author: WELCH, J.

text:
    GLENCOE EDUCATION FOUNDATION, INC. d/b/a Virgil Brown Glencoe Charter School v. CLERK OF COURT AND RECORDER OF MORTGAGES FOR the PARISH OF ST. MARY, Louisiana, Lamar Contractors, Inc., Mayeux’s Air Conditioning & Heating, Inc., Brown Drywall and Coating, Inc., the Sherwin-Williams Company, Chuckleberry’s Commercial Floors, Inc., Premier Steel Fabrication & Construction, LLC, and the Hartford Casualty Insurance Company.
    No. 2010 CA 1872.
    Court of Appeal of Louisiana, First Circuit.
    May 6, 2011.

      Steven Loeb, Murphy Foster, III, Yvonne R. Olinde, Baton Rouge, LA, for Plaintiffs-Appellees Glencoe Education Foundation, Inc. d/b/a Virgil Brown Glen-coe Charter School.
    Gerard G. Metzger, New Orleans, LA, for Defendants-Appellants Lamar Contractors, Inc. and Hartford Casualty Ins. Co.
    Craig L. Raster, Zachary, LA, for Defendants-Appellees Premier Steel Fabricators & Construction, LLC and Chuckleber-ry Commercial Flooring, Inc.
    Gordon J. Hamner, Houma, LA, for Defendant-Appellee Brown Drywall and Coating, Inc.
    Russel J. Cremaldi, Franklin, LA, for Defendant-Appellee St. Mary Parish Clerk of Court.
    Robert Stassi, New Orleans, LA, for Defendant-Appellee Mayeux’s Air Conditioning and Heating, Inc.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   WELCH, J.

13Appellants, Lamar Contractors, Inc. (Lamar) and Hartford Casualty Insurance Company (Hartford), appeal a judgment entered against Hartford awarding subcontractors Mayeux’s Air Conditioning & Heating, Inc. (Mayeux’s) and Brown Drywall and Coating, Inc. (Brown) the principal amounts of their claims and attorney fees, as well as the assessment of all costs of the concursus proceeding to Hartford. We affirm in all respects.

BACKGROUND

The facts forming the basis for this lawsuit are essentially undisputed. On January 29, 2007, Glencoe Education Foundation, Inc. d/b/a Virgil Brown Glencoe Charter School (Glencoe) entered into a contract with Lamar for the construction of a new building at its charter school in Franklin, Louisiana (sometimes referred to as “the project”). The construction contract was recorded with the clerk of court for St. Mary Parish on March 9, 2007. Hartford issued two bonds on the project to Lamar, a performance bond securing Lamar’s performance, and a payment bond, securing payment to all persons, firms, and corporations furnishing labor or materials on the construction project. Each of the bonds was issued in the amount of $3,178,000.00.

On February 2, 2007, Lamar entered into a written subcontract with Brown to furnish all materials and labor to install a complete painting system on the project for the lump sum price of $124,420.00. Lamar entered into a written subcontract with Mayeux’s to provide all materials and labor to install a complete HVAC system for the lump sum price of $214,827.00.

Brown’s and Mayeux’s satisfactory performance of their contractual duties on the construction project is not disputed. During the course of the project, however, disputes between Glencoe and Lamar arose over the work. Glencoe withheld payment of the remaining balance owed to Lamar and on July 23, 2008, |.¡Glencoe filed and recorded a notice of termination of the contract. In response, on September 16, 2008, Lamar filed a lien and statement of claim against Glencoe in the mortgage records for the sum of $380,850.19, representing the balance claimed to be due for general contract services and labor provided. Various subcontractors on the project also filed statements of claim and privilege into the mortgage records. On August 20, 2008, Brown filed a statement of claim or privilege against Lamar, Glencoe, and Hartford in the amount of $52,339.73, the balance it claimed was due for materials and services. On September 8, 2008, May-eux’s filed a statement of claim against Lamar, Glencoe, and Hartford for the sum of $30,420.00, representing the balance due for finished work on the project. The Sherwin-Williams Company, which provided materials to Brown on the project, also filed a statement of claim or privilege against Brown, Glencoe, Lamar, and Hartford in the amount of $4,937.46, the balance claimed for materials and services furnished on the project.

On October 1, 2008, Lamar filed a lawsuit seeking damages for breach of contract against Glencoe in the 16th Judicial Court. On October 3, 2008, Glencoe filed this concursus proceeding in that same court against Lamar, Brown, Mayeux’s, Sherwin-Williams, and two other subcontractors, Chuckleberry’s Commercial Floors, Inc. and Premier Steel Fabrication & Construction, LLC, seeking cancellation of their recorded claims from the mortgage records on the basis that there was a payment bond in effect for the project. Glencoe requested that all defendants be ordered to appear and reserve their claims to the payment bond, that it be deemed to be relieved of all liability to all claimants, and that the clerk of court be ordered to cancel all recorded claims.

In the concursus proceeding, in October of 2008, Brown filed a claim against the payment bond, alleging that amicable demand for payment had been made on the principal and surety without payment being made, and that pursuant to [Sits properly recorded claim and La. R.S. 38:2246, it is entitled to an award of ten percent attorney fees on the amount recovered. It also filed a reconventional demand against Glencoe and a third party demand against Lamar and Hartford, seeking to recover the unpaid balance of $52,339.73 for furnishing labor and materials on the construction project, as reflected in its recorded claim, as well as interest and court costs. Mayeux’s filed a claim against Lamar and Hartford in the concursus proceeding, asserting that more than 30 days had lapsed since amicable demand without a payment being made. It sought to recover the full amount of its recorded claim as well as ten percent attorney fees on the amounts recovered. Both subcontractors submitted evidence in connection with their claims.

A threshold procedural dispute arose regarding whether the Public Works Act or Private Works Act governed the concursus proceeding. Lamar asserted that Glencoe is not a “public entity” and the work was not a “public work” as defined by the Public Works Act, and the trial court agreed, holding that the Private Works Act applied to the proceeding. This court reversed that ruling, holding that Glencoe may proceed under the Public Works Act. Glencoe Education Foundation, Inc. v. Clerk of Court and Recorder of Mortgages for the Parish of St. Mary, Louisiana, 2008-2404 (La.App. 1st Cir.12/9/08) (unpublished). The supreme court declined to review that ruling. Glencoe Education Foundation, Inc. v. Clerk of Court and Recorder of Mortgages for the Parish of St. Mary, Louisiana, 2008-2892 (La.12/12/08), 996 So.2d 1122.

On January 5, 2009, the trial court entered judgment dismissing, with prejudice, all claims and causes of action against Glencoe, relieved Glencoe for personal liability on the claims asserted by Lamar, the subcontractors, and Sherwin-Williams, and directed the clerk of court to cancel all claims filed against Glencoe in the public records. In so doing, the court noted that it reviewed the certificate of no objection to the bond filed by the clerk of court. Lamar filed a ^motion for a new trial, which was granted in part by the trial court to preserve Lamar’s claims against Glencoe that were pending in the breach of contract lawsuit filed in another division of the court.

Thereafter, on March 1, 2010, Brown filed a motion to set the summary hearing and trial of all issues and claims pending in the concursus proceeding. In opposition to that motion, Lamar and Hartford asserted that neither Brown, nor any of the other claimants in the concursus proceeding, is entitled to recover any amount from them under the payment provisions of the Lamar subcontracts. Specifically, they relied on the “pay if paid” clauses found in the Lamar subcontracts, which makes payment by Glencoe to Lamar a “suspensive condition” or condition precedent to the obligation of Lamar to pay its subcontractors. Paragraph 18(c) of the Lamar subcontracts provides as follows:

Payment by Owner to General Contractor shall be a suspensive condition (condition precedent) to the obligation of the General Contractor to pay the Subcontractor. The Contractor shall not be obligated to make any payment to Subcontractor under this contract unless and until General Contractor from the Owner receives payments.

Lamar argued that it could not be held liable to the claimants because Glencoe failed to remit the balance due on the general contract to Lamar. Hartford argued it was entitled to the benefit of the “pay if paid” clauses, urging that because the principal, Lamar, could not be held liable for the balance owed to the subcontractors because it had not received final payment from Glencoe, under the law of suretyship, it could not be held liable to the subcontractors on the payment bond. In support of its position, Hartford relied on two fundamental principles of surety-ship law providing that: (1) a surety cannot be bound to an obligee to any greater extent than the obligation contained in the agreement between the obligor and the obligee, and (2) a surety may assert any defense to the principal obligation against the creditor that the principal could assert except the lack of capacity or |7discharge in bankruptcy. Lamar and Hartford also disputed the subcontract amount due Brown, contending that Brown did not have one change order approved in the amount of $2,973.60 and that the actual amount of the balance due Brown is $43,371.94, not $52,339.73 as reflected in Brown’s recorded statement. They offered evidence of a check written by Lamar to Sherwin-Williams, one of Brown’s suppliers, on November 13, 2009, in the amount of $5,944.20, seeking a credit against the balance owed to Brown. Lamar and Hartford also urged that Brown was not entitled to attorney fees because Brown is not owed the amount set forth in its recorded claim. Lastly, Lamar and Hartford asked that the claims asserted in the concursus proceedings be denied, and that an order be issued staying the proceedings pending the settlement or adjudication of Lamar’s pending breach of contract lawsuit against Glencoe.

On April 27, 2010, the trial court held a trial on the merits of the subcontractors’ claims, in which the only claimants were Brown and Mayeux’s. The court dismissed the claims of Premiere Steel and Chuckleberry’s at the hearing on the basis that neither asserted their claims in the proceeding. Thereafter, on May 4, 2010, the trial court signed a final judgment dismissing the claims of Sherwin-Williams, Premiere Steel, and Chuckleberry’s with prejudice. It dismissed Mayeux’s and Brown’s claims against Lamar as premature. The court then entered judgment in favor of Mayeux’s and against Hartford in the full amount of its principal claim, $30,420.00, with interest and attorney fees pursuant to La. R.S. 38:2246(A) in the amount of $3,042.00, plus costs. Judgment was also rendered in favor of Brown against Hartford in the full amount of its principal claim, $52,339.73, -with interest, less a credit of $5,994.00 for the amount paid by Lamar to Sherwin-Williams for paint supplies, together with attorney fees in the amount of $5,233.97, plus costs. Additionally, the court taxed all costs of the concursus proceedings to Hartford.

|sThis appeal followed, in which Lamar and Hartford (referred to hereafter collectively as “Hartford”) contend that the trial court erred in finding Hartford obligated to pay any amounts to the subcontractors, in awarding attorney fees to Brown and Mayeux’s, and in assessing Hartford with all costs of the concursus proceeding.

HARTFORD’S LIABILITY

Subcontractors’ claims for payment

In this appeal, Hartford does not contest the amount owed on the claims asserted by subcontractors Brown and Mayeux’s for work performed on the project. Instead, Hartford asserts that the trial court erred in finding that it could be liable to the subcontractors for any amount when the trial court ruled that principal debtor, Lamar, was not liable to the subcontractors based on the “pay if paid” suspensive condition payment clauses in Lamar’s subcontracts with Brown and Mayeux’s. Hartford insists that it is entitled to the protection afforded by the “pay if paid” clause in Lamar’s subcontracts with Brown and Mayeux’s and argues that under the law of suretyship, a surety for a contractor cannot be held liable to the subcontractor unless the contractor is liable. It points to the definition of surety-ship as an accessory promise that binds one to fulfill the obligation of another found in La. C.C. art. 3035, as well as the general rules of suretyship law providing that a surety cannot be bound to an obli-gee to any greater extent than the obligation contained in the agreement between the obligor and obligee, and allowing a surety to assert any defense to the principal obligation that the principal obligor could assert except lack of capacity or bankruptcy discharge against a creditor. See La. C.C. art. 3046; Commercial Union Insurance Company v. Melikyan, 430 So.2d 1217, 1221 (La.App. 1st Cir.1983). Hartford contends that general principles of suretyship law control its payment obligation on the bond and allow it to assert the same defense to payment that Lamar could under the 19subcontracts. Hartford points to another provision of the Lamar subcontracts as the source of its right to raise the lack of a final payment by Glen-coe to Lamar as a defense. This provision states that “no payment, partial or final shall be due or owed to the Subcontractor from Contractor’s surety unless and until, as a condition precedent, Contractor receives payment for Subcontractor’s work from Owner.” Therefore, Hartford contends, under suretyship law and the provisions of the contract, it had the right to raise the “pay if paid” clauses as a defense to payment to the contractors.

At the outset, we note that the trial court did not hold that Lamar was not liable to the subcontractors; rather, it dismissed the claims against Lamar as premature. However, regardless of how the trial court’s action is characterized, the issue presented in this appeal is whether a surety, which has issued a statutory bond governed by the provisions of the Public Works Act, may rely on a “pay if paid” clause in a principal’s subcontract as a defense to payment of sums owed to subcontractors which have performed work and supplied materials on a public construction project. For the reasons that follow, we conclude it may not.

The Public Works Act was enacted for the purpose of protecting persons doing work, performing labor, or furnishing material for the construction, alteration, or repair of public works. Construction Materials, Inc. v. American Fidelity Fire Insurance Company, 388 So.2d 365, 366 (La. 1980). It accomplishes this objective by mandating that the public entity require of the contractor a bond with a solvent surety in a sum of not less than fifty percent of the contract price “for the payment by the contractor or subcontractor to claimants as defined in R.S. 38:2242.” La. R.S. 38:2241(A)(2). “Claimants” include those who perform labor on or furnish materials or supplies used in the construction, alteration, or repair of public works. La. R.S. 38:2242. The payment bond required to be furnished by the contractor is in the nature of a statutory bond, and |inthe act expressly states that “no modification, omissions, additions in or to the terms of the contract, in the plans or specifications, or in the manner and mode of payment shall in any manner diminish, enlarge, or otherwise modify the obligations of the bond.” La. R.S. 38:2241(A)(2). Moreover, Paragraph C of La. R.S. 38:2241 provides that:

The payment provisions of all bonds furnished for public works contracts described in this Part, regardless of form or content, shall be construed such and deemed statutory bond provisions. Any such bond which fails to contain any of the requirements set forth in this Part shall be deemed to incorporate all of the requirements set forth in this Section. Language in any such bond containing any obligations beyond the requirements set forth in this Part shall be deemed surplusage and read out of such bond.

The payment bond serves as an additional fund or security to assure that those who perform work on public projects receive payment for their work in the event of a contractor’s inability to fulfill its payment obligations. It insures against unpaid claims from parties supplying labor and materials for the construction of public works. Scott v. Red River Waterway Commission, 41,009, p. 6 (La.App. 2nd Cir.4/12/06), 926 So.2d 830, 835, writ denied, 2006-1153 (La.9/15/06), 936 So.2d 1269.

The Public Works Act also gives laborers and suppliers the right to assert claims against the public entity by filing a sworn statement of the amount due in the mortgage records. As explained by the supreme court in Wilkin v. Dev Con Builders, Inc., 561 So.2d 66, 70 (La.1990) (quoting Pigeon-Thomas Iron Co. v. Drew Bros., 162 La. 836, 839, 111 So. 182, 183 (1926)), the Public Works Act protects workers and suppliers engaged by agencies of this state for the construction and improvement of public property by giving them, in effect, “a privilege against the unexpended fund in the possession of the authorities with whom the original contract ha[d] been entered into.”

The bond requirements of the Public Works Act also serve to protect the | npublic entity from loss and expense arising out of the failure of the contractor to faithfully perform the contract. In essence, the payment bond transfers the risk that a contractor will be unable to perform its contractual obligations from the public entity to the surety. Wilkin, 561 So.2d at 71; Avallone Architectural Specialties, L.L.C. v. DBCS Corporation, 36-971, p. 4 (La.App. 2nd Cir.3/5/03), 839 So.2d 1045, 1048; 2 Bruner and O’Conner on Construction Law, § 5:235. If the public entity has complied with the requirements of the Public Works Act and the requisite bonds have been issued, it may escape liability to Public Works Act claimants by filing a bond of a surety “to guarantee payment of the obligation secured by the privilege.” La. R.S. 38:2242.2(A). It may then initiate a eoneursus proceeding citing all claimants and the contractor, subcontractor and surety on the bond, in which all claims must be asserted. La. R.S. 38:2243. If the surety is deemed solvent, the public entity is relieved of any personal liability and the recorder of mortgages must cancel all recorded claims. La. R.S. 38:2244.

The issue of whether a surety which has issued a payment bond governed by the provisions of the Public Works Act can assert a conditional payment provision contained in the principal’s contract with subcontractors as a defense to payment is res nova in Louisiana. However, a number of other jurisdictions have addressed the issue of whether a surety may assert a principal’s “pay if paid” clause as a defense to payment to a subcontractor in similar contexts. In Moore Brothers Company v. Brown & Root, Incorporated, 207 F.3d 717, 723 (4th Cir.2000), a federal appellate court, applying Virginia law, held that a surety could not assert the principal’s defense based on “pay when paid” language in a subcontract as a defense to its liability to pay subcontractors performing work on a project where the surety did not expressly incorporate the “pay when paid” condition precedent into the contract bond. The court noted that the very purpose of a surety bond contract is to insure that claimants who perform work are paid for their work on a [ 12project in the event that the principal does not pay. The court found the suggestion that nonpayment by an owner of a project absolved the surety of its obligation to be “nonsensical, for it defeats the very purpose of a payment bond.” Id.

In Brown & Kerr, Incorporated v. St. Paul Fire and Marine Insurance Company, 940 F.Supp. 1245 (N.D.Ill.1996), a federal district court held that a surety could not assert a “pay when paid” clause as a defense to payment under a payment bond. Therein, a subcontractor sought to recover under a payment bond for money due on work performed for the general contractor, which had not been paid by the owner. The court observed that the proposition that the inability to proceed against a general contractor because of a “pay when paid” clause in a subcontract prevented recovery against a surety under a payment bond ran counter to the purpose of the payment bond — the assurance of payment to subcontractors. Moreover, the court noted, the bond issued by the surety did not condition payment to subcontractors on the owner paying the principal, nor did it incorporate the terms of the subcontract. The clear and unambiguous terms of the bond provided that if the principal promptly paid the subcontractor, any obligation by the surety was void; however, if the subcontractor did not receive payment within ninety days after finishing work, the subcontractor could sue on the bond. Because the subcontractor satisfactorily performed under the subcontract and had not received payment, the court found the surety liable to the subcontractor. Accord OBS Company, Inc. v. Pace Construction Corporation, 558 So.2d 404 (Fla.1990) (holding that the sureties on a private works project were liable on a statutory payment bond issued to a contractor which had not yet been paid by the owner under the clear terms of the bond, which in no way conditioned recovery under the payment bond on the owner making final payment to the contractor. The court also stated that to allow nonpayment by the owner to prevent recovery both under the subcontract and the payment bond would thwart the entire purpose and scheme 11sof the state’s mechanics’ lien law and statutes allowing the security of the payment bond to substitute in place of attaching a lien against the owner’s property); Everett Painting Company, Inc. v. Padula & Wadsworth Construction, Inc., 856 So.2d 1059 (Fla.App. 4th Dist.2003) (holding that even if a payment bond issued by a surety contained language conditioning payment on receipt of payment by the contractor from the owner, such would violate the state’s public works statute, the purpose of which is to protect subcontractors and suppliers by providing them with an alternative remedy to mechanic’s liens on public projects).

Similarly in this case, the subcontractors are proceeding under the payment bond, in which Hartford agreed to be bound to Glencoe and those who furnished labor or materials in connection with the construction of the charter school for payment in the amount of $3,178,000.00, with its principal, Lamar, jointly and severally. The bond sets forth that if Lamar promptly made payment to those performing labor and material used in connection with the construction of the project, including that by a subcontractor, the obligation “shall be void, otherwise to remain in full force and effect.” With the issuance of a bond, Hartford bound itself to pay the up to the amount of the bond in the event of nonfulfillment or nonperformance of the contractor’s payment obligations for the public works contract. See Scott, 41,009 at p. 6, 926 So.2d at 835. The bond issued by Hartford contains no conditional payment provision. The conditions triggering Hartford’s liability under the bond have clearly been met: Brown and Mayeux’s performed work in connection with the Glen-coe public works project, and they did not promptly receive final payment from Lamar. Therefore, under the terms of the payment bond, Hartford is liable to pay Lamar’s subcontractors the balance owed | ]4for their work on the Glencoe construction project as Lamar has not fulfilled its payment obligation to the subcontractors for their completed work on the project.

Additionally, the Public Works Act is sui generis and provides exclusive remedies to parties engaged in public construction work. State through Division of Administration v. McInnis Brothers Construction, 97-0742, p. 9 (La.10/21/97), 701 So.2d 937, 944. Because the Public Works Act contains specific provisions governing statutory payment bonds, the general principles of suretyship law relied on by Lamar and Hartford do not control a determination of the surety’s liability on the bond. The Public Works Act does not contain language authorizing the issuance payment bond conditioned on the receipt of payment by the contractor from the owner. Instead, it specifically precludes the insertion of any provision in the contract, the plans or specifications, or the manner of payment that would in any manner “diminish ... or otherwise modify the obligations of the bond.” La. R.S. 38:2241(A)(2). Any bond which fails to contain any of the requirements set forth in the Public Works Act shall be deemed to incorporate all the requirements of the Act. We conclude that allowing a surety to assert a “pay if paid” clause to defeat payment to a subcontractor on the basis that the contractor has not received full payment from the owner, where the owner has escaped liability to the subcontractors by relying on the payment bond, would render the protections afforded to laborers and suppliers on public works projects set forth in the Public Works Act meaningless. The application of traditional suretyship law principles in this scenario is contrary to the Act’s avowed purpose of providing a source of security to those performing work and furnishing materials on public projects. Because the contractual provision on which Hartford relies is contrary to the purpose of the Public Works Act, we hold that Hartford may not assert the “pay if paid” provisions of the Lamar subcontracts to defeat its liability to pay I ^subcontractors pursuant to the terms of the statutory bond. Therefore, the trial court correctly entered an award in favor of Brown and Mayeux’s claims for the unpaid balances for work performed and material supplied on the Glencoe construction project.

Attorney fees

The Public Works Act authorizes any claimant “recovering the full amount of his timely and properly recorded or sworn claim” to recover ten percent attorney fees, which shall be taxed in the judgment on the amount recovered. La. R.S. 38:2246. Mayeux’s and Brown were awarded ten percent attorney fees on the amounts recovered. Hartford contends that the trial court erred in awarding Brown attorney fees because it did not recover the full amount stated in its recorded claim.

The record reflects that Brown filed a Statement of Claim in the amount of $52,339.73, which included a balance owed to its paint supplier, Sherwin-Williams, in the amount of $5,994.00. Sherwin-Williams filed its own claim against Lamar and Hartford in the concursus proceeding, which was settled on November 13, 2009, more than a year after the filing of petition for concursus, when Lamar wrote Sher-win-Williams a check in the amount of $5,944.20. The trial court entered judgment in favor of Brown in the full amount of its recorded claim, $52,339.73, subject to a credit of $5,944.00 for the amount paid by Lamar to Sherwin-Williams.

Brown urges that it did recover the full amount of its claim, pointing out that the trial court recognized the total amount of its lien claim and properly granted judgment in favor of Brown on the amount of the entire claim less a credit for the amount paid to one of its suppliers by Lamar. It submits that Hartford should not be entitled to defeat its statutory attorney fee claim as Lamar’s action in paying one | KjOf the suppliers was tantamount to an admission that the total amount was due and owing at the time the claim was recorded and asserted in the concursus proceeding. We agree.

The purpose of the attorney fee provision of the Public Works Act is to encourage and promote amicable settlement of claims arising from public works contracts to the end that persons furnishing materials, supplies, and labor on such projects will be paid promptly, thus avoiding inconvenience, delay and expense occasioned by litigation. Interstate School Supply Company, Inc. v. Wilson, 368 So.2d 189, 190 (La.App. 1st Cir.1979). Because it is penal in nature, the attorney fee provision is subject to the rule of strict construction. Id. Employing this rule of construction, we find that the statute authorizes an attorney fee award to Brown, as judgment was entered in Brown’s favor on the full principal amount of its recorded claim by the trial court. Hartford denied liability on Brown’s claim, forcing Brown to litigate its recorded claim and to suffer a substantial delay in payment. The payment by Lamar to one of Brown’s suppliers during the course of the concursus proceeding should not defeat Brown’s statutory right to recover attorney fees on its claim. Accordingly, we find no error in the trial court’s award of attorney fees to Brown.

Court costs

In its final assignment of error, Hartford contends that the trial court erred awarding all costs of this proceeding against Hartford. We disagree.

Louisiana Code of Civil Procedure article 1920 provides that costs shall be paid by the party cast and that the court may render judgment for costs, or any part thereof, as it may consider equitable. Louisiana Code of Civil Procedure article 4659 provides for assessment of costs in a concursus proceeding. It contains specific rules regarding proceedings in which money had been deposited into the [ 17court, but provides that in other instances, the court may render judgment for costs it considers equitable. La. C.C.P. art. 4659. Because this proceeding did not involve a deposit of money into the registry of the court, the court was free to assess costs in any equitable manner.

A trial court’s assessment of costs will not be reversed on appeal in the absence of an abuse of discretion. Allen v. Baton Rouge General Medical Center/General Health System, 2009-1110, p. 6 (La.App. 1st Cir.12/23/09), 30 So.3d 127, 131, writ denied, 2010-0195 (La.4/5/10), 31 So.3d 368. In this case, the concursus was instituted by Glencoe to obtain a release of liability to subcontractors and the suppliers on the project by relying on the payment bond issued by Hartford. Those who had filed claims against Glencoe were cited to appear and assert those claims against the payment bond. The trial court ultimately determined that Hartford was liable to pay those claimants who asserted their claims in the concursus proceeding. Under these circumstances, we find no abuse of the trial court’s great discretion in assessing all costs of the concursus proceeding to Hartford.

CONCLUSION

Based on the foregoing, the judgment appealed from is affirmed. All costs of this appeal are assessed to appellants, Lamar Contractors, Inc. and Hartford Casualty Insurance Company.

AFFIRMED.

      . But see Wellington Power Corporation v. CNA Surety Corporation, 217 W.Va. 33, 614 S.E.2d 680 (2005), the court permitted the surety to assert a "pay when paid” clause in a subcontract to avoid liability, reasoning that the public policy behind freedom to contract outweighed the public policy of securing payment for work performed by laborers underlying that state’s public bond statutes.

      . There has been no claim by Hartford that the subcontractor’s work was deficient in any way, nor does it claim in this appeal that the amounts of their claims are erroneous.

      . Brown and Mayeux’s do not address this argument in their briefs.


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    Robin CAWLEY v. NATIONAL FIRE & MARINE INSURANCE COMPANY; Felton Payton; and Don Robert Services, Inc.
    No. 2010 CA 2095.
    Court of Appeal of Louisiana, First Circuit.
    May 6, 2011.

      Gus A. Fritchie, III, Amy Kent Edmond, New Orleans, LA, for Plaintiff-Appellant Robin Cawley.
    Howard L. Murphy, New Orleans, LA, for Defendants-Appellees National Fire and Marine Insurance Company, Felton Payton, and Don Robert Services, Inc.
    Before KUHN, PETTIGREW, and HIGGINBOTHAM, JJ.
   KUHN, J.

12Plaintiff-appellant, Robin Cawley, appeals the trial court’s judgment, which dismisses her claim against defendants-appel-lees, National Fire and Marine Insurance Company (National), Felton Payton, and Don Robert Services, Inc., based on a finding that it is prescribed. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

According to the allegations of her petition, Mrs. Cawley was in an automobile accident on December 7, 2007. As she traveled through the right-of-way in the parking lot of a Shell gas station, located at 1570 N. U.S. Highway 61 near Burnside Avenue in Ascension Parish, the 2000 Ford F-150 truck she was driving was struck in the side by a vehicle driven by Felton Payton, with the permission and consent of the owner, Don Robert Services, Inc. She averred that as a result of the accident, she sustained bodily injures. Mrs. Cawley filed this lawsuit on February 18, 2009, naming Felton Payton, Don Roberts Services, Inc., and insurer, National, as defendants.

Defendants answered the lawsuit and filed a peremptory exception raising the objection of prescription. After a hearing, the trial court sustained the exception and dismissed Mrs. Cawley’s lawsuit. This appeal followed.

DISCUSSION

An objection of prescription is a peremptory exception. La. C.C.P. art. 927 A(l). Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. If, however, the action is prescribed on its face, the plaintiff bears the burden of showing that the action has not prescribed. Lawrence v. Our Lady of the Lake Hosp., 2010-0849, p. 5 (La.App. 1st Cir.10/29/10), 48 So.3d |a1281, 1285. If evidence is introduced at the hearing on the peremptory exception of prescription, the trial court’s findings of fact are reviewed under the manifest error standard of review. But in a case involving no dispute regarding material facts — only the determination of a legal issue — a reviewing court must apply the de novo standard of review, under which the trial court’s legal conclusions are not entitled to deference. TCC Contractors, Inc. v. Hosp. Serv. Dist. No. 3, 2010-0685, p. 8 (La.App. 1st Cir.12/8/10), 52 So.3d 1103, 1108.

Because Mrs. Cawley filed her claim on February 18, 2009, based on injuries she alleges she sustained in an automobile accident that occurred on December 7, 2007, her petition is untimely. See La. C.C. art. 3492 (delictual actions are subject to a liberative prescription of one year). Thus, she bears the burden of proving her claim is not prescribed.

Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe. La. C.C. art. 3464. Such an acknowledgment is not subject to any particular formality. Mallett v. McNeal, 2005-2289, p. 5 (La.10/17/06), 939 So.2d 1254, 1258. Prescription of a delictual obligation can be interrupted by either an express or tacit acknowledgment. Id., 2005-2289 at p. 6, 939 So.2d at 1258 (citing Flowers v. U.S. Fid. & Guar. Co., 381 So.2d 378, 381-82 (La.1979)). A tacit acknowledgment occurs when, among others, a debtor makes an unconditional payment. Lima v. Schmidt, 595 So.2d 624, 634 (La.1992).

Mrs. Cawley asserts that three payments by National to her husband, Robert Cawley, for the property damages to the Ford F-150 truck that she was driving at the 14time of the accident constituted a tacit acknowledgement sufficient to interrupt prescription.

Admitted into evidence at the hearing were copies of two checks issued by National to Mr. Cawley in the amounts of $3,044.30 and $303.80; and another National check, issued to the repair shop, in the amount of $490.89; as well as a copy of a release for property damage signed by Mr. and Mrs. Cawley on June 2, 2008.

According to the terms of the June 2, 2008 release, the Cawleys agreed for consideration of the payment of $3,838.99 (i.e., the total amount of the three checks National issued to or on behalf of Mr. Caw-ley) to “release and forever discharge [defendants] from all liability for damages to any and all property resulting from [the] accident.” Thus, National’s payments were not unconditional.

According to La. R.S. 22:129o,

No settlement made under a vehicle liability insurance policy for a claim against any insured thereunder arising from any accident or other event insured against for damage to or destruction of property owned by another person shall be construed as an admission of liability by the insured, or the insurer’s recognition of such liability, with respect to any other claim arising from the same accident or event.

Under La. R.S. 22:1290, therefore, a settlement of a third-party claim for property damage relating to a vehicle liability insurance policy shall not constitute an admission of liability by the insured, or recognition thereof by the insurer, as to any other claim arising from the same accident or event. See Mallett, 2005-2289 at p. 9, 939 So.2d at 1260.

15A settlement is defined as a compromise and is distinguished from an unconditional payment. Id., 2005-2289 at pp. 9-14, 939 So.2d at 1260-63; see also La. C.C. art. 3071 (defining a compromise as a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship) and art. 3072 (requiring that a compromise shall be made in writing or recited in open court).

It is evident under an application of La. R.S. 22:1290 that the terms of the release signed by Mr. and Mrs. Cawley constituted a “settlement.” Clearly, National’s payment of $3,838.99 was conditioned on the Cawleys’ release of all liability for property damage for which defendants may have been obligated to them as a result of the accident. Thus, as a settlement, under La. R.S. 22:1290, the payment of property damage to Mr. Cawley cannot be construed as an admission of liability by any of the defendants. As such, those payments (which the parties do not dispute were for damages for property, namely the Ford F-150) did not interrupt prescription on the bodily injury claims Mrs. Cawley asserted against defendants.

Noting that the personal injuries damages she sustained are her separate property, see La. C.C. art. 2344, Mrs. Caw-ley points out that that the total amount of consideration indicated in the release did not include the amount of a rental reimbursement made by National to Enterprise Rent-A-Car (Enterprise) for her use |fiof a vehicle, ostensibly during the time the Ford F-150 truck was in the repair shop. Mrs. Cawley emphasizes that the undisputed evidence shows the vehicle from Enterprise was rented in her name rather than her husband’s and that the payment tendered to Enterprise was on her behalf rather than her husband’s. Thus, she asserts payment to Enterprise was an unconditional payment made on her behalf by National that constituted a tacit acknowledgement of her claims for personal injuries sufficient to interrupt prescription.

In support of this assertion, Mrs. Caw-ley entered two invoices into evidence. The first invoice, addressed to Mrs. Caw-ley and indicating a check-out date of February 5, 2008, and a check-in date of March 13, 2008, states a total amount of $1,656.39 with an amount due of $392.31. The second invoice, addressed to National’s representative, claims adjuster Kimberly Vega and noting the renter was Mrs. Cawley, likewise states a total amount of $1,656.39 with an amount due of $1,264.08.

Initially we observe that nothing in the record establishes that National (or any other defendant) actually paid the invoice. Since Mrs. Cawley bore the burden of proving an interruption of prescription and because the record does not contain evidence that a payment was actually made to Enterprise, she has failed to meet her burden.

Moreover, a compromise is made when the claimant of a disputed or unliquidated claim, regardless of the extent of her claim, accepts a payment that the other party tenders with the clearly expressed written condition that acceptance of the payment will extinguish the obligation. La. C.C. art. 3079.

17Under the plain language of the agreement, Mrs. Cawley accepted payment from National with a clearly expressed written condition that her acceptance of $3,838.99 released defendants from liability, i.e., extinguished any obligation belonging to National (and the other defendants) for “all liability for damages to any and all property.” Although the amount of consideration stated in the release did not expressly include an amount in excess of $3,838.99— i.e., those amounts that were part of her disputed or unliquidated claim — payment of an excess amount did not change the characterization of the contract entered into by Mrs. Cawley on June 2, 2008. Mindful that Mrs. Cawley has not proven that National actually tendered any amount to Enterprise on her behalf, we note it is axiomatic that payment of $5,103.07 (the total of the payments made to or on behalf of Mr. Cawley added to $1,264.08, the amount allegedly paid to Enterprise) would include $3,838.99, the stated amount of consideration. Thus, there is no failure of performance by National that would render the contract null.

In the release, Mrs. Cawley agreed to accept, and acknowledged receipt of, $3,838.99. National’s payment of $3,838.99 was a concession it made to settle “all liability for damages to any and all property.” Loss of use of the Ford F-150 is a form of liability that arises out of “damage to any and all property.” Thus, rental of a replacement vehicle while the Ford F-150 was repaired was an item of damage encompassed in the scope of the release of “all liability for damages to any and all property.” Mrs. Cawley’s acceptance of $3,838.99 included any claim she may have had for loss of use as a result of the damage to the Ford F-150 truck. As such, the Uune 2, 2008 release was a settlement which, under La. R.S. 22:1290, could not be construed as an admission of liability by any of the defendants and, therefore, did not interrupt prescription on Mrs. Cawley’s claim for bodily injuries. Accordingly, the trial court correctly sustained the peremptory exception raising the objection of prescription.

DECREE

For these reasons, the trial court’s judgment is affirmed. Appeal costs are assessed against plaintiff-appellant, Robin Cawley.

AFFIRMED.

      . La. R.S. 22:1290 was renumbered from La. R.S. 22:661 by La. Acts 2008, No. 415, § 1, eff. Jan. 1, 2009. The statute was also amended by La. Acts 2010, No. 703, § 1, eff. Jan. 1, 2011, to substitute the phrase "vehicle liability insurance policy for” for "motor vehicle liability insurance policy of,” which had been used in the earlier version of La. R.S. 22:1290 as well as in La. R.S. 22:661.

      . The truck is presumably a community asset. See La. C.C. art. 2340. While Mr. Cawley may have had the exclusive right to manage the truck titled in his name, see La. C.C. art. 2351, the release, signed by both spouses, is binding on each. See La. C.C. arts. 1918, 1927, and 2346. Thus, while Mrs. Cawley may have been entitled to benefit from National’s payment of property damage to Mr. Cawley, it is the release of “all liability for damages to any and all property,” that constitutes a settlement under La. R.S. 22:1290 and precludes a finding that National's payments to Mr. Cawley amounted to an acknowledgement sufficient to interrupt prescription on Mrs. Cawley's personal injury claim. Mrs. Cawley has not challenged the authenticity of her signature or asserted that her consent to the agreement was defective in any manner.

      . See La. C.C. arts. 1854 (performance by an obligor extinguishes the obligation) and 2029 (a contract is null when the requirements for its formation have not been met).


author: WHIPPLE, J.

text:
    Alvin ROCHELLE v. James M. LeBLANC, Secretary, Louisiana Department of Public Safety & Corrections.
    No. 2010 CA 1901.
    Court of Appeal of Louisiana, First Circuit.
    May 6, 2011.

      Alvin Rochelle, St. Gabriel, LA, for PlaintiffAppellant in Proper Person, Alvin Rochelle.
    William Kline, Baton Rouge, LA, for Defendant/Appellee, Louisiana Department of Corrections.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   WHIPPLE, J.

|?This matter is before us on appeal by petitioner, Alvin Rochelle, an inmate in the custody of the Louisiana Department of Public Safety Corrections (“the DPSC”) housed at Hunt Correctional Center in St. Gabriel, Louisiana, from a judgment of the Nineteenth Judicial District Court, dismissing with prejudice his petition for judicial review of an adverse decision from the DPSC for failure to state a cause of action. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Petitioner filed an Administrative Remedy Procedure (“ARP”) contending that the DPSC unlawfully forfeited his credit for good time while on parole. The grievance was assigned ARP No. EHCC-2010-97. Therein, petitioner contended that because he was technically in the custody of the DPSC while on parole, he was entitled to credit for time served for good behavior while on parole even though his parole was eventually revoked. Petitioner was denied the relief sought at the first and second levels, and on May 12, 2010, he filed a petition for judicial review by the Nineteenth Judicial District Court, which was assigned number 590569.

On May 24, 2010, the Commissioner issued a screening report, concluding therein that petitioner’s suit failed to state a cause of action. Specifically, the Commissioner noted that in accordance with LSA-R.S. 15:571.5, petitioner was seeking relief not available under the law, i.e., credit for time served while at liberty under good time parole supervision. The Commissioner further relied on Bancroft v. Louisiana Department of Corrections, 93-1135 (La.App. 1st Cir. 4/8/94), 635 So.2d 738, 740, where this court held that parole and probation are “acts of grace” to the offender, and that a violation thereof has “consequences such as no entitlement to credit against the offender’s sentence for time spent on probation and/or parole.” Accordingly, the Commissioner noted, although petitioner was correct in his contention that he was still technically in the custody of the DPSC while on parole, under Bancroft, he was not entitled to credit for the time he was on conditional release. Citing Bancroft, the Commissioner further observed that LSA-R.S. 15:571.5 A has, “at all pertinent times, herein, required that upon revocation, the parolee shall serve the remainder of his original sentence due as of the date of release ‘as if on parole.”

On July 19, 2010, the district court signed a judgment adopting the Commissioner’s report and dismissed petitioner’s appeal with prejudice, without service on the DPSC, and at petitioner’s costs for failure to state a cause of action.

DISCUSSION

Although petitioner does not set forth any specific assignments of error, he argues in his brief on appeal that since the judgment of the district court was rendered on July 19, 2010, finding that his petition failed to state a cause of action, the legislature amended and reenacted LSA-R.S. 15:571.5(0, effective August 15, 2010, to provide for the earning of good time credit while on parole even where the parole is revoked for a violation of its terms. Petitioner further argues that pursuant to the amendment and reenactment of LSA-R.S. 15:571.5(0, petitioner “was serving his supervised release while being on [as if on parole] and that his original full term date should not have changed or extended in any way.”

^Louisiana Revised Statute 15:571.5(C) was amended by Acts 2010, No. 792, § 1, effective August 15, 2010, to provide as follows:

C. If such person’s parole is revoked by the parole board for violation of the terms of parole, the person shall be recommitted to the department for the remainder of the original full term, subject to credit for time served for good behavior while on parole.

(Emphasis added.)

Nonetheless, in order for petitioner to be entitled to the relief sought on appeal, this court would be required to conclude the legislature intended for the above amendment to be applied retroactively.

The legislature is free, within constitutional confines, to give its enactments retroactive effect. Louisiana Revised Statute 1:2 provides that “[n]o Section of the Revised Statutes is retroactive unless it is expressly so stated.” However, LSA-R.S. 1:2 has been construed as co-extensive with LSA-C.C. art. 6. St. Paul Fire & Marine Insurance Company v. Smith, 609 So.2d 809, 816 (La.1992). Louisiana Civil Code article 6 codifies the general rule against retroactive application of legislative enactments, St. Paul Fire & Marine Insurance Company, 609 So.2d at 816, and the exceptions jurisprudentially grafted thereupon, providing as follows:

In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.

|sIn determining whether a newly enacted provision is to be applied prospectively only, or may also be retroactive, LSA-C.C. art. 6 requires a two-fold inquiry. First, the court must determine whether the amendment to the statute expresses legislative intent regarding retroactive or prospective application. Keith v. U.S. Fidelity & Guaranty Company, 96-2075 (La.5/9/97), 694 So.2d 180, 183. Second, if no such intent is expressed, the court must determine whether the amendment is substantive, procedural, or interpretive. Keith v. U.S. Fidelity & Guaranty Company, 694 So.2d at 183.

In the instant case, Act 792 does not expressly provide for retroactive application, nor has the legislature expressly declared the Act to be interpretive or provided for an effective date that would be indicative of retroactive application of the amendments. Therefore, this court must determine and classify the enactment as either substantive, procedural, or interpretive.

Procedural laws prescribe a method for enforcing a previously existing substantive right and relate to the form of the proceeding or the operation of the laws. Keith v. U.S. Fidelity & Guaranty Company, 694 So.2d at 183. Substantive laws either establish new rules, rights, and duties or change existing ones. Interpretive laws, on the other hand, do not create new rules, but merely establish the meaning that the interpretive statute had from the time of its initial enactment. It is the original statute, not the interpretive one, that establishes the rights and duties. St. Paul Fire & Marine Insurance Company, 609 So.2d at 817. When an existing law is

not clear, a subsequent statute clarifying or explaining the law may be regarded as interpretive, and the interpretive statute may be given retroactive effect because it does not change, but merely clarifies, preexisting law. St. Paul Fire & Marine Insurance Company, 609 So.2d at 817.

|fiAs noted by the Supreme Court, the suggested distinction between interpretive legislation “clarifying,” and substantive legislation “amending” or “changing,” existing law is an obscure one. Landry v. Baton Rouge Police Department, 2008-2289 (La.App. 1st Cir. 5/8/09), 17 So.3d 991, 997. There is no bright line between substantive laws which change existing standards and interpretive laws which change existing standards by redefining and returning to their ostensible “original” meaning. St. Paul Fire & Marine Insurance Company, 609 So.2d at 819.

As pointed out by petitioner, prior to the amendment noted above, LSA-R.S. 15:571.5(C) did not provide that an offender would receive credit for time served for good behavior while on parole when his parole was subsequently revoked for violations thereof. In fact, until the 2010 amendment of LSA-R.S. 15:571.5(0, there was no such entitlement to credit against the offender’s sentence for time spent on probation and/or parole. See Bancroft v. Louisiana Department of Corrections, 635 So.2d at 740. Thus, the amendment is clearly substantive in that it represents a distinct change in the rights and obligations of the parties by allowing credit for good time spent while on parole where no right had previously existed. See Landry v. Baton Rouge Police Department, 17 So.3d at 998. Because a substantive change in the law cannot be applied retroactively, petitioner is not entitled to the relief he seeks on appeal. See LSA-C.C. art. 6 and LSA-R.S. 1:2. Thus, we find no merit to his arguments on appeal.

Moreover, to the extent that petitioner purports to assert any constitutional challenges by his argument in brief that LSA-R.S. 15:571.5(C) impairs his “vested rights,” we note that this court has previously upheld the constitutionality and applicability of LSA-R.S. 15:571.5 under similar challenges. See Frederick v. Ieyoub, 99-0616 (La.App. 1st Cir. 5/12/00), 762 |7So.2d 144, writ denied, 2000-1811 (La.4/12/01), 789 So.2d 581; and Ferrington v. Louisiana Board of Parole, 2003-2093 (La.App. 1st Cir. 6/25/04), 886 So.2d 455, writ denied, 2004-2555 (La.6/24/05), 904 So.2d 741.

Accordingly, on review herein, we find no error in the judgment of the district court dismissing his Rochelle’s for judicial review.

CONCLUSION

For the above and foregoing reasons, the July 19, 2010 judgment of the district court, adopting the Commissioner’s report, is hereby affirmed. Costs of this appeal are assessed to the petitioner, Alvin Rochelle.

AFFIRMED.

      . At all pertinent times in these proceedings, LSA-R.S. 15:571.5, entitled, "Supervision upon release after diminution of sentence for good behavior; conditions of release; revocation” provided, in part:
      C. If such person's parole is revoked by the parole board for violation of the terms of parole, the person shall be recommitted to the department for the remainder of the original full term.

      . Louisiana Revised Statute 15:574.9, entitled, "Revocation of parole for violation of condition; board panels; return to custody hearing; duration of reimprisonment and re-paróle after revocation; credit for time served; revocation for a technical violation,” was also amended by Act 792 to allow credit for time served for good behavior while on parole.

      . Louisiana Constitution Article I, section 23 prohibits ex post facto laws and laws impairing obligations of contracts. Also, no law can be retroactively applied so as to divest a party of a vested right, as this would violate the due process clause of the state and federal constitutions. These constitutional issues, however, arise only when retroactive effect is given to a new law. St. Paul Fire & Marine Insurance Company v. Smith, 609 So.2d 809, 816 n. 11 (La.1992).


author: MICHAEL E. KIRBY, Judge.

text:
    Sallie STRATMANN v. CARDIOVASCULAR SPECIALISTS, INC., a Professional Medical Corporation, Kevin M. White, M.D. and Lois Mailander, M.D.
    No. 2010-CA-0947.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 9, 2011.

      Thomas A. Gennusa II, Joseph S. Pia-cun, Reid S. Uzee, Gennusa, Piacun & Ruli, Metairie, LA, for Plaintiff/Appellee.
    Arthur F. Hickham, Jr., Harahan, LA, for Defendants/Appellees.
    George E. Cain, James P. Waldron, Fri-lot, L.L.C., New Orleans, LA, for Louisiana Patient’s Compensation Fund — Defen-danVAppellant.
    (Court Composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge PAUL A. BONIN).
   MICHAEL E. KIRBY, Judge.

17This appeal arises from a successful medical malpractice suit filed by the plaintiff, Mrs. Sallie Stratmann, against the defendants, Lois Mailander, M.D., Kevin White, M.D., and their employer, Cardiovascular Specialists, Inc. (“CSI”). The Louisiana Patient’s Compensation Fund (“PCF”), the statutory intervenor, appeals a trial court judgment rendered against it for “excess” damages pursuant to the Louisiana Medical Malpractice Act (“MMA”) , and the subsequent trial court order that cancelled the judgment against the defendants upon their payment of $100,000.00 in partial satisfaction of the judgment. Because we find the trial court committed legal error by limiting the defendant health care providers’ total liability to $100,000.00, precluding the jury from allocating fault, we review the record de novo to address comparative fault. After a de novo review, we conclude the end result is the same and, therefore, affirm the trial court judgment against the PCF.

FACTS AND PROCEDURAL HISTORY

In the petition, the plaintiff alleges that Dr. White, her treating cardiologist, recommended that she undergo a transeso-phageal echocardiogram (“TEE”) by Dr. Mailander, to ascertain whether she had a blood clot in the left ventricle of her heart. On August 14, 2000, Dr. Mailander began the procedure and attempted several times, without success, to pass the endoscope down the plaintiffs esophagus. Dr. Melvin Gold, who was called in to complete the procedure, passed |athe endoscope on his first try without incident. The plaintiff was discharged that same day. The following day, the plaintiff called Dr. White’s office, complaining of rib cage and back pain, and was told by the staff personnel to take Tylenol. On August 17, 2000, the plaintiffs brother, Mr. Hubert Berryman, called Dr. White’s office to report that his sister was in great pain and unable to speak. Mr. Berryman was told to come to Dr. White’s office to pick up samples of Vioxx, an anti-inflammatory drug, for his sister. In addition to prescribing Vioxx, Dr. White gave instructions for the plaintiff to go to the emergency room if her symptoms did not improve, or if they worsened. The plaintiff took the medication but had no relief. The next day, after experiencing respiratory distress, the plaintiff was rushed to the hospital emergency room, where x-rays disclosed the perforated esophagus. She underwent emergency surgery to repair the esophagus and remained hospitalized for ten weeks.

The case was tried before a jury. Prior to closing arguments, the trial court ruled that in the event the jury found multiple defendants liable, their total liability would be limited to $100,000.00 under the MMA. Consequently, the jury was precluded from allocating fault among the defendants, and Juiy Interrogatory # 6 read as follows:

What percentage of fault, if any, do you attribute to the following: The total must equal 100%
Defendants %
Sallie Stratmann %
Total %

laAfter deliberating, the jury reached a verdict, finding Dr. Mailander, Dr. White, and the non-physician staff of CSI each breached the applicable standard of care and their negligence caused and/or contributed to the plaintiffs injuries. The jury found no negligence on the part of the plaintiff. Regarding damages, the jury found that $750,000.00 in general damages and $176,710.40 in past medical expenses would adequately compensate the plaintiff.

In accord with the MMA, the trial court reduced the damages to the statutory maximum ($500,000.00) and cast the defendants, collectively, in judgment for $100,000.00 and the PCF for $400,000.00 in addition to the past medical expenses, legal interest and costs. After the defendants remitted $100,000.00 in partial satisfaction of the judgment, the trial court cancelled the judgment against them, reserving the plaintiffs right to proceed against the PCF.

ASSIGNMENTS OF ERROR

On appeal, the PCF argues that the trial court erred by limiting the defendant health care providers’ total liability to $100,000.00 and precluding the jury from allocating fault among them.

The PCF contends that because each negligent defendant is a qualified health care provider under La. R.S. 40:1299.42(A), pursuant to La. Civ.Code art. 2328 each is liable for a share of the total damages ($926,710.40) based on their ^respective percentage of fault up to $100,000.00, effectively reducing the excess the PCF must pay. In view of the trial court’s legal errors, the PCF contends a de novo review is necessary.

The defendants, on the other hand, argue that their partial satisfaction of the judgment made it final and non-appealable. Additionally, the defendants argue that the PCF is entitled to a single credit of $100,000.00 because they are employed by the same entity, citing Brown v. Southern Baptist Hospital, 96-1990 (La.App. 4 Cir. 3/11/98), 715 So.2d 423, 438, and Otnott v. Morgan, 93-0684 (La.App. 4 Cir. 3/15/94), 636 So.2d 957, 960. Although the plaintiff agrees with the defendants’ arguments, she contends that if the Court reviews the record de novo to address comparative fault, then it should assign the majority of fault to Dr. Mailander.

LAW AND DISCUSSION

At the outset, we consider whether the PCF can appeal the trial court judgment given the defendants’ $100,000.00 payment in partial satisfaction of the judgment.

The MMA contemplates that liability in a medical malpractice case is generally an issue to be determined between the claimant and the health care provider, either by settlement or by trial, while the PCF has an interest in the issue of excess damages. See Hanks v. Seale, 2004-1485, pp. 9-10 (La. 6/17/05), 904 .So.2d 662, 668. Once a judgment in excess of $100,000.00 is rendered following a trial on the merits, the PCF has an interest for the purpose of appealing the excess judgment against it and may intervene to appeal that issue. Id. at 12, 904 So.2d at 669, citing La. C.C.P. arts. 1091 and 2086. See also Felix v. St. Paul Fire & Marine Ins. Co., 477 So.2d 676, 681 (La.1985).

In this case, the PCF has appealed the amount of the excess damages it is obligated to pay, given the trial court’s judgment that limited the defendant health care providers’ total liability to $100,000.00. Thus, the PCF may appeal the judgment against it even though the defendants have paid $100,000.00 in partial satisfaction of the judgment.

Now we consider whether the trial court legally erred when it limited the defendant health care providers’ total liability to $100,000.00, precluding the jury from allocating fault among them.

La. R.S. 40:1299.42(B) provides, in pertinent part:

(1)The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.
(2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred dollars [$100,000.00] plus interest thereon ... for all malpractice claims because of injuries to or death of any one patient....
(3) (a) Any amount due from a judgment or settlement or from a final award in an arbitration proceeding which is in excess of the total liability of all liable health care providers, as provided in paragraph (2) of this Subsection, shall be paid from the patient’s compensation fund pursuant to the provisions of R.S. 40:1299.44(0).
lfi(b) The total amounts paid in accordance with Paragraphs (2) and
(3) of this subsection shall not exceed the limitation as provided in Paragraph (1) of this Subsection.

The Louisiana Supreme Court explained the MMA in Stuka v. Fleming, 561 So.2d 1371, 1373 (La.1990), stating:

The Medical Malpractice Act, enacted by La. Acts 1975, No. 817, provides a scheme for compensation of medical malpractice victims who have been injured by qualified health care providers. Section 1299.42 B(2) limits the liability of a single qualified health care provider to $100,000 for the injury to or death of any one person. Under Section 1299.42 B(3) damages in excess of the total liability of all liable health care providers, up to $500,000, are to be paid by the Fund. Thus, according to the Act, if a suit is tried against two health care providers and a definitive judgment is rendered holding each legally responsible for the victim’s damages which are found to exceed $200,000, the liability of each health care provider is $100,000, and the potential liability of the Fund is $300,000, with a total recoverable amount of $500,000. (FN7). See Kelly v. Brumfield, 534 So.2d 1331 (La.App. 4th Cir.1988), cert. denied, 536 So.2d 1221 ( [La.]1989).

In Thoulion v. Jeanfreau, 2000-1045, p. 1 (La.App. 4 Cir. 6/20/01), 794 So.2d 936, two internal medicine physicians, who were found negligent in their treatment of a patient who died of a heart attack, argued on appeal that their total liability was limited to $100,000.00, because they were professional partners who “‘practiced together and provided care and treatment to [the patient] as a team, working from the same office and same practice.’ ” Id. at p. 20, 794 So.2d at 948. This Court disagreed and held each physician liable to a limit of $100,000.00, because each was a qualified health care provider under the MMA. Citing Stuka, supra, the Court pointed out that La. R.S. 40:1299.42(B) does not make the PCF responsible for all amounts in excess of $100,000.00, nor does it restrict the pliability of all responsible health care providers in a single medical malpractice action to a $100,000.00 limit of liability. Id. at p. 21, 794 So.2d at 948.

According to the record in this case, the trial court ruled that the defendants’ liability would be limited to “one $100,000.00 cap” because the claim involved only “one patient, one injury.” Again, La. R.S. 40:1299.42(B) limits the liability of a single (not more than one) qualified healthcare provider to $100,000.00 for the injury to or death of any one patient. Because the trial court had undisputed proof that all three defendants were, in fact, qualified health care providers under the MMA at the time of the alleged malpractice, it legally erred by limiting the defendants’ total liability to $100,000.00 before the jury deliberated.

The three defendants rely on the decisions in Brown, supra, and Otnott, supra, to support their argument that the PCF is entitled to a single $100,000.00 credit because they are employed by the same entity. Those cases are distinguishable. Unlike this case, where each negligent defendant is qualified under the MMA by a separate Certificate of Enrollment with the PCF, the negligent defendants in Brown and Otnott were not all qualified under the MMA by separate Certificates of Enrollment.

Moreover, La. Civ.Code art. 2828, the general rule of comparative fault, requires the trial court to calculate damages in such a manner that each tortfeasor pays only for that portion of the damage he has caused. See La. Civ.Code art. 2323; Miller v. LAMMICO, 2007-1352, p. 9 (La.1/16/08), 973 So.2d 693, 700. In a case of medical malpractice, comparative fault is |saIlocated prior to imposition of the MMA damages cap, regardless of whether the plaintiff is comparatively at fault. Miller, 2007-1352 at p. 27, 973 So.2d at 711. Here, the trial court erred, as a matter of law, by precluding the jury from allocating fault among the negligent defendants. Therefore, our de novo review of the record to address comparative fault follows.

In Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985), the Louisiana Supreme Court set forth various factors to consider in assigning degrees of fault, including:

(1) [W]hether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Watson, 469 So.2d at 974.

At trial, the plaintiff argued that Dr. Mailander breached the applicable standard of care by perforating her esophagus with the endoscope and failing to inform her after the procedure of the complication and the possible consequences. As to Dr. White, the plaintiff argued that he breached the applicable standard of care by not informing her of the risks associated with a TEE and that alternative therapeutic treatments were available. She further argued that Dr. White failed to respond to her complaints following the TEE and failed to establish office procedures for CSI’s non-physician staff to follow when receiving complaints from patients. Regarding CSI’s non-physician staff, the plaintiff argued that they | flbreached the applicable standard of care by not adequately recording and notifying Dr. White of her complaints.

As previously mentioned, the jury found all three defendants had breached the applicable standard of care. Nonetheless, after reviewing the evidence in the record, we conclude that Dr. Mailander, alone, was at fault in causing the plaintiffs damages by perforating her esophagus during the TEE.

At trial, Dr. Mailander and the defense expert witness both acknowledged that a perforated esophagus is known risk associated with a TEE and, although rare, can occur even in a case without a difficult endoscope pass. Dr. Mailander described a perforated esophagus as a “dreadful complication” with extreme consequences, including death. Yet nothing in the record indicates that, after the plaintiff recovered from the sedation, Dr. Mailander ever informed her that she was unable to pass the endoscope and/or possibly perforated the esophagus. By not alerting the plaintiff to that possibility and its likely consequences, the plaintiff had no reason to suspect that her life was in jeopardy. Additionally, Dr. Mailander failed to adequately instruct the plaintiff prior to her discharge to report to the hospital emergency room if she experienced respiratory problems or abnormal pain in the chest, back, throat or neck areas.

Although the actions of Dr. White and the non-physician staff of CSI fell below the applicable standard of care by failing to adequately respond to the plaintiffs initial complaints in the days after the procedure, we conclude their negligence can be attributed to Dr. Mailander’s failure to notify Dr. White that she linmight have perforated the plaintiffs esophagus. Dr. Mailander admitted that she told Dr. White that she could not pass the endoscope and called in Dr. Gold to complete the procedure, but never mentioned the possibility of a perforated esophagus. Dr. Mailander’s apparent disregard to the possibility of an esophageal perforation, knowing she could not pass the scope, adversely affected the manner in which Dr. White and the CSI non-physician staff responded to the plaintiffs initial post-procedure complaints.

Because we have concluded that Dr. Mailander is 100% at fault in causing the plaintiffs damages, and her total liability is limited to $100,000.00 pursuant to La. R.S. 40:1299.42(B)(2), the PCF is still obligated for excess damages in the amount of $400,000.00 plus medical expenses in the amount of $176, 710.40, together with legal interest and costs pursuant to La. R.S. 40:1299.42, et seq.

DECREE

Accordingly, the trial court judgment rendered against the PCF and the PCF Oversight Board is affirmed.

AFFIRMED

      . La. R.S. 40:1299.42, etseq.

      . A TEE is a cardiac imaging procedure in which an ultrasound transducer, positioned on an endoscope (a long, thin, flexible instrument about one-half inch in diameter), is guided down the patient’s throat into the esophagus. The esophagus sits behind the heart, allowing a much clearer image of the heart, particularly, the back structures, such as the left atrium. By rotating the tip of the transducer, the physician can examine the heart from several different angles. A TEE is extremely useful in detecting blood clots, masses and tumors that are located in the heart. It can also gauge the severity of certain valve problems, including infections and congenital diseases.

      . La. Civ.Code art. 2323 provides, in part:
      A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
      B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.

      . Defense Exhibit 2 included the PCF’s Certificates of Enrollment for Dr. Mailander, Dr. White, and CSI.

      . Dr. Mailander testified that she usually informed her patients, after completing a TEE, of the possibility of a perforated esophagus. She recalled that, in the plaintiff’s case, she had informed her of that possibility while the plaintiff was in recovery. However, Dr. Mai-lander admitted that plaintiff was still, possibly, sedated. The plaintiff denied receiving any information from Dr. Mailander after the procedure. Although the hospital gave the plaintiff written instructions upon discharge, Dr. Mailander admitted that she did not.


author: GREMILLION, Judge.

text:
    Edward D. GUTIERREZ v. David M. BALDRIDGE, et al.
    No. 10-1528.
    Court of Appeal of Louisiana, Third Circuit.
    May 11, 2011.
    Rehearing Denied June 15, 2011.

      B. Gerald Weeks, The Weeks Law Firm, Pineville, LA, for Plaintiff/Appellant, Edward D. Gutierrez.
    Cade Evans, Megan E. Donohue, John William Kolwe, Jones, Walker, Waeehter, Poitevant, Carrére & Denegre, LLP, Lafayette, LA, for Defendants/Appellees, David M. Baldridge, Alexis R. Baldridge.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| Edward D. Gutierrez is the Plaintiff/Appellant in one of two cases consolidated for trial and on appeal, and is the Defendant/Appellant in the other. He objects to the granting of summary judgments in favor of Defendant/Appellee, David M. Baldridge, and Plaintiff/Appellee, A & A Construction, LLC. For the reasons that follow, we affirm the trial court.

FACTS AND PROCEDURAL HISTORY

On March 26, 2009, Gutierrez filed suit against Baldridge and his wife, Alexis R. Baldridge, alleging that in June 2005, he and Baldridge undertook work under the auspices of A & A (of which Baldridge was the principal member) in order to utilize A & A’s tax ID number and its liability insurance coverage. Gutierrez asserts that he was hired as a consultant to DII, a contractor for housing replacement in Mississippi, Louisiana, and Texas. His position allowed Gutierrez to channel work to A & A that allegedly profited A & A to the tune of over $1,400,000.00. Gutierrez alleged that this arrangement did not violate the policies of DII. He further alleged that in July 2007, he entered into a formal partnership with Baldridge, by which Gutierrez asserted he was entitled to half the profits of A & A.

Baldridge reconvened against Gutierrez alleging that Gutierrez owed him $62,324.80 for Gutierrez’s share of the outstanding liabilities of A & A, per the partnership agreement of July 2007.

On May 15, 2009, A & A filed a “Petition for Foreclosure by Ordinary Process,” against Gutierrez alleging that it was the holder of a promissory note executed by Gutierrez on May 19, 2006, in the amount of $180,000.00 and bearing 7% interest. That note was secured by a collateral mortgage against lot 7 of Points of View subdivision in Lafayette Parish. A & A’s suit alleged that no payments had |2been made on the note and sought payment of the secured sum plus interest and recognition of its mortgage against the property.

On April 19, 2010, Baldridge filed a motion to fix the matter for trial on September 27, 2010. The trial court fixed the matter for September 13, 2010, “with a scheduling order to be submitted by the Court.” On April 30, 2010, the trial court consolidated the two cases for trial. The court also issued a scheduling order that required the parties to disclose their witnesses and exhibits no later than 60 days before trial.

On July 19, Baldridge and his wife filed Exceptions of No Cause of Action and Prescription in which they alleged that Gutierrez had no cause of action against Alexis Baldridge and that his claims against both Baldridges were prescribed under the terms of La.R.S. 12:1502, which fixes a one-year prescriptive period for claims against any officer, director, shareholder, member, manager, general partner, limited partner, managing partner, or other person similarly situated for an unlawful distribution, return of an unlawful distribution, or for breach of fiduciary duty. Baldridge also filed a motion for summary judgment asserting that no arrangement existed between him and Gutierrez before they entered into the partnership, and he thus owed nothing to Gutierrez for a share of the profits and that Gutierrez owed his share of the operating expenses of A & A in the amount of $62,824.80. The hearing on these matters was fixed for August 30, 2010.

On August 16, Baldridge and A & A filed a motion in limine seeking to preclude Gutierrez from presenting any documentary or testimonial evidence as a consequence of his failure to file a witness and exhibit list as required by the trial ^court’s scheduling order. Gutierrez does not dispute that he failed to timely file this list.

Gutierrez submitted an opposition to the motion for summary judgment on August 20, 2010. Gutierrez attached to his opposition the affidavits of Neal Gautier and Billy Hardin. Gautier attested that in 2006 he was a project manager for DII who worked under Gutierrez in Chalmette, Louisiana, supervising the hauling and installation of trailers. He contacted Bal-dridge to discuss some difficulties A & A seemed to be having keeping up with the contract schedule, and to notify him that if the situation did not improve DII would have to hire additional contractors to get caught up. According to Gautier’s affidavit, Baldridge told him “in no uncertain terms” that no additional contractors would be hired because Gutierrez was his partner in A & A. Hardin attested that in October 2005 Gutierrez had introduced Baldridge to him as his partner in A & A. According to Hardin, Baldridge gave him his personal telephone number in case Hardin had “some work for he and Don [Gútierrez] to do.”

On August 26, Baldridge filed a motion to strike the affidavits of Gautier and Hardin, as they had not been identified in any responses to discovery and not listed by Gutierrez in a witness and exhibit list. Baldridge prayed that the motion to strike be heard before the motion for summary judgment.

The trial court heard the motion to strike, the exceptions, and motion for summary judgment on August 30, 2010. Gutierrez objected to the expedition of the hearing on the motion to strike, and was granted two days to prepare a response. On September 3, 2010, the trial court rendered written reasons granting the exception of no cause of action on behalf of Alexis Baldridge, denying the exception of Lprescription, granting Baldridge’s motion to strike, and granting him summary judg-merit on the main demand, but denying it on the reconventional demand. From this judgment Gutierrez appealed.

ASSIGNMENTS OF ERROR

Gutierrez assigns the following errors:

1. The trial [court] committed error by granting a motion to strike affidavit testimony submitted with respondent’s opposition to summary judgment without statutorily required time limits.
2. The trial [court], after striking affidavit testimony, granted summary judgment, still not considering other valid testimony, which raided [sic] genuine issues of material fact, thereby falling into error.

ANALYSIS

Motion to Strike

A motion to strike an affidavit that presents evidence that would not be admissible at trial is an approved procedural device. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226. An affidavit supporting or opposing summary judgment must set forth facts that would be admissible at trial. La.Code Civ.P. art. 967. Because the trial court is accorded vast discretion in determining whether to admit or exclude evidence, its decision will not be reversed absent a showing that it abused that discretion. Brown v. La. Dep’t of Transp. and Dev., 99-753 (La.App. 3 Cir. 11/3/99), 746 So.2d 772, writ denied, 99-3391 (La.2/4/00), 754 So.2d 233.

Trial courts are given discretion to hold pretrial conferences for purposes of simplifying the issues of a case, determining whether pleadings should be amended, determining what material facts are truly disputed, and identifying witnesses, | sdocuments, and exhibits. La.Code Civ.P. art. 1551. A court that holds such a conference must render an order memorializing the actions taken at the conference. Id. That order “controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.” Id.

In determining the appropriate sanctions for failure to comply with a pretrial order, the trial court should consider whether the conduct was that of the party or his attorney or both; whether the action results in prejudice to the opposing party’s trial preparations; and “the nature and persistency of the misconduct that constitutes the violation.” Bourque v. Allstate Ins. Co., 99-1260, p. 5 (La.App. 3 Cir. 3/22/00), 760 So.2d 411, 414. In the present matter, Gutierrez’s counsel has thrown himself on his sword and accepted sole responsibility for the failure to file the witness and exhibit list. However, these affiants had not previously been identified as potential witnesses in Gutierrez’s discovery responses. Gutierrez testified in his deposition that he was not aware of anyone having knowledge of the alleged partnership between him and A & A. Thus, the trial court concluded that the misconduct was not solely counsel’s and that conclusion is supported by the record. Further, the trial court concluded that allowing Hardin and Gautier to testify would substantially prejudice Baldridge’s trial preparation. That finding is not manifestly erroneous.

We conclude, therefore, that excluding Hardin and Gautier from testifying was not an abuse of the trial court’s vast discretion. Further, because the affidavits opposing summary judgment must set forth facts that would be admissible at trial, the trial court was correct in refusing to consider them in rendering its decision on summary judgment.

Gutierrez maintains that the timing of the hearing of the motion to strike | Bunfairly prejudiced him. We disagree. As we have already noted, the motion to strike is the appropriate procedural device for objecting to inadmissible evidence submitted in the context of a motion for summary judgment. Uniform Rules — District Courts Rule 9.9 requires that a party serve its opposition to a motion eight days before the hearing. Gutierrez complied with this rule and served his opposition on August 20, 2010, ten days before the hearing. Trial was fixed for September 13, 2010. In order to render a timely decision on summary judgment, the latest the hearing on the motion could have been heard was September 3, 2010, ten days before trial. See La.Code Civ.P. art. 966(D). When Gutierrez objected to the expedition with which the motion to strike was fixed, the trial court granted him additional time within which to prepare a response. Under the circumstances, including the trial fixing, the deadline within which a judgment could be rendered under article 966(D), and the fact that at some point before August 13, 2010, the date Gautier and Hardin executed their affidavits, Gutierrez became aware or remembered that they had knowledge of the putative partnership, the trial court did not abuse its discretion in proceeding with the hearings and granting Gutierrez additional — albeit brief — time for response. This assignment of error is without merit.

Motion for Summary Judgment

An appellate court reviews a grant of summary judgment de novo, applying the same standards as would a trial court. Schroeder v. Bd. of Sup’rs. of La. State Univ., 591 So.2d 342 (La.1991). Summary judgment is governed by La.Code Civ.P. arts. 966 and 967. Article 966 provides that while the burden of proving entitlement to summary judgment rests with the mover, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary | .¿judgment, the mover’s burden on the motion does not require him to negate all essential facts 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. 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. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606.

Gutierrez’s main demand asserts his entitlement to a share of the profits of A & A prior to the execution of the partnership agreement. He would bear the burden of proving his entitlement at trial. Therefore, Baldridge was only required to show an absence of support for any of the essential elements of Gutierrez’s claim in order to shift the burden of production of evidentiary support. Baldridge attached to his motion excerpts from Gutierrez’s deposition; the 2007 partnership agreement; excerpts from his deposition; his affidavit; the affidavit of Jeff Holmes, a vice president of DII; the affidavit of Roger York, Procurement Manager for DII; and correspondence from Jeanne Billeaud, Gutierrez’s accountant. These depositions, affidavits, and other attachments — other than Gutierrez’s deposition — demonstrate either that no other person had knowledge of a partnership between Gutierrez and A & A or flatly denied that any such partnership existed. Holmes’ deposition, however, attested to the fact that he questioned Gutierrez “on several occasions” about whether he was receiving any type of financial benefit from A & A or Baldridge.

Because Gutierrez’s claim rested upon a verbal contract in excess of $500.00, the Louisiana Civil Code demands that it be proven by at least one witness and other corroborating circumstances. La.Civ.Code art. 1846. The Louisiana Supreme Court |shas addressed the required proof of an oral contract and held that the plaintiff himself may be the witness who establishes the existence of the contract. Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459 (La.4/12/05), 907 So.2d 37. The corroborating circumstances need only be general in nature, but must come from a source other than the plaintiff. Id.

According to Gutierrez’s deposition testimony, he initially entered into a business arrangement with Baldridge in 2005, when he procured a parking lot striping contract from The Lemoine Company. He approached Baldridge about splitting the profits from this contract in exchange for Baldridge performing some of the labor and the duo using Baldridge’s company’s tax ID number and insurance when the contract was perfected. After the Lem-oine work was finished, but before he received payment from Lemoine, Gutierrez was hired by DII as a consultant to obtain mobile homes to house those displaced by Hurricane Katrina. He testified that he spoke to Baldridge about channeling work to A & A and that they should form a partnership toward that end. No other witness was present at this meeting, which Gutierrez testified took place at Bal-dridge’s home.

In opposition to the motion for summary judgment, Gutierrez attached his affidavit. In the affidavit, Gutierrez attested that he wrote four checks to assist in buying materials and paying labor for the jobs. Attached to the affidavit was Gutierrez’s check number 5289 dated May 20, 2005, in the amount of $1,400.00. That check was made payable to Baldridge and bears Bal-dridge’s endorsement. Check number 5251 of October 14, 2005, also payable to Baldridge in the amount of $2,000.00, bears the same endorsement. These checks, however, represent actions by Gutierrez himself and do not corroborate his assertions independently.

[¡A fact is material when it has the potential to ensure or preclude recovery, affects a litigant’s ultimate success, or determines the outcome of a legal dispute. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764. One of the showings Gutierrez must make at trial is that circumstances corroborate his allegation that a verbal contract of partnership existed between him and A & A. None of the admissible evidence corroborates the existence of such a contract.

CONCLUSION

The trial court has great discretion in controlling the presentation of cases before it. Its decision to exclude evidence will not be reversed absent an abuse of that vast discretion. When Gutierrez failed to disclose Hardin and Gautier as potential witnesses in his various discovery responses and compounded that by failing to list them on his witness and exhibit list, the trial court was well within its discretion to exclude them as witnesses. Because their testimony would not be admissible at trial, their affidavits should not have been considered in opposing Baldridge’s motion for summary judgment. Under the circumstances of this case, the fixing of the hearing on Baldridge’s motion to strike the affidavits of Hardin and Gautier was proper.

Gutierrez was required in opposing the motion for summary judgment to demonstrate that he could produce evidence that the verbal contract of partnership was supported not only by his testimony but also by corroborating circumstances. He produced the checks written during the existence of the putative partnership. These, however, do not represent independent corroboration of the agreement, as they were written by Gutierrez.

For the foregoing reasons, the judgment of the trial court granting Baldridge’s motion to strike the affidavits of Hardin and Gautier is affirmed. The judgment in 110favor of Baldridge dismissing Gutierrez’s demands with prejudice is affirmed. The costs of this appeal are taxed to Plaintiff/Appellant, Edward D. Gutierrez.

AFFIRMED.

      . The scheduling order does not appear in the record, but there is no dispute as to its contents,


text:
    A & A CONSTRUCTION, LLC v. Edward Donovan GUTIERREZ.
    No. CA 10-1529.
    Court of Appeal of Louisiana, Third Circuit.
    May 11, 2011.
    B. Gerald Weeks, The Weeks Law Firm, Pineville, LA, for Plaintiff/Appellant, Edward D. Gutierrez.
    Cade Evans, Megan E. Donohue, John William Kolwe, Jones, Walker, Waechter, Poitevant, Carrére & Denégre, LLP, Lafayette, LA, for Defendants/Appellees, David M. Baldridge, Alexis R. Baldridge.
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

hln this consolidated matter, plaintiff/appellee, A & A Construction, LLC, filed suit against defendant/appellant, Edward D. Gutierrez, alleging that it is the creditor of Gutierrez and mortgagee of a collateral mortgage securing Gutierrez’s debt. The suit further alleges that Gutierrez is in arrears on that debt and owes A & A $180,000.00 at seven percent interest. The suit seeks foreclosure through ordinary process and recovery of reasonable attorney fees.

In the consolidated matter, Edward D. Gutierrez v. David M. Baldridge, 10-1528 (La.App. 3 Cir. 5/11/11), 65 So.3d 251, the trial court granted summary judgment in favor of Baldridge. We affirmed. Id. In the present matter, however, no judgment has been rendered by the trial court. “Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.” La.Code Civ.P. art. 2082. Because no judgment has been rendered from which an appeal has been taken, we remand the matter to the trial court for further proceedings.

REMANDED.