), 37 So.3d 542. Unless a plaintiff shows probable injustice, the suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of material fact. Id.

The party moving for summary judgment need not negate every essential element of the opponent’s claim, action or defense; he need only point out the absence of factual support for one or more essential element. La. C.C.P. art. 966 C(2). If the opponent then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial, there is no genuine issue of material fact. Id.; Babin v. Winn-Dixie La., 2000-0078 (La.6/30/00), 764 So.2d 37.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967 A. When the motion for summary judgment is made and properly supported, the opponent may not rest on the allegations or denials of his petition, but must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967 B; Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226; Johnson v. Littleton, supra.

Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s decision to grant or deny the motion. Hill v. Shelter Mutual Ins. Co., 2005-1783 (La.7/10/06), 935 So.2d 691.

Louisiana courts will enforce an agreement not to use confidential information “if the information used is in fact confidential.” Millet v. Crump, 96-639 (La.App. 5 Cir. 12/30/96), 687 So.2d 132; NCH Corp. v. Broyles, 749 F.2d 247 (5 Cir.1985).

- A plaintiff alleging a cause of action for defamation must set forth in the petition with reasonable specificity the defamatory statements allegedly published by the defendant. Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706. The plaintiff must allege, inter alia, specific defamatory statements. Badeaux v. Southwest Computer Bureau Inc., 2005-0612 (La.3/17/06), 929 So.2d 1211.

Discussion

By its sole assignment of error, Southern urges that summary judgment was improper when liability was admitted and factual issues existed as to whether Southern suffered any damage. It contends that “without question” Hoychick’s letter to Tutt violated the confidentiality clause by disclosing any information, regardless of whether Tutt already had that information. It also contends that Tutt could not have known that Western Builders got a “substantial portion” of its claim. With proof of the breach, Southern contends that unresolved issues remain. It also asserts that Hoychick violated Rules of Professional Conduct, that “no discovery of any kind has been conducted,” making summary judgment improper, and that Western Builders may be vicariously liable for the intentional acts of its agent, Hoy-chick.

At the outset, we observe that Tutt stated in affidavit that he already had the information conveyed by Hoychick, and nothing in Southern’s opposition contradicted him. On this record, we question whether “the information used is in fact confidential,” warranting a finding that Hoychick violated the clause. Millet v. Crump, supra; NCH Corp. v. Broyles, supra.

Even assuming that a technical violation occurred, we still find no genuine issue of material fact. Southern alleged that it was disqualified, as a result of Hoychick’s disclosure, from bidding on a Caddo-Bossier Parishes Port Commission project and suffered damages equal to the profits it would have earned had it won the contract. However, the chairman of the Port Commission stated in affidavit that Southern’s bid was rejected not because Lof any disclosures by Hoychick but because the bid was nonresponsive. The letter from Southern’s counsel to the Port Commission, attached to Tutt’s affidavit, confirmed that the disqualification was based not on Southern’s lack of responsibility but because the bid was nonrespon-sive. In short, the defendants have shown that even if there was a breach, it resulted in no damages to Southern. The burden thus shifted to Southern to show a genuine issue for trial.

Southern argues that the affidavit of Samuel Estis established such issues, as it alleged that Hoychick’s letter had been published to other third parties or was made public, and the information therein circulated among representatives of the construction surety industry and to public officials. Estis’s affidavit, however, does not satisfy Art. 967 B, in that the allegations are not based on his personal knowledge and do not assert facts that would withstand a hearsay objection. The affidavit or deposition of any person to whom the information was disseminated could have established this, but Estis’s affidavit is conclusory and little more than speculative. On de novo review we find that Southern has failed to produce factual support sufficient to establish its evidentiary burden at trial. The district court did not err in granting the summary judgment.

Southern also advances a number of subordinate arguments which may be addressed summarily.

Southern asserts that its damages were not limited to the loss of the Port Commission contract but encompassed harm to its business reputation and ability to work. These claims also derive from portions of Estis’s affidavit that are patently not based on personal knowledge and do not establish a genuine issue of material fact. Moreover, to the extent that Southern is urging a cause of action for defamation, the petition fails to allege “with reasonable specificity the defamatory statements allegedly published by the defendant.” Fitzgerald v. Tucker, supra. Specifically, the petition does not allege that Hoychick’s disclosures were false. This argument lacks merit.

Southern next argues that “no discovery of any kind has been conducted,” making summary judgment inappropriate under La. C.C.P. art. 966 C(l). Southern filed this suit on August 26, 2009; Hoy-chick moved for |7summary judgment on December 15, 2009, and Western Builders did the same on January 19, 2010; hearing on the motions was fixed for February 22. Southern filed an opposition on February 12, stating that it needed to conduct discovery, but neither alleging what discovery it wished to pursue nor requesting a continuance. As noted, the opponent has no absolute right to delay action on the motion for summary judgment until discovery is completed; absent a showing of probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of material fact. Johnson v. Littleton, supra. While the instant hearing may have been sooner than the norm, only six months after suit was filed and 10 weeks after the first motion for summary judgment, it was not so short as to preclude sufficient discovery; notably, Southern obtained Estis’s affidavit and other documents before the hearing was held. We find no violation of Art. 966 C(l).

Finally, Southern argues that as a principal, Western Builders may be vicariously liable for the intentional torts of its agent, Hoychick. Hoychick conceded that he represented Western Builders and made the disclosure to Tutt. However, the record does not show that Hoychick signed the confidentiality clause; the partial copy of the settlement agreement attached to Southern’s opposition shows that the agent signing on behalf of Western Builders was Wesley Clay Knapp, not Hoychick. Southern has not produced evidence showing that it could prove that Hoychick inten tionally violated the clause. This argument lacks merit.

Conclusion

For the reasons expressed, the judgment is affirmed. All costs are to be paid by Southern Industrial Contractors LLC.

AFFIRMED.

      . These are listed as (1) whether the letter damaged Southern’s reputation and ability to work, (2) whether the information in the letter circulated to other people in the construction industry, damaging Southern, and (3) whether Hoychick’s disclosure of a "conspiracy to hide assets” was false or misleading.

      . In support of the novel argument that a principal may be vicariously liable for the intentional acts of its agent, Southern cites Jones v. Thomas, 426 So.2d 609 (La.1983). That case, however, involved an employee who struck the plaintiff, a coworker, in the head during working hours: the court found, unremarkably, that the negligent or intentional acts of an employee make the employer vicariously liable (the actual issue was immunity from tort under the workers' compensation statute, R.S. 23:1032). Jones v. Thomas does not announce a rule of vicarious liability for the acts of an agent. In fact, a principal is usually not liable for the physical torts of a nonservant agent. Joseph v. Dickerson, 99-1188 (La.1/19/00), 754 So.2d 912; Loftin v. Champion Imports LLC, 35,619 (La.App. 2 Cir. 2/27/02), 810 So.2d 1230.


text:
    STATE of Louisiana, Appellee v. Vidalia GANT, Appellant.
    No. 45,780-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.
    Louisiana Appellate Project by Carey J. Ellis, III, for Appellant.
    Charles Rex Scott, District Attorney, Geya D. Williams Prudhomme, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before CARAWAY, PEATROSS & LOLLEY, JJ.
   PEATROSS, J.

|2Pefendant, Vidalia Gant, was charged with one count of aggravated battery and, after a bench trial, was convicted as charged. The trial judge sentenced Defendant to four years at hard labor with credit for time served. Defendant now appeals. For the reasons stated herein, Defendant’s conviction and sentence are affirmed.

FACTS

On March 3, 2008, Donald Jackson was standing outside his place of employment, Davis Garage in Caddo Parish, with his friend, George Johnson, when Defendant entered the garage. Jackson knew her as someone who lived in the neighborhood. There was some short conversation in which Defendant asked Jackson for a cigarette, but he refused to give her one. Moments later, Defendant grabbed a sharp object, stabbed Jackson in the behest and then fled the scene. Johnson witnessed the stabbing and told the owner of the garage to call “911.”

When emergency responders arrived, Jackson was taken to the hospital where it was determined that his heart had been pierced, which necessitated surgery. Jackson remained in critical condition for several days and spent approximately one week in the hospital, but ultimately survived.

During the time in which Jackson was being transported to the hospital by paramedics, officers of the Shreveport Police Department arrived at the scene and searched the area around the garage, but were unable to find a weapon. Pursuant, however, to information provided in a statement by Johnson, officers searched an area behind the garage and found Defendant in a residence. Defendant was then taken back to the garage and Johnson identified her as the person who had stabbed Jackson.

Defendant was charged in a bill of information with the aggravated battery of Donald Jackson, in violation of La. R.S. 14:34. Defendant was arraigned on April 8, 2008. On May 11, 2009, Defendant appeared with her court-appointed attorney who indicated that Defendant had chosen to waive her right to a jury trial. The trial judge then asked Defendant if she had spoken to her attorney regarding the advantages and disadvantages of |4waiving her right to a jury trial and Defendant responded that she had not. The trial judge then called a brief recess to allow Defendant time to discuss the matter with her attorney.

After the recess ended, the matter was resumed and defense counsel again indicated that Defendant wanted to waive her right to a jury trial. The trial judge again questioned Defendant to determine if she had spoken to her attorney and understood the consequences of waiving a jury trial. Defendant responded that she had spoken to her attorney and understood the consequences of the waiver. The trial judge then asked Defendant if she wanted a judge to decide her case rather than a jury and she answered, “Yes, sir.” The trial judge further inquired whether Defendant understood that, if the trial judge were to say or do something during the trial that Defendant did not agree with, she would not be able to change her mind and then request a jury trial. Defendant responded that she understood. Based on this discourse with Defendant, the trial judge determined that Defendant had knowingly and intelligently waived her right to a jury trial.

As previously mentioned, trial was held on November 16, 2009, and Defendant was then found guilty as charged of aggravated battery in violation of La. R.S. 14:34. Defendant moved for a post-verdict judgment of acquittal on the grounds of sufficiency of the evidence and the trial judge ^denied the motion. On December 21, 2009, Defendant was sentenced to four years at hard labor with credit for time served.

Defendant filed the instant appeal, raising as her sole assignment of error that the record did not reflect that she had knowingly and intelligently waived her right to trial by jury. The original record included only the minutes of the May 11, 2009 hearing, but did not include a copy of the transcript. The State subsequently requested that the record be supplemented with the transcript of the May 11, 2009 hearing; and, on August 12, 2010, the record was supplemented accordingly.

DISCUSSION

Assignment of Error Number One (verbatim): There is no indication that Defendant validly waived her right to a jury trial.

When this matter was assigned to appellate counsel, the record contained only the minute entries for the May 2009 hearing in which Defendant waived her right to jury trial. As a result, Defendant argued that the record did not contain evidence supporting the State’s contention that Defendant knowingly and intelligently waived her right to a jury trial. Defendant prayed, therefore, that her conviction be set aside and the matter remanded for a new trial since a waiver of the right to a jury trial must be supported by evidence in the record. Defendant prayed in the alternative | fithat the matter be remanded for the trial judge to hold an evidentiary hearing on the issue of whether there was a valid waiver obtained.

After receipt of Defendant’s appellate brief, the State filed a motion to supplement the appellate record with the transcript of the hearing held on May 11, 2009. The State contends that the transcript reveals that the trial judge held a recess in order to give Defendant an opportunity to speak with her attorney about the consequences of the waiver. After Defendant had spoken with her attorney, she testified that she understood the consequences of the waiver; and, after further explanation by the trial judge, she then waived the right in open court. The State concludes that, on these grounds, Defendant’s waiver was knowing and intelligent. We agree.

The U.S. Constitution guarantees the criminally accused the right to a jury trial. U.S. Const. Amend. VI. Article I, § 17, of the Louisiana Constitution provides that crimes punishable by more than six months in prison must be tried by jury except when, in noncapital cases, the defendant knowingly and intelligently waives his or her right to a jury trial. La. Const. Art. I, § 17.

La. R.S. 14:34 provides:

Aggravated battery is a battery committed with a dangerous weapon.
17Whoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both.

La. C. Cr. P. art. 780 provides:

A. A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge. At the time of arraignment, the defendant in such cases shall be informed by the court of his right to waive trial by jury.
B. The defendant shall exercise his right to waive trial by jury in accordance with the time limits set forth in Article 521. However, with permission of the court, he may exercise his right to waive trial by jury at any time prior to the commencement of trial.
C. The defendant may withdraw a waiver of trial by jury unless the court finds that withdrawal of the waiver would result in interference with the administration of justice, unnecessary delay, unnecessary inconvenience to witnesses, or prejudice to the state.

The importance attached to the right to a jury trial requires a trial judge to exercise great care in allowing a defendant to waive the right. U.S. Const. Amend. VI; La. Const. Art. 1, §§ 16, 17; State v. Kahey, 436 So.2d 475 (La.1983). In State v. Richardson, 39,456 (La.App.2d Cir.3/2/05), 896 So.2d 257, writ denied, 05-0845 (La.11/29/05), 916 So.2d 165, cert. denied, 547 U.S. 1135, 126 S.Ct. 2032, 164 L.Ed.2d 791 (2006), this Court Rfound that a valid waiver occurred where the transcript reflected that the trial judge personally advised the defendant on the record of his right to a jury trial, which the defendant waived by an oral statement on the record in open court.

In the case sub judice, the State had the record supplemented with the transcript of the hearing held on May 11, 2009. The transcript revealed that the trial judge asked Defendant if her attorney had spoken to her about the consequences of waiving her right to a jury trial and that she answered that she had not. The trial judge immediately called a brief recess so Defendant could discuss the matter with her attorney. When the case was resumed, the trial judge asked Defendant again if she understood the consequences of waiving her right to a jury trial. Defendant answered that she understood. The trial judge further expounded on the consequences of Defendant’s waiver and asked her after doing so if she wanted to waive her right to a jury trial. Defendant answered affirmatively. Only at this point during the hearing did the trial judge conclude that Defendant had knowingly and intelligently waived her right to a jury trial.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant, Vidalia Gant, are affirmed.

IflAFFIRMED.


text:
    WILCOX OPERATING CORP., Plaintiff-Appellant v. GEMINI EXPLORATIONS, INC., Defendant-Appellee.
    No. 45,785-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.

      J. Patrick Hennessy, Shreveport, LA, for Appellant.
    Weems, Schimpf, Gilsoul, Haines, Landry & Carmouche by Carey T. Schimpf, Kenneth P. Haines, Shreveport, LA, for Appellee.
    Before BROWN, PEATROSS & DREW, JJ.
   PEATROSS, J.

|2Wilcox Operating Corporation (“Wilcox”) appeals a summary judgment in favor of Gemini Explorations, Inc. (“Gemini”). The trial judge found there to be no facts in dispute and that, as a matter of law, Wilcox had failed to comply with a previous settlement agreement between the parties. The summary judgment terminated the settlement agreement and an assignment of mineral interest executed pursuant to that settlement agreement and cancelled a lis pendens filed by Wilcox. The trial judge further ruled that the Department of Conservation (“DOC”) has jurisdiction over the determination of whether the Bossier Shale is included in the Cotton Valley Formation. As stated, Wilcox appeals and, for the reasons stated herein, we reverse the summary judgment in favor of Gemini and remand for further proceedings.

FACTS

This appeal concerns mineral interests in the bed of Caddo Lake in North Caddo Parish, Louisiana. Gemini and Wilcox entered into a letter agreement regarding those interests on September 14, 2004. A dispute as to the interpretation of that letter agreement was tried in court and resulted in a settlement agreement that was stipulated to and dictated into the record on December 13, 2006. Briefly stated, Gemini was lessee by assignment of State Lease No. 173, covering the bed beneath Caddo Lake. The settlement agreement provided that Gemini was to sublease one-half of the acreage, from 3,000 feet subsurface to 100 feet below the base of the Cotton Valley Formation, to Wilcox. Wilcox paid $123,000 for geophysical information and the first 640 acres of the sublease. It also held an option to sublease all of Gemini’s remaining acreage for $175 per acre “within six months of delivery of gas to a pipeline on the unit that they purchased today, or one year after perforation and testing of the well, whichever is earlier.” Wilcox had nine months from the date of the settlement to procure a signed drilling contract; and, if no rig was available, it had an additional three months to begin drilling. Following the recitation of the settlement agreement into the record, it was agreed by the parties that the $123,000 would be paid by Wilcox to Gemini that day and that the Exploration Agreement would be drafted by Gemini and provided to Wilcox by week’s end. The parties apparently disputed certain items in the Exploration Agreement and both |sWilcox and Gemini sought court enforcement of the settlement agreement. The court ordered Wilcox to sign the Exploration Agreement. Thereafter, Wilcox requested Gemini make several changes in the draft agreement, which Gemini did, yet the agreement was never executed by the parties. There is a dispute as to which party, Wilcox or Gemini, refused to execute an Exploration Agreement. Wilcox argues that it presented a signed agreement to Gemini and Gemini argues that the opposite is true.

Mark Preddy, President of Wilcox, testified by affidavit that, immediately following the settlement agreement, Wilcox began efforts to drill an initial well and had obtained a contract to drill within nine months; however, no drilling rig was available within those nine months. Preddy further testified that a well was drilled within the one-year period. Drilling began on October 26, 2007, on Hall-Hargraves # 1, which was a unit well for two units, both of which contain a portion of the subleased property. Five zones in the Cotton Valley Formation were tested for production with Wilcox spending more than $8 million on this venture. According to Preddy’s affidavit, a pipeline was constructed to deliver production and the first perforation of the well was on November 5, 2008. Despite perforation at five levels, however, none of the levels were productive.

This litigation ensued during the building of the pipeline by Wilcox. On August 19, 2008, Gemini filed a “Petition for Contempt, Damages, Injunctive Relief, Termination of Settlement Agreement and to Declare Option Terminated or Alternatively, for Specific Performance” alleging that the one-year time period from settlement had run with no well drilled by Wilcox on the subleased property. Various pleadings were filed by the parties in the matter; specifically, Wilcox filed a rule to show cause why Gemini should not have to execute an exploration agreement. At that point, no exploration or operating agreement had been signed by both parties.

In addition, a dispute arose as to whether the Bossier Shale was part of the Cotton Valley Formation, which was of interest to Wilcox in determining whether to exercise its option on the additional acreage. It is the position of Wilcox that it had until November 5, 2009, to exercise that option, which is one year from the first perforation of Hall-Hargraves # 1 on November 5, 2008. This issue prompted Wilcox to then file a |4Reconventional Demand requesting a declaratory judgment that the Bossier Shale is a part of the Cotton Valley Formation.

Ultimately, Gemini filed the instant Motion for Summary Judgment on July 14, 2009, which was heard on August 17, 2009. The trial court granted summary judgment in favor of Gemini, finding there to be no facts in dispute and that Wilcox had not complied with the terms of the settlement agreement. Following a hearing on a Motion to Reconsider the ruling, at the suggestion of the trial judge, the ruling was amended to specifically provide that the settlement agreement was terminated, the lis pendens cancelled, the assignment of the leasehold interest in the 640 acres dissolved and that Gemini retain the $123,000 purchase price for the sublease. In addition, the trial judge dismissed Wilcox’s request for declaratory judgment, concluding that the DOC has jurisdiction over the question of whether the Bossier Shale is included in the Cotton Valley Formation and has already made that determination. This appeal ensued.

DISCUSSION

The appellate court’s review of a grant or denial of summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226; Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. King v. Illinois Nat. Ins. Co., 08-1491 (La.4/3/09), 9 So.3d 780. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2). A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Cutsinger v. Redfem, 08-2607 (La.5/22/09), 12 So.3d 945.

The burden of proof remains with the movant. La. C.C.P. art.'966(C)(2). 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 the motion does not require him to negate all essential elements of the adverse party’s claim, action or defense, but, rather, to point j sout 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. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Wall v. Kelly Oil & Gas Company, Inc., 44,604 (La.App.2d Cir.12/21/09), 27 So.3d 1071, unit denied, 10-0122 (La.4/5/10), 31 So.3d 372.

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but is to determine whether there is a genuine issue of triable fact. Wall, supra, citing Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764. All doubts should be resolved in the nonmov-ing party’s favor. Id. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success or determines the outcome of a legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Id.

In the case sub judice, it would be Gemini’s burden at trial to prove that Wilcox had not complied with the settlement agreement. In support of the trial court’s summary judgment, Gemini maintains on appeal that the drilling of Hall-Hargraves # 1 failed to satisfy the drilling requirements of the settlement agreement. Gemini argues that this was a test well drilled on adjacent acreage — not on the subleased property — and that no well was ever drilled on the subleased property. According to Gemini, even if the test well complies with the settlement agreement, it was dry and does not hold the subleased acreage in a unit for production. While the units contained part of the 640-acre tract, the well never produced and the unitization has expired. Gemini argues that the test well has been abandoned and the wellhead removed. Gemini suggests that these facts are undisputed and support the trial court’s granting of summary judgment in its favor. We disagree.

Wilcox asserts that only one of the alleged undisputed facts is actually undisputed, ie., the existence of the settlement agreement entered into the record on December 13, 2006. According to Wilcox, the remaining allegedly undisputed facts are very much in dispute, making summary | (-judgment improper. Our review of the record, including the affidavits supporting and opposing the motion for summary judgment, lead us to agree with Wilcox that factual issues do exist, making summary judgment inappropriate in this matter.

First, the parties vehemently dispute whether or not a well was drilled on the subleased property within the time constraints of the settlement agreement. In opposition to the motion for summary judgment, Wilcox presented the affidavit of Mark Preddy, as previously mentioned, which asserts that Wilcox drilled a well on a unit that included part of the 640 acres. According to Wilcox, this is the same as drilling on the property itself. Second, the existence of a signed Exploration Agreement as ordered by the trial judge is disputed. As previously stated, Gemini asserts that Wilcox failed to execute the initial, and then the revised, Exploration Agreement submitted to it by Gemini. On the other hand, the record contains an Exploration Agreement submitted to Gemini and signed by Wilcox and Wilcox asserts that it is Gemini that has failed to sign the Exploration Agreement. Third, Wilcox disputes that the subleased property has not been placed in a unit for a viable well drilled near the subleased property. Gemini admitted that the Hall-Hargraves # 1 well was the unit well for two units, both of which contain portions of the subleased property. Fourth, also through the affidavit of Preddy, Wilcox challenges the allegedly undisputed fact that the test well did not produce marketable hydrocarbons and was, therefore, abandoned. Initially, Wilcox notes that this argument is [7a concession on the part of Gemini that a well was drilled as contemplated by the settlement agreement. Next, Wilcox asserts that the well was not abandoned because Wilcox planned to perforate and complete the well in the Bossier Shale portion of the formation. Sixth, Wilcox argues that the DOC has not ruled that the Bossier Shale does not form part of the Cotton Valley Formation. In that regard, Wilcox does not share Gemini’s interpretation of the Orders of the DOC relative to the defining of the production units in the Haynesville Shale Reservoir A, and the Cotton Valley Reservoir A, of the Caddo-Pine Island Field.

These factual issues are material as they are central to either ensuring or precluding the relief sought by Gemini in this case. We conclude, therefore, that summary judgment was improperly granted. Finding material facts to be at issue herein, we pretermit discussion of any of the remaining issues raised on appeal.

DECREE

For the foregoing reasons, the summary judgment of the trial court in favor of Gemini Explorations, Inc., is reversed and the matter is remanded to the trial court for further proceedings. Costs of appeal are assessed to Gemini Explorations, Inc.

REVERSED AND REMANDED.

      . In support of its position, Wilcox points the court to La. R.S. 30:10 A(l)(b), which reads, in pertinent part:
      § 10. Agreements for drilling units; pooling interests; terms and conditions; expenses
      A. When two or more separately owned tracts of land are embraced within a drilling unit which has been established by the commissioner as provided in R.S. 30:9(B), the owners may validly agree to pool their interests and to develop their lands as a drilling unit.
      (1) Where the owners have not agreed to pool their interests, the commissioner shall require them to do so and to develop their lands as a drilling unit, if he finds it to be necessary to prevent waste or to avoid drilling unnecessary wells.

      (b) The portion of the production allocated to the owner of each tract included in a drilling unit formed by a pooling order shall, when produced be considered as if it had been produced from his tract by a well drilled thereon.


author: BROWN, Chief Judge.

text:
    Willie Charles DAVIS, Plaintiff-Appellant v. CLAIBORNE ELECTRIC COOPERATIVE, INC., Defendant-Appellee.
    No. 45,806-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.

      Street & Street, Monroe, LA, C. Daniel Street, for Appellant.
    Ungarino & Eckert, LLC, Shreveport, LA by J. Michael Nash, for Appellee.
    Before BROWN, WILLIAMS, and CARAWAY, JJ.
   BROWN, Chief Judge.

|2Willie Charles Davis appeals from the judgment of the workers’ compensation judge finding that he failed to meet his burden of proving a specific accident arising out of and in the course of his employment with Claiborne Electric Cooperative, Inc. For the reasons stated herein, we affirm.

Facts

Willie Charles Davis was employed by Claiborne Electric Cooperative, Inc. (“Claiborne”), as a member of its right-of-way crew. Davis had worked for Claiborne for four years, and his duties over that time included running saws, cutting down trees, bush-hogging, and spraying vegetation along right-of-ways. The right-of-way crew would generally spray vegetation from May through September, and Davis’s job was to sit on the seat attached to the front of the tractor and spray vegetation with a spray wand.

|sDavis testified that on July 29, 2008, he was sitting on the seat mounted to the front of the tractor, spraying vegetation, when the tractor hit a hole and jarred his back. He stated that he informed Calvin Mallory, the driver of the tractor, that he had hurt his back when they hit the hole, and that they needed to call Charlie Lewis, their supervisor, to inform him. According to Davis, Lewis came out to the job site and Davis told Lewis that the tractor hit a hole and injured his back.

Mallory testified that he was driving the tractor that day at an idle speed of 1-2 miles per hour, and that at no time did Davis tell him that they hit a hole, that he hurt his back, or that they needed to call Lewis. Lewis stated that Davis never called him or reported to him that the tractor hit a hole or that he injured his back in an accident. Lewis also denied going to the job site that day due to an injury sustained by Davis. James Harda-way also testified. Hardaway testified that he gave Davis a ride to and from work most days, and that at no time did Davis inform him that he had been injured in an accident. All three coworkers testified that Davis did complain of soreness in his back.

Davis continued to work 10 hours a day for the next two work weeks. Finally, on August 11, 2008, Davis went to a doctor and reported that he injured his back lifting, bending and turning at work. Davis went to some |4follow-up appointments, and overall his doctor kept him out of work through September 1, 2008. Davis failed to show up for work thereafter; thus, on September 9, 2008, Claiborne terminated Davis’s employment.

This matter was heard on January 20, 2010. The workers’ compensation judge rendered judgment in favor of Claiborne, finding that Davis failed to carry his burden of proving an accident arising out of and in the course of his employment.

Discussion

If an employee suffers personal injury by accident arising out of and in the course of employment, his employer must pay compensation. La. R.S. 23:1031(A); Bandy v. International Paper Co., 29,085 (La.App.2d Cir.02/26/97), 690 So.2d 902, writ denied, 97-1101 (La.06/20/97), 695 So.2d 1354. The plaintiff in a workers’ compensation action has the burden of establishing a work-related accident by a preponderance of the evidence. Hammock v. Weyerhaeuser, 40,464 (La.App.2d Cir.12/14/05), 917 So.2d 733. The worker’s testimony alone may be sufficient to satisfy this burden, provided that two elements are satisfied: first, there must be no other evidence which discredits or casts serious doubt on the worker’s version of the incident; and second, the worker’s testimony must be corroborated by the testimony of fellow workers, his spouse and other close family members, | Sfriends, or the introduction of medical evidence. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992).

Whether the plaintiff has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. Taylor v. Hollywood Casino, 41,196 (La.App.2d Cir.06/28/06), 935 So.2d 293. A workers’ compensation judge’s factual findings are subject to the manifest error or clearly wrong standard of appellate review. Hammock, supra; Gilliam v. Manhattan/Whitaker Construction Co., 30,566 (La.App.2d Cir.05/13/98), 714 So.2d 101, unit not considered, 98-1845 (La.09/04/98), 723 So.2d 429. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In the case sub judice, the primary issue before us is whether Davis proved by a preponderance of the evidence that he suffered a specific accident arising out of and in the course of his employment. La. R.S. 23:1021(1) defines an “accident” as an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive | (¡degeneration. Thus, simply stated, and a point conceded by Claiborne, if plaintiff did hit a hole and jar his back, such an event would qualify as an accident. Davis, however, is the only person who claims that he attributed his back pain to hitting a hole. The other witnesses testified that he attributed his back soreness to riding on the front seat of the tractor in general.

Davis submits that he is entitled to the rule of law espoused in Bruno, supra, which states that a worker’s testimony alone may be sufficient to meet his burden of proof. However, the workers’ compensation judge found Davis’s testimony not credible; moreover, the testimony of other witnesses, particularly Mallory, who was on the tractor when the alleged incident occurred, cast doubt upon Davis’s claim that any accident occurred.

In addition, the August 11, 2008, medical report offered into evidence fails to corroborate Davis’s testimony of how he injured his back. The report states that Davis said that he injured his back lifting, bending and turning at work, one to two weeks prior. Further, the medical reports post-termination attribute Davis’s back pain to bouncing up and down on a tractor for the past five years.

17Considering the conflicting testimony, we cannot say that the workers’ compensation judge committed manifest error in finding that Davis failed to meet his burden of proving that he sustained a work-related accident.

Conclusion

For the foregoing reasons, the judgment of the workers’ compensation judge dismissing Willie Charles Davis’s claim for workers’ compensation benefits, with prejudice, is hereby affirmed. Costs of this appeal are assessed to Willie Charles Davis.


author: CARAWAY, J.

text:
    Cynthia G. WILLIS (C.G.W.), Plaintiff-Appellee v. TMB PARTNERSHIP, Debby Glenn, Defendant-Appellant.
    No. 45,813-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.
    David J. Thomas, for Appellant, TMB Partnership and TMB Partnership, LLC.
    Cynthia G. Willis, In proper person.
    Debby Glenn, In proper person.
    Before CARAWAY, PEATROSS and LOLLEY, JJ.
   CARAWAY, J.

1 gAppellants filed formal pleadings in this proceeding seeking to enjoin a judicial sale of property seized under a writ of fieri facias. They assert that the judgment which was being executed upon was a nullity. The trial court rendered an order denying the requested injunction without a hearing or a ruling on the claim of nullity. Following an application for supervisory writs, we granted appellants an appeal of the case. Finding the nullity of the judgment evidenced from the record, we reverse and remand.

Facts and Procedural History

The action which is the subject of this appeal was filed by appellants in a pending city court suit in which Cynthia Willis (“Willis”) had previously obtained a $5,150 judgment against “Debby Glenn and TMB Partnership.” This intervention seeking injunctive relief occurred as Willis was executing her judgment under a writ of fieri facias with property having been seized.

The action was filed by appellants, TMB Partnership (“Partnership”) and TMB Partnership LLC (“LLC”), under the same suit number as Willis’s pending action and was entitled, “Petition to Annul Judgment, Injunction, and Damages.” The intervention alleges that the Partnership was formed in 1984. The LLC was subsequently created in 1998 and pursuant to an act of sale in 1998, all Partnership assets were sold and conveyed to the LLC. Thereafter, the Partnership ceased operations and no longer maintained partnership assets. The intervention further asserts that John Bryant is listed with the Louisiana Secretary of State’s office as the registered agent for service of process for the LLC. The associated address is Bryant’s work address, located at 1810 Auburn Avenue, Suite 101, Monroe, Louisiana, 71201. Debby Glenn (“Glenn”) is the general manager of the LLC and her office address is 2001 Roggerson Road in Monroe. Appellants also allege that Glenn was never a partner of the Partnership.

At the commencement of the suit, Willis’s pro se city court petition lists in its caption and in its service instruction what appears as two names handwritten on separate lines, as follows:

TMB Partnership

IsDebby Glenn

Nevertheless, paragraph 2 of the petition lists “TMB Partnership” as the only named defendant. The only service return in the record reveals personal service on Debby Glenn. While no formal answer was filed, Glenn responded by mailing a letter to the city court, representing herself as the “General Manager” of “TMB Partnership, LLC.”

The matter was set for a July 22, 2009 trial. Notice of trial was mailed to Debby Glenn and signed for by “M. Buchan.” At trial, with neither Debby Glenn nor TMB Partnership present, the city court rendered judgment on September 3, 2009, against Debby Glenn and TMB Partnership. Notice of judgment was sent by certified mail to “TMB Partnership Debby Glenn” at the Roggerson Road address. Following a motion for new trial, the city court’s written denial of a new trial occurred on October 21, 2009.

Thereafter, Willis obtained a writ of fieri facias and property allegedly owned by the LLC was seized. In their November 2009 petition intervening in this action, appellants alleged that the judgment obtained by Willis should be declared an absolute nullity because they never received notice of the suit and were thereby denied due process. Appellants requested damages and injunctive relief to enjoin Willis from executing the judgment. The appellants’ petition did not pray for a setting of a hearing, and the injunction was summarily denied on November 20, 2009, without a trial on the matter.

On November 24, 2009, appellants filed a notice of intent to apply for a supervisory writ. A December 28, 2009 return date was set and all proceedings were ordered stayed by the city court pending this court’s decision. After consideration of appellants’ writ application, this court granted appellants’ motion to stay and ordered the writ be converted to an appeal. The matter was then remanded to the trial court for perfection of the appeal. We are now asked to rule on whether the city court erred in denying appellants’ request for injunctive relief and further to recognize on the face of the pleadings the nullity of the judgment.

Discussion

|4The Louisiana Code of Civil Procedure provides the codal authority relevant to injunctive relief involving seizure of property. La. C.C.P. art. 1092, pertaining to an action in intervention, provides in pertinent part:

A third person claiming ownership of, or a mortgage or privilege on, property seized may assert his claim by intervention. If the third person asserts ownership of the seized property, the intervention may be filed at any time prior to the judicial sale of the seized property, and the court may grant him injunctive relief to prevent such sale before an adjudication of his claim of ownership.

Regarding specifically seizures under a writ of fieri facias, La. C.C.P. art. 2298 provides in relevant part:

Injunctive relief prohibiting the sheriff from proceeding with the sale of property seized under a writ of fieri facias shall be granted to the judgment debtor or to a third person claiming ownership of the seized property:
(4) When the judgment sought to be executed is absolutely null.

In this self-represented party action initially filed on a fill-in-the-blank form petition, actions of multiple parties have led to much confusion. The suit caption blurred an understanding of the number of parties sued-Glenn and a TMB entity or just a TMB entity. The naming of the TMB entity without designation as a limited liability company was incomplete. This blurring of the matter was carried over to the preparation of the caption for the “Civil Citation” and the service return information. With their formal filing of a petition asserting the nullity of the judgment, appellants sought no rule to show cause for a hearing before the impending sheriffs sale. The city court, whose prior judgment was against Glenn and “TMB Partnership,” denied the joint petition of appellants without a hearing or judgment addressing the merits of the serious due process claim presented in this confusion.

A nullity of a final judgment may be demanded for either vices of form or substance under Articles 2002 and 2004, respectively. La. C.C.P. arts. 2002 and 2004. A judgment is null, under La. C.C.P. art. 2002, when a judgment is rendered “against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken”. This peremptory ground for nullity under La. C.C.P. art. 2002(A)(2) may be | ¿noticed on direct appeal of the judgment without the need for a separate action of nullity. La. C.C.P. art. 2002(B); Succession of Barron, 345 So.2d 995 (La.App. 2d Cir.1977); Osborne v. McKenzie, 42,359 (La.App.2d Cir.8/15/07), 962 So.2d 501, writ denied, 08-2555 (La.1/9/09), 998 So.2d 726.

A judgment obtained without citation and service is absolutely null. La. C.C.P. arts. 1201 and 2002. Service on a partnership is made by personal service on a partner and service on a limited liability company is made on any one of its registered agents for process. Only after some form of “diligent effort” or “due diligence” has failed to identify such a person, may an alternative method of service be utilized. La. C.C.P. arts. 1263 and 1266. See also Conner v. Continental Southern Lines, Inc., 294 So.2d 485 (La.1974) (service of process directed to a corporate defendant and made on one other than the person authorized to accept such service is illegal and without effect); Kallauner v. One Source Const., LLC, 08-0888 (La.App. 4th Cir.10/8/08), 995 So.2d 59 (service of process upon secretary of registered agent for service of process for LLC not legally sufficient); W & R Farming P’ship v. Old South Properties, Inc., 04-737 (La.App. 3d Cir.11/10/04), 887 So.2d 646 (service on nonpartner held insufficient to serve partnership when record revealed identity of partner could be located with diligent effort). Additionally, the due process principle of notice of trial to an unrepresented litigant expressed in La. C.C.P. art. 1571(B) may support the claim of nullity of a judgment. Osborne v. McKenzie, supra. Last, the jurisprudence addressing confusion in the name of a party defendant, while holding that prescription may be interrupted by the filing of such suit, also indicates that a proper identification in the naming of the defendant is necessary for the notice required under due process of law. See, e.g., Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983).

In Glidden v. Loe, 192 So.2d 633 (La.App. 2d Cir.1966), the court held that the issuance of an injunction restraining a sheriff from seizing and offering for sale property belonging to plaintiff was erroneous because it was rendered without a hearing of evidence. Likewise, despite the fact the current dispute involves the non-issuance of an injunction, the judgment is deficient for lack of an evidentiary hearing and a ruling on the merits of appellants’ claims regarding the prior flaws in the proceedings.

| [Appellants’ action is sanctioned under La. C.C.P. art. 2298 as a special injunction action to be determined in a summary manner preceding a judicial sale. The claim required the city court to rule on the merits of the allegation that the judgment sought to be executed is absolutely null. Additionally, the appellants’ notice of intent to apply for supervisory writs was well within the appeal delays which began running on the $5,150 judgment after its rendition and the denial of the motion for new trial. Therefore, the entire action is before us. Shows v. Shows, 434 So.2d 1090 (La.1983).

From the above law and proceedings, we find that the judgment must be annulled for plaintiffs’ failure to accurately identify the LLC and to obtain proper service of process over both TMB entities. The initial service of process was directed only at Glenn, personally, as the service information and sheriffs return do not state that either entity was served. Accordingly, the September 3, 2009 judgment in favor of plaintiff is reversed. The case shall be remanded to the city court where amendment to plaintiffs petition may be made and proper service of process obtained. La. C.C.P. art. 934.

Costs of appeal are assessed to Cynthia Willis.

REVERSED AND REMANDED.

      . Throughout the record there are inconsistencies in the spelling of Glenn’s name. Both Debbie and Debby are found throughout the record.


text:
    MARATHON OIL COMPANY, Plaintiff-Appellant v. James C. BOWLING, Defendant-Appellee.
    No. 45,814-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.
    Galloway, Johnson, Tompkins, Burr & Smith, New Orleans by Teresa Leyva Martin, Kevin A. Marks, for Appellant.
    John S. Stephens, for Appellee.
    Before BROWN, GASKINS, and LOLLEY, JJ.
   BROWN, Chief Judge.

12This appeal is from the WCJ’s denial of a motion to compel a second medical opinion/evaluation filed by the employer, Marathon Oil Company. Claimant, James C. Bowling, injured his lower back in the course of and arising out of his employment with Marathon in 1995. Since that time, Marathon has paid Bowling weekly indemnity benefits in the amount of $323 and has authorized all reasonable, necessary and related medical treatment. On September 23, 2004, pursuant to a joint motion filed by the parties, the WCJ rendered a judgment declaring Bowling to be totally and permanently disabled and granting Marathon the right to assert the Social Security offset then provided for in La. R.S. 23:1225(A).

In the latter part of 2009, Marathon requested that Bowling be re-evaluated by its physician of choice, Dr. Randall Brewer. On January 14, 2010, Marathon filed a motion to compel a second medical |aopinion/examination after Bowling stated that he would not acquiesce to such an evaluation absent a court order. A hearing was held on February 5, 2010, and the WCJ rendered judgment denying Marathon’s motion. It is from this judgment that Marathon has appealed.

Discussion

The sole issue before the court in this appeal is whether the WCJ erred in denying Marathon’s motion for a second medical opinion/evaluation of Bowling.

La. R.S. 28:1121(A) provides in part that:

An injured employee shall submit himself to an examination by a duly qualified medical practitioner provided and paid for by the employer, as soon after the accident as demanded, and fi'om time to time thereafter as often as may be reasonably necessary and at reasonable hours and places, during the pendency of his claim for compensation or during the receipt by him of payments under this Chapter. (Emphasis added).

Bowling’s disability status was the subject of a consent judgment between the parties, as set forth in the WCJ’s September 28, 2004, and March 17, 2006, judgments, neither of which serves to preclude or bar Marathon from asserting its right to have Bowling’s medical condition reevaluated or re-assessed as set forth in La. R.S. 23:1121(A). Worker’s | compensation judgments are treated differently than other civil judgments. As noted by the supreme court in Falgout v. Dealers Truck Equipment Co., 98-3150 (La.10/19/99), 748 So.2d 399, through the enactment of La. R.S. 23:1310.8, the worker’s compensation modification statute, the legislature did not intend that a judgment determining the extent of a claimant’s disability be res judicata, having expressly provided that a compensation award can be subject to modification based on a change in the worker’s condition. See, Jackson v. Iberia Parish Government, 98-1810 (La.04/16/99), 732 So.2d 517; Landreneau v. Liberty Mutual Insurance Co., 309 So.2d 283 (La.1975); Chaisson v. Central Crane Service, 10-0112 (La.App. 1st Cir.07/29/10), 44 So.3d 883; Madere v. Western Southern Life Insurance Co., 03-110 (La.App. 5th Cir.04/29/03), 845 So.2d 1222.

However, Marathon failed to show that such a subsequent examination/evaluation was reasonably necessary as required by La. R.S. 23:1121(A). At the hearing on Marathon’s motion to compel, defendant’s attorney contended that because it had been 3 ½ years since Bowling had been evaluated by Dr. Brewer, it was reasonable for claimant to be re-examined or reevaluated. As stated by defense counsel, “[I]t’s our position that every-every three and a half years is-is reasonably necessary.” We disagree. There was no evidence whatsoever that Bowling’s condition had | ^changed since he was adjudicated to be permanently and totally disabled. Lacking any evidence of Bowling’s current disability status, the WCJ properly denied Marathon’s motion to compel. See Grambling State University v. Walker, 44,995 (La.App.2d Cir.03/03/10), 31 So.3d 1189.

Conclusion

For the reasons set forth above, the judgment of the WCJ is affirmed. Costs of this appeal are to be assessed to plaintiff-appellant, Marathon Oil Company.

AFFIRMED.

      . Thereafter, on March 17, 2006, the WCJ modified this judgment in light of statutory changes and reduced the Social Security offset to zero. Claimant's weekly compensation benefits in the amount of $323 were reinstated retroactive to June 1, 2005.

      . Initially, Marathon sought supervisory review of this judgment, but the writ application was remanded to the OWC for perfection as an appeal. As stated in this court’s writ order of April 14, 2020, "Since the issue presented was the only issue before the OWC and the worker's right to benefits has previously been decided, the instant judgment is a final, appealable judgment.”