author: PETERS, J.

text:
    Paul JONES v. HOWARD McCALL, INC., et al.
    No. CA 12-558.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 2012.

      Robert Joseph Killeen Jr., Robert C. Stern, Killeen & Stern, PC, Houston, TX, for Defendant/Appellant, ABCCO Services, Inc.
    David C. Whitmore, Lawrence Blake Jones, Scheuermann & Jones, New Orleans, LA, for Plaintiff/Appellee, Paul Jones.
    J. Rock Palermo, III, Veron, Bice, Palermo & Wilson, L.L.C., Lake Charles, LA, for Defendants/Appellees, Cameron Charter Vessels, Inc., Howard McCall, Inc.
    Matthew R. Richards, Johnson, Rahman & Thomas, Baton Rouge, LA, for Interve-nor/Appellee, Louisiana Workers’ Compensation Corporation.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

| iThis litigation arises from an accident which occurred onboard the vessel MW Howard McCall. A jury determined that the plaintiff, Paul Jones, was a Jones Act seaman and awarded him maintenance and cure benefits. The defendant, ABCCO Services, Inc. (ABCCO), perfected this appeal, raising two assignments of error. For the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

The facts in this litigation are basically undisputed. ABCCO’s business is that of sandblasting and painting structures, both onshore and offshore. When the structure to be sandblasted and/or painted is located offshore, ABCCO contracts with other companies to transport its employees and equipment, either by vessel or helicopter, to the offshore structure. If the offshore structure undergoing refurbishment has adequate space, ABCCO stores and operates it equipment on the structure and its employees live on the structure until the job is completed. With regard to those structures where adequate space is not available, ABCCO normally contracts for the services of a vessel from another company and that vessel transports its employees and equipment to the structure. Additionally, both the employees and equipment remain housed on the vessel until the job is completed, and the vessel acts as a platform for ABCCO’s work.

In the situations where vessels are used, ABCCO also normally contracts to take all steps necessary to see that the vessel finishes the contract in the same condition it began. To this end, ABCCO often sandblasts and paints those sections of the vessel where overspray from the work performed on the offshore structure has occurred. At the time of the January 18, 2005 incident giving rise to this |2litigation, Paul Jones had worked for ABCCO or its predecessor company for a period of approximately five years.

The litigation arises from a 2004 contract wherein Duke Energy retained AB-CCO to sandblast and repaint an offshore platform (identified as West Cameron No. 272, located in the Gulf of Mexico off Cameron, Louisiana). The work crew assigned to this job, including Mr. Jones, were transported to the platform by the M/V Howard McCall, a vessel owned and operated by Howard McCall, Inc. and Cameron Charter Vessel, Inc. (referred to collectively as “Cameron Charter”). The sandblasting and painting of the offshore rig took two and one-half months of work which, with breaks, extended from late July of 2004, to late December of that same year. At all times when engaged in sandblasting and painting the structure, Mr. Jones and the other ABCCO employees slept and ate on board the M/V Howard McCall, stored equipment on board the vessel, and even used it as a work platform. At the completion of the job, the M/V Howard McCall transported the ABCCO crew back to its dock in Grand Chenier, Louisiana.

In mid-January 2005, Mr. Jones and another ABCCO employee returned to Grand Chenier with instructions to sandblast and paint portions of the M/V Howard McCall. On the morning of January 18, 2005, Mr. Jones sustained personal injuries when he fell as he was exiting the vessel’s wheelhouse. Soon thereafter, Louisiana Workers’ Compensation Corporation (LWCC), ABCCO’s workers’ compensation insurer, began paying benefits to Mr. Jones.

On June 6, 2006, Mr. Jones filed suit against ABCCO, Howard McCall, Inc., and Cameron Charter Vessel, Inc., pursuant to the saving-to-suitors clause,1?,alleging two causes of action resulting from his January 18, 2005 accident. First, he asserted that as a Jones Act seaman, all three defendants were liable to him pursuant to the federal general maritime law and the Jones Act, 46 App. U.S.C.A. § 688, or alternatively, pursuant to the Longshore and Harbor Workers’ Compensation Act, 38 U.S.C.A. § 901 et seq. In his second claim, Mr. Jones asserted that as he was rendered unfit for duty as a result of his accident, he was entitled to maintenance and cure. The effect of these pleadings was to raise three claims for relief: negligence, unseaworthiness, and maintenance and cure. Thereafter, LWCC intervened in Mr. Jones’ suit seeking recovery of the workers’ compensation benefits it had paid Mr. Jones on behalf of ABCCO.

The matter was tried over two consecutive days beginning on May 16, 2001. By that time, the trial court had already granted Cameron Charter a summary judgment and had dismissed Mr. Jones’ claim that the M/V Howard McCall was unseaworthy at the time of the accident. Additionally, before the matter went to the jury for decision, the trial court granted directed verdicts in favor of all the defendants on the negligence issue.

The jury then returned a verdict on the remaining issues. Specifically, it found that Mr. Jones was a Jones Act seaman, that he was injured on January 18, 2005, that he had reached maximum medical improvement, and that he was entitled to awards of maintenance and cure. The jury set the awards at $8,580.00 and $9,754.00 respectively.

|4On July 25, 2011, the trial court executed a judgment conforming with the jury verdict, and on January 10, 2012, the trial court rejected ABCCO’s motion for new trial. Thereafter, ABCCO perfected this appeal.

In its appeal, ABCCO asserts two assignments of error:

1. The jury erred in finding that Ap-pellee, Paul Jones (“Jones”), was a Jones Act seaman as the evidence presented at trial was insufficient to support the verdict rendering it clearly contrary to the law and the evidence. There is almost no evidence to support a finding that Jones was a Jones Act seaman....
2. [Tjhe Court erred in failing to offset the jury’s maintenance and cure award according to the amounts previously paid in workers’ compensation indemnity benefits and for Jones’ medical expenses in clear contravention of the law....

OPINION

Standard Of Review

Although Mr. Jones’ claims arise under general maritime law and the Jones Act, Louisiana’s manifest error/clearly wrong standard of review is applied on appeal. Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89. As this standard of review is well established, we need not reiterate it here.

Assignment of Error Number One

ABCCO first argues that the jury erred in finding that Mr. Jones qualified as a Jones Act seaman. The leading case on this issue is the United States Supreme Court’s opinion in Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). In that case, Justice O’Con-nor, after revisiting the history and case law evolving from the question of who qualifies for Jones Act seaman status, concluded:

From this background emerge the essential contours of the “employment-related connection to a vessel in navigation,” [McDermott International, Inc. v.] Wilander, 498 U.S. [337,] 355, 111 S.Ct. [807,] 817 [112 L.Ed.2d 866 (1991) ], required for an employee to qualify as a seaman under the Jones Act. We have said that, in giving effect to the term “seaman,” our concern must be “to define the meaning for the purpose of a particular statute” and that its use in the Jones Act “must be read Rin the light of the mischief to be corrected and the end to be attained.” [Warner v.] Warner [Goltra], 293 U.S. [155,] 158, 55 S.Ct. [46,] 48 [79 L.Ed. 254 (1934) ]. Giving effect to those guiding principles, we think that the essential requirements for seaman status are twofold. First, as we emphasized in Wilander, “an employee’s duties must ‘contribute] to the function of the vessel or to the accomplishment of its mission.’ ” 498 U.S., at 355, 111 S.Ct., at 817 (quoting [Offshore Co. v.] Robison, 266 F.2d [769,] 779 [ (C.A.5 1959) ]). The Jones Act’s protections, like the other admiralty protections for seamen, only extend to those maritime employees who do the ship’s work. But this threshold requirement is very broad: “All who work at sea in the service of a ship” are eligible for seaman status. 498 U.S., at 354, 111 S.Ct., at 817.
Second, and most important for our purposes here, a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature. The fundamental purpose of this substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea. See IB A. Jenner, Benedict on Admiralty § 11a, pp. 2-10.1 to 2-11 (7th ed. 1994) (“If it can be shown that the employee performed a significant part of his work on board the vessel on which he was injured, with at least some degree of regularity and continuity, the test for seaman status will be satisfied” (footnote omitted)). This requirement therefore determines which maritime employees in Wilander1 s broad category of persons eligible for seaman status because they are “doing the ship’s work,” 498 U.S., at 355, 111 S.Ct., at 817, are in fact entitled to the benefits conferred upon seamen by the Jones Act because they have the requisite employment-related connection to a vessel in navigation.
It is important to recall that the question of who is a “member of a crew,” and therefore who is a “seaman,” is a mixed question of law and fact. Because statutory terms are at issue, their interpretation is a question of law and it is the court’s duty to define the appropriate standard. Wilander, 498 U.S., at 356, 111 S.Ct., at 818. On the other hand, “[i]f reasonable persons, applying the proper legal standard, could differ as to whether the employee was a ‘member of a crew,’ it is a question for the jury.” Ibid. See also Senko [v. LaCrosse Dredging Corp.], 352 U.S. [370,] 374, 77 S.Ct. [415,] 417 [1 L.Ed.2d 404 (1957) ] (explaining that “the determination of whether an injured person was a ‘member of a crew’ is to be left to the finder of fact” and that “a jury’s decision is final if it has a reasonable basis”). The jury should be permitted, when determining whether a maritime employee has the requisite employment-related connection to a vessel in navigation to qualify as a member of the vessel’s crew, to consider all relevant circumstances bearing on the two elements outlined above.
|fiIn defining the prerequisites for Jones Act coverage, we think it preferable to focus upon the essence of what it means to be a seaman and to eschew the temptation to create detailed tests to effectuate the congressional purpose, tests that tend to become ends in and of themselves. The principal formulations employed by the Courts of Appeals— “more or less permanent assignment” or “connection to a vessel that is substantial in terms of its duration and nature” — are simply different ways of getting at the same basic point: The Jones Act remedy is reserved for sea-based maritime employees whose work regularly exposes them to “the special hazards and disadvantages to which they who go down to sea in ships are subjected.” [Seas Shipping Co. v.] Sieracki, 328 U.S. [85,] 104, 66 S.Ct. [872,] 882 [90 L.Ed. 1099 (1946) ] (Stone, C.J., dissenting). Indeed, it is difficult to discern major substantive differences in the language of the two phrases. In our view, “the total circumstances of an individual’s employment must be weighed to determine whether he had a sufficient relation to the navigation of vessels and the perils attendant thereon.” Wallace v. Oceaneering Int’l, 727 F.2d 427, 432 (C.A.5 1984). The duration of a worker’s connection to a vessel and the nature of the worker’s activities, taken together, determine whether a maritime employee is a seaman because the ultimate inquiry is whether the worker in question is a member of the vessel’s crew or simply a land-based employee who happens to be working on the vessel at a given time.
Although we adopt the centerpiece of the formulation used by the Court of
Appeals in this case — that a seaman must have a connection with a vessel in navigation that is substantial in both duration and nature — we should point out how our understanding of the import of that language may be different in some respects from that of the court below. The Court of Appeals suggested that its test for seaman status “does not unequivocally require a Jones Act seaman to be substantially connected to a vessel” in terms of time if the worker performs important work on board on a steady, although not necessarily on a temporally significant, basis. 20 F.3d, at 53. Perhaps giving effect to this intuition, or perhaps reacting to the temporal gloss placed on the Robison language by later Fifth Circuit decisions, the court phrased its standard at one point as requiring a jury to find that a Jones Act plaintiffs contribution to the function of the vessel was substantial in terms of its duration or nature. [Latsis v. Chandris, Inc.,] 20 F.3d [45] at 57 [ (2d Cir.1994) ]. It is not clear which version (“duration or nature” as opposed to “duration and nature”) the Court of Appeals intended to adopt for the substantial connection requirement — or indeed whether the court saw a significant difference between the two. Nevertheless, we think it is important that a seaman’s connection to a vessel in fact be substantial in both respects.
We agree with the Court of Appeals that seaman status is not merely a temporal concept, but we also believe that it necessarily | includes a temporal element. A maritime worker who spends only a small fraction of his working time on board a vessel is fundamentally land based and therefore not a member of the vessel’s crew, regardless of what his duties are. Naturally, substantiality in this context is determined by reference to the period covered by the Jones Act plaintiffs maritime employment, rather than by some absolute measure. Generally, the Fifth Circuit seems to have identified an appropriate rule of thumb for the ordinary case: A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act. This figure of course serves as no more than a guideline established by years of experience, and departure from it will certainly be justified in appropriate cases. As we have said, “[t]he inquiry into seaman status is of necessity fact specific; it will depend on the nature of the vessel and the employee’s precise relation to it.” Wilander, 498 U.S., at 356, 111 S.Ct., at 818. Nevertheless, we believe that courts, employers, and maritime workers can all benefit from reference to these general principles. And where undisputed facts reveal that a maritime worker has a clearly inadequate temporal connection to vessels in navigation, the court may take the question from the jury by granting summary judgment or a directed verdict. See, e.g., Palmer [v. Fayard Moving and Transp. Corp.], 930 F.2d [437,] 439.
On the other hand, we see no reason to limit the seaman status inquiry, as petitioners contend, exclusively to an examination of the overall course of a worker’s service with a particular employer. Brief for Petitioners 14-15. When a maritime worker’s basic assignment changes, his seaman status may change as well. See Barrett [v. Chevron, U.S.A., Inc.], 781 F.2d [1067,] 1077 [ (1986) ] (Rubin, J., dissenting) (“An assignment to work as a crew member, like the voyage of a vessel, may be brief, and the Robison test is applicable in deciding the worker’s status during any such employment”); Longmire [v. Sea Drilling Corp.], 610 F.2d [1342,] 1347, n. 6 [ (C.A.5 1980) ]. For example, we can imagine situations in which someone who had worked for years in an employer’s shoreside headquarters is then reassigned to a ship in a classic seaman’s job that involves a regular and continuous, rather than intermittent, commitment of the worker’s labor to the function of a vessel. Such a person should not be denied seaman status if injured shortly after the reassignment, just as someone actually transferred to a desk job in the company’s office and injured in the hallway should not be entitled to claim seaman status on the basis of prior service at sea. If a maritime employee receives a new work assignment in which his essential duties are changed, he is entitled to have the assessment of the sub-stantiality of his vessel-related work made on the basis of his activities in his new position. See Cheavens, [Terminal Workers’ Injury and Death Claims,] 64 Tulane L.Rev., [361,] 389-390. Thus, nothing in our opinion forecloses Jones Act coverage, in appropriate cases, for Justice STEVENS’ paradigmatic maritime worker injured while reassigned to “a lengthy voyage on the high seas,” post, at 2198. While our approach maintains the status-based | ^inquiry this Court’s earlier cases contemplate, we recognize that seaman status also should not be some immutable characteristic that maritime workers who spend only a portion of their time at sea can never attain.

Id. at 368-72; 2189-92.

The only evidence on this issue presented to the jury was the testimony of Mr. Jones, and that testimony is basically undisputed. The evidentiary record as provided through Mr. Jones, establishes that employment with ABCCO is seasonal and provides only eight to nine months per year of employment. ABCCO does not own or operate any vessels in its business, but sixty percent of the time Mr. Jones reached the job site via a vessel. Often during the forty percent of the time when he was transferred by helicopter, a vessel would be on location for ABCCO’s use. Approximately sixty percent of Mr. Jones’ actual work offshore was performed on the structure, and forty percent on a vessel. Although Mr. Jones did perform some land-based jobs for ABCCO, at least eighty percent of the jobs he worked for ABCCO were offshore.

While working on the Duke Energy platform, Mr. Jones was assigned to the M/V Howard McCall. The vessel provided transportation to and from the platform and was moored at that location every day work was performed. While offshore, the ABCCO crew worked twenty-one to twenty-eight-day shifts with seven days off in between shifts. During the Duke Energy job, Mr. Jones and other members of the ABCCO crew slept, ate, and stored its equipment on the M/V Howard McCall. Additionally, the vessel served as a work platform during the sandblasting and painting operation.

When the crew completed the sandblasting/painting job on the Duke Energy platform in December of 2004, Mr. Jones and the other members of the work crew were transported by the M/V Howard McCall for the last time to the vessel’s |9Grand Chenier dock. Mr. Jones and another AB-CCO employee returned to the vessel after the Christmas Holidays to sandblast and repaint the vessel pursuant to ABCCO’s agreement to return the vessel to its original condition. It was during this period that Mr. Jones sustained his injuries.

Mr. Jones’ duties on the M/V Howard McCall did not include operational duties. Still, while he was not responsible for major maintenance on the vessel, he did help to clean and tidy up the vessel on a regular basis. While ABCCO’s equipment was secured on, and operated from, the vessel, none of it was ever permanently attached. At the end of any job, the ABCCO employees removed all of its equipment from the vessel.

Considering the foregoing evidence, we find no manifest error in the jury’s finding that factually, Mr. Jones was a Jones Act seaman. The evidence established that ABCCO retained the services of the M/V Howard McCall to assist its crew in refurbishing the Duke Energy platform. Because the mission of the vessel was to assist the ABCCO crew in performing AB-CCO’s contract with Duke Energy, it follows that Mr. Jones’ sandblasting/painting duties contributed to the accomplishment of the M/V Howard McCall’s mission. Furthermore, Mr. Jones presented evidence to the jury establishing that his connection with the M/V Howard McCall was substantial in terms of both duration and nature. We find no manifest error in the jury’s factual conclusion that Mr. Jones had the status of a seaman. We find no merit in this assignment of error.

Assignment of Error Number Two

In this assignment of error, AB-CCO asserts that the trial court erred in not recognizing an offset in its favor to the maintenance and cure awards by amounts | ^previously paid Mr. Jones pursuant to its workers’ compensation policy with LWCC. We find no merit in this assignment as well.

In its intervention, LWCC sought repayment of the amounts it had paid to Mr. Jones based on its claim that it was subro-gated to Mr. Jones’ rights against ABCCO. During the trial on the merits, all the parties to the litigation entered into a written stipulation regarding the amount of workers’ compensation benefits LWCC had paid Mr. Jones for the accident sued upon pursuant to its policy with ABCCO. This stipulation reflects that as of May 4, 2011, LWCC had paid Mr. Jones $17,096.95 in compensation benefits; $8,844.96 in medical expenses; and $366.20 in vocational rehabilitation expenses.

In a June 6, 2011 motion, AB-CCO complained that the workers’ compensation issue was not addressed by the proposed judgment submitted to the trial court by Mr. Jones. Specifically, ABCCO complained that the proposed judgment “was silent as to the credit for which AB-CCO is entitled to in light of’ the payments made by LWCC. Although the record of these proceedings reflects that the trial court set the motion for a hearing on July 25, 2011, there is no evidence a hearing was ever held. Instead, on July 25, 2011, the trial court executed a judgment conforming to the jury’s award, but silent as to the question of whether a credit was available to ABCCO or any other party. Thereafter, ABCCO moved for a new trial on the issues of seaman status, offset of maintenance and cure awards, and legal interest. After a hearing on its motion for new trial, the trial court specifically rejected ABCCO’s request for an offset.

“Maintenance and cure” is an ancient duty imposed upon the owner of a ship to provide food, lodging and necessary medical |1Tservices to seamen who become ill or injured during service to the ship. Burgess v. C.F. Bean Corp[.], 98-3072 (La.App. 4th Cir.8/18/99), 743 So.2d 251; Comeaux v. Basin Marine, Inc., 93-1624 (La.App. 1st Cir.6/24/94), 640 So.2d 833, 836, writ denied, 94-2307 (La.11/18/94), 646 So.2d 386; Davis v. Odeco, Inc., 18 F.3d 1237, 1245 (5th Cir. 1994), cert. denied, 513 U.S. 819, 115 S.Ct. 78, 130 L.Ed.2d 32 (1994). Recovery is not [dependent] upon negligence of the vessel or the owner and the burden of proof in seeking maintenance and cure is relatively light. Id. In addition, generally, a seaman need only prove that the injury arose during his service of the vessel. The seaman does not have to prove a causal connection to his duties. Liner v. J.B. Talley and Company, Inc., 618 F.2d 327, 332 (5th Cir.1980); Burgess v. C.F. Bean Corp[.], supra; Comeaux v. Basin Marine, Inc., 640 So.2d at 836. The right to maintenance and cure exists regardless of fault. The remedy is essentially curative in nature and is not intended as compensation for injury. Boudreau v. S/V SHERE KHAN C, in rem, 27 F.Supp.2d 72, 83 (D.Maine 1998). The right to maintenance and cure arises from the employee-employer relationship. Aguilar v. Standard Oil Co., 318 U.S. 724, 731, 63 S.Ct. 930, 934, 87 L.Ed. 1107 (1943). Thus, the liability of shipowner for maintenance and cure will be excused only by willful misbehavior or deliberate act of indiscretion on part of seaman. Aguilar v. Standard Oil Co., 318 U.S. at 731, 63 S.Ct. at 934; DiBenedetto v. Williams, 880 F.Supp. 80, 86 (D. Rhode Island 1995).
Cure is payment of the seaman’s medical, therapeutic and hospital expenses, until that point in time when plaintiff reaches maximum medical recovery. Fox v. Texaco, Inc., 97 2126 (La.App. 1st Cir.11/6/98), 722 So.2d 1064, 1067. Because it not fault based, but arises from the contractual relationship between the parties, defendant cannot avail itself of the apportionment of fault to reduce its liability for plaintiffs medical expenses.

Domonter v. C.F. Bean Corp., 99-1204, pp. 17-18 (La.App. 3 Cir. 4/25/00), 761 So.2d 629, 640, writ denied, 00-1872 (La.9/29/00), 770 So.2d 354 (footnote omitted) (alteration ours).

In Commercial Union Insurance Co. v. McKinnon, 10 F.3d 1352, 1354 (8th Cir.1993) the Eighth Circuit stated:

Section 688(a) of the Jones Act provides that “[a]ny seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law.” The Supreme Court has held that this language provides a seaman’s exclusive remedy. Northern Coal & Dock Co. v. Strand, 278 U.S. 142, 147, 49 S.Ct. 88, 89, 73 L.Ed. 232 (1928). To give substance to this rule, any recovery received under the Jones Act should be reduced by any payments previously received under a state’s workers’ compensation law. See Biggs v. Norfolk Dredging Co., 360 F.2d 360, 364 (4th Cir.1966); Spiller v. Lowe, 328 F.Supp. 54, 64 (W.D.Ark.1971), aff'd on other grounds, 466 F.2d 903 (8th Cir.1972).

Furthermore, 33 U.S.C.A. § 903(e) of the Longshore and Harbor Workers’ Compensation Act provides a credit for benefits paid to an employee under this statute:

Notwithstanding any other provision of law, any amounts paid to an employee for the same injury, disability, or death for which benefits are claimed under this chapter pursuant to any other workers’ compensation law or section 688 of Title 46, Appendix (relating to recovery for injury to or death of seamen), shall be credited against any liability imposed by this chapter.

The record before us does not reflect that LWCC’s intervention has been disposed of although at the argument on the motion for new trial, Mr. Jones’ counsel seemed to acknowledge that LWCC is entitled to a credit. What is clear from the record is that ABCCO paid nothing to Mr. Jones, other than through its workers’ compensation insurer, and is not entitled to an offset for funds not paid. We find no error in the trial court’s conclusion that ABCCO is not entitled to a direct offset for the amounts paid by its workers’ compensation insurer to Mr. Jones.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the trial court in all respects. We assess all costs of this appeal to the defendant, ABCCO Services, Inc.

AFFIRMED.

      . The saving-to-suitors clause is found in 28 U.S.C.A. § 1333.

      . Title 46 of the United States Code was codified by the United States Congress beginning in 2005. On October 6, 2006, the Congress completed its efforts in this endeavor, which included the restatement of 46 App. U.S.C.A. § 688 to 46 U.S.C.A. § 30104. However, as Mr. Jones' accident occurred prior to October 6, 2006, the prior version of the Jones Act applies.

      . The judgment does not mention any ruling by the trial court on the issue of LWCC's petition of intervention.


source: Caselaw Access Project

author: ROSEMARY LEDET, Judge.

license: Public Domain

text:
    2400 CANAL, LLC v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AGRICULTURAL AND MECHANICAL COLLEGE and John Lombardi. 2400 Canal, LLC v. Board of Supervisors of Louisiana State University Agricultural and Mechanical College. 2400 Canal, LLC v. Board of Supervisors of Louisiana State University Agricultural and Mechanical College.
    Nos. 2012-CA-0220, 2012-CA-0221, 2012-CA-0222.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 7, 2012.

      Robert B. Evans, III, Cesar R. Burgos, Gabriel O. Mondino, Maria J. Leon, Bur-gos & Evans, L.L.C., New Orleans, LA, James McClendon Williams, Gauthier Houghtaling & Williams, L.L.P., Metairie, LA, for Plaintiff/Appellant.
    Luke F. Piontek, J. Kenton Parsons, Thomas John Capella, Christian J. Rhodes, Shelley Ann McGlathery, Roedel Parsons Koch Blache Balhoff & McCollis-ter, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

11 This is an action for mandamus, declaratory relief, and damages. The plaintiff, 2400 Canal, LLC (“2400 Canal”), is the former owner of property located at 2400 Canal Street in New Orleans (the “Property”), which was expropriated by the Board of Supervisors of Louisiana State University Agricultural and Mechanical College (the “Board”). The stated purpose of the expropriation was to facilitate the construction by the United States Veterans Affairs (the “VA”) of a new hospital on the site, the new VA Medical Center hospital (“VAMC”). Thereafter, 2400 Canal commenced this action against the Board and its president, John Lombardi. In its petition, 2400 Canal alleged that the Board violated its constitutional rights under La. Const. Art. I, § 4(H)(1) by leasing the Property to the VA without offering it, as the original owner, a right of first refusal to purchase |2the Property at current fair market value. The Board and Mr. Lombardi responded by filing peremptory and dilatory exceptions. From the trial court’s judgment sustaining the exceptions and dismissing the action, 2400 Canal appeals. Noticing on our own motion 2400 Canal’s lack of a cause of action under La. Const. Art. I, § 4(H)(1), we affirm the trial court’s judgment in this case. We, however, dismiss the appeals in the two consolidated cases.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2010, the Board filed a petition to expropriate the Property. In its petition, the Board stated that, pursuant to La. Const. Art. VII, § 14(C),' the City of New Orleans, the Board, and the State of Louisiana, through the Division of Administration, (the “State”) had entered into a Cooperative Endeavor Agreement (“CEA”) to acquire the property necessary for the construction of the VAMC. The Board further stated that the purpose of the expropriation was “for [the] public and necessary purposes of the VA Medical Center [VAMC].”

|aIn September 2011, the parties settled the expropriation action by entering on the record a confidential compromise agreement. Under that agreement, 2400 Canal agreed to “forever release and discharge” the Board from “any and all liability and responsibility for any ... amount and all claims and causes of action that it may have or may have had arising out of or in any manner associated or connected with any events, facts, transactions or occurrences alleged or that could have been alleged in this matter.” Following the settlement, 2400 Canal contended that it learned of the Board’s intent to lease the Property to a third party, the VA, in violation of its constitutional rights under La. Const. Art. I, § 4(H)(1).

In November 2011, 2400 Canal filed the instant action, which it styled as a “Petition for Writ of Mandamus, For Declaratory Relief and For Damages,” against the Board and its president. The principal relief it requested was the nullification of the Right of Possession, Use, and Occupancy Agreement, dated February 17, 2010, entered into between the Board, the VA, and the State (the “Use Agreement”). According to 2400 Canal, the Use Agreement was an illegal lease because it violated 2400 Canal’s constitutional rights under La. Const. Art. I, § 4(H)(1). In its petition, 2400 Canal prayed for three types of relief: (i) an order nullifying the alleged lease (the Use Agreement), (ii) an order requiring the Board to offer the Property to 2400 Canal for its current fan market value, and (iii) damages.

In response, the Board and its president (the defendants) filed multiple exceptions. As to the Board, the defendants asserted a peremptory exception of res | Judicata based on the compromise agreement and dilatory exceptions of unauthorized use of a summary proceeding and improper cu-mulation of actions. As to the Board’s president, the defendants asserted peremptory exceptions of no cause and no right of action.

Following a hearing, the trial court sustained all of the exceptions and dismissed the action. As to the peremptory exceptions of no cause and no right of action, the trial court reasoned that “[a]ny actions undertaken by Mr. Lombardi in the instant ease, were done in furtherance of his official duties as President of the LSU Board for which he cannot be held individually liable.” As to the dilatory exceptions of improper use of summary proceeding and improper cumulation of actions, the trial court reasoned that the writ of mandamus was procedurally defective in that the substance of the relief sought by 2400 Canal was available in an ordinary proceeding. See La. C.C.P. art. 3862. The court further found that the petition improperly requested declaratory and monetary relief — two types of ordinary proceedings — through a summary proceeding. See La. C.C.P. arts. 2592. The trial court noted that it would neither grant 2400 Canal an opportunity to amend its petition nor order the separate trial of the actions.

Agreeing with the defendants, the trial court found, based on the compromise agreement, that res judicata barred re-litigating the claims and issues raised in this action. In so finding, the trial court reasoned:

| sThe compromise agreement contained a full and complete release of all claims and causes of action that 2400 Canal had or may have in connection with the expropriation of its property. Plaintiffs Writ of Mandamus seeks to enforce its constitutional rights under Article I Section 4(H)(1) of the Louisiana Constitution of 1974 by classifying the Right of Possession, Use and Occupancy Agreement between the LSU Board, VA and the State of Louisiana as a lease and seeking nullification of same. LSU asserts that the Right of Possession, Use and Occupancy Agreement is not covered by this constitutional provision. Plaintiffs argued that res judicata could not apply to the instant action for constitutional violations since La. R.S. 19:147 limited their defense of an expropriation to a Motion to Dismiss and did not encompass its allegations of constitutional violations for expropriating its property and “leasing” it to the VA, without extending the right of first refusal to plaintiff as original owner. This argument has no merit in the context of the instant action where the plaintiff has compromised all claims and causes of action that 2400 Canal had or may have in connection with the expropriation of its property.

From that decision, 2400 Canal appeals.

DISCUSSION

The relevant facts in this case are undisputed; hence, the appeal is limited to legal questions. “Legal questions are reviewed utilizing the de novo standard of review.” Fornerette v. Ward, 10-1219, p. 4 (La.App. 4 Cir. 5/11/11), 66 So.3d 516, 520 (citing Cherry v. Audubon Ins. Co., 09-1646, p. 4 (La.App. 4 Cir. 10/20/10), 51 So.3d 109, 113). “When considering legal issues, the appellate court assigns no special weight to the trial court and, instead, conducts a de novo review of questions of law and renders judgment on the record.” Roger A. Stetter, La. Prac. Civ.App. § 10:53 (2011 ed.).

2400 Canal assigns as error the trial court’s ruling sustaining all five of the defendants’ exceptions — res judicata, improper use of summary proceeding, improper cumulation of actions, no right of action, and no cause of action. As | (¡noted, the defendants’ exception of no cause of action was directed solely to the claims against the Board’s president. This court, however, notices on its own motion 2400 Canal’s lack of a cause of action under La. Const. Art. I, § 4(H)(1) against either defendant. See La. C.C.P. art. 927(B). Because we find the petition fails to state a cause of action as to either defendant, we pretermit addressing the issue presented regarding the procedural deficiencies of the writ of mandamus.

The function of the peremptory exception of no cause of action is “to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923; Fagot v. Parsons, 06-1528 (La.App. 4 Cir. 5/9/07), 958 So.2d 750. The questioned posed by an exception of no cause of action is “whether the law |7provides a remedy against the particular defendant.” Badeaux v. Southwest Computer Bureau, Inc., 05-0612, 05-0719, p. 7 (La.3/17/06), 929 So.2d 1211, 1216-17. An exception of no cause of action thus tests “the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading.” Moreno v. Entergy Corp., 10-2281, p. 8 (La.2/18/11), 62 So.3d 704, 706; see also Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993); La. C.C.P. art. 931 (noting that the question posed is “whether, on the face of the petition, the plaintiff is legally entitled to the relief sought”).

In deciding an exception of no cause of action a court can consider only the petition, any amendments to the petition, and any documents attached to the petition. B-G & G Investors VI, L.L.C. v. Thibaut HG Corp., 08-0093, pp. 4-5 (La.App. 4 Cir. 5/21/08), 985 So.2d 837, 841 (citing Spellman v. Desselles, 596 So.2d 843, 845 (La.App. 4 Cir.1992)); “[n]o evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La. C.C.P. art. 931. A court cannot consider assertions of fact referred to by the various counsel in their briefs that are not pled in the petition. State ex rel. Guste v. Audubon Park Commission, 320 So.2d 291 (La.App. 4th Cir.1975). The grant of the exception of no cause of action is proper when, assuming all well pleaded factual allegations of the petition and any annexed documents are true, the plaintiff is not entitled to the relief he seeks as a matter of law; any doubt must be resolved in the plaintiffs’ favor. Kuebler v. Martin, 578 So.2d 113 (La.1991).

| ^Applying these precepts, we find based on our review of the petition and the documents attached to it — the Expropriation Petition and the Use Agreement— that 2400 Canal lacks a cause of action. In its petition, 2400 Canal alleged the following:

• 2400 Canal, LLC acquired the immovable property at 2400 Canal Street via auction from the City of New Orleans in February of 2006.
• On or about March 10, 2010, BS [the Board] filed a Petition to Expropriate the immovable property at 2400 Canal Street. (See Exhibit “A”).
• Upon information and belief, BS [the Board] has leased the property that it expropriated to a third party, specifically, the Veterans’ Administration, on February 17, 2010, via a Right of Possession, Use and Occupancy Agreement executed between the Board of Supervisors of Louisiana State University A & M College, United States Department of Veterans Affairs and the State of Louisiana, through the Division of Administration, Office of Facility Planning and Control (see Exhibit “B”).
• The Right of Possession, Use and Occupancy Agreement [the Use Agreement] is apparently for a hospital and is an illegal lease of property expropriated. [See La. Const. Art. I, § 4(H)(1).]
• Prior to leasing the property, BS [the Board] failed to offer the property to 2400 Canal for fair market value.
• As a result of the defendant’s actions, BS [the Board] has violated 2400 Canal’s constitutional rights.

Although 2400 Canal alleges in its petition that the Use Agreement is an illegal lease, this is a legal conclusion that we cannot consider in deciding an exception of no cause of action. Legal conclusions asserted as facts are not considered well-pled factual allegations for purposes of an exception of no cause of action. First Natchez Bank v. Malarcher-Damare Co. 135 La. 295, 65 So. 270, 272 (1914); Kyle v. Civil Service Comm’n., 588 So.2d 1154, 1159 (La.App. 1st Cir.1991). A court may not consider legal conclusions “clothed as fact.” Hooks v. Treasurer, 06-0541, p. 10 (La.App. 1 Cir. 5/4/07), 961 So.2d 425, 431-32. Simply stated, courts “are not compelled to accept a party’s legal conclusions as facts.” Hoooks, 06-0541 at p. 10, 961 So.2d at 432. “If the pleader alleges [legal] conclusions and not material facts (such as a petition in a negligence action which alleges only that the defendant failed to use “due care”), the pleader has failed to state a cause of action.” 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 6:7 (2d ed.2012) (citing Johnson v. Edmonston, 383 So.2d 1277 (La.App. 1st Cir.1980)); see also Walton Const. Co. v. G.M. Home & Co., 07-0145, p. 6 (La.App. 1 Cir. 2/20/08), 984 So.2d 827, 832; Charia v. Hulse, 619 So.2d 1099, 1102 (La.App. 4th Cir.1993).

Under Louisiana law, a lease is distinguishable from a right of use. Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267, pp. 16-17 (La.10/25/11), 79 So.3d 246, 262; Richard v. Hall, 03-1488, pp. 17-18 (La.4/23/04), 874 So.2d 131, 145. The Louisiana Civil Code defines a lease as “a synallagmatic contract by which one party, the lessor, binds himself to give to the other party, the lessee, the use and enjoyment of a thing for a term in exchange for a rent that the lessee binds himself to pay.” La. C.C. art. 2668. The Civil Code defines a right of use as a personal servitude. La. C.C. art. 534. The Civil Code further provides that Im“[t]he personal servitude of right of use confers in favor of a person a specified use of an estate less than full enjoyment.” La. C.C. art. 639.

The distinction between a lease and a right of use, as indicated in the Civil Code, is that a right of use is a real right and a lease is a personal right. “Louisiana treats all leases as personal contracts. Louisiana does not make a taxonomical distinction between leases of movables and leases of immovables, as does the common law, under which a lease of real property creates an estate in land while a lease of personalty creates only a personal right.” General Elec. Capital Corp. v. Southeastern Health Care, Inc., 950 F.2d 944, 950 (5th Cir.1991). In sum, a lease is distinguishable from a real right, such as a right of use, because “[a] lease of real estate involves personal rights, rather than real rights.” Peter S Title, 2 La. Prac. Real Est. § 18:2 (2d ed.2011)(citing Prados v. South Central Bell Tel. Co., 329 So.2d 744 (La.1975) (on rehearing)).

As noted, 2400 Canal labels the Use Agreement as a lease and thus contends that the Board violated its constitutional right under La. Const. Art. I, § 4(H)(1) by leasing the Property to the VA without first offering it a right of first refusal. The Use Agreement, which is attached to the petition as Exhibit “B,” includes the following references that are relevant to the issue of whether this agreement is a lease:

• “Grantor [The Board] hereby grants to Grantee [the VA], and Grantee hereby accepts from Grantor, an irrevocable right of possession, use, and occupancy for the Premises.... Grantee shall pay to Grantor during the Term rental of ONE dollar ($1.00) per year. Additional consideration for this right of possession, use, and occupancy is VA’s plan to construct the new VAMC in close proximity to the new University Medical Center.”
In* “Grantor will not obtain any property interest in any improvements placed upon the property by Grantee. During the term or upon the expiration or termination of this Agreement, all improvements made by the Grantee shall remain the property of the United States of America.”
• “Grantee shall be responsible for paying all real property taxes (if any) duly assessed against Grantee’s interest in the land and Building comprising the Premises.”
• “This Agreement does not constitute a transfer of fee simple title ownership in the Premises to Grantee [the VA], but is rather a right of possession, occupancy, and use.”

The above quoted provisions of the Use Agreement belie 2400 Canal’s label of this agreement as a lease. The Use Agreement, by its terms, confers real rights on the VA; hence, it is not a lease. See Richard, 03-1488 at pp. 17-18, 874 So.2d at 145 (noting that “[u]nder the civil law concept, a lease does not convey any real right or title to the property leased, but only a personal right.”) Although the Use Agreement refers to the VA’s payment of “rental” of one dollar per year, “if the right intended to be conveyed has the attributes of a real right such as a personal servitude or a limited personal servitude of use, then the contract is not a lease, even though the parties used terms like ‘rent’ or ‘lease.’ ” La. C.C. art. 2668, Official Revision Comment (d). Such is the case here.

On appeal, 2400 Canal also contends that the Board violated La. Const. Art. I, § 4(H)(1) by selling the Property pursuant to an Act of Exchange and Amended Act of Exchange. It emphasizes that the Act of Exchange expressly states that it may be deemed to be a credit sale. Although 2400 Canal attached copies of the Act of Exchange and the Amended Act of Exchange as exhibits to its appellant brief, neither of these documents were introduced into evidence in the trial court. 112“Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence.” Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88; see also Triss v. Carey, 00-0608, p. 3 (La.App. 4 Cir. 2/7/01), 781 So.2d 613, 615; Argence L.L.C. v. Box Opportunities, Inc., 07-0765, p. 4 (La.App. 4 Cir. 3/13/08), 980 So.2d 786, 789 n. 3. “Evidence not properly and officially offered and introduced [in the trial court] cannot be considered, even if it is physically placed in the record.” Denoux, supra. Given that 2400 Canal failed to introduce either the Act of Exchange or the Amended Act of Exchange into evidence in the trial court, these documents are not part of the record on appeal and cannot be considered by this court.

Accordingly, we find that the Use Agreement is not a lease and that 2400 Canal therefore lacks a cause of action against either defendant under La. Const. Art. I, § 4(H)(1), which by its express terms applies solely to the sale or lease of expropriated property.

DECREE

For the foregoing reasons, the appeals in 2012-CA-0221 and 2012-CA-0222 are dismissed. The judgment of the trial court in 2012-CA-0220 is affirmed.

AFFIRMED IN PART, DISMISSED IN PART

      . La. Const. Art. I, Section 4(H)(1) provides: Except for the removal of a threat to public health or safety caused by the existing use or disuse of the property, and except for leases or operation agreements for port facilities, highways, qualified transportation facilities or airports, the state or its political subdivisions shall not sell or lease property which has been expropriated and held for not more than thirty years without first offering the property to the original owner or his heir, or, if there is no heir, to the successor in title to the owner at the time of expropriation at the current fair market value, after which the property can be transferred only by competitive bid open to the general public. After thirty years have passed from the date the property was expropriated, the state or political subdivision may sell or otherwise transfer the property as provided by law.

      . In addition to appealing the trial court’s judgment dismissing its petition for mandamus, declaratory relief, and damages, 2400 Canal filed a new Petition for Injunction and a new Petition for Damages in the district court. In these new actions, 2400 Canal asserted the same violation of its constitutional rights under La. Const. Art. I, § 4(H)(1) that it asserted in the initial action. Those two cases were consolidated with the instant one, and separate appeal numbers were assigned to those cases: the Petition for Damages, 2012-CA-0221; and the Petition for Injunction, 2012-CA-0222. Although the defendants have filed exceptions in the two new cases, the trial court has declined to take any action in either of those cases. Rather, the trial court has indicated that those exceptions will be set for hearing, "if necessary, following resolution of the pending appeal.” Given the lack of an appealable judgment in either 2012-CA-0221 or 2021-CA-0222, we dismiss those two appeals. See La. C.C.P. art. 2162 (providing that an appeal can be dismissed at any time "because there is no right to appeal.”) Additionally, we note that the claims before us on appeal are further narrowed by 2400 Canal’s acknowledgement in its reply brief that "it dismissed its claims for damages and declaratory relief at the hearing [in the trial court] on its Petition for Mandamus.” The sole claim before us on appeal is thus 2400 Canal’s claim for mandamus.

      . La. Const. Art. VII, § 14(C) provides:
      (C) Cooperative Endeavors. For a public purpose, the state and its political subdivisions or political corporations may engage in cooperative endeavors with each other, with the United States or its agencies, or with any public or private association, corporation, or individual.

      . Article 3862 provides "[a] writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice” La. C.C.P. art. 3862.

      . Article 2592 defines mandamus as a summary proceeding.

      .2400 Canal’s assignments of error are as follows:
      1. The District Court erred in granting LSU's Exception of Res Judicata as the State's obligations under Art. 1 Sec. 4(H)(1) are separate from actions testing the amount of compensation owed a property owner in compensation for an expropriation.
      2. The District Court erred in granting LSU’s Dilatory Exception of Improper Use of Summary Proceeding as Mandamus is the only appropriate vehicle to seek the Court to compel action by the State.
      3. The District Court erred in granting LSU’s Exceptions of No Cause of Action and No Right of Action relative to John Lombardi, as Lombardi himself executed the agreements at issue in this matter, and is the only individual with the authority to do so. It is therefore his acts that an action against LSU can seek to compel or enjoin.
      4. The District Court erred in granting LSU's Exception of Improper Cumulation of Actions because 2400 [Canal] has an obligation to bring all actions it may have against LSU or Lombardi and may do so in the same pleading.

      . Article 927(B) provides that "the failure to disclose a cause of action ... may be noticed by either the trial or appellate court on its own motion.” La. C.C.P. art. 927(B).

      . Nonetheless, we note that a writ of mandamus is "an extraordinary remedy, which must be used sparingly by the court and only to compel action that is clearly provided by law.” Hamp’s Const., L.L.C. v. Housing Authority of New Orleans, 10-0816, pp. 3-4 (La. App. 4 Cir. 12/1/10), 52 So.3d 970, 973 (citing Allen v. St. Tammany Parish Police Jury, 96-0938, p. 4, (La.App. 1 Cir. 2/14/97), 690 So.2d 150, 153); We further note that the usual function of a writ of mandamus is to compel an act, not to undo an act already executed. See State ex rel. Prince v. Police Jury, 108 La. 311, 314, 32 So. 363, 364 (1902)(noting that ”[m Mandamus compels the performance of an act enjoined by law, and does not issue to compel the undoing of an act after it has been executed”); State ex rel. Whitney Iron Works Co. v. Judge of Twenty-Second Judicial Dist. Court, 44 La.Ann. 1085, 1092, 11 So. 684, 687 (La.1892); State ex rel. Bryant v. Rightor, 36 La.Ann. 112 (1884)(when granted a mandamus "becomes a mandate to proceed, not to recede; to do, not to undo”).

      . By its terms, the Use Agreement is governed by Louisiana law, absent otherwise controlling federal law.

      . Article 534 provides that "[a] personal servitude is a charge on a thing for the benefit of a person. There are three sorts of personal servitudes: usufruct, habitation, and rights of use.” La. C.C. art. 534.