text:
    Barry F. KERN v. Blaine KERN, Sr.
    No. 2011-CA-0915.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 29, 2012.

      Randall A. Smith, Stephen M. Gelé, Smith & Fawer, L.L.C., New Orleans, LA, for PlaintifflApp ellee.
    William F. Wessel, Wessel & Associates, A Law Corporation, Victoria L. Bartels, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

I,At issue in this appeal is managerial control of Blaine Kern Artists, Inc., (hereinafter “BKA”), a company that has been designing and budding floats for Mardi Gras krewes since 1957. Blaine Kern, Sr. (hereinafter “Blaine”), appellant herein, is appealing the issuance of a preliminary injunction in which the trial court ordered that he not interfere with the management of BKA, that he attend a meeting of the shareholders of the company which was scheduled by the court, and that he and the other shareholders vote their shares of stock to accomplish the election of Blaine, Barry F. Kern (hereinafter “Barry”) and Frank Mumphrey as directors of the corporation. The injunction further ordered that immediately following the election of directors, Blaine and Barry vote as directors to elect Barry as president and Brian Kern as secretary/treasurer. The trial court required Barry to post a bond, and to amend his original petition to request a permanent injunction.

LA writ was taken by Blaine to this Court following the issuance of the preliminary injunction. This Court denied the writ. Following the denial of the writ, Blaine filed a timely notice of appeal, which was granted.

The facts surrounding the inception of this lawsuit are contested. The following facts have been ascertained from the record pleadings. Barry filed a petition on April 7, 2011, naming himself as petitioner and his father, Blaine, as defendant. He alleged that on October 1, 2010, he filed a lawsuit against his father for damages and equitable relief based upon the governing provisions of the articles of incorporation of BKA, the pertinent history of the governance of BKA, and recent disputes over expenditures and governance of BKA, instigated in part by Blaine’s wife.

More specifically, Barry alleged that on October 5, 2010, members of the administration of the Krewe of Bacchus contacted him to arrange a meeting to resolve the issues raised in Barrys first lawsuit. The Bacchus members and members of the krewes of Rex and Endymion met with Barry and Blaine. As a result of the meeting and discussions, two agreements were entered into between Barry and Blaine: 1) a seven-point letter of intent, and, 2) a four-point document entitled “Agreement.” The meetings were highly publicized by the local media.

The petition references the seven-point agreement between the parties, but it is not a part of the record before this Court. According to the petition, the seven-point agreement was a letter of intent in which the parties agreed, subject only “to mutual agreement of the final documentation thereof,” that Blaine would sell all of |shis shares of BKA to Barry. Barry, for cause and consideration enumerated in the agreement, would pay Blain’s, debts, would lease the property owned by Blaine, and would award Blaine a lifetime consulting contract. Despite what Barry alleges to be Blaine’s willingness to consummate the agreement, no meeting has been held to complete the transfer of shares and control.

In addition to the seven-point agreement, a four-point agreement was signed by Blaine and Barry. This agreement, which has been made part of the record, set forth that Barry would assume control of BKA, that Blaine, Barry and Frank Mumphrey would be elected directors of BKA, that Barry would be elected president, and Brian Kern would be elected seeretary/treasurer. Additionally, the agreement provided that if either party violated the agreement, the party in violation would pay liquidated damages in the amount of $100,000.00, plus attorney’s fees and costs to the other party.

The petition alleged that no meeting was held to consummate the agreement and further, that Blaine had continued to interfere with the management of BKA. Particularly, Blaine negotiated an agreement with a customer that Barry believed to be detrimental to the operation of BKA, fired Brian Kern, demanded that he be issued checks by BKA to pay personal expenses, demanded cash from the register at BKA’s Mardi Gras world, and granted a security interest in certain BKA assets to New Beginnings Properties, LLC, a limited liability company wholly-owned by Blaine.

14Barry alleged that both October 5, 2010, agreements were breached by Blaine, and that Barry was entitled to specific performance, damages and all other legal and equitable relief. He prayed for same and additionally for injunctive relief, declaratory relief, and all other general and equitable relief.

On April 12, five days after the original petition was filed, Barry filed a Motion and Incorporated Memorandum for Temporary Restraining Order and Preliminary Injunction in the same proceeding. He asked that Blaine be restrained from interfering with the managerial control of BKA, which he alleged was granted to him in the four-point agreement, and from encumbering the assets of BKA. Barry alleged that the irreparable harm he would suffer if Blaine were not restrained from further action was the cancellation of Mardi Gras and the obliteration of the reputation of BKA. Further, Barry argued that he was likely to prevail on the merits because the terms of the four-point agreement were clear and it could be demonstrated that Blaine had violated those terms. Finally, Barry alleged that the “Greatest Free Show on Earth” must go on.

The order attached to the motion requesting a temporary restraining order was stamped “Denied” and “Moot” by the trial court. However, a hearing on whether Barry was entitled to a preliminary injunction was set for April 15, 2011. The order indicated that the matter “may” be heard upon affidavits.

On the day of hearing, Barry filed the affidavit of James Friedman, who had served as a certified public accountant for BKA from 1994 through 2005, and from 2008 to date. Barry also filed his own affidavit, to which he attached a copy of the |5four-point agreement, an agreement to lease and sell carnival floats between BKA and the Krewe of Alla executed by Blaine and representatives of the Krewe, and an apparent unilateral resolution of BKA’s board of directors signed by Blaine.

In response to the Motion for Preliminary Injunction, Blaine filed an opposition first objecting to the form of request for the injunction. Blaine argued that a request for injunction must be made by petition, not motion. Continuing, Blaine disputed that Barry would personally suffer irreparable harm should the injunction not be granted. This failure to demonstrate irreparable harm is fatal to the request for an injunction. Blaine further argued that the entire agreement in dispute expired on March 9, 2011, making the request for injunction moot. Lastly, he argued that Barry would not be able to prevail on the merits.

Attached to the memorandum opposing the motion for injunction was the affidavit of Blaine in which he refutes all of the allegations made by Barry. He also declared that Barry mismanaged BKA to the extent that it could possibly face bankruptcy-

Following a hearing during which the trial court only heard argument of counsel, the trial court ruled from the bench. The trial court ordered that a shareholder’s meeting be scheduled not later than April 26, 2011, to allow for the management of BKA to be turned over to Barry. The court further stated that the matter would proceed to ordinary proceedings (presumably to issue a permanent injunction), and that Barry must post bond of $100,000 as security for the [ (¡preliminary injunction. The court ordered Barry to amend his original petition to request a permanent injunction within thirty days.

DISCUSSION:

The standard of review for a preliminary injunction is whether the trial court abused its discretion in ruling. Historic Restoration, Inc. v. RSUI Indemnity Co., 06-1178, p. 11 (La.App. 4 Cir. 8/21/07), 955 So.2d 200, 208.

However, this Court will not employ that standard, but rather will rule based on a procedural defect.

There exists a distinction between a mandatory and prohibitory injunction. Generally, the requirements to prevail on a hearing for a preliminary injunction are a showing that: 1) the injury, loss or damage mover will suffer if the injunction does not issue may be irreparable; 2) that he is entitled to the relief sought; and 3) that he is likely to prevail on the merits of the case. Denta-Max v. Maxicare Louisiana, Inc., 95-2128 (La.App. 4 Cir. 3/14/96), 671 So.2d 995, 996-97, citing Burnham Broadcasting Co. v. Williams, 629 So.2d 1335, 1338 (La.App. 4 Cir.1993).

In Denta-Max v. Maxicare Louisiana, Inc., supra, the judgment granting the preliminary injunction ordered that the defendant make payments under a contract that defendant was contesting as being void. The trial court reasoned that it was not ordering the defendant to act, but was rather prohibiting it from not making payments, i.e., maintaining the status quo. 671 So.2d at 996. This Court disagreed, stating “... by prohibiting Maxicare [defendant] from refusing to pay ^pending the outcome of the litigation does not change the fact that Maxicare has been ordered to take affirmative actions. In fact, the status quo is preserved by allowing Maxicare to retain its money until a court of law has determined whether the contract is valid.” Id.

In I.F. v. Administrators of the Tulane Education Fund, 11-0308 (La.App. 4 Cir. 8/24/11), 72 So.3d 462, this Court explained:

..., since the jurisprudence has established that a mandatory injunction has the same basic effect as a permanent injunction, it may not issue on merely a prima facie showing that the party seeking the injunction can prove the necessary elements. Instead, the party seeking a mandatory injunction must show by a preponderance of the evidence at an evidentiary hearing that he is entitled to the preliminary injunction.

11-0308, p. 5, 72 So.3d at 465, citing Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 04-0270, pp. 6-7 (La.App. 1 Cir. 3/24/05), 906 So.2d 660, 664.

In the case before us, no evidentia-ry hearing was held; rather, the parties attached affidavits to their motions/memo-randa and presented argument at the hearing.

At oral argument, counsel for Barry argued that the request for a preliminary injunction was not to force Blaine to act, but was to maintain the status quo. Therefore, no evidentiary hearing was necessary. We disagree.

Just as in the Dmta-Max case, cited herein, Blaine was ordered to act. The trial court ordered that a director’s meeting be held on April 26, 2011, and that the parties vote their shares of stock to elect directors, and thereafter convene a board |8of directors meeting to elect Barry as president and Brian Kern as secretary/treasurer of BKA.

Accordingly, we hold that the preliminary injunction issued herein was mandatory and that the trial court erred in ruling without the benefit of a full evidentiary hearing. The judgment is therefore reversed, and this matter is hereby remanded for an evidentiary hearing on Barry’s request for a mandatory injunction.

REVERSED AND REMANDED


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Shardae D. PITTMAN.
    No. 2011-KA-0741.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 29, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Felicity Strachan, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.
    Edward R. Greenlee, Louisiana Appellate Project, LaPlace, LA, for Defendant/Appellant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU).
   EDWIN A. LOMBARD, Judge.

| jThe defendant, Shardae D. Pittman, appeals her conviction and sentence for attempted manslaughter. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant’s conviction and sentence.

Relevant Facts and Procedural History

On April 17, 2010, Janay McDonald dropped off her child at the apartment of a neighbor, Stephanie Johns, located on 4339 Maple Drive in New Orleans, and became involved in an altercation with the defendant. After the fight, Ms. McDonald returned to her home and the defendant went to her car. Ms. McDonald went outside and while she was conversing with her friends, the defendant returned and sprayed mace on Ms. McDonald and her friends. Ms. McDonald rushed back into her apartment to wash her face, and as she was closing her door, the defendant sprayed mace on her, again, and stabbed her in the head with a knife.

On June 17, 2010, a bill of information was filed, charging the defendant with one count of attempted second-degree murder. On November 17, 2010, the trial court conducted a judge trial, as elected by the defendant. At trial, the defendant was found guilty of attempted manslaughter, a responsive verdict to attempted second-degree murder, and on November 29, 2010, she was sentenced to serve ten-years at hard labor, with credit for time served, On December 23, 2010, |2the trial court denied the defendant’s motions to reconsider sentence and for a new trial. This appeal follows.

Assignment of Error I

The defendant asserts that the trial court erred by denying her motion for new trial pursuant to La.Code Crim. Proc. Art. 851(1) . But, because the defendant fails to specifically argue that assignment of error, it is deemed abandoned. See State v. Hampton, 98-0331, p. 12 (La.4/23/99), 750 So.2d 867, 880.

Assignment of Error II

The defendant argues that the evidence was insufficient to convict her of attempted manslaughter. The standard of review for the sufficiency of the evidence is whether, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found that the State proved the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2784, 61 L.Ed.2d 560 (1979). This review must include the whole record, as a rational fact finder does. State v. Mussall, 523 So.2d 1305, 1310 (La.1988). If rational finders of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all of the evidence most favorable to the prosecution must be adopted. Id. It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Johnson, 619 So.2d 1102 (La.App. 4 Cir.1993), citing State v. Rosiere, 488 So.2d 965, 968 (La.1986). Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the fact finder, State v. Brumfield, 93-2402, p. 5-6 (La. |App.s 4 Cir. 6/15/94), 639 So.2d 312, 316. Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. State v. Jones, 537 So.2d 1244, 1249 (La.App. 4 Cir.1989). Like all factual matters, credibility determinations are entitled to great weight and will not be disturbed unless contrary to the evidence. Id., citing State v. Vessell, 450 So.2d 938 (La.1984). Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness’ testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall, 2004-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369.

The defendant contends that the evidence is insufficient to show she had intent to kill Ms. McDonald. Pursuant to La.Rev.Stat. 14:31(A)(1), manslaughter is “a homicide which would be murder under either Article 30 (first-degree murder) or Article 30.1 (second-degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” Where a person “having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object” he or she “is guilty of an attempt to commit the offense intended.” La.Rev.Stat. 14:27(A). Specific criminal intent is “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.Rev.Stat. 14:10(1). Specific intent need not be proven as fact, but may be inferred from the circumstances and actions of the ^defendant. State v. Herbert, 2000-1052, p. 12 (La.App. 4 Cir. 4/11/01), 787 So.2d 1041, 1050.

The following evidence was adduced at trial. The State called as witnesses Ms. Johns, Ms. McDonald, and Detective Brandon Ludwig. Ms. McDonald testified that she first had a physical altercation with the defendant outside Ms. Johns’ residence after the defendant made a comment about her child. Ms. McDonald returned to her residence and the defendant returned to her car. The defendant then returned with mace in her hand and confronted Ms. McDonald outside the apartment. After being sprayed with mace, Ms. McDonald rushed back to her apartment to wash off the mace and the defendant followed, forcing her way through the apartment door where she sprayed her, again, with mace, and stabbed her in the head with a knife. Ms. Johns testified, corroborating Ms. McDonald’s testimony.

Detective Brandon Ludwig of the New Orleans Police Department’s Fourth District Investigative Unit testified that he arrived at the crime scene and found Ms. McDonald laying on her living room floor with an apparent stab wound to her head. The detective testified that there was a lot of blood was on the floor and Ms. McDonald was bleeding profusely when she was taken from her home.

Accordingly, the evidence is sufficient to infer that the defendant intended to kill Ms. McDonald. The record reflects that the defendant inflicted injuries to Ms. McDonald’s head with a knife, causing her to lose a copious amount of blood. The defendant’s intentional use of the deadly weapon to produce injuries involving a serious risk of death manifests specific intent.

When viewed in a light most favorable to the State, these facts support a rational fact finder’s determination that the defendant had a specific intent to kill |BMs. McDonald. The defendant pursued this intent, but was ultimately unsuccessful, resulting in her conviction for attempt. Accordingly, this assignment of error merits no relief.

Assignment of Error III

Appellate counsel contends that the trial court erred in permitting the defendant to waive trial by jury without determining that the waiver was made knowingly and intelligently. The right to trial by jury is protected by La. Const. Art. 1,17. Except in capital cases, the defendant may knowingly and intelligently waive trial by jury and elect to be tried by the judge. La. Code Crim. Proc. Art. 780. When the defendant waives his right to a jury trial by opting for a judge trial, the Supreme Court has expressly rejected several times a rule that would require the trial judge to personally inform the defendant .of his right to a jury trial. State v. Kahey, 486 So.2d 475 (La.1983).

Before the trial began, the defense counsel advised the court that the defendant wished to have a trial by judge. The following colloquy occurred:

THE COURT:
I have been informed by your attorney that you wish to have a trial by judge; is that correct?
THE DEFENDANT:
Yes, Sir.
THE COURT:
Now, you do understand that you have a constitutional right to a trial by jury, but you can waive that right and have a trial by judge, which I will decide the issues regarding your case. You understand that?
THE DEFENDANT:
No, Sir.
THE COURT:
You understand?
THE DEFENDANT:
No, Sir.
THE COURT:
Rif you go with a judge trial, I decide whether or not you are guilty or not guilty.
THE DEFENDANT:
Yes, Sir.
THE COURT:
You discussed this with your attorney?
THE DEFENDANT:
Yes, Sir.
THE COURT:
Counselor, you discussed this with your client?
MR. MYERS:
Yes, we spoke yesterday at the lockup, Judge.
THE COURT:
Let the record reflect that the defendant has knowingly and voluntarily waived [her] right to a trial by jury.
(The defendant’s brief, p. 6, bold supplied, italicized added as omitted from the defendant’s brief).

Thus, the trial judge asked the defendant if she was properly informed that the defendant wished to have a trial by judge, to which the defendant answered affirmatively. The trial judge then questioned the defendant concerning her understanding of this fundamental right and her intention to waive it, to which the defendant answered negatively. Apparently concerned with the negative response to whether she understood that she had a constitutional right to a jury trial, but that she could elect a judge trial, the trial judge rephrased his question to reflect that if she elected a judge trial, he would determine her guilt. The defendant apparently understood the rephrasing and responded positively. Both the defense counsel and defendant then averred that they had discussed the issue the previous day.

Accordingly, we find no reversible error in the trial court’s acceptance of the waiver of jury trial. The defendant contends that, “[t]here is nothing in the record which shows compliance with the” law on jury waiver. However, the record clearly indicates that the decision to proceed with trial by judge was affirmed by the defendant. Although the defendant initially responded negatively Rwhen the trial judge asked whether she understood that she had a constitutional right to a jury trial, the colloquy makes clear that after the trial judge rephrased his question to reflect that upon electing a judge trial, he would determine her guilt, the defendant understood her right to trial by jury and waived it. Thus, the defendant’s decision to be tried by the judge was a product of her knowing and intelligent choice. Further, as reflected in the record, the defendant knowingly chose a judge trial after conferring with counsel.

On the basis of the overall record, we conclude that the defendant knowingly and intelligently waived her right to trial by jury. Accordingly, this assignment of error is void of merit.

Errors Patent

A review of the record for errors patent reveals that there are none.

Conclusion

The defendant’s conviction and sentence are affirmed.

AFFIRMED

      . The defendant’s motion for new trial invoked "La.Code Crim. Proc. Art. 851 et seq.” However, she specifically asserted that ”[t]he verdict of ‘guilty of attempted manslaughter' is contrary to the law and evidence.' " Emphasis added. Therefore, it is clear that the basis of her motion was La.Code Crim. Proc. Art. 851(1), mandating a new trial where "[tjhe verdict is contrary to the law and the evidence.”

      . The defendant was represented by a different attorney at trial.


author: DANIEL L. DYSART, Judge.

text:
    BRENNAN’S INC. v. Edward Tuck COLBERT, et al.
    No. 2011-CA-1095.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 29, 2012.

      Jean-Paul Layrisson, Scandurro & Lay-risson, L.L.C., Ralph H. Wall, Raymond P. Ward, Adams & Reese, New Orleans, LA, Arthur F. Hickham, Jr., Harahan, LA, for Appellee.
    Gustave A. Fritchie, III, Edward W. Trapolin, Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA, for Defen-danVAppellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

|!Appellants, Edward Tuck Colbert and Kenyon & Kenyon, a Washington, D.C., based law firm, appeal the grant of summary judgment in favor of Owen E. Brennan, Jr.; Theodore M. Brennan, Shawn Tiffany Brennan and Samantha Scott Brennan, succession representatives of James C. Brennan. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

For many years, the law firm of Baldwin Haspel, L.L.C., and particularly attorney Leon Rittenberg, represented Brennan’s, Inc., in matters related to the operation of Brennan’s Restaurant in New Orleans.

In 1998, a dispute arose between the Brennan brothers, Owen “Pip” E. Brennan, Jr., James “Jimmy” C. Brennan, and Theodore M. Brennan (hereinafter “the Brennan brothers” or the “brothers”), who owned and operated Brennan’s Restaurant, and a cousin, Richard Brennan, Jr. (Dickie), about the use of the family | ¿name in connection with a restaurant Dickie was planning to open. The brothers were concerned about confusion in the marketplace and possible trademark infringement of the Brennan name. They contacted Mr. Rittenberg, who in turn referred them to Edward T. Colbert of the firm Kenyon <& Kenyon, L.L.P. (hereinafter “Kenyon firm”). Mr. Rittenberg represented to the brothers that the Kenyon firm, particularly Mr. Colbert, was an expert in the field of intellectual property.

According to the Brennan brothers, they explained to Mr. Colbert that they were not interested in protracted and expensive litigation. Instead, they wanted an agreement drafted that would spell out the rights of the two parties as to the use of the name Brennan, with a minimum of confusion to the public. Such an agreement was drafted, minor changes were made by Dickie Brennan, and the agreement was finalized with the signature of Pip Brennan, the corporation’s secretary.

Further disputes arose, however, between the Brennan brothers and Dickie Brennan. In 2000, Baldwin Haspel, L.L.C. and the Kenyon firm, filed a lawsuit against Dickie Brennan in federal court. Counsel for Brennan’s, Inc., obtained a judgment of $250,000.00 in favor of Brennan’s, Inc. An appeal followed. The end result was that Brennan’s, Inc., was that Brennan’s, Inc., was entitled to a judgment of $250,000.00, but owed $2.5 million for legal fees and costs to Mr. Colbert and his firm.

UBrennan’s, Inc., obtained new counsel and filed a new lawsuit in federal court seeking to have the 1998 agreement declared null for lack of a specified duration. The court dismissed the lawsuit on the grounds of res judicata, stating that the issue was already litigated in the previous lawsuit.

In 2005, Brennan’s, Inc., filed suit for legal malpractice against Messrs. Colbert, Rittenberg, and their respective law firms. The corporation sought damages and a declaratory judgment that no further legal fees were owed to the Kenyon firm. The Kenyon firm answered the suit, and filed a reconventional demand for the unpaid legal fees and costs. In addition to naming Brennan’s, Inc., as defendants-in-reconvention, the Kenyon firm named each of the Brennan brothers individually, as shareholders of the corporation.

In late 2010 and early 2011, several summary judgment motions were filed, including:

1. A motion by Rittenberg and Baldwin Haspel, L.L.C., and a motion by Colbert and Kenyon, seeking dismissal of Brennan’s, Inc.’s legal malpractice claims, including Brennan’s, Inc.’s failure to designate an expert witness to establish a standard of care or breach of the standard of care by any defendant.
2. A motion for summary judgment by Kenyon for the suit on open account against Brennan’s, Inc. only.
3. A motion for summary judgment by Pip Brennan, seeking dismissal of Kenyon’s reconventional demand against him personally.
4. Motions for summary judgment by Ted Brennan and the representatives of Jimmy Brennan’s succession, seeking dismissal of Kenyon’s reconventional demand against them personally.
5. A cross-motion for summary judgment by Kenyon seeking to impose personal liability on Pip, Jimmy and Ted for Brennan’s, Inc.’s debts for legal services.

After hearings were conducted, the trial court ruled as follows:

141. It dismissed all remaining legal malpractice claims brought by Brennan’s, Inc.
2. It granted Kenyon’s motion for summary judgment on the suit on open account against Brennan’s, Inc.
3. It granted each of the brother’s motions for summary judgment, dismissing Kenyon’s reconventional demand against them personally.
4. It denied Kenyon’s cross-motion for summary judgment seeking to impose personal liability on the Brennan brothers.

Only the last two judgments are before us on appeal. The basis for each motion is identical: Whether the Brennan brothers, shareholders of Brennan’s, Inc., can be held personally liable for the corporation’s debt.

DISCUSSION:

“Favored in Louisiana, the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” King v. Parish Nat’l Bank, 04-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545 (quoting La.Code Civ. Proc. Art. 966 A(2)). Motions for summary judgment are reviewed on appeal de novo. The same criteria that govern the trial court’s determination of whether summary judgment is appropriate are used by the reviewing court. Samaha v. Ran, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-883. . A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. Proc. Art. 966 B. The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim-, action, or defense, but rather to point 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. La.Code Civ. Proc. Art. 966 C(2).

In this case, the Kenyon firm had the burden of proving that the Brennan brothers, as individual shareholders of Brennan’s, Inc., should be held personally liable for the debts of Brennan’s, Inc. The brothers argued that they could not be held personally liable because they had not expressly, unequivocally and in writing promised to stand as sureties for the corporation. The Kenyon firm, in brief to this Court, has stated that its argument on this issue is flawed, and therefore concedes that summary judgment was appropriate on this issue.

However, the Kenyon firm also raised in its motion the theory that the Brennan brothers could be held personally liable for the corporate debts because of intentional misrepresentations in the petition and other evidence of criminal acts, fraud, lack of corporate formalities and loans made to the brothers in lieu of payment of corporate dividends. The Kenyon firm argues that because genuine issues of material fact exist as to all of the above allegations of wrongdoing by the brothers personally, summary judgment was inappropriate, and the Kenyon firm should be allowed to pierce the corporate veil and proceed against the Brennan brothers personally.

The determination of whether a fact is material turns on the applicable theory of recovery. Thomas v. North 40 Land Dev., Inc., 04-0610, p. 22 (La.App. 4 Cir. 1/26/05), 894 So.2d 1160, 1174. A fact is material if its existence or nonexistence is essential to plaintiffs cause of action under the applicable theory of | f,recovery. Harvey v. Francis, 00-1268, p. 5 (La.App. 4 Cir. 3/21/01), 785 So.2d 893, 897. Thus, not all disputed facts are material for the purposes of summary judgment.

As a general rule, a corporation is a distinct legal entity, separate from the individuals who compose it, thus insulating the shareholders from personal liability. This rule is statutory in origin and well-supported by the jurisprudence. Riggins v. Dixie Shoring Co., 590 So.2d 1164, 1167 (La.1991).

There are limited exceptions where the court may ignore the corporate fiction and find the shareholders personally liable for the debts of a corporation. Id. at 1168. One of those exceptions is where the corporation is found to be the “alter ego” of the shareholder. It usually involves situations where fraud or deceit has been practiced by the shareholder through the corporation. Id. Another basis is where the shareholders disregard the corporate formalities to the extent that the corporation and the shareholders are no longer distinct entities. Id.; see also Haywood v. Louisiana Sugar Cane Prods., 95-1151 (La.App. 3 Cir. 3/5/97), 692 So.2d 524, 528.

Factors to be considered when determining whether to apply the alter ego doctrine include, but are not limited to: 1) commingling of corporate and shareholder funds; 2) failure to following statutory formalities for incorporating and transacting corporate affairs; 3) undercapitalization; 4) failure to provide separate bank accounts and bookkeeping records; and 5) failure to hold regular shareholder and director meetings. Id.; Crutcher-Tufts Resources, Inc. v. Tufts, 2007-1556, p. 2 (La.App. 4 Cir. 9/17/08), 992 So.2d 1091, 1093.

Absent fraud, malfeasance or criminal wrongdoing, courts have been reluctant to hold a shareholder personally liable for corporate obligations. When a 17party seeks to pierce the corporate veil, the totality of the circumstances is determinative. Id.

The Kenyon firm argues that when it demanded payment of its bills, the Brennan brothers explicitly promised they would pay all bills and identified specific funds that would be used. The Kenyon firm states that it is undisputed that the promises were made by the brothers for the purpose of inducing additional legal services. To support this argument, the Kenyon firm attached portions of responses to Requests for Admissions and excerpts of depositions.

The supporting evidence submitted by the Kenyon firm does not prove that any one of the Brennan brothers agreed to personally pay the debt to the Kenyon firm. Rather, the testimony indicates that each brother was speaking on behalf of the corporation. In the Kenyon firms’ own brief, it admits that the operation of Brennan’s, Inc., was lacking in formality, with no formal meetings held, agendas prepared or minutes taken. Brennan’s, Inc., is a small, family corporation. There is no proof offered that when any of the brothers spoke, whether in conversations or in pleadings, that he was not speaking as a member of the corporation, and not on his own behalf.

The Kenyon firm was aware of the nature of the operation of Brennan’s, Inc., through the corporation’s long-time attorney, Mr. Rittenberg, prior to being retained. The client was Brennan’s, Inc., bills were sent to Brennan’s, Inc., and payments were paid with checks from the Brennan’s, Inc., bank accounts. Evidence attached to the Kenyon’s firms own motion indicate that Brennan’s, Inc., maintained its own accounting records and filed its own tax returns. In its suit on open account, the Kenyon firm acknowledged that Brennan’s, Inc., acting through its shareholders, promised to make good on the debt.

IsThere is no evidence that the Brennan brothers ever agreed to bind themselves personally for any debt incurred in connection with the legal services provided by the Kenyon firm. There is no written retention agreement between the corporation and the Kenyon firm, nor is there a written guaranty from any of the brothers.

The Kenyon firm admits that there is no requirement for small, closely-held corporations to operate with the formality usually expected of larger corporation. See, e.g., McDonough Marine Serv. v. Doucet, 95-2087, p. 4 (La.App. 1 Cir. 6/28/96), 694 So.2d 305, 308. The Kenyon firm has failed to establish that the lack of corporate formalities, particularly, meetings, agendas and minutes, is sufficient to pierce the corporation veil. Brennan’s, Inc., at all times since its inception has maintained corporate books, corporate bank accounts, and has filed corporate tax returns.

The Kenyon firm also argues that the Brennan brothers committed tax fraud, thus vitiating the protection of the corporation. The Brennan brothers counter that to prove fraud, one must prove the intent to defraud.

Louisiana Civil Code art. 1953 provides:

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.

The Kenyon firm has not proven that any of the Brennan brothers made promises to pay the firm’s bills without the intent to pay them. As noted by counsel for Shawn and Samantha Brennan, if a broken promise to pay was sufficient to establish fraud, then every lawsuit against a corporation for a debt 19would automatically allow for the piercing of the corporate veil. Clearly, a juridical entity such as a corporation can only speak through its shareholders.

Further, the argument that the Brennan brothers committed tax fraud because they claimed deductions for payment of professional services, when in fact those payments were not made, is without merit. Any fraud, if such exists, was not perpetrated against the Kenyon firm, but rather against the Internal Revenue Service. Moreover, evidence submitted by the Kenyon firm in support of its motion for summary judgment indicates that the Brennan brothers sought the advice of counsel before claiming the deduction. Counsel (Mr. Rittenberg) explained that as long as the legal services were rendered primarily to address a breach of contract, as opposed to ownership of the Brennan’s trademark, and resulted in a loss of income, the fees should be deductible as an ordinary business expense.

After a thorough review of the record, including the evidence offered in support of the motions for summary judgment, we conclude that the trial court did not err in granting summary judgment in favor of the Brennan brothers, and in denying the summary judgment filed on behalf of the Kenyon firm.

AFFIRMED

      . Jimmy died during the course of this litigation and Shawn Tiffany Brennan and Samantha Scott Brennan were substituted as dative independent co-executrixes of his estate.

      . Dickie had been given the Palace Café Restaurant on Canal Street by his father, Richard Brennan, Sr., and had changed the name to "Dickie Brennan’s Palace Café,” and was planning to open "Dickie Brennan's Steakhouse,” within three blocks of Brennan's Restaurant.


author: CHARLES R. JUNES, Chief Judge.

text:
    NEW ORLEANS PRIVATE PATROL SERVICE, INC. v. Tonja KUYKENDALL and Dawn Romero Watson, Administrator, Louisiana Department of Labor.
    No. 2011-CA-1052.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 29, 2012.

      John W. Waters, Jr., Kristin M. Jones, Bienvenu Foster Ryan & O’Bannon, LLC, New Orleans, LA, for Plaintiff/Appellant.
    J. Jerome Burden, Louisiana Workforce Commission, Legal Division, Baton Rouge, LA, for Defendants/Appellees.
    (Court composed of Chief Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, and Judge MADELEINE M. LANDRIEU).
   CHARLES R. JUNES, Chief Judge.

hThe Appellant, New Orleans Private Patrol Inc., seeks review of the judgment of the district court affirming the decision of the Board of Review holding that the refusal of the Appellee, Tonja Kuykendall, to follow company procedures was not misconduct, and that Ms. Kuykendall qualified for unemployment benefits. Finding that the district court did not err in affirming the decision of the Board of Review, we affirm the judgment of the district court.

The Appellee, Tonja Kuykendall, was employed as a security guard by New Orleans Private Patrol (NOPP) from January 8, 1998, to August 24, 2004. NOPP terminated Ms. Kuykendall’s employment due to dereliction of duty and insubordination. She was assigned to guard a parking lot across the street from NOPP’s dispatch office. The parking lot was used by personnel employed in the office building where NOPP leased office space.

While at her post, Ms. Kuykendall was required to stand outside the security booth at the entrance gate of the parking lot to greet, escort and generally provide security to the building personnel. This was particularly necessary when personnel 12were coming and going from the parking lot in the morning, lunchtime and evenings. To that end, Ms. Kuykendall could not leave her post for any reason other than an emergency during these peak hours; namely, from 7:00 a.m. to 9:00 a.m., 11:00 a.m. to 1:30 p.m. and 4:00 p.m. to 5:00 p.m. During any other time, she was free to leave her post. If there was an emergency during a peak period, she was required to call the dispatch office for relief before leaving her post.

On August 24, 2004, on Ms. Kuykendall’s last day of work, she reported to her post shortly before 7:00 a.m.; however, she left her post around 7:30 a.m. to retrieve a fan and log books from the dispatch office. There was a lull between the time people who came to work at 7:30 a.m. and those who came at 8:00 a.m. arrived, so around 7:30 a.m., with permission from her supervisor, Mr. Roland, she left her post to pick up the fan and log books at the dispatch office. Mr. Roland stayed at her post in his car directly behind the guard booth.

While at the dispatch office, Ms. Kuyk-endall encountered Vivian Thompson, a sales manager, who instructed Ms. Kuyk-endall to return to her post since it was still during peak hours. Ms. Kuykendall attempted to explain to Ms. Thompson that she was obtaining a fan and some log books, but Ms. Thompson refused to allow Ms. Kuykendall to provide her reasons, and continued to instruct Ms. Kuykendall to return to her post. In addition to her instructions, Ms. Thompson made numerous remarks to Ms. Kuykendall about her constant visits to the office for things that are unrelated to her employment duties. During this time, Rthe two women argued for approximately five to ten minutes, with Ms. Kuykendall continuously attempting to explain the circumstances to Ms. Thompson. After several minutes of argument between Ms. Kuykendall and Ms. Thompson, Ms. Kuykendall was discharged for insubordination and dereliction of duties.

Ms. Kuykendall applied for unemployment compensation benefits which were initially granted. NOPP appealed to the Administrative Law Judge (ALJ), issued a notice to Ms. Kuykendall to appear for a hearing on the issue of her discharge because of insubordination and the issue of misconduct to also be considered. The ALJ, after holding a hearing wherein testimony was heard, held that Ms. Kuykendall was discharged for being insubordinate to a member of management. The ALJ also determined that NOPP was not unreasonable to reprimand Ms. Kuykendall and insist that she follow company procedures. The ALJ concluded that her refusal to follow company procedures was misconduct and disqualified her from benefits. Ms. Kuykendall appealed to the Board of Review, which reversed the judgment of the ALJ. The Board of Review held that Ms. Kuykendall was discharged for insubordination though her insubordination was not intentional and her acts did not amount to a denial of benefits. The Board in its opinion stated that Ms. Kuykendall had requested relief before leaving her post and therefore, she did not commit misconduct of her employment duties. Further, the Board held that Ms. Thompson mistakenly assumed Ms. Kuykendall left her post unattended, leading to the argument between the two individuals. Thereafter, |4N OPP filed a Petition for Judicial Review in the district court, which affirmed the judgment of the Board of Review. NOPP timely filed this appeal.

NOPP raises two (2) assignments of error on appeal:

1) Finding of facts were not supported by evidence, and
2) The district court’s ruling of no misconduct was incorrect as a matter of law.

The appellate courts scope of judicial review for unemployment compensation benefits is established under La. R.S. 23:1634. La. R.S. 23:1634(B) provides in pertinent part “... In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court ...” Id. Judicial review of the findings of fact made in the administrative proceedings in unemployment compensation cases “is limited to first, determination of whether the findings of facts are supported by competent evidence, and, second, whether the facts, as a matter of law justify the action taken.” Butler v. Geraee, 506 So.2d 619 (La. App. 4 Cir.1987). See also La. R.S. 23:1634(B); Harris v. Houston, 97-2847 (La.App. 4 Cir. 11/4/98), 722 So.2d 1042, 1045.

In King v. Tangipahoa Parish Police Jury, the First Circuit reasoned that:

Courts may not disturb factual findings of the Board of Review when questions of weight and credibility are involved and when the conclusions are supported by sufficient evidence. Lewis v. Administrator, 540 So.2d 491, 496 (La.App. 1 Cir.1989); O’Neal v. Blanche, 482 |BSo.2d 700, 704 (La.App. 1 Cir.1985). Judicial review of the findings of the board of review does not permit weighing of evidence, drawing of inferences, reevaluation of evidence, or substituting views of the court for that of the board as to the correctness of the facts presented. Lewis, 540 So.2d at 496.

96-0934, p. 4 (La.App. 1 Cir. 2/14/97), 691 So.2d 194,196.

In an unemployment compensation case, the employer has the burden of proving disqualifying misconduct by a preponderance of the evidence. Brandon v. Lockheed Martin Corp., 2003-1917, p. 10 (LaApp. 4 Cir. 4/14/04), 872 So.2d 1232, 1239 citing, Charbonnet v. Gerace, 457 So.2d 676, 679 (La.1984).

In light of the applicable statute and case law, it appears that the judgment of the district court affirming the Board of Review’s findings should be affirmed. Our court’s review of the facts and evidence shows no error in the ruling of the district court affirming the Board of Review’s decision awarding Ms. Kuykendall unemployment benefits. The judgment of the district court affirming the Board of Review confirms both inquiries of La. R.S. 23:1634.

While NOPP raises two issues on appeal, we find that the issues raised are connected and will address them jointly. NOPP argues on appeal that the findings of fact were not supported by evidence. NOPP argues that the Board of Review erred in reversing the ALJ’s decision that Ms. Kuykendall was fired for misconduct and did not deserve unemployment compensation. Ms. Kuykendall admitted to leaving her post on the morning of August 24, 2004, as she did other mornings to retrieve a fan during peak hours. She stated that she was aware of the times she was required to stay at her post and that leaving her post without | ^dispatching a replacement guard would be detrimental to the company as it could lose its contract with its client. Further, that it was also possible that NOPP could face unwarranted individuals entering the lot, thus infringing on the safety of the lot’s occupants. Though NOPP argues important facts, it is precise that Ms. Kuykendall’s actions were not intentional as found by the Board of Review and the district court.

The record reflects that Ms. Kuykendall waited until there was a lull in the employees entering the parking lot before she departed the premises to retrieve the fan from across the street. She had been working at this assigned post for a significant length of time, and she knew the times when the clients arrived at the lot. She would only leave when she was certain that all the clients who arrived during the morning peak hours had arrived. Ms. Kuykendall conducted her employment duties as requested by the employer and her supervisors. Further, on the day in question, Ms. Kuykendall, before leaving the premises, requested permission to leave from her immediate supervisor, Mr. Roland, whom was already present on the lot. He agreed to watch the premises during her absence. Therefore, Ms. Kuykendall did not need to contact the dispatch office to request a replacement guard for her post. Her actions did not lead to intentional misconduct.

The Board of Review concluded that Ms. Kuykendall’s actions on the day in question were a one-time incident, since NOPP failed to prove any previous acts of insubordination by her. Moreover, her actions were supported by the fact that she asked a supervisor to guard her assigned post before leaving. Her actions were not 17reckless nor in disregard of NOPP interests as she left her post in the custody of her immediate supervisor. Misconduct is defined as “mismanagement of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others.” La. R.S. 23:1601(2)(a). “For a claimant to be disqualified from benefits because of misconduct connected with his employment? under La. R.S. 23:1601(2), the misconduct? must have resulted from willful or wanton disregard of the employer’s interest, from a deliberate violation of the employer’s rules, or from a direct disregard of standards of behavior which the employer has the right to expect from his employees.” Brandon v. Lockheed Martin Corp., 2003-1917, p. 10 (La. App. 4 Cir. 4/14/04), 872 So.2d 1232, 1239-40, citing, Pilgrim Manor Nursing Home, Inc. v. Gerace, 337 So.2d 660 (La.App. 3 Cir.1976). An employee who deliberately violates a reasonable rule of his employer is guilty of misconduct and would not be qualified for benefits under the Employment Security Law. Holmes v. Berg, 560 So.2d 500, 502 (La.App. 1 Cir.1990). In cases of alleged disqualifying employee misconduct, the burden of proof as to such misconduct is upon the employer and the misconduct must be proven by a preponderance of the evidence. Charbonnet v. Gerace, 457 So.2d 676, 679 (La.1984); Brister v. Whitfield, 522 So.2d 1254, 1256 (La.App. 4 Cir.1988).

Insubordination toward the employer amounts to misconduct sufficient to disqualify the claimant from receiving unemployment benefits. Rankin v. Doyal, 223 So.2d 214, 217 (La.App. 2 Cir.1969). Further as explained in Melton v. State, Office of Employment Sec., “[A]n employee’s failure to follow a direct order of his supervisor can constitute misconduct under LSA-R.S. 23:1601(2) which would disqualify a claimant from receiving unemployment compensation benefits.” 473 So.2d 925, 927 (La.Ct.App. 3 Cir.1985).

In this matter, NOPP failed to prove by a preponderance of the evidence that Ms. Kuykendall’s actions resulted from a willful or wanton disregard of its interest. Her actions were not egregious to result in the termination of her employment and denial of unemployment benefits. The severity of her wrongdoing was very minimal, as no damages resulted from her actions and her reasons for leaving the premises were reasonable.

Further, NOPP argues that Ms. Kuyk-endall refused to return to her post and perform her duties when requested by a manager. NOPP alleges that Ms. Kuyk-endall, rather than listening to her superi- or, who had previously reprimanded her on several occasions to return to her post, argued with the superior, leading to insubordination.

Ms. Kuykendall was terminated for insubordination, resulting from an argument with Ms. Thompson, a sales manager. Though the argument between the two women ensued from the fact that Ms. Kuykendall left her assigned post, the facts and evidence show that she was terminated because she insisted on arguing and not following Ms. Thompson’s instructions. Ms. Thompson, upon encountering Ms. Kuykendall. in the dispatch office, chastised and reprimanded her [nfor not being at her assigned post and requested Ms. Kuykendall return to her post immediately. Ms. Thompson, knowing the duties and responsibilities of Ms. Kuykendall’s post, believed Ms. Kuykendall had left her post without relief. This assumption was incorrect.

The ALJ found that Ms. Kuyken-dall was insubordinate, thus denying her claim for unemployment benefits. However, the testimony and evidence of record shows that Ms. Kuykendall’s acts do not amount to insubordination which warrants a denial of unemployment benefits. In reviewing whether Ms. Kuykendall’s insubordination was intentional and premeditated, this court refers to the “single hotheaded incident” doctrine. “There is no rigid rule that every employee gets one tantrum free. Just as a single incident need not absolve the employee a second incident need not condemn him. The showing necessarily depends on all the circumstances.” Gunn v. Gerace, 516 So.2d 1180, 1182 (La.App. 2 Cir.1987). Thus, an employee who is terminated for insubordination due to misconduct relating to her employment, cannot be denied unemployment benefits if the totality of the circumstances show that the incident was a one-time incident.

“This Circuit, and others, have held that a single hot-headed incident’ or accident does not usually amount to disqualification of benefits.” Emke v. Mouton, 617 So.2d 81, 38 (La.App. 4 Cir.1998), citing Gunn v. Gerace, 516 So.2d at 1182. “We recognize and agree with the principle expressed by earlier courts, that unemployment [benefits] is remedial and should not be denied for misconduct absent wanton conduct or such negligence which results in serious damage.” Id. | ^However, “while a single hot-headed incident may not be enough to disqualify a person from unemployment benefits, a court or administrative judge may consider the severity of the incident, whether any damage or how much damage occurred, whether anything provoked the incident, and whether the employee’s behavior was reasonable in light of the circumstances.” Id. at 34. The “single hot-headed incident” doctrine is only applicable if termination of Ms. Kuykendall resulted from one isolated incident. In the matter at hand, NOPP failed to show any previous acts by Ms. Kuyken-dall which amount to misconduct.

In looking at the totality of the circumstances under which Ms. Kuykendall was terminated, the Board of Review did not err in finding that the argument did not amount to an act of insubordination. Here, there was an argument between Ms. Kuykendall and a sales manager. This argument occurred in the early hours of the day in the company’s office. Beside the two individuals involved in the argument, there were only two (2) other employees present. During the argument, Ms. Kuykendall was merely speaking loudly so as to explain the circumstances to Ms. Thompson. Ms. Thompson, who refused to listen to the reason why Ms. Kuykendall was not at her post or why she couldn’t leave immediately to return to her post, would not allow Ms. Kuykendall to speak. Ms. Thompson continued to shout at Ms. Kuykendall and make accusations against her. Thus, Ms. Kuykendall felt the need to continuously attempt to explain herself, leading to her yelling at Ms. Thompson. Further, Ms. Kuykendall’s actions did not cause any damage besides her termination of employment.

|nThe doctrine further requires the analysis of whether anything provoked the incident. Here, Ms. Kuykendall was provoked by the fact that Ms. Thompson, without knowing the reasons why Ms. Kuykendall was present in the office, immediately began shouting at Ms. Kuyken-dall. Ms. Thompson commanded Ms. Kuykendall to return to her post immediately. When Ms. Kuykendall refused her instructions, she continued shouting at Ms. Kuykendall and further made accusations against her. Ms. Thompson stated her disapproval to Ms. Kuykendall about her continuous trips to the dispatch building to use the bathroom, warm her food and wash her dishes. Ms. Kuykendall felt that she needed to explain her actions and also to refute the accusations being made against her by Ms. Thompson. However, when all her attempts to speak were denied, Ms. Kuykendall resorted to shouting and speaking loudly to Ms. Thompson. Based on the circumstances under which the argument began, it appears that Ms. Kuykendall was provoked, leading to her actions.

Finally, Ms. Kuykendall’s actions were reasonable. Ms. Kuykendall, before leaving her post, acquired permission from her immediate supervisor. Upon Ms. Thompson’s arrival at work and seeing Ms. Kuyk-endall, she immediately assumed Ms. Kuykendall did not have permission or any reasons to justify her presence in the office. She immediately reprimanded Ms. Kuykendall and made further accusations unrelated to the matter against her. Due to this, Ms. Kuykendall felt it necessary to argue with Ms. Thompson to express her reasons and also refute the 1 ^accusations. Ms. Kuykendall was not at fault for trying to explain the situation to Ms. Thompson.

This ease is similar to French v. Whitfield, 561 So.2d 977 (La.App. 4th Cir.1990), and thus, the results should be the same. In French, the appellee, who thought she was leaving work at 5:00 p.m. but rather left at 4:50 p.m. due to a faulty clock, was reprimanded by her employer during the following work day. Ms. French corroborated the time with her co-workers before leaving work at 5:00 p.m. The next day, she was informed that she was terminated for leaving work at 4:50 instead of 5:00 p.m. When Ms. French tried to explain the reason for her early departure, her superior refused to listen and allow her to speak. At this, Ms. French became upset and responded in a loud tone to explain the reasons why she supposedly departed work early the previous evening. Id. Ms. French shouted at her superiors, but it is uncertain whether she insulted her superiors.

Ms. French filed for unemployment benefits after her termination, but was denied benefits by the Office of Employment Security for insubordination. Upon the district court’s judicial review, the court reversed the judgment and awarded her unemployment benefits. In addition to finding numerous discriminatory acts against the appellee, the court found no fault in Ms. French’s attempts to explain the incident. “The testimony at the administrative hearing sufficiently supports that French did not intentionally violate her employer’s rules. French’s position is that she reasonably believed she was departing work on April 27th at 5:00 p.m.” Id. at 979. The district court concluded that this behavior did not constitute the sort of | ^insubordination which rises to the level of misconduct within the meaning of La.R.S. 23:1601(2). Id.

In the matter sub judice, the incident ensued when Ms. Thompson chastised and falsely accused Ms. Kuykendall of not performing her duties as required. Ms. Kuykendall attempted to explain herself to Ms. Thompson, but was not allowed the opportunity. Ms. Kuykendall, like Ms. French, became upset and began speaking loudly at her superior in her attempt to explain herself and refute the accusations being made against her. Her actions were not intentional; thus, it does not amount to the sort of insubordination which justifies a denial of unemployment benefits. Before the Board of Review, NOPP failed to prove that Ms. Kuykendall committed the sort of insubordination and misconduct of her employment duties which aggregate to a denial of unemployment benefits. The Board of Review, after careful evaluations of the law and facts, found that NOPP failed to show that Ms. Kuykendall intentionally acted against her employer’s interests. The Board concluded that there was no single indication that Ms. Kuykendall intended to be insubordinate. NOPP requested a judicial review from the district court, and the district court’s decision in affirming the decision of the Board of Review was based on credible review of the facts, evidence and arguments presented.

The Board of Review considered the facts and evidence and concluded that though Ms. Kuykendall was insubordinate, she did not intend to be insubordinate, as her actions were a result of Ms. Thompson’s refusal to allow her to explain her presence at the dispatch office. Furthermore, the Board concluded that the actions 114of Ms. Kuykendall were reasonable and justifiable under the totality of the circumstances. In conclusion, this Court finds no error in the judgment of the district court affirming the decision of the Board of Review awarding Ms. Kuykendall unemployment benefits.

DECREE

For the forgoing reasons, the judgment of the district court is affirmed.

AFFIRMED

LANDRIEU, J., concurs in the result.

      . The last name of Roland does not appear anywhere in the record or transcript.


author: MAX N. TOBIAS, JR., Judge.

text:
    Frank BATISTE and Lavinzale Batiste v. CITY OF NEW ORLEANS; SMG Crystal, LLC; & Orleans Parish School Board.
    No. 2011-CA-1168.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 29, 2012.

      W. Gregory Merritt, Silbert & Garon, L.L.P., New Orleans, LA, for Plaintiff/Ap-pellee.
    Brian E. Sevin, Travis L. Bourgeois, Sidney W. Degan III, Degan Blanchard & Nash, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

hThe defendant, United States Fidelity & Guaranty Company (“USF & G”), appeals the trial court’s granting of partial summary judgment in favor of the plaintiffs, Frank and Lavinzale Batiste (collectively, “the Batistes”), finding coverage under a commercial general liability (“CGL”) policy issued by USF & G to SMG Crystal, LLC (“SMG”), under which the City of New Orleans (“the City”) is an additional insured, for fatal injuries resulting from an alleged trip and fall accident occurring at the Mahalia Jackson Theater of Performing Arts (“the Theater”) in New Orleans. For the following reasons, we affirm the trial court’s judgment.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

The plaintiffs’ decedent, Maggie Batiste, sustained a severe ankle fracture necessitating surgery while attending a high school graduation ceremony sponsored by the Orleans Parish School Board (“OPSB”) held in the Theatre when she descended a stairwell of steps located in the balcony seating area. While recovering from her ankle surgery, Ms. Batiste developed a pulmonary embolism resulting in her death.

12Prior to the accident, the City, owner of the Theater, entered into a Management Agreement (“the Agreement”) with SMG for the management and operation of the Theater. The Agreement required SMG to secure and keep in force at all times during the term of the Agreement a CGL policy of insurance, including public liability and property damage, covering the premises and operations identified in the Agreement, and naming the City as an additional insured. In accordance with the Agreement, SMG procured the requisite CGL policy through USF & G. USF & G does not contest that the City is an additional insured under the policy.

Following the accident, the decedent’s surviving spouse and daughter filed suit, naming as defendants, the owner (the City), the operator (SMG), and lessee (OPSB) of the Theater, asserting that the fault of each defendant caused and/or contributed to the decedent’s fall, fracture, and eventual death. Thereafter, the Ba-tistes filed a supplemental and amending petition asserting a direct action against USF & G as the insurer for both SMG and the City. The Batistes then moved for partial summary judgment asserting that the policy of insurance issued by USF & G to SMG, under which USF & G concedes that the City is an additional insured, provides coverage for the liabilities of the City arising out of SMG’s operations. In granting the plaintiffs’ motion, the trial court held as follows:

The Court hereby finds that USF & G does provide coverage for the liabilities of the City of New Orleans arising out of the operations of SMG Crystal, LLC. As Maggie Batiste was allegedly injured at an event conducted pursuant to a Use License Agreement between SMG Crystal, LLC and Orleans Parish School Board, the Court finds that the alleged liability of the City of New |sOrleans arose out of SMG Crystal, LLC’s operation of the theatre within the meaning of USF & G’s policy.

USF & G timely filed the instant appeal asserting that the City’s additional insured status exists only with respect to liabilities arising out of SMG’s operations and, because the accident was purportedly caused by an alleged structural defect in the configuration of the stairwell at issue coupled with poor lighting in the area, these alleged liabilities did not arise out of SMG’s operations of the Theater. Consequently, USF & G contends its policy does not afford coverage to the City under the facts and circumstances presented by this case. We disagree.

DISCUSSION

An appellate court reviews summary judgments de novo using the same criteria that governs the district court’s determination of whether summary judgment is appropriate, determining whether any genuine issue of material fact exists, and whether the mover is entitled to judgment as a matter of law. Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910. A dispute as to whether, as a matter of law, an insurance policy provides or precludes coverage to a party usually involves a legal question which can be resolved in the framework of a motion for summary judgment. Dore v. Brignac, 00-1719, p. 3 (La.App. 4 Cir. 6/20/01), 791 So.2d 736, 738.

In Bonin, pp. 4-6, 930 So.2d at 910-911, the Court outlined the elementary principles for construing insurance policies, stating:

An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally | ^prevailing meaning, unless the words have acquired a technical meaning.
An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Unless a policy conflicts with statutory provisions or public policy, it may limit an insurer’s liability and impose and enforce reasonable conditions upon the policy obligations the insurer contractually assumes.
If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer and in favor of coverage. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. [Internal citations omitted.]

The issue presented on this appeal is the coverage, if any, of the City as an additional insured under the CGL policy for the injuries sustained by the plaintiffs? decedent. The USF & G policy provides that USF & G “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury5 or ‘property damage’ to which the insurance applies.” The USF & G policy defines “Who Is An Insured” as follows: (1) SMG is an insured; (2) SMG’s members are insureds with respect to the conduct of the business; (3) SMG’s managers are insureds with respect to their duties as managers for the business; and (4) SMG’s employees are insureds for acts within the scope of their employment or the performance of duties related to the conduct of the business. This provision, however, is modified by an endorsement to the policy entitled, “Additional Insured — Managers or Lessors of Premises,” which provides:

| ^COMMERCIAL GENERAL LIABILITY PARTY

Schedule

1. Designation of Premises (Part Leased to or used by You): All venues managed by the First Named Insured.
2. Name of Person or Organization (Additional Insured): Owners, managers and lessors of Designated Premises.
WHO IS-AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of your operations with respect to your use of that part of the premises leased to you or which you have otherwise been permitted to use and shown in the Schedule and subject to the following additional exclusions. This insurance does not apply to:
1. Any “occurrence” which takes place after you cease to be a tenant in that premises.
2. Structural alterations, new construction or demolition operations performed by or on behalf of the person or organization shown in the Schedule.

It is undisputed that the decedent’s trip and fall accident at the Theater occurred while (a) the Agreement between the City and SMG was in effect and (b) the USF & G policy of which the City was a named insured was in full force and effect. The record reflects that SMG leased the Theater to OPSB for purposes of hosting the high school graduation event pursuant to a Use License Agreement. | (¡The lease of the Theater by SMG to OPSB arose out of SMG’s normal business operations as contemplated by the Agreement between SMG and the City. Moreover, the decedent fell sustaining injury in the balcony area of the Theater, which was on a part of the premises that SMG had been permitted to use pursuant to its Agreement with the City and as contemplated by the specific language contained in USF & G’s policy endorsement.

Accordingly, we find that the decedent’s use of the steps upon which she fell sustaining injury was incidental to the graduation event, since the graduation could not have effectively taken place without providing ingress and egress to its attendees. The graduation event is what brought the decedent to the Theater and required her to use the steps upon which she fell in order to reach her seat in the balcony area. See Haylock v. Jerusalem Temple Ancient Arabbie Order of Noble of Mystic Shrine, 578 So.2d 999, 1001-1002 (La.App. 4th Cir.1991); Baker v. Sears, Roebuck & Co., 32,651, 32,767, pp. 5-7 (La.App. 2 Cir. 3/3/00), 753 So.2d 1011, 1014-1015. As SMG’s lease of the Theater to OPSB for the graduation arose out of SMG’s business operations, and the decedent’s use of and subsequent fall on the steps, which occurred on a part of the premises that SMG was permitted to use, was incidental to the graduation, we conclude that the liability of the City, if any, for the decedent’s injuries arose out of SMG’s business operations, thereby triggering coverage under USF & G’s policy to the City as an additional insured.

Our review of the USF & G policy leads us to conclude that the policy does not limit coverage to the City as an additional insured solely to instances where SMG is found to be at fault, but rather, provides coverage to the City for its own fault as long as the accident causing injury arose out of SMG’s operations. SMG’s operations included the rental of the Theater for high school graduations such as 17the rental at issue in this case. As a part of its operations, and in accordance with the terms of the Agreement, SMG was responsible for staffing the graduation event with ushers and security to assist attendees. USF & G erroneously states that the Ba-tistes’ allegations of fault are unrelated to SMG’s operations, but rather, “only concern an injury caused by the physical aspects of the leased premises” over which SMG had no authority to change or modify. To the contrary, however, in the petition for damages, an allegation is made that the decedent’s fall was caused, in part, due to a failure to warn and a failure to provide adequate ushers during the graduation event. We conclude that the alleged liability of the City, if any, for failing to warn patrons of potential defects and/or about dangerous conditions existing on the premises of the Theater (i.e., the allegedly dangerously configured steps upon which the decedent fell), and for failing to position sufficient ushers and/or security to assist patrons attending events held in the Theater, clearly arises out of SMG’s operations of the Theater within the meaning of the USF & G policy. Accordingly, we affirm the trial court’s determination that, if found liable for the injuries sustained by the Batistes’ decedent, USF & G’s policy provides coverage to the City as an additional insured.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed, and this case is remanded to the trial court for further proceedings consistent with this opinion.

AFFIRMED.

      . CGL policies are designed to protect the insured against losses to third parties that arise out of the insured’s business operations. 9 Lee R. Russ and Thomas F. Segalla, Couch on Insurance 3d, § 129:2 (1997).

      . According to Couch on Insurance, “[i]f a liability insurer fails to define additional insured? so that coverage is provided only to the extent that the additional insured is held liable for the named insured's acts or omissions arising out of and in the course of operations, but grants coverage for liability arising out of the named insured's work, the additional insured is covered without regard to whether injury was caused by the named insured or the additional insured.” See 9 Couch on Ins. § 126:7.

      . In granting the Batistes’ motion for partial summary judgment, the trial court’s ruling was limited solely to a finding of coverage as to the City as an additional insured under the USF & G policy. No fault determinations were made by the trial court as the issue of fault for the accident was not before the court.


author: PAUL A. BONIN, Judge.

text:
    Dale WARMACK v. DIRECT WORKFORCE INC.; Lexington Insurance Co. and Cory Martin.
    No. 2011-CA-0819.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 29, 2012.

      Brice Jones, Ross F. Lagarde, Paul D. Hesse, Jones Lagarde, LLC, Slidell, LA, for Plaintiff/Appellant.
    Robert I. Siegel, Brendan P. Doherty, Daniel G. Rauh, Gieger Laborde & Laper-ouse, LLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

I,Dale Warmack appeals the trial court’s decision finding that general maritime law does not apply to his personal injury lawsuit. Finding that the Mississippi Queen was not a “vessel” at the time of Mr. Warmack’s injury, the trial judge concluded that Mr. Warmack could not satisfy the situs and nexus test for applying general maritime law and granted the motion for partial summary judgment filed by Direct Workforce, Inc. and its insurer, Lexington Insurance Company.

On our de novo review of this partial summary judgment, we conclude that there is a genuine issue of material fact as to whether the Mississippi Queen was a “vessel” and that the resolution of her status as a vessel is, in this case, entrusted to the fact-finder after a trial on the merits. We also conclude that the test for applying general maritime law is, in this case, dependent upon the resolution of vessel status. We, therefore, reverse the partial summary judgment declaring that 12general maritime law does not apply to this case and remand this case to the district court for further proceedings.

We explain our holding in greater detail below.

I

In this Part we address the principles applicable to Direct Workforce’s motion for partial summary judgment on the issue of the applicability of general maritime law to Mr. Warmack’s claim.

“A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of summary judgment does not dispose of the entire case.” La. C.C.P. art. 966 E. “[A] motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” La. C.C.P. art. 966 C(l). “The burden of proof remains with the movant.” La. C.C.P. art. 966 C(2). “However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” Id. “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.” Id.

Importantly, the party alleging admiralty jurisdiction or the application of the general maritime law bears the burden of proving it. See Denoux v. Vessel Management Services, Inc., 07-2143, p. 5 (La.5/21/08), 983 So.2d 84, 88. Here, [.that party is Mr. Warmack, not Direct Workforce. Consequently, Direct Workforce need only “point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La. C.C.P. art. 966 C(2). Direct Workforce primarily sought to point out that an essential element of Mr. Warmack’s claim for application of the general maritime was an injury which occurred on a vessel but that the Mississippi Queen was not a vessel because it was “under construction.”

Mr. Warmack, under such circumstances, must “produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.” La. C.C.P. art. 966 C(2). If he fails in producing such factual support, “there is no genuine issue of material fact.” Id. Mr. Warmack submitted evidence that the Mississippi Queen was not “under construction.”

After considering the factual submissions, the trial court concluded that there was no genuine issue of material fact that the Mississippi Queen was a vessel “under construction” and thus not a “vessel” for the purposes of general maritime law, citing to Cain v. Transocean Offshore USA, Inc., 518 F.3d 295, 301 (5th Cir.2008) (holding, “a structure under construction remains a non-vessel until is it is complete and ready for duty upon the sea”).

II

The Mississippi Queen was a steam-powered paddlewheel riverboat that started carrying passengers on leisure cruises in 1976. Sometime in either 2005 or 2006-the parties dispute the exact date — her cruises were discontinued so that repairs and renovations could be made to her. There is evidence that at first she was put in dry dock in Mobile, Alabama for perhaps up to two years. Later, in 14early 2007 she was towed to New Orleans and underwent repairs while floating on the Mississippi River at the Perry Street wharf.

Her new owners, Ambassadors International, Inc., a hotel conglomerate, decided on an even more extensive renovation project related to its brand’s image. Ambassadors intended to make the Mississippi Queen a “luxury product,” consistent with the company’s other riverboats and hotels. The owner’s intent was to have her back in service carrying passengers on river cruises after a few months, in time for the peak travel season.

Although the riverboat could have operated on the waterways in time for the 2007 season, management decided to continue the Mississippi Queen’s layover for the ongoing renovations. During this time, Mr. Warmack was hired to do repair work on the engines of the Mississippi Queen. And on July 11, 2007 he was injured when leaving the Mississippi Queen after completing the day’s shift.

In 2008, before the enhanced renovations were completed, Ambassadors abandoned the river cruising business, the Mississippi Queen never again carried passengers, and she was eventually sold for scrap in 2010.

Mr. Warmack originally filed suit against only Direct Workforce but later added Ambassadors as the owner of the vessel and alleged a claim under general maritime law.

Ill

“The word ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” 1 U.S.C. § 3. “[I]t is generally accepted that ‘a vessel does not cease to be a vessel when she is not voyaging, but is at anchor, berthed, or at dockside,’ ... even when the vessel is undergoing repairs.” Chandris, Inc. v. Latsis, 515 U.S. 347, 373-374, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). (citations omitted). Once a ship is completed, and not before, she attains vessel status and becomes subject to admiralty jurisdiction. Cain, 518 F.3d at 301. This principle is similar to the status of contracts to build ships vis-a-vis contracts to repair ships: contracts to build ships are not governed by maritime law, whereas contracts to repair ships are. See The Francis McDonald, 254 U.S. 242, 244-245, 41 S.Ct. 65, 65 L.Ed. 245 (1920).

Once a vessel under construction attains vessel status, that vessel must remain “in navigation” in order to retain her status as vessel. Stewart v. Dutra Const. Co., 543 U.S. 481, 496, 125 S.Ct. 1118, 160 L.Ed.2d 932 (2005). The “in navigation” requirement does not stand apart from the § 3 definition such that a structure can be a “vessel” under § 3 and at the same time not be a “vessel in navigation” for the purposes of the Jones Act or the Long-shore and Harbor Workers’ Compensation Act. Id. A vessel need not actually be traversing navigable waters at the time of an injury to satisfy the “in navigation” requirement. Id. The requirement demonstrates that “structures may lose their character as vessels if they have been withdrawn from the water for extended periods of time.” Id. The Supreme Court reasoned that a “ship long lodged in a drydock or shipyard can again be put to sea, no less than one permanently moored to shore or the ocean floor can be cut loose and made to sail.” Id. “The question remains in all cases whether the watercraft’s use ‘as a means of transportation on water’ is a practical possibility or merely a theoretical one.” Id.

A vessel remains “in navigation” while undergoing repairs, even if the vessel is in drydock for those repairs; however, the vessel’s repairs may be so extensive that the vessel can no longer be considered “in navigation.” Chandris, at 374, 115 S.Ct. 2172. “[V]essels undergoing repairs or spending a relatively short period of time in | f,drydock are still considered to be ‘in navigation’ whereas ships being transformed through ‘major’ overhauls or renovations are not.” Id.

The determination of whether a vessel was “in navigation” is a question of fact and should be left to the jury unless only one reasonable conclusion may be drawn from the facts. Id. at 373, 115 S.Ct. 2172.

The Mississippi Queen’s vessel status turns whether her repairs were so extensive that she had lost her vessel status at the time of Mr. Warmack’s injury.

The parties dispute the state of repair of the Mississippi Queen at the time of Mr. Warmack’s injuries. Because the degree of the repairs of a vessel determines whether that ship remains “in navigation,” and, in this case, there is not only one reasonable conclusion that may be drawn from these disputed facts, such a determination must be resolved by the fact-finder after a merits’ trial.

IV

The vessel status of the Mississippi Queen is the hinge issue in this case.

The United States Supreme Court case, Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995), lays out a test to determine whether maritime law is applicable to a given situation. Part of that test requires the finding of vessel status. Id. at 535, 115 S.Ct. 1043. The remainder of the Grubart test requires a tort claim to “satisfy conditions both of location and of connection with maritime activity.” Id. at 534, 115 S.Ct. 1043. “A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water.” Id. The connection test requires two determinations: “A court, first, must ‘assess the general features of the type of incident involved,’ ... to determine whether the incident has ‘a potentially disruptive impact on maritime commerce,’ ... Second, a court must determine |7whether ‘the general character’ of the ‘activity giving rise to the incident’ shows a ‘substantial relationship to traditional maritime activity.’” Id. (internal citations omitted.)

We find that the location test and both inquiries of the connection test are wholly dependent on the factual determination of whether the Mississippi Queen was a “vessel” at the time of Mr. Warmack’s injury. Only after the fact-finder determines the vessel status of the Mississippi Queen will the trial court be able to apply the Grubart location and connection tests. If the Mississippi Queen is found not to be a vessel, then Mr. Warmack’s injuries have a tenuous relationship to traditional maritime activity and are unlikely to affect maritime commerce; however, if the Mississippi Queen is found to be a vessel, then Mr. Warmack’s injuries occurred while he was exiting a vessel, a well-established and traditional maritime activity, and the failure of vessel owners to provide a safe means of egress from vessels substantially affects maritime commerce. See Florida Fuels, Inc. v. Citgo Petroleum Corp., 6 F.3d 380, 332 (C.A.5 1993) (“the means of access between a dock and a vessel is considered an ‘appurtenance’ of the vessel”).

The Grubart location test requiring that the tort have occurred “on navigable water” is also dependent on a determination of the vessel status of the Mississippi Queen. The portion of the gangplank on which Mr. Warmaek was injured was over the Mississippi River; however, “[pjiers and docks [are] consistently deemed extensions of land.” Victory Carriers, Inc. v. Law, 404 U.S. 202, 206-207, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971). “The gangplank has served as a rough dividing line between the state and maritime regimes.” Id. If the Mississippi Queen is not a vessel, she can be likened to a pier. But if she is a vessel, the tort will have occurred on the vessel because the gangway is an “appurtenance” of a vessel. See Florida Fuels, supra. “[Traditional maritime [slaw encompasses the gangway.” Thomey v. Weber Marine, 01-0153, p. 6 (La.App. 5 Cir. 5/30/01), 791 So.2d 135, 139 citing The Admiral Peoples, 295 U.S. 649, 55 S.Ct. 885, 79 L.Ed. 1633 (1935). Maritime locality was found in Thomey when the plaintiff slipped on a wooden pallet used as a makeshift gangway over river water that had risen into a parking lot. Thomey, pp. 7-8, at 140. In Ross v. Moak, 388 F.Supp. 461, 464 (M.D.La.1975), however, the tort did not occur on navigable waters because “[t]he wooden gangway onto or from which the plaintiff fell was over the river bank proper and did not extend over the water’s edge.”

DECREE

We reverse the granting of partial summary judgment and remand this matter to the trial court for further proceedings consistent with our holding.

REVERSED AND REMANDED

      . Direct Workforce is the employer of Corey Martin. Mr. Martin had tossed a 60-pound bag of folded linens from one of the upper decks of the Mississippi Queen, striking Mr. Warmack who was exiting on the gangway. Mr. Warmack had been working aboard the Mississippi Queen; he was not a Jones Act seaman and not employed by her owner.

      . Mr. Warmack also filed a motion for partial summary judgment asking the court to decide that general maritime law is applicable. A judgment denying a motion for partial summary judgment is interlocutory. See La. C.C.P. art. 968. Moreover, Mr. Warmack has not assigned as error in this appeal the denial of his motion. See People of the Living God v. Chantilly Corp., 251 La. 943, 207 So.2d 752, 753 (1968) (“when a judgment is rendered in the case which is appealable, the reviewing court can then consider the correctness of the prior interlocutory judgment.”)