author: JUDE G. GRAVOIS, Judge.

text:
    LOMARK, INC., Jasco, Inc., Northshore Shell Carwash, Inc., C & V Enterprises, Inc., Riverbend Shell, Inc., Victory Fuel Enterprises, L.L.C., and Laguardia and McAdams Enterprises, Inc. v. LAVIGNEBAKER PETROLEUM, L.L.C.
    No. 12-CA-389.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.

      James M. White, III, Attorney at Law, Covington, LA, Walter C. Thompson, Jr., Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants.
    Adolph A. Ajubita, Jason R. Anders, James R. Washington, III, Attorneys at Law, Peter J. Butler, Jr., Richard G. Pas-sler, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT A. CHAISSON.
   JUDE G. GRAVOIS, Judge.

[sin this suit, plaintiffs, C & V Enterprises, Inc., Riverbend Shell, Inc., and Victory Fuel Enterprises, L.L.C., all former Shell-branded retail service station lessees who had gasoline supply contracts and leases with the owner of the stations, defendant, LavigneBaker Petroleum, L.L.C. (“LBP”), sued defendant for damages for alleged breach of contract, unjust enrichment, and violations of the Louisiana Unfair Trade Practices Act, La. R.S. 51:1401 et seq. Plaintiffs alleged that during the time they leased the stations, LBP overcharged them for gasoline purchases under the supply contracts when LBP failed to pass on various tax credits to plaintiffs. In response, LBP filed, among other exceptions, an exception of no right of action, arguing that when plaintiffs executed assignments of the supply contracts to the new lessees of the stations, the assignments were of “all rights” under the supply contracts, and as such, plaintiffs failed to reserve any rights under the supply contracts whatsoever, including the right to sue LBP for the alleged causes of action that arose prior to execution of the assignments of the |4contracts. Finding that the assignments were unambiguous and total, the trial court granted LBP’s exception of no right of action. Further, based on its finding that the language in the assignments was unambiguous, the trial court did not allow plaintiffs to introduce parol evidence to explain the terms of the assignments, which plaintiffs proffered instead. This appeal by plaintiffs followed. For the following reasons, we reverse.

ASSIGNMENTS OF ERROR

In their first assignment of error, plaintiffs argue that the trial court erred in maintaining LBP’s exception of no right of action, and in dismissing all claims of plaintiffs. In this assignment, plaintiffs essentially claim that their rights to sue LBP for damages arising from the breach of the supply contracts are strictly personal, and therefore were not assignable as a matter of law. Plaintiffs also appear to argue alternatively that the rights were personal in nature (not strictly personal) and could not be assigned unless the assignments were express. Plaintiffs also argue that because the assignment agreements failed to mention these rights, they were accordingly not expressly assigned therein to the new lessees, and thus were retained by plaintiffs.

In their second assignment of error, plaintiffs argue that the trial court erred in denying the admission of parol evidence in the testimony of plaintiffs representative, John K Roberts, III, to explain the terms of the assignment agreements. As part of this assignment, plaintiffs also argue that the trial court erred in allowing LBP to object to the admission of the parol evidence testimony, as it lacked standing to object because it was not a party to the assignment agreements.

J¿FIRST ASSIGNMENT OF ERROR— Exception of No Right of Action

A peremptory exception pleading the objection of no right of action tests whether the plaintiff has any interest in judicially enforcing the right asserted. Simply stated, the objection of no right of action tests whether a particular plaintiff, as a matter of law, has an interest in the claim sued on. Louisiana State Bar Ass’n v. Carr and Associates, Inc., 08-2114 (La.App. 1 Cir. 5/8/09), 15 So.3d 158. The determination of whether a plaintiff has a right of action is a question of law that is reviewed de novo on appeal. Caro Proper ties (A), L.L.C. v. City of Gretna, 08-248 (La.App. 5 Cir. 12/16/08), 3 So.3d 29.

La. C.C.P. art. 698, a procedural article that concerns the capacity to sue, states that an incorporeal right which has been assigned, whether unconditionally or conditionally for purposes of collection or security, shall be enforced judicially by the assignor and the assignee, when the assignment is partial, or the assignee, when the entire right is assigned.

La. C.C. art. 2642 provides that any right may be assigned except those pertaining to obligations that are strictly personal. Whether an obligation is strictly personal is defined in La. C.C. art. 1766, which provides:

An obligation is strictly personal when its performance can be enforced only by the obligee, or only against the obligor.
When the performance requires the special skill or qualification of the obli-gor, the obligation is presumed to be strictly personal on the part of the obli-gor. All obligations to perform personal services are presumed to be strictly personal on the part of the obligor.
When the performance is intended for the benefit of the obligee exclusively, the obligation is strictly personal on the part of that obligee.

La. C.C. art. 1765 defines “heritable” or “transferable” obligations as follows:

IfiAn obligation is heritable when its performance may be enforced by a successor of the obligee or against a successor of the obligor.
Every obligation is deemed heritable as to all parties, except when the contrary results from the terms or from the nature of the contract.
A heritable obligation is also transferable between living persons.

Accordingly, this Court must first consider the nature of plaintiffs’ rights under the supply contracts and whether those rights were subject to assignment.

Both parties cite Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267 (La.10/25/11), 79 So.3d 246, in support of their positions. In that case, the Supreme Court engaged in an extensive analysis of prior jurisprudence to find that the fundamental principles of Louisiana property law required the conclusion that under the “subsequent purchaser rule,” an owner of immovable property has no right or actual interest in recovering from a third party for damage that was inflicted on the property before his purchase, in the absence of an explicit assignment or subrogation of the rights belonging to the owner of the property when the damage was inflicted. Much of the analysis in Eagle Pipe concerned the interplay of property law with the law of obligations, and therefore is not directly pertinent to the factual circumstances here. Eagle Pipe did, however, note that a personal right is effective only between the parties, as contrasted with a real right, which can be asserted against the world. La. C.C. art. 1758; Eagle Pipe, supra, at 262. While a strictly personal right may not be assigned, a personal right may be assigned but cannot be asserted by another in the absence of an assignment or 17subrogation. Eagle Pipe, supra at 262; La. C.C. art. 1764, Revision Comments— 1984, (d) and (f).

LBP also cites Caro Properties, supra, wherein this Court held that an agreement between a building owner and its insurer, whereby the building owner assigned to the insurer “any rights [it had] to pursue recovery from any responsible party including those responsible or at fault in connection with the demolition of the building,” was a full assignment of rights rather than a subrogation agreement. Id. at 31 (emphasis added). This Court further held that the assigned rights, which sounded in tort, were not strictly personal in nature and therefore were assignable. This Court sustained a grant of an exception of no right of action against the plaintiff, specifically finding that the plaintiff had clearly assigned the rights it was suing for to the insurer. Id. at 82.

At least one court has found that supply contracts contain personal, heritable obligations, rather than strictly personal obligations, and are, hence, assignable. In Re Cajun Elec. Power Co-op., Inc., (Bkrtcy.M.D.La.1999), 280 B.R. 693.

Given the nature of the supply contracts and the rights and obligations contained therein, we find that they are not strictly personal in nature, and therefore may be assigned.

The next question thence is: In the assignment agreements, did plaintiffs assign the causes of action sued upon herein — the right to sue for any alleged breaches of the covenants, duties, and obligations arising under the contracts occurring prior to execution of the assignments — to the assignees (the new lessees of the stations)?

| sThe interpretation of a contract is the determination of the common intent of the parties. La. C.C. art.2045. For purposes of interpreting a contract, a contract is “ambiguous” when it lacks a provision bearing on the issue, its written terms are susceptible to more than one interpretation, there is uncertainty as to its provisions, or the parties’ intent cannot be ascertained from the language used. Sequoia Venture No. 2, Ltd. v. Cassidy, 42,-426 (La.App. 2 Cir. 10/10/07), 968 So.2d 806, writ denied, 972 So.2d 1166, 07-2210 (La.1/11/08). The common intent of the parties to a contract is determined in accordance with the general, ordinary, plain and popular meaning of the words used in the contract. Prejean v. Guillory, 10-0740 (La.7/2/10), 38 So.3d 274, rehearing denied, 10-0740 (La.9/17/10), 45 So.3d 1035. Although parol evidence is inadmissible to vary the terms of a written contract, when the terms of a written contract are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, parol evidence is admissible to clarify the ambiguity and to show the intention of the parties. Brandner v. Staf-Rath, L.L.C., 10-778 (La.App. 5 Cir. 4/26/11), 64 So.3d 812, unit denied, 11-1085 (La.9/2/11), 68 So.3d 523.

Three assignment agreements were introduced into evidence by LBP. The pertinent language is the same in each of the three contracts:

..., Assignor does hereby assign, transfer, set over and convey unto As-signee, all of Assignor’s rights, title and interest, as Purchaser or Lessee in and to the following described contracts ... (hereinafter sometimes collectively referred to as the “Contracts”), to wit:
[The “following described contracts” mentioned above are the Contract of Sale (Branded), where Assignors had the status/capacity as Purchasers, and the Station Lease contract, where Assignors had the capacity as Lessees.]
|nTo have and to hold the same unto Assignee, its successors and assigns, forever.
Assignee hereby acknowledges and it hereby assumes the Contracts and agrees that it shall be hable to [LBP], the current Seller or Lessor under the Contracts, and its successors and assigns, to perform and comply with each and every one of the covenants, duties, and obligations of Purchaser or Lessee arising under the contracts on and after the Effective Date of this Assignment. Assignor hereby acknowledges that it remains liable for every one of the covenants, duties, and obligations of Purchaser or Lessor arising under the Contracts and is not released from any obligations arising under the Contracts .... Assignor and Assignee hereby further acknowledge and agree that upon execution of this Assignment and continuing for the remainder of the term of the Contracts, they shall each be jointly, severally and solidarily liable and responsible to LBP for the full, faithful and timely performance and discharge of each and every covenant, duty, and obligation of Purchaser or Lessee under the Contracts.
The Assignor and Assignee acknowledge that the assignment of the Contracts contained herein will not be effective until LBP executes a Consent to Assignment.

(Emphasis added.)

Although the first sentence of the language quoted above states that Assignors (plaintiffs) assigned “all of Assignor’s rights, title and interest, as Purchaser or Lessee in and to the following described contracts ... ”, plaintiffs argue that later language in the assignment agreements, also quoted above, limits or curtails their assignment of rights. They argue that the later language — that plaintiff(s) shall remain “liable for every one of the covenants, duties, and obligations of Purchaser or Lessor arising under the Contracts and is not released from any obligations arising under the Contracts” — had the effect of retaining to them the rights to sue for any alleged breaches of those covenants, duties, and obligations arising under the contracts occurring prior to execution of the assignments.

We find that the language assigning each assignor’s rights as purchaser “in and to the ... contracts” unambiguously includes all future rights and obligations [ mthat arise under the contracts. The assignment agreements are, however, unambiguously silent on the issue of whether assignors also assigned their personal rights that are the causes of action involved in this case — the right to sue for any alleged breaches of the covenants, duties, and obligations arising under the contracts occurring prior to execution of the assignments. In the face of this silence, this Court should not infer that plaintiffs intended to also transfer these personal rights to the assignees of the contracts. La. C.C. art.2051. Plaintiffs’ rights of action to sue for alleged violations of the contracts occurring prior to execution of the assignments are plaintiffs’ personal rights that accrued to them prior to execution of the assignments. We find that these causes of action are distinct from plaintiffs’ rights “in and to” their future rights and obligations arising under the contracts that were clearly assigned by plaintiffs in the assignments.

We also find that Caro Properties, supra, actually supports plaintiffs’ position. In Caro Properties, the assignment was specifically and explicitly of exact rights, i. e., “any rights [it had] to pursue recovery from any responsible party including those responsible or at fault in connection with the demolition of the building,” that the plaintiffs argued they had retained and for which they had filed suit. In the instant case, the assignment of rights was nonspecific and did not specifically include the assignment of the rights upon which plaintiffs now sue LBP. Unlike the assignment in Caro Properties, the assignments under review here fail to specifically and explicitly address the assignment of any personal rights accruing to plaintiffs arising under the contracts prior to execution of the assignments.

Finding for the foregoing reasons that plaintiffs have a right of action to sue LBP for any alleged breaches of the covenants, duties, and obligations arising | n under the contracts occurring prior to execution of the assignments, we reverse the trial court’s grant of LBP’s exception of no right of action.

SECOND ASSIGNMENT OF ERROR— Parol Evidence Issues

In this assignment of error, plaintiffs argue that the trial court erred in finding the assignment agreements unambiguous and therefore in not allowing them to introduce parol evidence to explain the terms of the assignment agreements. In this assignment of error, plaintiffs also argue that the trial court erred in allowing LBP to object to the introduction of the parol evidence testimony at issue (the testimony of Mr. Roberts), as it lacked standing to object because it was not a party to the assignment agreements. Because we have found that the assignment agreements were not ambiguous, in that they did not specifically include assignments of plaintiffs’ personal rights to sue for alleged violations of the contracts occurring prior to execution of the assignments, it is of no moment that the trial court did not allow plaintiffs to introduce parol evidence to explain the terms of the assignment agreements. Therefore, this assignment of error is now moot.

CONCLUSION

For the reasons assigned herein, we reverse the trial court’s grant of LBP’s exception of no right of action. We remand the matter for proceedings consistent with this opinion.

REVERSED

      . The plaintiff entities are all owned by John K. Roberts, III.

      . The assignment agreements were executed in April of 2011. Plaintiffs filed this suit against LBP in May of 2011.

      . The issue involved in Eagle Pipe was "whether a subsequent purchaser of property has the right to sue a third party for non-apparent property damages inflicted before the sale in the absence of the assignment of or subrogation to that right." In answering this issue, the majority opinion in Eagle Pipe found that "the fundamental principles of Louisiana property law compel the conclusion that such a right of action is not permitted under the law.” Eagle Pipe, supra, at 252.

      . As this Court pointed out in Caro Properties, there are some rights of action that cannot be transferred through assignment or subrogation, such as the right to sue for personal injury, but those are not applicable in this case. Caro Properties, supra, at 33-34.

      . Each plaintiff is an assignor of its particular supply contract and contract of lease to its successor purchaser and lessee, who are not patties to this suit.

      . Mr. Roberts' testimony, which was proffered by plaintiffs, basically stated that when negotiating the contracts, the parties "did not mention” the breach of contract rights that plaintiffs now seek to enforce against LBP. He also testified that after the assignment of rights, plaintiffs and LBP continued to account to each other for all pre-assignment trade balances.


source: Caselaw Access Project

author: HANS J. LILJEBERG, Judge.

license: Public Domain

text:
    Francis Patrick QUINN v. Julie Unangst QUINN.
    No. 12-CA-455.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.

      Michael W. Hill, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Beevers & Beevers, Wiley J. Beevers, Shayna Lynn Beevers, Attorneys at Law, Gretna, LA, Quinn Law Firm, Julie U. Quinn, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|2In this domestic matter, the plaintiff/appellant, F. Patrick Quinn, appeals a ruling of the trial court that awarded his former wife, the defendant/appellee, Julie Unangst Quinn, child support arrearages and attorney’s fees.

STATEMENT OF THE CASE

Julie and F. Patrick Quinn were married on May 25, 1996. On October 10, 2006, Mr. Quinn filed for divorce, judgment of which was rendered on March 26, 2007. Litigation thereafter ensued relating to property, custody, and child support. On March 24, 2010, the parties entered into a Consent Judgment Concerning Custody and Child Support, as well as a separate Consent Judgment of Partition of Community Property. On September 29, 2010, Ms. Quinn filed a Motion for Contempt, Arrearages, Attorney’s Fees & Costs, seeking, as related to this appeal, child support arrearages for expenses incurred during 2009-2010 in mortgage payments, insurance and property taxes, totaling $25,539.47. Ms. Quinn requested |sattorney’s fees as well. On November 10, 2010, the trial court heard other matters, resulting in an award of $5,000.00 in attorney’s fees to Ms. Quinn. The trial court continued the hearing as to the issue of mortgage payments, insurance and property taxes. On August 2-3, 2011, the trial court handled the remaining motion for contempt and arrearages, as well as the rehearing regarding attorney’s fees. On August 23, 2011, the trial court issued a written judgment, awarding Ms. Quinn $25,539.47 in child support arrearages for mortgage payments, insurance and taxes incurred by her during the 2008-2010 years and $5,000.00 in attorney’s fees. Mr. Quinn now appeals that judgment.

ISSUES PRESENTED

On appeal, Mr. Quinn asserts that the consent judgment as to the partition of property, whereby Mr. Quinn transferred full and exclusive ownership, right, title and interest in the former matrimonial domicile, 419 Northline Drive, to Ms. Quinn, relieved him of any outstanding liabilities as related to the domicile. Specifically, Mr. Quinn asserts that pursuant to the consent judgment, both parties waived any right to itemization of outstanding liabilities associated with the house and further waived any rights to reimbursement of any costs. Additionally, Mr. Quinn asserts that $150,000.00 cash was transferred to Ms. Quinn, pursuant to the consent judgment, for any incidentals relating to 419 Northline Drive. Moreover, Mr. Quinn asserts the trial court erroneously awarded Ms. Quinn attorney’s fees.

In response, Ms. Quinn contends that prior to March 24, 2010, Mr. Quinn was ordered to pay child support that included direct payments to vendors of the mortgage, insurance and property taxes on the former matrimonial domicile. Ms. Quinn further contends that prior to her entering into the two separate consent judgments, Mr. Quinn represented to her and the trial court that all insurance and |4tax payments were current up to that point. Subsequently, Ms. Quinn learned that these payments were still owed and incurred expenses and attorney’s fees through her attempts to make current the payments and seek reimbursement from Mr. Quinn. Ms. Quinn maintains on appeal that the mortgage, insurance and property taxes owed prior to the March 24, 2010 consent judgments are child support arrearages, and as such she is entitled to reimbursement and attorney’s fees.

The record is clear and it was undisputed by the parties at the hearing that prior to March 24, 2010, Mr. Quinn was ordered by the court, as one form of child support, to pay the mortgage, insurance and property taxes on 419 Northline Drive, the former matrimonial domicile, where Ms. Quinn resided with their two minor children. At the hearing, Ms. Quinn testified that prior to signing the consent judgments in March 2010, Mr. Quinn represented to her that the insurance and property taxes were current. Ms. Quinn also testified that she knew Mr. Quinn had not paid two of the mortgage payments because she received paperwork in the mail requesting payment. Moreover, Ms. Quinn testified that she knew the mortgage payment was very low, approximately $1,400.00. However, in July 2010, Ms. Quinn testified that she received a mortgage bill for the month of August, which was approximately five times its normal amount. Ms. Quinn further testified that she subsequently received a letter from the law firm of Shapiro & Daigrepont that advised her that her home was in foreclosure due to the failure to make mortgage, insurance and property tax payments during the 2008-2010 years. Upon further investigation, Ms. Quinn explained that she learned that Mr. Quinn had failed to pay five mortgage payments from 2009-2010, the 2008 insurance and the 2009 property taxes. Ms. Quinn also learned that it was the mortgage company, not Mr. | r,Quinn, that had been making the insurance and tax payments. Ms. Quinn further testified that had she known Mr. Quinn had not made these payments, she would not have entered into the consent judgments on March 24, 2010. Ms. Quinn additionally testified that the $150,000.00 cash transferred to her from Mr. Quinn pursuant to the consent judgment was designated as reimbursement of court costs and fees, court reporters and house expenses.

At the hearing, Mr. Quinn did not dispute that prior to March 24, 2010, the trial court ordered him to pay child support which included making direct payments on the mortgage, insurance and property taxes for 419 Northline Drive. Notwithstanding, Mr. Quinn testified that while making most of the payments, he did not make all of the payments on the mortgage, insurance, and property taxes for one reason or another. However, he adamantly maintained that he did not represent to Ms. Quinn that he had made the payments. He also maintained that he gave Ms. Quinn $150,000.00 cash that was to be applied to any “loose miscellaneous bills.” Moreover, Mr. Quinn argued at the hearing and on appeal that Ms. Quinn could have known the status of the mortgage, insurance and taxes by simply checking the websites online.

In its written judgment, the trial court found that on the date of the consent judgments, Mr. Quinn led Ms. Quinn to believe that all property taxes and insurance on the Northline property had been paid, and that no additional liability existed until March 24, 2010. Instead, the taxes were not current, but on appeal, and the insurance was paid by the mortgage company. The trial court thereby found that Ms. Quinn was entitled to the arrearages in mortgage, insurance and tax payments due prior to March 24, 2010.

| After reviewing the record and the trial court’s judgment and reasons, we cannot conclude that the trial court’s judgment in favor of Ms. Quinn was manifestly erroneous. The overriding fact question in the case turned on credibility. A court of appeal may not set aside a trial court’s findings of fact in the absence of manifest error or unless they are clearly wrong. Allerton v. Broussard, 10-2071 (La.12/10/10), 50 So.3d 145, 146-147; Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Cenacle Retreat House v. Dubose, 04-571, (La.App. 5 Cir. 11/30/04), 888 So.2d 409, 411, unit denied, 05-157 (La.3/24/05), 896 So.2d 1040. If there are two permissible views of the evidence, a fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. Accordingly, we find no error in the trial court’s finding and affirm the trial court’s judgment of August 23, 2011, awarding Ms. Quinn $25,539.47 in arrear-ages for mortgage, insurance and tax payments.

Additionally, we find the trial court did not abuse its discretion in awarding Ms. Quinn attorney’s fees in the amount of $5,000.00. LSA-R.S. 9:375 provides that a trial court shall, except for good cause shown, award attorney’s fees and costs to the prevailing party, when rendering a judgment making past due child support executory. The amount of attorney’s fees is within the sound discretion of the trial court. Derbes v. Derbes, 06-91(La.App. 5 Cir. 9/26/26), 942 So.2d 1086, 1092; Burnette v. Burnette, 98-0498 (La.App. 4 Cir. 10/21/98), 720 So.2d 757, 763. Instantly, Ms. Quinn provided the trial court with a billing statement and a summary of fees and costs associated with her representation by Mr. Wiley |7Beevers as to the instant motion, totaling $9,701.70. The trial court reviewed the billing statements of Ms. Quinn’s counsel before deciding on the amount to award. Moreover, as the trial court noted in its judgment, Mr. Quinn presented no evidence to the trial court to dispute these statements or fees. Therefore, we find the trial court did not abuse its discretion in awarding $5,000.00 in attorney’s fees and costs.

DECREE

Accordingly, the trial court’s judgment of August 23, 2011, awarding arrearages and attorney’s fees and costs, is affirmed. The costs of the appeal are assessed to the appellant, Mr. Quinn.

AFFIRMED

      . The attorney’s fees were not made executory at that time to allow Mr. Quinn to submit further argument at the next hearing date.

      . Ms. Quinn testified that prior to March 24, 2010, she attempted to check the mortgage website only to find that the password had been changed. Additionally, she testified that she did not always receive timely notice of Mr. Quinn’s failure to make payments because Mr. Quinn would change the mailing address on the account.

      . Ms. Quinn testified that she did check the balances online, but because the mortgage company was paying the insurance and taxes, the accounts reflected that all payments were current.


text:
    Guy SHARPLESS v. LOUISIANA DEPARTMENT OF TRANSPORTATION; Jefferson Parish Public Works, Department of Streets; John Doe; and Progressive Security Insurance Company.
    No. 12-CA-457.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.

      David A. Dalia, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Burgess E. McCranie, Jr., Donna B. Wood, Lynda A. Tafaro, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKS HOMBERG WICKER, JUDE G. GRAVOIS, and ROBERT M. MURPHY.
   JUDE G. GRAVOIS, Judge.

|2This appeal concerns litigation arising out of an automobile accident that occurred in Jefferson Parish on December 25, 2004 on the southbound elevated portion of Causeway Boulevard on or immediately south of the elevated interchange between Causeway Boulevard and Airline Drive. Plaintiff, Guy Sharpless, filed suit against several defendants, including the Louisiana Department of Transportation and Development (“DOTD”), the Parish of Jefferson Road District No. 1 (“the Parish”), and Progressive Security Insurance Company (“Progressive”), who have all since been dismissed from the case. The remaining defendant, the Greater New Orleans Expressway Commission (“GNOEC”), filed a motion for summary judgment seeking dismissal from the case, arguing that it did not have custody or control over the portion of Causeway Boulevard where the accident is alleged to have occurred. The trial court granted GNOEC’s motion for summary judgment. The trial court also granted GNOEC’s motion to quash a |ssubpoena duces tecum directed to GNOEC requested by plaintiff. Plaintiff appeals these judgments. For the reasons that follow, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff filed suit on December 27, 2005 against the Parish, DOTD, Progressive (as plaintiffs uninsured motorist earner), and John Doe, an unknown driver who allegedly caused the accident. Plaintiffs petition alleged that he was driving southbound over the Causeway Boulevard/Airline Highway elevated interchange when he was struck from the rear by the Doe vehicle, propelling him across the median into oncoming traffic where he collided with a vehicle being driven by Christina Smith. The petition alleged that defendants were liable because the roadway was heavily iced over at the time of the collision and the median was substandard.

In 2009, plaintiff filed an amended petition naming GNOEC as an additional defendant based upon discovery that revealed that GNOEC could also have had “jurisdiction” over the accident site. In May of 2011, GNOEC, DOTD, and the Parish filed a joint motion for summary judgment seeking dismissal from the case on the basis that the overpass where the accident occurred was built in compliance with all applicable safety standards, was never reconstructed, and therefore was not required to be upgraded to the modern American Association of State Highway and Transportation Officials standards. The motion further argued that none of the defendants/movers had any knowledge that the roadway was icy. After the filing of opposition memoranda and replies, along with further discovery, the trial court heard and denied the motion in open court on August 17, 2011, on the basis that 14genuine issues of material fact remained regarding the asserted bases for summary judgment. A judgment to that effect was signed on September 9, 2011.

On October 3, 2011, GNOEC filed the motion for summary judgment that is the subject of this appeal, alleging that based upon all discovery, including several documents and affidavits introduced by plaintiff at the hearing on the previous motion for summary judgment, it was clear that GNOEC had no control or custody over the portion of Causeway Boulevard, either on the “flyover” portion over the Causeway/Airline interchange or on any portion of Causeway Boulevard south of the interchange, where the accident is alleged to have occurred. Plaintiff opposed the motion. The trial court granted the motion for summary judgment in a written judgment signed on January 27, 2012. Following this judgment, plaintiff reached a settlement with DOTD, which was dismissed with prejudice. Plaintiff thereafter timely filed this devolutive appeal.

Also pertinent to this appeal, following the previous denial of the joint motion for summary judgment, plaintiff filed a subpoena duces tecum directed to GNOEC for production of any of its internal records pertaining to GNOEC’s knowledge of the weather conditions on the day of the accident and weather closing data in possession of GNOEC. GNOEC moved to quash the subpoena on the grounds that its knowledge of the weather conditions and whether the Causeway bridge was closed that day due to weather conditions were irrelevant in light of its position that it had no control or custody of the portion of the roadway where the accident is alleged to have occurred. The motion to quash was heard in conjunction with the motion for summary judgment currently on appeal and was granted by the trial court in a separate written judgment also signed on January 27, 2012. Plaintiff also appeals that judgment.

IfiOn appeal, plaintiff argues that the trial court erred in granting summary judgment in favor of GNOEC because material issues of fact remain as to whether GNOEC had control over the relevant portion of the roadway. Plaintiff also argues that the trial court erred in granting the motion to quash the subpoena, claiming that allowing execution of the subpoena will reasonably lead to the discovery of relevant evidence.

LAW AND ANALYSIS

Appellate courts review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764, 765. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. An issue is a genuine issue if it is such that reasonable persons could disagree; if only one conclusion could be reached by reasonable persons, summary judgment is appropriate as there is no need for trial on that issue. Id.

Summary judgment procedure is intended to make a just and speedy determination of every action. La. C.C.P. art. 966. It is favored and the procedure shall be construed to achieve this intention. Id. Under La. C.C.P. art. 966, the initial burden is on the mover to show that no genuine issue of material fact exists. |6If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, the nonmoving party then 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 the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Paternostro v. Wells Fargo Home Mortg., Inc., 09-469 (La.App. 5 Cir. 12/8/09), 30 So.3d 45.

Plaintiff argues that the trial court erred in granting summary judgment in favor of GNOEC because material issues of fact remain as to whether GNOEC had control over the relevant portion of the roadway where the accident is alleged to have occurred. In its memorandum in support of its motion, GNOEC maintained that while the parties disagreed as to whether the accident occurred on the interchange, or on south side of the interchange, it was undisputed that the accident occurred on the elevated portion of the Causeway/Airline interchange, and that since GNOEC did not own or control that portion of the roadway, nor was it responsible for its maintenance, it could not be liable for plaintiffs injuries.

In support of its motion for summary judgment, GNOEC submitted as exhibits: 1) the petition and amended petition; 2) ordinance 5364 of Jefferson Parish dated January 4, 1962; 3) an Agreement entered into between the Parish, GNOEC, and DOTD dated February 20, 1962; 4) plaintiffs Second List of Disputed Facts filed on August 9, 2011 (with the previous joint motion for summary judgment) wherein plaintiff maintained that DOTD did in fact have the care, custody, and control of the relevant portion of the roadway; and 5) House |7Concurrent Resolution no. 82 from 2004. These exhibits, GNOEC argued, showed that as of 1962, it had no custody or control over the relevant portions of Causeway Boulevard, and further had no responsibility to maintain that roadway. Hence, GNOEC argued that it was entitled to summary judgment as a matter of law.

Plaintiff opposed GNOEC’s motion by arguing that: 1) the 1962 Agreement showed that GNOEC had built the structure containing the defect sued upon (the alleged inadequate median); and 2) in the 1962 Agreement, GNOEC retained the right to control ingress and egress from the structure. Therefore, plaintiff argued that GNOEC was hable in solido with the remaining defendant (DOTD, as of that time) for the condition of the roadway at the time of the accident in 2004.

Ordinance 5364 gave the Parish authority to enter into the 1962 Agreement with GNOEC and DOTD. The 1962 Agreement states that GNOEC constructed portions of Causeway Boulevard and constructed the Causeway Boulevard and the Airline Highway Intersection. In pertinent part, the 1962 Agreement states:

WHEREAS, questions have arisen among the Parish of Jefferson, The Greater New Orleans Expressway Commission and the State Department of Highways regarding maintenance and upkeep of Causeway Boulevard and that portion of the Causeway Boulevard/Airline Highway Interchange constructed by The Greater New Orleans Expressway Commission; and
WHEREAS, it is the desire of the Parish of Jefferson, The Greater New Orleans Expressway Commission and the State Department of Highways to resolve these questions finally and irrevocably;
NOW THEREFORE, BE IT AGREED BY AND BETWEEN THE PARTIES HERETO, The Parish of Jefferson ..., and the State Department of Highways ..., and The Greater New Orleans Expressway Commission ...,
AS FOLLOWS:
For and in consideration of the sum of FORTY THOUSAND NINE HUNDRED FIFTY AND NO/100 ($40,-950.00) DOLLARS paid in cash by The Greater New Orleans Expressway Commission, | ^receipt of which is hereby acknowledged by the Parish of Jefferson, and the sum of TWENTY-TWO THOUSAND AND FIFTY AND NO/100 ($22,-050.00) DOLLARS paid in cash by the State Department of Highways, and other consideration, receipt of which is hereby acknowledged by the Parish of Jefferson, the Parish of Jefferson agrees to maintain, at its own expense, in perpetuity, in good condition, and in accordance with generally acceptable standards of maintenance for highways and roads of comparable use and capacity; and to assume the responsibility for lighting and other electrical expenses including traffic control lights incurred on that portion of Causeway Boulevard, including service roads, which extends from a point of beginning at the present location of the toll booths of Greater New Orleans Expressway Commission at the South Toll Plaza and extending to the Causeway Boulevard/Airline Highway Interchange, and that portion of the Airline Highway/Causeway Boulevard Interchange which was constructed by The Greater New Orleans Expressway Commission through their then consulting engineers, Palmer & Baker, Inc., under Contract No. 65-3 dated October 26, 1955, and recorded in the records .of Jefferson Parish.
The parties to this agreement herewith confirm the power and responsibility of The Greater New Orleans Expressway Commission to control egress and ingress to that portion of the paved roadways on Causeway Boulevard and the Airline Highway/Causeway Boulevard Interchange affected herein, constructed by it with revenue bond proceeds and the power to control said egress and ingress is herewith specifically reserved unto itself by The Greater New Orleans Expressway Commission.
It is understood and agreed that consulting engineers to The Greater New Orleans Expressway Commission under the provisions of the Trust Agreement securing the revenue bonds issued by the Commission will continue to make periodic inspections of those portions of the project on Causeway Boulevard that were constructed by the Commission from bond proceeds and that under this Agreement will hereafter be fully maintained by the Parish of Jefferson; and that said consulting engineers will continue to make recommendations regarding proper maintenance of such construction.

House Concurrent Resolution no. 82 (2004) notes that Causeway Boulevard from Jefferson Highway north to the south right of way line of U.S. Highway 61 (Airline Drive) is designated as Louisiana Highway 3046 and is part of the state highway system. The Resolution also notes that the portion of La. 3046 which is included in the state highway system ends in the middle of the Causeway Boulevard at Airline Drive interchange overpass, which portion encompasses more than fifty percent of the structure. The Resolution further notes that DOTD was ^thereby currently responsible for maintenance of more than half of the interchange overpass and that Jefferson Parish was responsible for the remaining portion of the structure, and that maintenance of the structure has been impractical and inefficient. The Resolution therefore proposed that the Legislature, in conjunction with the Parish, request DOTD to extend La. 3046 to the northern foot of the interchange overpass and to assume responsibility of maintenance of the same.

GNOEC argues that these two documents (the 1962 Agreement and the 2004 Resolution) together conclusively establish that at the time of the accident in 2004, either the Parish or DOTD had custody and control of the relevant portion of Causeway Boulevard where the accident is alleged to have occurred, but not GNOEC. GNOEC further points out that plaintiff himself has maintained throughout this litigation that the State (DOTD) had the care, custody, control, and maintenance responsibility of the roadway, as evidenced by plaintiff’s Second List of Disputed Facts and plaintiffs Third List of Disputed Facts filed into the record. GNOEC maintains that whereas the 1962 Agreement suggests that GNOEC may have maintained certain rights over the egress and ingress portions of the interchange overpass (the ramps and traffic circle), the accident involved herein did not occur on those portions of the roadway, nor did the plaintiff access Causeway Boulevard from those portions of the roadway. Thus, GNOEC cannot be liable for the accident.

We agree with GNOEC’s arguments. The evidence submitted in support of the motion for summary judgment clearly establishes that after 1962, GNOEC no longer had custody, control, or maintenance responsibilities regarding the relevant portion of Causeway Boulevard. Nor does the 1962 Agreement’s retention to GNOEC of control of ingress and egress to the structure constitute a genuine issue |inof material fact in this case where those portions of the roadway were not involved in this accident.

We note that House Concurrent Resolution no. 82 (2004) appears to be nonbinding. However, in this case, its evidentiary value stems not from its binding nature, but from its acknowledgement that DOTD and the Parish (and not GNOEC) had the care, custody, control, and maintenance responsibility for the relevant portions of Causeway Boulevard in 2004 shortly before this accident. Accordingly, because no genuine issue as to material fact remains and GNOEC is entitled to judgment as a matter of law, we find no error in the trial court’s grant of summary judgment in favor of GNOEC in this case.

MOTION TO QUASH

Plaintiff also argues that GNOEC’s motion to quash should not have been granted, first because GNOEC clearly raised its supposed lack of knowledge of the weather conditions as a defense at trial, and further because discovery of evidence of GNOEC’s knowledge of weather conditions may lead to the discovery of other admissible evidence. For the following reasons, we find these arguments to be without merit.

First, GNOEC’s arguments regarding its lack of notice of icy conditions on the roadway at the time of the accident were asserted in the previous joint motion for summary judgment by the defendants that was denied by the trial court on September 7, 2011, as noted above. Second, GNOEC’s current motion for summary judgment that was granted by the trial court asserted a different ground for relief: its lack of control or custody over the relevant portion of Causeway Boulevard. The trial court’s grant of summary judgment in GNOEC’s favor and this Court’s affirmance thereof, supra, makes the issue of GNOEC’s knowledge of |ueither the weather forecast or of actual weather conditions at the time of the accident irrelevant and moot. Further, as there are no remaining defendants (with the subsequent dismissal of DOTD), the possibility that this information would lead to the discovery of admissible evidence is likewise moot.

CONCLUSION

For the reasons stated above, the summary judgment rendered in favor of GNOEC and the judgment granting GNOEC’s motion to quash are affirmed.

AFFIRMED

      .Progressive was dismissed on May 23, 2011. The Parish was dismissed on October 20, 2011. DOTD was dismissed via a settlement agreement after summary judgment was rendered in favor of appellee herein, the Greater New Orleans Expressway Commission.

      . Airline Highway is now known as Airline Drive.

      . Subsequent pleadings in this record identify the Doe vehicle as the Santamaría vehicle.

      . Plaintiff's affidavit submitted in opposition to the 2011 joint motion for summary judgment attests that when the accident occurred, he was traveling southbound on Causeway Boulevard over the Airline Highway interchange and had already passed the highest point of the overpass, and that his vehicle came to rest on the southern elevated portion of Causeway Boulevard.

      . Now known as DOTD.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    Shirley BABINO v. JEFFERSON TRANSIT d/b/a Jefferson Parish Department of Transit, the Parish of Jefferson and Laurel Communications, Inc.
    No. 12-CA-468.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.

      Pierre F. Gaudin, Jr., Elizabeth M. Gau-din, Attorneys at Law, Gretna, LA, for Appellant, Shirley Babino.
    Doris T. Bobadilla, John C. Getty, Attorneys at Law, Mandeville, LA, for Appellee, Laurel Outdoor, L.L.C.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Chief Judge.

lain this civil matter, the plaintiff/appellant, Shirley Babino (“Ms. Babino”), asks this Court to reverse summary judgment that dismissed her action in tort against defendant/appellee, Laurel Outdoor, L.L.C. For reasons that follow, we affirm the ruling of the trial court.

Facts and Procedural History

In her petition, Ms. Babino asserts that, on January 16, 2010, she was leaving a designated bus stop in Jefferson Parish when she tripped and fell over “exposed bolts and/or hollow pipe[,] which was protruding out of the ... concrete in which it was embedded.” Ms. Babino sued, among others, Laurel Outdoor, L.L.C. (“Laurel”), as the owner, custodian, or contractor of the bus stop in question.

Laurel filed a motion for summary judgment on the basis that Laurel did not owe a duty to Ms. Babino because the defect in the bus stop was open and obvious and known to Ms. Babino for months before this incident, and, thus, not unreasonably dangerous. To its motion, Laurel attached the original petition; an affidavit of Dana Pecoraro as owner of Laurel Outdoor, L.L.C.; and an excerpt from Ms. Babino’s deposition in this matter. Ms. Babino filed an opposition to the |?,summary judgment contending that there existed genuine issues of material fact regarding the “open and obvious” nature of the defect and Laurel’s duty in this matter. To her opposition, Ms. Babino attached photographs of the exposed bolts that constitute the alleged defect and relevant affidavits.

On December 16, 2011, the trial court rendered summary judgment and dismissed all of the claims against Laurel.

Law and Argument

Here, Ms. Babino appeals contending that the trial court erred in granting summary judgment because there exist genuine issues of material fact in this case. Specifically, she argues that whether the support bolts presented an unreasonably dangerous condition is an issue of fact that should be presented to the jury.

First, Laurel’s owner, Dana Pecoraro, attests that Laurel holds the contract with Jefferson Parish to erect and maintain bus stops throughout the Parish. Further, Mr. Pecoraro attests that removal of the support bolts would have required the replacement of the concrete foundation to reinstall a new bus shelter.

Second, Ms. Babino testified, in her deposition, that, almost every day for 18 years, she caught the bus at the bus stop in question. She remembered that, until a few months before the incident in question, there had been a shelter at the bus stop, which had to be removed after it was damaged.

Ms. Babino testified that, after the shelter was removed, there was still a bench at the bus stop. Ms. Babino stated that she also observed for months before the incident in question that large bolts, which previously anchored the shelter, remained embedded in the concrete. Ms. Babino admitted that she did not call either the Parish or Laurel to report the bolts as dangerous because “it didn’t seem dangerous at that time.”

|4Ms. Babino testified, on the day of the incident, she was waiting for the bus when a friend called to her from a nearby car to offer her a ride home. After Ms. Babino began walking toward the nearby car, her right foot hit one of the bolts and she fell “straight onto” her hands.

Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id.

On appeal, our review of summary judgments is de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Muller v. Carrier Corp., 07-770 (La.App. 5 Cir. 4/15/08), 984 So.2d 883, 885.

La. C.C. art. 2817.1, which was added by Acts 1996, 1st Ex.Sess., No. 1, § 1 reads:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the | ¿ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Thus, to prove liability for an unreasonably dangerous defect, a plaintiff has the burden to show that the thing was in the custodian’s custody or control, it had a vice or defect that presented an unreasonable risk of harm, the defendant knew or should have known of the unreasonable risk of harm, and that the damage was caused by the defect. Jeansonne v. S. Cent. Bell Tel. Co., 08-568 (La.App. 5 Cir. 1/13/09), 8 So.3d 613, 616-21; La. C.C. art. 2317.1. La. C.C. art. 2317.1 eliminated the distinction between the strict liability and negligence of the owner or custodian of property, by requiring a showing of knowledge or constructive knowledge in order to impose liability. Maiorana v. Melancon Metal Bldgs., Inc., 05-933 (La.App. 5 Cir. 4/25/06), 927 So.2d 700, 703 (citation omitted).

Not every defect gives rise to liability. Monson v. Travelers Property, 06-921 (La.App. 5 Cir. 4/24/07), 955 So.2d 758, 761. The defect must be of such a nature to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Id. The fact that a pedestrian fell does not elevate automatically the condition of a street to that of an unreasonably dangerous defect. Moore v. Oak Meadows Apartments, 43,620 (La.App. 2 Cir. 10/22/08), 997 So.2d 594, 598. Several factors may be considered in determining whether a hazard presents an unreasonable risk of harm. The degree to which the danger is evident to the plaintiff is one factor in determining whether the condition is unreasonably dangerous. Id. If the facts of a particular case show that the complained of condition should be obvious and apparent to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96), 673 So.2d 585, 591 (citations omitted).

16SpecificaIly, in a trip and fall case, the duty is not solely with the landowner. A pedestrian has a duty to see that which should be seen and is bound to observe whether the pathway is clear. Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228, 235. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care or which was as obvious to a visitor as it was to the landowner. Id.

We acknowledge that whether a defect presents an unreasonable risk of harm “is a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of the facts.” Tillman v. Johnson, 612 So.2d 70 (La.1993). Further, causation is a question of fact. Nevertheless, to overrule a grant of summary judgment, we must find a material fact still at issue. La. C.C.P. art. 966. A material fact is one whose existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751.

Upon a de novo review of the facts presented and the applicable law, we find no error in the trial court’s grant of summary judgment in favor of Laurel. Ms. Babino knew for several months that the support bolts were protruding from the concrete at the bus stop and she walked near the bolts without watching where she was stepping. Additionally, she admits she never expressed concern about the existence of the support bolts to appellee, Laurel. We find that Ms. Babino, as the party with the burden of proof at trial, has failed to produce factual support sufficient to show that she will be able to meet her evidentiary burden of proof at trial as required by law; therefore, summary judgment was appropriate. La. C.C.P. 17art. 966(C)(2). After an analysis of the applicable law, we cannot find a material fact remaining to be decided that would preclude a grant of summary judgment on the issues of whether the support bolts posed an unreasonable risk of harm. Accordingly, we affirm the grant of summary judgment as to Laurel.

AFFIRMED


text:
    Frank GAMBINO and Lucrezia Gambino v. The STANDARD FIRE INSURANCE COMPANY and Alliance Insurance Agency Services, Inc.
    No. 12-CA-474.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.

      Benjamin J. Birdsall, Jr., Stephen F. Harris, Jr., Attorneys at Law, New Orleans, LA, for Plaintiffs/Appellants, Frank Gambino and Lucrezia Gambino.
    Nadia M. De La Houssaye, Attorney at Law, Lafayette, LA, for Defendant/Appel-lee, the Standard Fire Insurance Company.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   SUSAN M. CHEHARDY, Chief Judge.

| ¡.This lawsuit over failure to pay insurance proceeds for hurricane damage was dismissed for abandonment. The plaintiffs filed a motion to set aside the dismissal, which the trial court denied, and the plaintiffs appeal. We affirm.

FACTS AND PROCEEDINGS BELOW

Frank Gambino and Lucrezia Gambino filed suit against The Standard Fire Insurance Company (“Standard Fire”) on August 30, 2006. They alleged they had purchased an insurance policy issued by Standard Fire that was in full force and effect on August 29, 2005, which covered all their property located at 1113 Aurora Avenue, Metairie, Louisiana, including but not limited to the dwelling, other structures, personal property, contents, additional living expenses, etc. They alleged further they had suffered severe damage and destruction to their property as a result of Hurricane Katrina on or about August 29, 2005, but that Standard Fire had failed to pay them the amounts due and owing under the terms and conditions of the policy. They sought payments due under the policy, plus penalties and attorney’s fees.

The plaintiffs also named Alliance Insurance Agency Services, Inc. as a defendant, but their claims against Alliance were dismissed by summary judgment |Ron April 16, 2007, and are not before us on this appeal. Notice of the signing of that judgment was issued on September 5, 2007.

Thereafter there was no activity on the record in the suit until July 7, 2011, when a motion to substitute counsel was filed on behalf of the plaintiffs.

On July 26, 2011, Standard Fire filed a motion to dismiss the suit for abandonment. The motion alleged that the petition was filed on August 30, 2006; that Standard Fire filed its answer on November 6, 2006; and that Standard Fire propounded interrogatories and a request for production to the plaintiffs on April 28, 2008, to which the plaintiffs had never responded. Standard Fire asserted that since then, neither the plaintiffs nor the defendants had taken any step in the prosecution or defense of the lawsuit. Accordingly, Standard Fire prayed to have the suit dismissed, pursuant to La. C.C.P. art. 561.

On July 29, 2011, the trial court ordered that the suit be dismissed with prejudice.

On August 22, 2011, the plaintiffs filed a motion to set aside the dismissal. They argued that the motion to dismiss for abandonment was defective because steps in prosecution of the matter had been taken within the applicable three-year period, specifically, correspondence by plaintiffs’ counsel to counsel for Standard Fire dated June 28 and June 29, 2011, regarding settlement discussions and setting the matter for trial, as well as the motion and order to substitute counsel on July 12, 2011.

In their memorandum in support of the motion to set aside the dismissal, the plaintiffs asserted that their former counsel, Derek Gambino, left his law firm in January 2011 and they had not been able to locate him since that date. The plaintiffs stated they contacted another member of the law firm, Benjamin Birdsall, on June 26, 2011, and asked him to assume their representation. According to the | ¿plaintiffs’ memorandum, Mr. Birdsall spoke with someone in the office of defense counsel on June 28, 2011, to inform them of the new representation and regarding settlement negotiations, and on June 29, 2011, Mr. Birdsall sent a letter advising defense counsel he wished to set the matter for trial. On July 12, 2011, the plaintiffs’ motion to substitute counsel was filed. The plaintiffs argued these actions demonstrate the case was not abandoned, so that the dismissal should be set aside.

In its memorandum in opposition to the motion to set aside the dismissal, Standard Fire pointed out that abandonment of an action is self-executing, it automatically occurs with three years of inactivity in a lawsuit, and it does not require a motion in order to confirm it. Hence, because neither the plaintiffs nor the defendant took any steps in the prosecution or defense of the suit between April 28, 2008 and April 28, 2011, Standard Fire argued the case was abandoned as a matter of law.

In rebuttal, the plaintiffs reiterated their earlier arguments and also attached a copy of a letter dated March 17, 2011, from defense counsel to the plaintiffs’ former counsel, Mr. Gambino, asking him to respond to the defendant’s settlement offer.

The motion to set aside the dismissal was argued on November 9, 2011. No evidence was submitted. On December 5, 2011, the district court rendered judgment denying the motion to set aside the dismissal, without specifying reasons for the ruling. The plaintiffs have appealed.

LAW AND ANALYSIS

On appeal the plaintiffs contend the trial court erred in denying their motion to set aside the dismissal “by finding that plaintiff was not in fact still actively pursuing his claim,” and “in discounting that the prior representation [sic] of | ¿plaintiff pursued plaintiffs claim and further discounted that plaintiffs current representation [sic] has been aggressively pursuing plaintiffs claim.”

La. C.C.P. art. 561 provides, in pertinent part:

A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. ...
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

A step in the prosecution or defense of an action within the meaning of Article 561 is a formal action before the trial court intended to hasten judgment. Acosta v. Hepplewhite Home, Inc., 450 So.2d 770, 772 (La.App. 5th Cir.1984).

Article 561 imposes three requirements to avoid abandonment: (1) a party must take some “step” in the prosecution or defense of the action; (2) the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit; and (3) the step must be taken within three years of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step.

Louisiana Dept. of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 2011-0912, p. 4 (La.12/6/11), 79 So.3d 978, 981.

“A ‘step’ is a formal action before the court intended to hasten the suit towards judgment or is the taking of formal discovery. A step by one party prevents abandonment as to all of the parties, even though they are not solidarily hable.” (Internal citations omitted.) Id.

| ^Louisiana courts have long held that motions to substitute counsel of record are not steps in the prosecution or defense of an action so as to avoid dismissal for abandonment. See, e.g., James v. Formosa Plastics Corp. of Louisiana, 2001-2056, p. 9 (La.4/3/02), 813 So.2d 335, 341; Argence, L.L.C. v. Box Opportunities, Inc., 2011-1732, p. 3 (La.App. 4 Cir. 5/23/12), 95 So.3d 539, 541; Brown v. Sutherland Lumber, Inc., 2010-0469, p. 4 (La.App. 3 Cir. 11/3/10), 53 So.3d 477, 480; Stemley v. Foti, 40,379, p. 9 (La.App. 2 Cir. 10/26/05), 914 So.2d 642, 647, writ denied, 2006-0224 (La.4/24/06), 926 So.2d 551; Edwards, Jr. v. Chrysler Motor Co., Inc., 2007-0326, p. 5 (La.App. 1 Cir. 2/8/08), 984 So.2d 85, 89.

“Rather than being formal actions before the trial court intended to hasten the matter to judgment, a motion to substitute counsel of record merely grants to counsel the right to take steps toward prosecution of his client’s case, but does not itself constitute such a step.” (Internal quotation marks and citations omitted.) James, supra.

“The serving of any discovery materials shall be considered a step in the prosecution or defense of an action for purposes of La.Code Civ. Proc. art. 561, notwithstanding such discovery materials are not filed in the record of the proceedings. La.Code Civ. Proc. art. 1474(C)(4).” Louisiana Dept. of Transp. & Dev. v. Bayou Fleet, Inc., 2010-1215, p. 1 (La.7/2/10), 39 So.3d 585, 586.

Even if a party is served with discovery, “the fact that it was signed by an attorney who had not enrolled as counsel of record prevents it from being a step in the prosecution of the action.” Stillman v. Bd. of Sup’rs of S. Univ. & Agr. & Mech. Coll., 2007-2107, p. 5 (La.App. 1 Cir. 6/6/08), 992 So.2d 523, 526, writ not considered sub nom., Stillman v. Bd. of Supervisors of S. Univ. & Agric. & Mech. Coll., 2008-1557 (La.10/10/08), 993 So.2d 1273.

| ./‘Because dismissal is the harshest of remedies, any reasonable doubt about abandonment should be resolved in favor of allowing the prosecution of the claim and against dismissal for abandonment.” Louisiana Dept. of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 2011-0912 at p. 5, 79 So.3d at 982.

“ ‘Extrajudicial efforts,’ such as informal settlement negotiations between parties, have repeatedly been held to be insufficient to constitute a step in the prosecution of the action.” Id., 2011-0912 at p. 7, 79 So.3d at 982.

“Where a party alleges that there was either formal discovery or the taking of a deposition which is not of record, or some other action which is alleged to have been a ‘step,’ the court must receive extrinsic evidence of these non-record activities.” Miles v. Suzanne’s Café & Catering, Inc., 11-907, p. 4 (La.App. 5 Cir. 3/27/12), 91 So.3d 1107, 1109.

Here, the actions on which the plaintiffs rely not only occurred past the tolling of the abandonment period, but also there is no evidence of them in the record, because no testimony was taken at argument of the motion to set aside dismissal and no exhibits were introduced into evidence. Hence, the trial court did not err in finding there was no basis to set aside the order dismissing the matter as abandoned.

DECREE

For the foregoing reasons, the judgment is affirmed. Costs of appeal are assessed against the plaintiffs-appellants.

AFFIRMED


text:
    Waylon LOPEZ v. MARQUES FOOD DISTRIBUTORS and LRASIF.
    No. 12-CA-482.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 21, 2013.

      Nanak S. Rai, Attorney at Law, New Orleans, LA, for Appellee, Waylon Lopez.
    Donald C. Douglas, Jr., Attorney at Law, Metairie, LA, for Appellant, Marques Food Distributors.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKS HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Chief Judge.

12This is the second appeal in this matter. On appeal, the employer, Marques Food Distributors (“Marques”) seeks review of the judgments allowing psychological treatment and supplemental earnings benefits. For the following reasons, we affirm.

Facts and Procedural History

On April 13, 2007, claimant, Waylon Lopez, was in a motor vehicle accident while in the course and scope of his employment as a truck driver for Marques Food Distributors. As a result of his accident, Mr. Lopez suffered injuries to both shoulders and his back. In April 2008, Mr. Lopez had surgery on his right shoulder and, in August 2008, he had surgery on his left shoulder.

On June 4, 2009, Mr. Lopez filed a disputed claim for compensation contending that Marques and its insurer refused to pay for surgeries, which were requested and subsequently performed, and further asserting that he is entitled to more testing and surgery recommended by his physician. Mr. Lopez also sought penalties and attorney fees.

|aOn July 29, 2010, Mr. Lopez’s disputed claims came for trial before the workers’ compensation judge. On October 11, 2010, the workers’ compensation judge rendered a judgment. Subsequently, the workers’ compensation judge granted the motion for new trial and rendered an amended judgment, as follows:

(1) Waylon Lopez was injured by accident during the course and scope of his employment with Marques Food Distributors on April 13, 2007.
(2) Mr. Lopez is entitled to the payment of medical expenses, medication expenses, and transportation expenses, in accordance with law.
(3) The two surgical procedures were reasonable and necessary and connected to the work-related injury of April 13, 2007.
(4) Defendants have failed to authorize and reasonably controvert Mr. Lopez’s entitlement to the two surgical procedures, without good cause.
(5) A penalty in the amount of $2,000.00 is assessed for failure to authorize the right shoulder surgery.
(6) Another penalty in the amount of $2,000.00 is assessed for failure to authorize the left shoulder surgery.
(7) Attorney fees are assessed in the amount of $4,000.00.
(8) All costs and interest are to be paid by defendants, subject to a credit for any benefits paid by them, in accordance with law.

Marques appealed, alleging that the workers’ compensation judge erred in finding that Marques failed to authorize claimant’s shoulder surgeries without good cause, because the record does not contain any documentation from the treating physician or claimant requesting authorization for either surgery. This Court found that the workers’ compensation judge was not manifestly erroneous in finding that Marques failed to authorize the claimant’s shoulder surgeries without good cause. Lopez v. Marques Food Distributors, 11-424 (La.App. 5 Cir. 12/28/11), 80 So.3d 1248, 1253, reh’g denied (2/7/12).

Marques further argued that the workers’ compensation judge erred in not limiting the amount to be paid for the shoulder surgeries to $750.00, as required by La. R.S. 23:1142(B), because the surgeries were non-emergency treatment without |4prior authorization. This Court upheld the trial judge’s finding that Mr. Lopez did seek authorization for the shoulder surgeries that were reasonable and necessary and connected to the work-related accident and, thus, compensable. Id. Finally, Marques argued that the workers’ compensation judge erred in assessing penalties and attorney fees for the employer’s failure to authorize the two shoulder surgeries. This Court found no error in the workers’ compensation judge’s assessment of penalties and attorney fees for failing to authorize claimant’s shoulder surgeries. Id. at 1254.

Meanwhile, on September 14, 2010, Mr. Lopez filed another disputed claim for compensation contending that Marques arbitrarily and capriciously refused to pay for an IME and recommended psychological evaluation and treatment, refused to address claimant’s disability status, and terminated indemnity benefits without cause after September 3, 2010. Claimant sought payment of benefits, penalties, and attorney fees.

On December 28, 2010, Marques excepted to Mr. Lopez’s second claim on the basis of res judicata and denied claimant’s entitlement to disability status or benefits. On January 20, 2011, Mr. Lopez’s claims came for trial and the workers’ compensation judge took the matter under advisement.

On March 23, 2011, the workers’ compensation judge denied Marques’ exception and issued its judgment finding that Mr. Lopez’s claims for psychiatric and psychological treatment were “reasonable and necessary and connected to the work related injury of April 13, 2007.” Further, the workers’ compensation judge found that Marques failed to reasonably controvert claimant’s entitlement to said treatment without good cause and, thus, was assessed penalties of $2,000.00 and attorney fees of $3,000.00. The workers’ compensation judge further found that |,«¡Marques was not arbitrary or capricious in its termination of benefits after September 3, 2010 and ordered Marques to pay all costs and interest. Finally, the workers’ compensation judge ordered Mr. Lopez to “submit to a functional capacity evaluation [FCE] to facilitate a return back to work.”

On May 17, 2011, the workers’ compensation judge issued its reasons for judgment, which contained the following findings of fact:

(1) The claimant is entitled to the payment of psychiatric and psychological treatment in connection with the injury of April 13, 2007.
(2) Defendant failed to reasonably controvert claimant’s entitlement to the psychiatric/psychological treatment without good cause.
(3) Penalties and attorney’s fees are assessed in accordance with the judgment for failure to authorize psychiatric/psychological treatment.
(4) Defendants were not arbitrary and capricious in their termination of indemnity benefits in September of 2010.
(5) The claimant is still disabled and he is entitled to continuing temporary total disability benefits arising from the accident of April 13, 2007.
(6) The claimant is still entitled to the payment of medical expenses, medication expenses, and transportation expenses, in accordance with law, arising from the injury of April 13, 2007.
(7) The defendant is entitled to a credit for any benefits paid by them in accordance with the law.
(8) The claimant shall submit to a func-. tional capacity evaluation for facilitation of his return back to work.

The workers’ compensation judge further found that the medical reports were conflicting regarding claimant’s ability to work so Marques was not arbitrary and capricious in terminating benefits. However, the workers’ compensation judge noted that claimant’s primary treating physician reported that claimant was unable to work, which should have been given greater weight, and indemnity and medical benefits should not have been terminated.

Meanwhile, Mr. Lopez timely filed a Motion for New Trial, alleging that the March 23, 2011 judgment, which was silent regarding reinstatement of indemnity 1 ^benefits, was inconsistent because it ordered further treatment and testing yet failed to reinstate benefits. Further, Mr. Lopez contended that the trial court erred in finding that Marques was not arbitrary and capricious in its termination of claimant’s benefits. Finally, Mr. Lopez contends that the trial court erred in ordering a functional capacity evaluation, which neither party requested, because an evaluation of that nature is premature.

On May 26, 2011, the workers’ compensation judge granted claimant’s Motion for New Trial for purposes of re-argument related only to reinstatement of indemnity benefits. After hearing claimant’s motion and taking the matter under advisement, the workers’ compensation judge issued judgment on January 31, 2012 in favor of claimant finding that he was entitled to (1) temporary total disability benefits from September 3, 2010 until December 16, 2010 and (2) supplemental earnings benefits from December 16, 2010 for any time period that claimant did not earn 90% of his pre-injury wages. The judge further cast Marques in judgment for costs and interest.

Law and Argument

Marques now appeals that judgment assigning four errors: first, the trial court erred in not dismissing the claims related to psychiatric treatment as barred by res judicata; second, the trial court erred in not dismissing the claims related to psychiatric treatment following claimant’s case in chief as no evidence was offered on a prescription, request, or referral for such; third, the trial court erred in awarding any penalties and/or attorney fees on the psychiatric claim as no evidence was offered that a request for approval of psychiatric treatment was presented to defendant; and, finally, the trial court erred in finding claimant was entitled to supplemental earnings benefits as claimant did not show a loss of wages caused by any disability resulting from the accident at issue.

|7The Workers’ Compensation Act set up a court-administered system to aid injured workmen by relatively informal and flexible proceedings. Rhodes v. Lewis, 01-1989 (La.5/14/02), 817 So.2d 64. The provisions of the workers’ compensation law are to be interpreted liberally in favor of the worker. Coats v. AT & T, 95-2670 (La.10/25/96), 681 So.2d 1243.

The determinations by the workers’ compensation judge as to whether the claimant’s testimony is credible and whether the claimant has discharged his burden of proof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Bruno v. Harbert Int’l, Inc., 593 So.2d 357, 361 (La.1992). Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing and Sheet Metal, 96-2840 (La.7/1/97), 696 So.2d 551, 556.

The reviewing court is compelled to review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Wise v. H.B. Zachary Co., 00-3 (La.App. 5 Cir. 4/25/00), 760 So.2d 500. In applying the manifest error/clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id.

In its first assignment of error, Marques argues that the trial court erred in not dismissing the claims related to psychiatric treatment as barred by res judicata. Marques maintains that Mr. Lopez’s claims for psychiatric treatment were present before trial on the merits on July 29, 2010 so res judicata bars re-litigation of those claims.

Generally, to promote judicial efficiency and dispute resolution, res judica-ta bars re-litigation, after a final judgment, of any subject matter arising from the Issame transaction or occurrence of a previous suit. Workers’ compensation judgments, however, are treated differently from ordinary judgments because the flexibility of the workers’ compensation system would be greatly restricted if the rules of finality applied to ordinary civil judgments were applied to workers’ compensation judgments. Falgout v. Dealers Truck Equipment Co., 98-3150 (La.10/19/99), 748 So.2d 399, 405.

In Falgout, the Louisiana Supreme Court explained the concept of modification in workers’ compensation cases as follows:

“The entire compensation scheme instigated by the Legislature strongly envisions that compensation shall be made during the entire period of disability so long as the maximum period is not exceeded.” Landreneau v. Liberty Mutual Insurance Co., 309 So.2d 283, 285 (La.1975). Within the entire scheme, the concept of modification is unique because it allows a case to be reopened and the award amended after the judgment becomes final. “The power of modification, while not a substitute for the appellate process, exists for the purpose of modifying awards due to a change in the workers’ condition.” Jackson v. Iberia Parish Government, 98-1810 (La.4/16/99), 732 So.2d 517, 524. The purpose of the modification statute is to allow adjustments to be made after judgment “to insure that the employee will be paid compensation during the full period of his disability and that the employer will not be required to pay for any longer than this period of disability.” Landreneau at 285.

Id. at 405.

In Jackson v. Iberia Parish Government, supra, the Louisiana Supreme Court reiterated the validity of this policy, holding that, where the legislature has expressly provided that an award or judgment can be subject to a claim of modification, res judicata does not apply. In Jackson, the supreme court |arecognized that “the principles of res judicata ‘are not ironclad, but must be applied to accomplish justice in the light of public policy.’ ” Id., 732 So.2d at 524 (citation omitted). The court further established that the modification statute is to be liberally construed in favor of the claimant. Id.

In the present case, the record reflects that Mr. Lopez’s claims for psychiatric treatment were introduced at the trial on the merits. At trial, claimant’s treating physician testified and the evidence reflected that he wrote three requests for a physician referral for “psychological consults” for the claimant. The claims, although presented at trial, were not addressed in the judgment.

Three avenues are available to a party seeking to alter the substance of a final judgment: (1) timely application for a new trial, (2) timely appeal, and (3) petition for nullity. Boudreaux v. Prod. Mgmt., Inc., 94-960 (La.App. 5 Cir. 11/15/95), 665 So.2d 497, 499, aff'd after remand, (La.App. 5 Cir. 10/1/96), 683 So.2d 785. In this case, immediately after judgment was rendered, Mr. Lopez moved for a new trial and/or clarification of the judgment on the issue of his psychiatric claims, which adequately preserved those claims for modification by the trial court. Thus, after our thorough review of the record, we find no error in the workers’ compensation judge’s ruling that Mr. Lopez’s psychiatric claims were not barred by res judicata. See, Schindler v. Orleans Reg’l Sec. Inst. Inc., 04-984 (La.App. 4 Cir. 1/12/05), 891 So.2d 115, 116-18, writ denied, 05-0389 (La.3/11/05), 896 So.2d 50.

In its second assignment of error, Marques argues that the trial court erred in not dismissing the claims related to psychiatric treatment following claimant’s case in chief as no evidence was offered on a prescription, request, or referral for such | ^treatment. As noted previously, the record reflects that claimant’s treating physician wrote three requests for a physician referral for “psychological consults” for the claimant. Thus, we find no error in the workers’ compensation judge’s finding that the record contained sufficient evidence of Mr. Lopez’s claims for psychiatric treatment. This assignment of error lacks merit.

In its third assignment of error, Marques argues that the trial court erred in awarding penalties and attorney fees for failure to authorize psychiatric or psychological treatment. Marques insists that Mr. Lopez’s physician did not present any requests for psychiatric/psychological treatment.

Workers’ compensation law provides that an employer may reasonably controvert a disputed claim for medical benefits. La. R.S. 23:1201(F)(2). An “employer must rely on competent medical advice when the decision to deny medical treatment is made.” Harrington v. Coastal Constr. & Eng’g, 96-681 (La.App. 3 Cir. 12/11/96), 685 So.2d 457, 459, writ denied, 97-0109 (La.3/7/97); 689 So.2d 1375 (emphasis in original). The workers’ compensation judge has great discretion in the award of attorney fees and penalties, and the exercise of such discretion will not be disturbed on appeal unless clearly wrong. Alix v. E-Z Serve Corp., 03-24 (La.App. 5 Cir. 4/29/03), 846 So.2d 156, 160.

After trial, the workers’ compensation judge found that Marques failed to authorize and failed to reasonably controvert Mr. Lopez’s entitlement to psychiatric treatment recommended by Mr. Lopez’s treating physician on three separate occasions. Our review of the record reveals that at the time of denial, Marques did not have sufficient factual and medical information to warrant refusal of psychiatric evaluation and/or treatment.

Beginning in March of 2008, Dr. Michael Chambers, who was Mr. Lopez’s treating physician, requested a psychological evaluation of Mr. Lopez because Mr. |nLopez was experiencing depression secondary to his injuries, pain and “mounting bills.” In May of 2008, Dr. Chambers requested a psychological consult because Mr. Lopez was experiencing depression because of his injuries and unemployment. In September of 2009, Dr. Chambers again requested a psychological consult because of Mr. Lopez’s “severe depression.” At trial, Dr. Chambers stated that he was very concerned for Mr. Lopez’s well-being due to Mr. Lopez’s depression. Marques failed to present competent medical advice to justify its decision to deny medical treatment to Mr. Lopez.

Thus, we find no error in the workers’ compensation judge’s conclusion that Marques is liable for the payment of penalties and attorney fees for its failure to authorize the medical treatment requested by Mr. Lopez’s treating physician. This assignment of error lacks merit.

In its final assignment of error, Marques contends that the trial court erred in finding claimant was entitled to supplemental earnings benefits as claimant did not show a loss of wages caused by any disability resulting from the accident at issue.

La. R.S. 23:1221(3)(a) provides for supplemental earnings benefits:

(i) For injury resulting in the employee’s inability to earn wages equal to ninety percent or more of wages at time of injury, supplemental earnings benefits, payable monthly, equal to sixty-six and two-thirds percent of the difference between the average monthly wages at time of injury and average monthly wages earned ... in any month thereafter in any employment or self-employment, whether or not the same or a similar occupation ... and whether or not an occupation for which the employee at the time of the injury was particularly fitted ..., such comparison to be made on a monthly basis. Average monthly wages shall be computed by multiplying his wages by fifty-two and then dividing the product by twelve.
(ii) When the employee is entitled to monthly supplemental earnings benefits pursuant to this Subsection, but is not receiving any income from employment or self-employment and the employer has not established earning capacity pursuant to R.S. 23:1226, payments of supplemental earning benefits shall be made in the manner provided |12for in R.S. 23:1201(A)(1).

In order to recover supplemental earnings benefits (SEBs), an employee must first prove by a preponderance of the evidence that he cannot earn wages equal to 90% or more of the wages that he earned prior to the accident. Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989); Peveto v. WHC Contractors, 93-1402 (La.1/14/94); 630 So.2d 689. Once the employee establishes this factor, he is entitled to SEBs, calculated according to a formula relating to his pre-injury wages and the wages that he can earn in any employment or self-employment after the injury. La. R.S. 23:1221(3)(a); Allen v. City of Shreveport, 618 So.2d 386 (La.1993). After he has satisfied his burden, the burden shifts to the employer to establish that he is earning less than he is able to earn, by showing that the employee is physically able to perform a certain higher paying job, and that it offered him employment that was available to him in a reasonable geographic location. La. R.S. 23:1221(3)(c)(i); Allen, 618 So.2d 386.

Mr. Lopez has not returned to work since his injury in April of 2007. When the employee cannot work or earns less than he is able to earn because of a job-related disability, the employer must establish his earning capacity. Pinkins v. Cardinal Wholesale Supply Inc., 619 So.2d 52 (La.1993). Marques has not facilitated a functional capacity evaluation of Mr. Lopez and failed to present any evidence relating to Mr. Lopez’s employability. Because Marques did not meet the burden that La. R.S. 23:1221(3)(e)(i) imposes, we must affirm the workers’ compensation judge’s award of SEBs to Mr. Lopez based upon a zero earnings | ^calculation. See, Crowson v. L & D Cmty. Care, 02-74 (La.App. 3 Cir. 5/8/02), 817 So.2d 479, 482-83.

Conclusion

For the foregoing reasons, we find no merit in Marques’s arguments on appeal. We affirm the workers’ compensation judge’s rulings in their entirety. All costs of this appeal are assessed against Marques.

AFFIRMED

      . Mr. Lopez received workers’ compensation indemnity benefits until September 3, 2010.

      . La. R.S. 13:4231; La. C.C.P. art. 425; Avenue Plaza, L.L.C. v. Falgoust, 96-0173 (La.7/02/96), 676 So.2d 1077, 1079.

      . In 1988, by Acts No. 938, § 2, effective January 1, 1990, the Louisiana Legislature enacted La. R.S. 23:1310.8 regarding the OWC’s continuing jurisdiction over a workers' compensation case and governing modifications. La. R.S. 23:1310.8(B) provides:
      Upon the application of any party in interest, on the ground of a change in conditions, the workers' compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers' Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.

      . The referral forms were dated March 12, 2008; May 8, 2008; and September 17, 2009.

      . A final judgment is one that determines issues involved on the merits of the case, and it need not dispose of all the issues between the parties. La. C.C.P. art. 1841; Martin v. Elmwood Med. Ctr., 97-826 (La.App. 5 Cir. 1/27/98), 707 So.2d 1287, 1290-91.

      . La. R.S. 23:1201 (A)(1) reads:
      Payments of compensation under this Chapter shall be paid as near as may be possible, at the same time and place as wages were payable to the employee before the accident; however, when the employee is not living at the place where the wages were paid, or is absent therefrom, such payments shall be made by mail, upon the employee giving to the employer a sufficient mailing address. However, a longer interval, not to exceed one month, may be substituted by agreement without approval of the director. An interval of more than one month must be approved by the director.