author: WHIPPLE, C.J.

text:
    Darren Keith SHIPP, Individually & in his Capacity as Representative of the Estate of Darren Scott Shipp. v. Wayne Joseph LANDRY & XYZ Insurance Company.
    No. 2013 CA 1673.
    Court of Appeal of Louisiana, First Circuit.
    May 2, 2014.

      Myron A. Walker, Jr., Benjamin H. Bampf, Baton Rouge, LA, for Plaintiff/Appellant, Darren Keith Shipp.
    Darrell J. Loup, Baton Rouge, LA, for Defendant/Appellee, State Farm Fire & Casualty Company.
    Keith L. Richardson, Baton Rouge, LA, for Defendant/Appellee, Wayne Joseph Landry.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   WHIPPLE, C.J.

LThis matter is before us on appeal by plaintiff, Darren Keith Shipp, individually, and in his capacity as representative of the Estate of Darren Scott Shipp, from a judgment of the trial court granting a motion for summary judgment filed by defendant, Wayne Joseph Landry, and dismissing plaintiffs claims. For the reasons that follow, we reverse and remand.

FACTUAL BACKGROUND

On August 22, 2011, Darren Scott Shipp (“Shipp”) was shot and fatally wounded by Wayne Joseph Landry while Shipp was attempting to enter Landry’s home on Blackwater Road in Baker, Louisiana. Shipp and Landry’s daughter, Alicia, had been dating for approximately seven months and, for approximately four of those months, Shipp lived with Alicia and her daughter, A., in Alicia’s apartment.

On August 22, 2011, Alicia and Shipp had an argument, and when Shipp went to sleep', Alicia went to her parent’s home “to get away” from Shipp. A. was at daycare during this time. Alicia arrived at her parents’ home at approximately 3:30 or 4:00 that afternoon and told Landry that her relationship with Shipp wasn’t working, that Shipp had threatened her, and that she needed Landry’s help “to get her out of there.” A while later, Landry and Alicia went to pick up A. from daycare. Alicia was driving her vehicle and, on the way to the daycare facility, the two stopped at a Cracker Barrel to put gas in her car. While Alicia was putting fuel in the vehicle and Landry was inside the gas station, Shipp pulled up in his truck and parked perpendicular in front of Alicia’s vehicle. As Landry exited the gas station and returned to the car, Shipp and Alicia were arguing, and Shipp was “corralling” her, with his back to Landry. Landry told Alicia to get in Rthe car, and Shipp turned and came toward Landry in what Landry claimed was a threatening manner, with his fist clinched. Shipp began threatening and “cussing” at Landry, calling him a “M- F-” and threatened “I’ll break your f- jaw.” Landry, who holds a Louisiana concealed carry permit, drew his pistol. At that point, Shipp returned to his vehicle, which Alicia had gotten into, and he and Alicia left the scene. Landry then returned to Alicia’s vehicle, put the weapon down and attempted to call 911; however, he was unable to operate the cell phone, which his wife had just bought him a couple of days earlier. Landry, who was “a little bit shaken” then attempted to drive off not realizing that the fuel pump was still in the vehicle. After the hose popped off, he went inside the gas station and advised the clerk that he would pay for any damages and left his name and information with the clerk.

When Landry got home, Alicia and Shipp arrived right behind him. Alicia asked Landry to “come here,” and Shipp exited his vehicle, began threatening Landry, and ran at Landry. According to Landry’s deposition testimony, Alicia handed Landry the baby, Landry brought the baby inside, and after Landry put A. down, Shipp “came at him again” with his fists clinched up from his side. Landry then pulled his weapon on Shipp. Shipp came to Landry, but stopped, telling Landry, “shoot me m- f-, that gun ain’t gonna do nothing but piss me off.” Landry stepped inside the patio and told Shipp that he was not welcome at his home any more and that he was calling the sheriffs department to let them know what had happened. Shipp and Alicia then left together.

Landry called 911 and a deputy was dispatched to his home. Landry reported the two incidents to the deputy and asked the deputy to advise Shipp not to return to his home. The deputy advised that he was going to try to speak to |4Alicia at her apartment later that day. However, before the deputy had a chance to do so, Shipp and Alicia returned to Landry’s home. At the time, Landry, his wife, and their twenty-five year old niece were sitting in an enclosed patio on the side of Landry’s home that leads to the inner door of the home, playing with A.

As soon as Shipp and Alicia arrived, Alicia exited the truck and, along with the others who had been sitting in the enclosed patio, immediately went inside the home, while Shipp remained in his truck. Landry asked the ladies to go lock themselves in the computer room, which was formerly a bed room, while he went into his bedroom to call 911. Landry advised the 911 operator that Shipp was on his property, and asked them to dispatch a deputy to his residence. As Landry hung up the phone, he realized that Shipp had entered into the patio through the patio door and was in the enclosed patio, banging on the interior door of the home and yelling for Alicia. According to Landry, he stood in the hallway around the corner, out of Shipp’s line of sight, and was waiting for the police to arrive. Landry testified he heard Shipp’s voice get louder and the door open. Landry stepped out from the hallway and saw Shipp standing in the doorway. Shipp began “cussing” him and rocking back and forth with his fists up in a threatening manner, while acting very agitated. Landry, who drew his pistol when he stepped into plain view of Shipp, testified he told Shipp several times, “Do not come in my home. Do not come in my home. Whatever you do, do not come in my home.” Landry claimed he was seven or eight feet from Shipp at the time, and that he told Shipp to leave and that the police were on the way. However, Shipp responded that he “could do whatever he wanted” and, according to Landry, then began to enter the Landry home. As Shipp stepped on the threshold to enter the home, Landry shot him once with his pistol. Landry waited inside the home, with | Bhis pistol aimed at Shipp, until the police arrived. Shipp died as a result of the gunshot wound.

PROCEDURAL HISTORY

On June 12, 2012, Shipp’s father, Darren Keith Shipp, individually, and in his capacity as representative of the Estate of Darren Scott Shipp (“plaintiff’), filed a petition for damages, including wrongful death and survivor’s damages, physical, emotional, and mental damages, and funeral expenses, against Landry and his homeowners’ insurer, State Farm Fire and Casualty Company (“State Farm”). State Farm answered the petition, setting forth several affirmative defenses. Thereafter, Landry filed a motion for summary judgment.

In his motion for summary judgment, Landry contended that he is immune from any civil liability arising from this incident pursuant to LSA-R.S. 9:2800.19, thereby entitling him to summary judgment and a dismissal of plaintiffs claims against him. In support of his motion for summary judgment, Landry attached the petition for damages (Exhibit A); his affidavit and a photograph of compact discs (Exhibit B with Attachments 1 & 2); the affidavit of Alicia Landry (Exhibit C), and photographs of the scene of the shooting (labeled as Attachments 3 & 4).

Plaintiff opposed the motion for summary judgment, contending that genuine issues of material fact remain as to whether Landry acted reasonably in using deadly force. In support, plaintiff attached excerpts of the deposition testimony of Wayne Landry (Exhibit A); excerpts of the deposition testimony of Alicia Landry (Exhibit B); the affidavit of Dr. Alfredo Suarez (Exhibit C) and photographs of the crime scene.

The trial court heard the matter on May 20, 2012. After reviewing the evidence submitted in support of and in opposition to the motion for summary | fjudgment and hearing argument by the parties, the trial court granted Landry’s motion for summary judgment. A judgment conforming to same and dismissing all of plaintiff’s claims against defendant Landry with prejudice was signed by the trial court on July 9, 2013.

Plaintiff filed the instant appeal, contending that the trial court erred in granting Landry’s motion for summary judgment where: (1) genuine issues of material fact exist as to whether Landry’s decision to use deadly force on August 22, 2011 was justified; and (2) the sworn expert opinion of Dr. Alfredo Suarez concerning the physical evidence of the bullet wound on Shipp’s body contradicts Landry’s testimony concerning the distance between Landry and Shipp at the time the shot was fired, thereby presenting a genuine issue of material fact as to whether Landry was justified in using deadly force against Shipp.

DISCUSSION

Summary Judgment

A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B)(2). The burden of proof remains with the mov-ant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to | 7point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2).

In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Baldwin v. Board of Supervisors for University of Louisiana System, 2013-0602 (La.App. 1st Cir.2/7/14), 138 So.3d 650. In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony, or weigh evidence. Suire v. Lafayette City-Parish Consolidated Government 2004-1459 (La.4/12/05), 907 So.2d 37, 48. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Anglin v. Anglin, 2005-1233 (La.App. 1st Cir.6/9/06), 938 So.2d 766, 769. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Fernandez v. Hebert, 2006-1558 (La.App. 1st Cir.5/4/07), 961 So.2d 404, 408, writ denied, 2007-1123 (La.9/21/07), 964 So.2d 333.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Honor v. Tangipahoa Parish School Board, 2013-0298 (La.App. 1st Cir.11/1/13), 136 So.3d 31, writ denied,2014-0008 (La.2/28/14), 134 So.2d 1181. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Guardia v. Lakeview Regional Medical Center, 2008-1369 (La.App. 1st Cir.5/8/09), 13 So.3d 625, 628.

Applicable Law

In 2006, LSA-R.S. 9:2800.19 was enacted by Acts 2006, No. 786, § 1 and LSA-R.S. 14:19 and 14:20 were substantially amended and reenacted by Acts 2006, No. 141, § 1. Section 2 of Act No. 786 provided that the provisions of that Act shall take effect and become effective “if and when” Act 141 was enacted into law and became effective. Both were enacted into law and became effective on August 15th, 2006, the general effective date of the 2006 Regular Session. Accordingly, we construe these statutes in pari materia.

Louisiana Revised Statute 9:2800.19 provides immunity from civil action to those who use “reasonable and apparently necessary” or deadly force or violence in preventing a forcible offense against the person or his property in accordance with LSA-R.S. 14:19 or LSA-R.S. 14:20, as follows:

A. A person who uses reasonable and apparently necessary or deadly force or violence for the purpose of preventing a forcible offense against the person or his property in accordance with R.S. 14:19 or 20 is immune from civil action for the use of reasonable and apparently necessary or deadly force or violence.
B. The court shall award reasonable attorney fees, court costs, compensation for loss of income, and all expenses to the defendant in any civil action if the court finds that the defendant is immune from suit in accordance with Subsection A of this Section.

Louisiana Revised Statute 9:2800.19 refers to LSA-R.S. 14:19, pertaining to the use of force or violence in defense where such use does not result in a homicide, and LSA-R.S. 14:20, the justifiable homicide statute, to determine whether a defendant in a civil case used reasonable force in defense of a person or property. Louisiana Revised Statute 14:20(A) sets forth situations in which a homicide may be justifiable, depending on the reasonable belief of the person using force or violence in defense, the danger presented to that person or others, |9and the need for the use of deadly force. Louisiana Revised Statute 14:20(A), in pertinent part, provides as follows:

A.A homicide is justifiable:

(1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.
(4)(a) When committed by a person lawfully inside a dwelling ... against a person who is attempting to make an unlawful entry into the dwelling ... or who has made an unlawful entry into the dwelling ... and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises.

Louisiana Revised Statute 14:20(B) provides for a presumption as to the existence of a reasonable belief that the use of deadly force was necessary in certain circumstances. The presumption set forth in LSA-R.S. 14:20(B), as well as Sections C and D of LSA-R.S. 14:20, were enacted in 2006 along with the enactment of LSA-R.S. 9:2800.19, and provide as follows:

B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling ... held a reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises ... if both of the following occur:

(1) The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling ...
(2) The person who used deadly force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force.
|10D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

With the enactment of Sections C and D, the legislature has curtailed the evidence that may be offered by the State in a criminal proceeding in proving the use of force unreasonable, and specifically has forbidden the consideration of the possibility of retreat vis-a-vis the use of force. This represents a change in the law, which formerly allowed the consideration of the possibility of escape. State v. Ingram, 45,546 (La.App. 2nd Cir.6/22/11), 71 So.3d 437, 445, writ denied, 2011-1630 (La.1/11/12), 77 So.3d 947. Moreover, although Section B states there “shall” be a presumption of reasonableness, the statute does not state that the presumption is irrebuttable. State v. Ingram, 71 So.3d at 444.

The general construction of these overlaid criminal and civil statutes is such that if reasonable and apparently necessary or deadly force or violence is used for the purpose of preventing a forcible offense against a person or his property in accordance with LSA-R.S. 14:20, the immunity provisions of LSA-R.S. 9:2800.19 are triggered, thereby relieving the person who used such deadly |„ force from civil action for his use of such reasonable and apparently necessary or deadly force or violence.

In the instant matter, Landry contends that the elements of the immunity statute, LSA-R.S. 9:2800.19, as incorporated by reference to LSA-R.S. 14:20, are met in this case under either LSA-R.S. 14:20(A)(1) (i.e., Landry reasonably believed that he was in imminent danger of losing his life or receiving great bodily harm, and that he believed that the force he used was apparently necessary to save himself from that danger) or LSA-R.S. 14:20(A)(4)(a) (i.e., Landry was lawfully inside his dwelling, and Shipp was attempting to make an unlawful entry into the dwelling or had already made an unlawful entry into the dwelling, and Landry reasonably believed that the use of deadly force was necessary to prevent the entry or to compel Shipp to leave the premisés).

Landry concedes that while the scenario presented under LSA-R.S. 14:20(A)(1) raises the issue of whether Landry reasonably believed that he was in “imminent danger” of death or “great bodily harm,” under the second scenario set forth in LSA-R.S. 14:20(A)(4)(a) involving Landry being lawfully in his dwelling, no inquiry is needed concerning Landry’s apprehension because of the presumption set forth in Section B. Instead, Landry contends, under Section B, a presumption will apply that Landry, who was lawfully in his home, held a reasonable belief that the use of deadly force was necessary to prevent Shipp’s unlawful entry or to compel Shipp to leave the premises if:

(1) Shipp was in the process of unlawfully and forcibly entering the dwelling, or had already done so; and
(2) Landry knew or had a reason to believe that Shipp was unlawfully and forcibly entering the dwelling, or such that an entry had occurred.

Landry contends that he met his burden of showing on summary judgment that these elements are “easily” met, giving rise to the presumption, thus meeting |12the elements of LSA-R.S. 14:20. Accordingly, he contends, the civil immunity pursuant to LSA-R.S. 9:2800.19 applies herein to defeat plaintiffs claims.

In support of his motion for summary judgment, Landry offered his affidavit and that of his daughter, Alicia Landry, as well as Landry’s deposition testimony. Landry testified that Shipp was banging on the door of his home after Landry had warned Shipp to get off of his property several times. Landry testified that Shipp then opened the door to his home, whereupon Landry again told Shipp to leave and that the police were on the way. Landry stated that he was 5'9" tall and weighed 145 pounds, while Shipp was twenty-three years old, was approximately 6 feet tall, and weighed approximately 190 pounds. Landry stated that he feared Shipp, and believed that if Shipp entered the home, he would act violently toward Landry and his family and that he and his family were in danger. Landry conceded that prior to this day, there were no hostile exchanges and that he and Shipp had been cordial toward each other. However, Landry stated that on the day of the incidents herein, he felt he and his family were in danger where Shipp stood rocking back and forth with his fist clinched, and where, prior to that, Shipp was beating on Landry’s door “like crazy” and yelling. Landry stated that Shipp’s veins were “popping out in his neck,” his eyes were “bulging out,” that he was threatening Landry and “cussing” at him, and that he was “pretty scared.” Landry claimed that Shipp “stepped forward” with his fists clenched and started to come in after Landry warned him several times. However, Landry conceded that while curse words were spoken by Shipp, he saw Shipp was only holding a cell phone and did not see a weapon prior to Landry shooting him. Landry claimed that the difference between this encounter and the two encounters earlier that day was that instead of backing up, Shipp told him that he would do what he wanted and “stepped forward and continued” toward Landry. Landry claimed that he was at the end where he could not back up any more, that Shipp was | ^approximately seven to eight feet from him, and he “was afraid Shipp was going to attack [them], so he stopped him.”

Alicia stated that while in the computer room, none of them knew what was going to happen or what Shipp was going to do. She described Shipp as “wishy washy” that day, going “up and down, up and down,” and that he “went crazy.” Alicia stated that while in the computer room, she heard Shipp yelling for her and her dad telling Shipp to get off of his property.

Plaintiff opposed the motion for summary judgment, contending that summary judgment was improper because genuine issues of fact exist as to whether Landry’s decision to use deadly force on August 22, 2011 was reasonable and justified. Plaintiff contends that even if the presumption applies, the ultimate question that must be resolved by a factfinder is whether the force was reasonable and apparently necessary.

Nonetheless, in opposition to Landry’s motion for summary judgment, plaintiff offered excerpts of the deposition testimony of Wayne Landry, excerpts of the deposition testimony of Alicia Landry; the affidavit of Dr. Alfredo Suarez, and photographs of the crime scene. In particular, plaintiff points to Alicia’s deposition testimony that she asked Shipp to bring her to her parents’ home. Alicia stated, “At first he said he wasn’t going to take me, so I said I would walk, and he didn’t want me to walk so he took me.” Plaintiff argues that this testimony alone raises an issue of the applicability of the immunity statute, where questions of fact remain as to whether Shipp was invited by Alicia to the Landry home prior to the shooting. Plaintiff further contends that even if Shipp was yelling for Alicia while banging on the door and trying to get into the house, it was unreasonable for |14Landry to expect that any harm would come his way or that the use of deadly force was proper.

Plaintiff further contends that the Dr. Suarez’s affidavit creates a genuine issue of material fact, where Landry testified that he only fired the gun. when he was approximately seven to eight feet from Shipp, while Dr. Suarez stated that after examining crime scene photographs provided by the East Baton Rouge Sheriffs Office, the shot was instead actually fired from a distance commonly known as the “contact range.” Dr. Suarez stated that “contact range” means that the barrel of the gun was touching Shipp’s skin when the shot was fired. Plaintiff contends that Dr. Suarez’s opinion likewise creates a genuine issue of material fact precluding summary judgment because it raises the issue of whether Landry was justified or acted reasonably under the circumstances in using deadly force. We agree.

On review, we find that there is a genuine issue of material fact as to whether or not Landry’s use of deadly force was reasonable under all of the circumstances of this ease which precludes the entry of summary judgment in Landry’s favor. Specifically, we find that the following facts raise a genuine issue as to whether Landry could have held a reasonable belief that the use of 115deadly force was necessary, including: (1) the two had a cordial relationship prior to this day; (2) Landry knew that Shipp was unarmed before he shot him; (3) Landry had called police and was aware that they were on the way; (4) in the two earlier encounters that day, merely brandishing the weapon was sufficient to cause Shipp to back away; and (5) there is expert opinion evidence that the barrel of the gun was touching Shipp’s skin when the shot was fired, calling into question the credibility of Landry’s version of the events.

Pretermitting whether plaintiff can ultimately prevail on the merits, we are constrained to find that questions of fact remain, which preclude summary judgment, as these determinations inevitably involve a weighing of evidence and testimony, which is reserved for a determination by the trier of fact. Accordingly, the summary judgment dismissing all claims against Landry, with prejudice, must be reversed. Because we find these unresolved issues preclude summary judgment, we pretermit discussion of plaintiffs remaining assignments of error.

CONCLUSION

■For the above and foregoing reasons, the July 9, 2013 judgment of the trial court is hereby reversed arid this matter is remanded for further proceedings. Costs of this appeal are assessed to the defendant/appellee, Wayne Joseph Landry.

REVERSED AND REMANDED.

      . A. was approximately one year old at this time.

      . Landry claimed that at the time, he was unaware that Shipp had picked up A. from daycare and that A. was in Shipp’s truck.

      . Landry acknowledged that he was subsequently arrested and charged with second degree murder. However, after submission to a grand jury, the jury declined to return an indictment against Landry.

      . During the hearing, the trial court allowed counsel for Landry to supplement the exhibits admitted in support of the motion for summary judgment with the entire deposition of Wayne Landry.

      . Although the judgment dismissing all of plaintiff's claims against Landry was certified as a final judgment for purposes of appeal, such certification was unnecessary where the judgment was appealable under LSA-C.C.P. art. 1915(A)(3).

      . See Acts 2006, No. 786, §§ 1 and 2 and Acts 2006, No. 141, § 1.

      . Through the presumption, the law recognizes that forcible entry situations often develop quickly and may present a threat of harm that allows little time for a homeowner to carefully weigh his options in defending, himself. As Justice Holmes famously stated in a related context, "Detached reflection' cannot be demanded in the presence of an uplifted knife." State v. Ingram, 71 So.3d at 444-445 quoting Brown v. United States, 256 U.S. 335, 343, 41 S.Ct 501, 502, 65 L.Ed. 961 (1921).

      . In State v. Ingram, 71 So.3d at 444, the court held:
      Although the legislature has the power to expand the justifiable homicide defense to conclusively declare the use of deadly force reasonable in every case of unauthorized entry, it has not done so. Instead, the legislature clarified and expanded the "reasonable and necessary” requirement in La. R.S. 14:20(A) with the use of the "presumption” language in La. R.S. 14:20(B).

      . In support, however, plaintiff relies on State in the Interest of D.P.B., 2002-1742 (La.5/20/03), 846 So.2d 753, a criminal case rendered prior to the substantial amendments and reenactment of LSA-R.S. 14:20 and the enactment of LSA-R.S. 9:2800.19 in 2006. Thus, we find the case unpersuasive herein.

      . We further note that in order for the LSA-R.S. 14:20(B) presumption to apply herein, Landry was required to show that Shipp was in the process of "unlawfully and forcibly entering” and that Landry knew or had reason to believe that an "unlawful and forcible entry” was occurring. LSA-R.S 14:20(B)(1) and (2)(emphasis added). Although "forcible entry" is not defined in LSA-R.S. 14:20, "forcible” is generally defined as “[e]ffected by force or threat of force against opposition or resistance.” Black’s Law Dictionary 657 (7th ed.1999). Landiy testified that the door from the patio to the home interior was closed. He stated that if the door had even been slightly ajar, in his opinion, it would have flown open long before with the severity of Shipp’s beating on the door, while calling for Alicia. Landry testified, however, that he did not know and was unable to say whether the door Shipp entered was locked or unlocked. While he thought that the deadbolt on the door was not locked, he did not know if the doorknob lock was engaged. Landiy stated that he heard a door open and then stepped into the hall with his gun drawn. Thus, based on the evidence presented on summary judgment, while Landiy may have established that Shipp’s entry was unlawful, a question of material fact also remains as to whether Landiy established that Shipp’s entry was "forcible” under the facts developed thus far. Louisiana Revised Statute 14:20(B) requires that the entry be unlawful and forcible to apply the presumption of reasonableness giving rise to civil immunity.


source: Caselaw Access Project

author: ROBERT M. MURPHY, Judge.

license: Public Domain

text:
    BFH v. FIRST NATIONAL BANK USA, et al.
    No. 13-CA-904.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 2014.

      Geraldine Broussard-Baloney, Abril B. Sutherland, Attorneys at Law, Laplace, Louisiana, for Plaintiff/Appellant.
    Robert B. Evans, III, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Larry J. Feldman, Jr., Mark R. Deeth-ardt, Brandt J. Dufrene, Jr., Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges ROBERT M. MURPHY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   ROBERT M. MURPHY, Judge.

12This appeal arises from the denial of a motion for new trial, based on a claim of insufficiency of service of process on a motion for summary judgment and exception of prescription. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

During the period from 2007 to 2010, Carmen Baloney (“Ms. Baloney”) worked as funeral director for appellant, Baloney Funeral Home, L.L.C. (“BFH”) as an employee or independent contractor. In this time frame, Ms. Baloney negotiated 197 insurance checks payable to BFH for funeral services. These checks were allegedly taken from the post office and cashed at the Garyville |sGeneral Store (“Gary-ville”), which in turn deposited them into its account with First National Bank USA (“FNB”).

On December 8, 2010, appellant filed the instant petition for damages against FNB, Garyville, and Ms. Baloney to recover losses from converted BFH checks from 2007 to 2010, totaling approximately $630,000. BFH contended that FNB aided Ms. Baloney and Garyville in fraudulently negotiating the BFH checks. BFH alleged that the three defendants fraudulently colluded: FNG issued a line of credit to Garyville; the line of credit allowed Garyville to cash the checks for a fee; and Ms. Baloney could not have acted without the store and the bank.

On January 22, 2013, FNB filed a combined motion for summary judgment and exception of prescription. FNB argued that there is no genuine issue of material fact that Garyville, not FNB, was liable for Ms. Baloney’s alleged conversion as Ms. Baloney was a “responsible employee” under Louisiana’s Uniform Commercial Code (“U.C.C.”). FNB argued that Ms. Baloney’s status as an independent contractor, as argued by BFH, is unavailing because the Louisiana U.C.C.’s definition of “employee” includes independent contractors.

In its exception of prescription, FNB contended that when BFH did not file its complaint until December 28, 2010, most of BFH’s claims for conversion had already prescribed under La. U.C.C.’s one-year prescription period for conversion. In response, BFH contends that it would have presented evidence of FNB’s fraudulent collusion sufficient to suspend prescription if only it had received sufficient notice.

The motion for summary judgment and exception of prescription were set for hearing on March 11, 2013. FNB requested service,on BFH as follows:

LPLEASE SERVE:

* * *

Robert B. Evans, III

Cesar R. Burgos

Gabriel 0. Mondino

Maria J. Leon

Burgos & Evans, LLC

3535 Canal Street ■

New Orleans, Louisiana 70119-6135

Attorneys for BALONEY FUNERAL HOME, LLC

The February 1, 2013 service information in this matter is found in three separate documents. First, the Orleans Parish Sheriff Office’s “Disposition of Service” provides the following typed information:

Document Type: Motion for Summary Judgment

Name on Service: ROBERT B. EVANS III

Place of Service: 3535 Canal NEW ORLEANS, LA 70119

Method of Service: Personal

Served by: Green, Torn

Date Served: 2/1/2013

Date Time: 1/1/1900 10:06:Q0A

Second, the face of the actual service of process of FNB’s motion and exception, filed with the St. Charles Parish Clerk of Court on February 6,2013, provides:

Third, the following service information appears on the back of the actual service of process of FNB’s motion and exception, filed with the St. Charles Parish Clerk of Court on February 6,2013:

Appellant BFH did not oppose the motion and exception, nor did it appear at the March 11, 2013 hearing. In BFH’s absence on the hearing date, the trial judge rendered judgment in open court against BFH, granting FNB’s motion for summary judgment, sustaining the exception as to the claims for conversion that defendant argued had prescribed on their face, and dismissing all claims against FNB for the remaining checks via summary judgment. The trial judge signed a judgment on March 21, 2013.

BFH filed a motion for reconsideration of judgment and/or in the alternative, for a new trial, contending its due process rights were violated as it did not have notice of the hearing and was not afforded an opportunity to respond. The trial court conducted a hearing on the new trial motion on June 10, 2013.

BFH’s counsel argued that any service on Maria Leon, if she was the person served, would have been ineffective, because she no longer worked at the firm when the February 1, 2013 service was allegedly made. BFH suggested in argument that “Maria” could have been an employee of another firm that shared the same physical address at 3535 Canal Street in New Orleans.

FNB contended that BFH received sufficient notice of the March 11, 2013 hearing through service on “Maria,” whom it argued was Maria J. Leon, an |fiassociate in the Burgos and Evans law firm, who appeared in the original pleadings and on whom service was originally requested. FNB argued that BFH received procedural due process via this service and thus was not entitled to a new trial. FNB introduced the Sheriff’s return/disposition of service, the testimony of Deputy Green, and a copy of the cover letter FNB sent to the Burgos and Evans law firm directly, enclosing the unfiled and undated motion and exception in this matter.

The deputy testified about having served three different law firms at that same address on numerous occasions, though on cross-examination, he admitted he had no independent recollection of service on the date at issue or of service on a person named “Maria”:

FNB’S DIRECT EXAMINATION OF DEP. GREEN BY MR. FELDMAN:

Q. Do you have any independent recollection of making this service on February 1?
A. No, I don’t.
Q. After making service what acts did you perform when you took the information back to the source of the request?
A. I write down who I served and what the date and time was.

BFH’S CROSS-EXAMINATION OF DEPUTY GREEN BY MR. EVANS:

Q. You mentioned Maria. Can you describe her at all?
A. I really can’t. I really don’t remember.
Q. Do you remember a young lawyer named Maria Leon, young Hispanic?
A. I really don’t. I don’t.

On June 14, 2013, the trial court rendered judgment denying BFH’s motion for new trial and assigned reasons. The trial court found that service was perfected according to La. C.C.P. art. 1292, thus creating a rebuttable presumption that the | ySheriffs February 1, 2013 return was prima facie correct. The trial court further found that BFH had failed to rebut the presumption. The trial court noted in its judgment that BFH did not deny receiving a courtesy copy of the motion for summary judgment and exception of prescription. In fact, the copy mailed by counsel would have been unfiled and undated and would have provided no notice of the hearing date or contained the trial court’s order to show cause. This appeal followed.

ASSIGNMENTS OF ERROR

1. The trial court erred in holding BFH to the wrong burden of proof and therefore committed manifest error.
2. The trial court erred in denying BFH’s motion for new trial as BFH was denied due process by not receiving notice.
3. The trial court committed manifest error in granting FNB’s motion for summary judgment:
a. Appellant contends Ms. Baloney’s status as an employee is a genuine issue of material fact and thus precludes summary judgment; and
b. FNB failed to establish that Gary-ville was a registered check cash-er in 2007, 2008, 2009, and 2010.
4. The trial court committed manifest error and was clearly wrong in granting FNB’s exception of prescription.

STANDARD OF REVIEW

A district court’s decision denying a motion for new trial will not be disturbed “unless there has been a clear abuse of discretion.” Warner v. Carimi Law Firm, 98-613 (La.App. 5 Cir. 12/16/98), 725 So.2d 592, 597, writ denied, 99-0466 (La.4/1/99), 742 So.2d 560.

|SLAW AND DISCUSSION

Assignments of error numbers one and two address appellant’s contention that the trial court applied the incorrect burden to rebut the Sheriffs Disposition of Service and appellant’s assertion that the trial court erred in denying its motion for new trial based on denial of procedural due process.

We find the issue of the correct burden of proof to rebut any presumption under these facts to be moot as we find that the service return did not establish a prima facie case to shift the burden to BFH for rebuttal. The trial court’s reasons for judgment denying BFH’s motion for new trial demonstrate that the trial court was aware of the correct burden of proof if there had been compliance with La. C.C.P. art. 1292, viz., if the Sheriffs return of service had been “completed:”

The Louisiana Supreme Court has determined that article 1292 of the Louisiana Code of Civil Procedure provides a rebuttable presumption that a completed sheriffs return of service is correct, and that a party challenging the validity of the sheriffs return must demonstrate by a preponderance of the evidence that the sheriffs return is incorrect. (Emphasis added).

The general rule is that service by the Sheriff is presumed valid. La. C.C.P. art. 1292 creates a presumption of validity of correctness of service for a completed return. Without the completed return, we do not reach the burden to rebut correctness, the issue in assignment of error number one. We note that even if the burden had shifted, that the correctness of service is rebuttable and not absolute. See Roper v. Dailey, 393 So.2d 85, 88 (La. 1980). The burden would have rested on the party attacking service to establish lack of service by a preponderance of the evidence. See Hall v. Folgers Coffee Co., 03-1734, p. 20 (La. 4/14/04), 874 So.2d 90, 105.

The sheriff shall endorse on a copy of the citation or other process the date, place, and method of service and sufficient other data to show service in compliance with law. He shall sign and return the copy promptly after the service to the clerk of court who issued it. The return, when received by the clerk, shall form part of the record, and shall be considered prima facie correct. The court, at any time and upon such terms as are just, may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

| flLouisiana law sets forth predicate requirements to arrive at a rebuttable presumption. La. C.E. art. 308, Comment (b). The Legislature generally uses the term prima facie to accord the weight of a rebuttable presumption. Here, La. C.C.P. art. 1292 states that the sheriff deputy “shall endorse ... the date, place, and method of service and sufficient other data to show service in compliance with law.” Service of a pleading setting a hearing date can be served by the Sheriff on an office associate of the attorney of record. La. C.C.P. art. 1314(B).

On January 22, 2013, FNB filed a combined motion for summary judgment and exception of prescription with service requested on BFH attorneys Evans, Burgos, Mondino, and Leon. The actual service of process indicates service on “Evans” only and appears to have been made in person on “Maria,” without noting her surname or place of service. Service on Maria Leon is not shown even though defendant requested service on Maria J. Leon and same would have been effective by noting personal service on her. Instead, service is shown on “Evans.” If the person served was Maria Leon, the return should have so reflected.

“Sufficient other data” for effective service under La. C.C.P. art. 1314 would have required the complete name of the person served to establish the relationship within the law firm. The service documentation regarding the person allegedly receiving service here is incomplete and inconsistent, noting that the name “Maria” did not even appear on the Orleans Parish Sheriffs Disposition of Service form. That form further contained erroneous information that attorney Robert Evans, III had been personally served without mention of “Maria.” Deputy Green’s testimony was unavailing as he had no independent recollection of the service at issue.

|inThe requirements of La. C.C.P. art. 1314(B) are therefore lacking and inconsistent, other than the date. Personal service could seemingly have been effective on “Maria” but was not noted as service on counsel Maria Leon. Service on Evans could have been effective through an office associate if that person’s identity could be confirmed. The deputy’s inability to complete the information precludes any presumption of correctness to the return.

We therefore find an exception to the general rule which accords a rebuttable presumption of correctness to the completed sheriffs return because the prima facie case of validity is lacking; the return information does not comport with the statutory requirements. First, the Orleans Parish Sheriff Office’s Disposition of Service form shows that service was made on Robert B. Evans, III on February 1, 2013, personally, when it clearly was not. Second, the given name “Maria” on the actual return without a surname is not sufficient detail to show service on an office associate in compliance with the statute. Third, there is no indication of where the alleged service was made. Under these facts, we do not consider the incomplete return at issue to be prima facie correct under La. C.C.P. art. 1292. Accordingly, the instant return does not create a statutory presumption shifting the burden. We find that the trial court manifestly erred in finding (1) that the Sheriffs service return was entitled to a presumption of correctness and (2) its corollary, that the burden shifted to BFH to rebut the presumption of correctness by a preponderance of the evidence. As BFH had no burden to rebut, any failure to offer testimony or evidence is not fatal to its challenge to the Sheriffs return.

Considering the facts presented, the deputy’s lack of memory, and the return’s lack of sufficient detail, we find that BFH was deprived of its rights of due process because of the failure to provide notice of trial of the motion for summary | njudgment and exception of prescription. La. C.C.P. art. 1571; La. Const. Art. 1, Sec. 22.

Regarding assignment of error number two, we find that the trial court abused its discretion in denying the motion for a new trial. La.Code of Civil Procedure article 1973 provides, “[a] new trial may be granted if there is a good ground therefor.” The moving party bears the burden of proving that there are adequate grounds for a new trial. See Dragon v. Schultz, 97-664 (La.App. 5 Cir. 1/14/98), 707 So.2d 1274, 1276. A trial court is afforded great discretion in granting a new trial, and its decision denying a motion for new trial will not be disturbed “unless there has been a clear abuse of discretion.” See, e.g., Warner, supra, 725 So.2d at 597.

Procedural due process requires “notice and an opportunity to be heard in an orderly proceeding.” McMahon v. McMahon, 02-0211 (La.App. 5 Cir. 9/30/02), 829 So.2d 584, 586. A final judgment cannot be rendered against a party who has not been given proper notice. Roman v. LRASIF Claims Mgt., 11-393 (La.App. 5 Cir. 12/13/11), 81 So.3d 895, 899. We conclude that BFH was deprived of an opportunity to present its case on both the motion and exception. Based on the foregoing analysis demonstrating insufficient notice and lack of the prima facie correctness in the return, we find that the trial court abused its discretion in denying BFH’s motion for new trial.

Assignment of error number two therefore has merit.

Assignments of error numbers three and four pertain to the substantive issues of FNB’s motion for summary judgment and exception of prescription. Considering that the trial court denied BFH’s motion for new trial (without hearing the merits) and the motion and exception were never set for hearing with proper 112notice and opportunity for BFH to oppose and appear, we remand the case for a hearing on the motion and exception.

DECREE

For the foregoing reasons, we reverse the trial court’s judgment denial of BFH’s motion for new trial and remand for further proceedings.

REVERSED AND REMANDED.

      . BFH responded to discovery that Ms. Baloney was responsible for “billing and collections.” When asked if she was an employee, BFH responded that she received 1099’s, which are sent only to independent contractors.

      . BFH alleges that Ms. Baloney converted approximately $630,000 in BFH checks over four years as follows: $170,000 in 2007; $220,000 in 2008; $185,000 in 2009; and $55,000 in 2010.

      . The record indicates that attorney and State Representative Nick Lorusso and attorney Greta L. Wilson share the same physical address.

      . Appellees contend that this appeal should have been dismissed as abandoned for BFH's failure to file its brief timely after extension. We find that BFH requested an extension of time before the grace period expired. The new date fell on a day this Court was officially closed for inclement, icy weather. BFH filed its brief the next day. Based on BFH's compliance, we find the appeal was not abandoned.

      .La. C.C.P. art. 1292 provides:

      . See Adair Asset Mgt. LLC/US Bank v. Honey Bear Lodge, Inc., 12-1690 p. 6 (La.App. 1 Cir. 2/13/14), 138 So.3d 6 (holding that the burden of persuasion “afforded a completed sheriffs return of service by LSA-C.C.P. art. 1292 is preponderance of the evidence.” (Emphasis added)).

      . La. C.C.P. art. 1314(B) provides for service by sheriff "on a partner or office associate of a counsel of record, including a secretary, receptionist, legal staff, administrative staff, or paralegal in the employ of the counsel of record, at the office address of record of the counsel of record....” (Emphasis added).

      . In fact, it is argued that there may have been another Maria in the building.


author: McClendon, j.

text:
    In the Matter of Bryan KRANTZ and Family Racing Venture, LLC.
    No. 2013 CA 1732.
    Court of Appeal of Louisiana, First Circuit.
    May 29, 2014.

      R. Gray Sexton, Jennifer L. Jackson, Baton Rouge, Louisiana, for Defendants/Appellees Bryan Krantz and Family Racing Venture, LLC.
    Michael D. Dupree, Kathleen M. Allen, Baton Rouge, Louisiana, for PlaintiffiAp-pellant Louisiana Board of Ethics.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McClendon, j.

12The Louisiana Board of Ethics (Ethics Board) appeals an order of the Louisiana Ethics Adjudicatory Board (EAB) granting a motion to dismiss based upon an exception raising the objection of prescription filed by the defendants, Bryan Krantz and Family Racing Venture, LLC (FRV), For the reasons that follow, we affirm in part, reverse in part, and remand.

FACTUAL AND PROCEDURAL HISTORY

On May 18, 2012, the Ethics Board filed charges in the Division of Administrative Law against Mr. Krantz and FRV, asserting that the defendants violated LSA-R.S. 42:llllC(2)(d) of the Louisiana Code of Governmental Ethics (Ethics Code), during Mr. Krantz’s tenure as a member of the Louisiana State Racing Commission (Commission). Particularly, the Ethics Board alleged that Mr. Krantz, a member of the Commission from August 1, 2008, through December 2, 2010, owned a 50% ownership interest in FRV, during his entire tenure on the Commission. The Ethics Board further charged that, during the years 2008 through 2010, Churchill Downs Horseracing Company, LLC. (Churchill Downs) owned and operated off-track betting and racetrack facilities, licensed and regulated by the Commission, and that FRV maintained a lease with Churchill Downs during that time. Thus, the Ethics Board asserted that, while a member of the Commission, Mr. Krantz and FRV received a thing of economic value, in the form of lease payments, for services provided to or for Churchill Downs in violation of the Ethics Code.

On October 24, 2012, Mr. Krantz and FRV filed a motion to dismiss the charges based on prescription. Therein, the defendants asserted that on |sOctober 7, 2008, the Commission requested an advisory opinion from the Ethics Board “as to whether there are any conflicts of interest or ethical impediments to Mr. Krantz serving on the Commission while he possesses a minority interest in a limited liability company [FRV] whose remaining interests are owned by his wife and children when [FRV] is a party to a lease with another entity regulated by the Commission, to wit Churchill Downs d/b/a Fair Grounds Racecourse. The lease in question preexists Mr. Krantz’s appointment to the Racing Commission.” The defendants further asserted that on November 19, 2008, the Ethics Board rendered an advisory opinion to the Commission stating that “Mr. Krantz and his company Family Racing Venture, is prohibited from providing compensated services to a person that is licensed and regulated by the Commission while he serves on the Commission.”

No action to enforce any .provision of this Chapter shall be commenced after the expiration of two years following the discovery of the occurrence of the alleged violation, or four years after the occurrence of the alleged violation, whichever period is shorter.

The defendants contended that two and a half years later, on May 19, 2011, the Ethics Board voted to investigate the defendants for violations of LSA-R.S. 42:llllC(2)(d) of the Ethics Code, which resulted in the charges filed on May 18, 2012. Mr. Krantz and FRV asserted that the facts alleged in the Ethics Board’s investigation and charges were substantively identical to the facts set forth and addressed in the Ethics Board’s November 19, 2008 advisory opinion. Thus, the defendants urged that the Ethics Board knew of the facts of the alleged violations for two-and-a-half years before it sought to enforce, outside of the two-year prescriptive period provided in LSA-R.S. 42:1168.

In support of the motion to dismiss based on the prescription exception, the defendants submitted a copy of the October 7, 2008 request for an advisory opinion, as well as a copy of the November 19, 2008 advisory opinion. The defendants also submitted a copy of the May 26, 2011 letter to Mr. Krantz advising him of the investigation by the Ethics Board and a copy of the |4November 28, 2011 letter to FRV advising it of the investigation. A copy of the charges against Mr. Krantz and FRV was also submitted.

The Ethics Board filed an opposition in response to the exception of prescription, arguing that the issuance of the advisory opinion did not constitute “knowledge” that a potential violation of the Ethics Code had occurred. The Ethics Board urged that an advisory opinion issued by it was simply written advice as to whether prospective conduct described by the requesting party would present a violation of the Ethics Code. It maintained that at the time it. receives a request and renders an opinion, it has no way of knowing whether a requesting party has or will engage in the conduct described in the request. Thus, according to the Ethics Board, the date of the advisory opinion in 2008 was not the date the Ethics Board discovered an alleged violation of the Ethics Code, but rather March 24, 2011, the date the Ethics Board received the confidential agency head report from the Commission regarding the types of conduct in which the defendants were allegedly engaged, was the date of discovery. Accordingly, the Ethics Board maintained that it had two years, or until March 24, 2013, to initiate an action to enforce any provision of the Ethics Code, making the charges issued by the Ethics Board on May 18, 2012, timely.

The Ethics Board also argued that it did not consider the matter until its scheduled meeting of May 19, 2011, at which time it reviewed the report and referred the matter to investigation, making the charges timely under LSA-R.S. 42:1141C(3)(c), which provides a one-year prescriptive period for issuing charges from the date the Ethics Board votes to consider a matter.

In support of its opposition to the prescription exception, the Ethics Board submitted the affidavit of Deborah Scott Grier, its executive secretary, who attested that as the custodian of all records, reports, and files of the Ethics Board, she received the record in this matter, which indicated that the Ethics |fiBoard received a confidential agency head report from the Commission on March 24, 2011. She also attested that the minutes of the May 19, 2011 meeting indicated that the Ethics Board reviewed the report on that date and unanimously resolved to investigate whether the defendants violated LSA-R.S. 42:llllC(2)(d).

If the Board of Ethics does not issue charges within one year from the date upon which a sworn complaint is received or, if no sworn complaint was received, within one year from the date the board voted to consider the matter, the matter shall be dismissed. The one-year period shall be prescriptive.

After a public hearing on November 30, 2012, the EAB issued an order, with written reasons, on December 13, 2012, granting the motion to dismiss. In its reasons, after setting forth the facts, the EAB set forth its conclusions of law. The EAB concluded that the charges against Mr. Krantz and FRV had prescribed. The EAB further concluded that the Ethics Board discovered the occurrence, within the meaning of LSA-R.S. 42:1163, of the defendants’ alleged violation, at the latest, on November 13, 2008, when the Ethics Board considered the Commission’s request for an advisory opinion. The EAB found that the facts in the request for the advisory opinion gave rise to actual knowledge of existing, not hypothetical conduct, and provided information regarding current, ongoing conduct, and not merely prospective conduct by the defendants. Finding that the Ethics Board did not file charges until after the expiration of two years from the date of discovery of the conduct giving rise to the alleged violations, the EAB determined the charges were prescribed.

After its request for a rehearing and reconsideration was denied, the Ethics Board filed this appeal.

DISCUSSION

The Ethics Board is charged with enforcing the Ethics Code. LSA-R.S. 42:1132C. The purpose of the Ethics Code is to further the public interest by ensuring that the law protects against conflicts of interest on the part of Louisiana’s public officials and state employees by establishing ethical standards to regulate the conduct of those persons. LSA-R.S. 42:1101B; Duplantis v. Louisiana Bd. of Ethics, 2000-1750 (La.3/23/01), 782 So.2d 582, 586; In re Louisiana Bd. of Ethics, 13-1602 (La.App. 1 Cir. 3/21/14), 2014 WL 1165873 (unpublished opinion). To achieve this end, the Ethics Board is given the authority t(^investigate and pursue formal charges against individuals and entities for alleged violations of the Ethics Code. LSA-R.S. 42:1134. The Ethics Board is also authorized to render advisory opinions regarding interpretations of the Ethics Code. LSA-R.S. 42:1134E.

Initially, we address and reject the defendants’ argument that the Ethics Board is impermissibly seeking review of findings of fact, in violation of LSA-R.S. 42:1142A(2)(a), which provides:

Upon the unanimous vote of its members present and voting, the Board of Ethics may appeal a final decision of the Ethics Adjudicatory Board to the Court of Appeal, First Circuit, within thirty days after the signing and transmission of the notice of the final decision, or if a rehearing is requested, within thirty days after the transmission of the notice of the decision of the Ethics Adjudicatory Board on the rehearing. Only questions of law in a final decision may be appealed pursuant to this Paragraph, and the appeal shall be limited to the record created at the hearing before the adjudicatory panel of the Ethics Adjudicatory Board. For purposes of this Paragraph, “final decision” means the decision and order of the adjudicatory panel of the Ethics Adjudicatory Board on the final disposition of the entire matter the Ethics Adjudicatory Board was required to hear.

Generally, factual findings on a peremptory exception raising the objection of prescription, such as the date on which prescription begins to run, are reviewed on appeal under the manifest error-clearly wrong standard of review. McKenzie v. Imperial Fire and Cas. Ins. Co., 12-1648 (La.App. 1 Cir. 7/30/13), 122 So.3d 42, 46, writ denied, 13-2066 (La.12/6/13), 129 So.3d 534. However, in this case, the issue of whether the action of the Ethics Board was prescribed involves the proper application and interpretation of LSA-R.S. 42:1163. The proper application and interpretation of a statute is a question of law. McKenzie, 122 So.3d at 46.

At issue in this appeal is whether the two-year prescriptive period set forth in LSA-R.S. 42:1163 was triggered by the facts contained in the request for an advisory opinion. This identical issue was presented in In re Louisiana Bd. of Ethics, recently decided by another panel of this court.

The facts in the In re Louisiana Bd. of Ethics case are indistinguishable from those presented in this matter. On May 18, 2012, the Ethics Board filed |7charges against Paul Anthony Bourgeois and Anthony’s Feed and Farm Supply, Inc. (Anthony’s), in which Mr. Bourgeois held a 37.5% interest, asserting that they continuously violated LSA-R.S. 42:llllC(2)(d), during Mr. Bourgeois’ tenure on the Commission. The Ethics Board alleged that Mr. Bourgeois exercised control over Anthony’s and that Anthony’s routinely sold to Keith Bourgeois, Mr. Bourgeois’ son and a licensed horse trainer regulated by the Commission, horse supplies and horse feed. Thus, the Ethics Board asserted that during his entire tenure on the Commission, Mr. Bourgeois and Anthony’s received a thing of economic value for services provided to or for Keith Bourgeois in violation of the Ethics Code. In re Louisiana Bd. of Ethics, 13-1602 at p. 1.

Mr. Bourgeois and Anthony’s filed a motion to dismiss the charges on the basis of prescription, making the- same arguments presented in this matter. They also submitted similar evidence, including a copy of the Commission’s September 24, 2008 letter requesting an advisory opinion, the November 17, 2008 advisory opinion that concluded that Anthony’s was prohibited from doing business with persons licensed by the Commission while Mr. Bourgeois served on the Commission, and a copy of the charges filed by the Ethics Board on May 18, 2012. The Ethics Board opposed the exception, making the same argument it makes here. In re Louisiana Bd. of Ethics, 13-1602 at pp. 1-3.

This court held that the EAB erred in concluding that the advisory opinion request gave the Ethics Board actual or constructive knowledge of defendants’ potential Ethics Code violations occurring after the issuance of the advisory opinion and found that the Ethics Board had no way of knowing or anticipating that defendants would engage in prohibited transactions in the future. In re Louisiana Bd. of Ethics, 13-1602 at p. 6. This court agreed with the Ethics Board that the prescriptive period did not begin to run until either March 24, 2011, the date it received the confidential agency report detailing the conduct engaged in by defendants that served as a basis for the 2012 charges, or May 19, 2011, the date it reviewed and voted to consider the charges. Thus, this Iscourt he]d that that the Ethics Board timely acted to enforce the charges on May 18, 2012, within the prescriptive periods established by law. Id.

However, we also determined that the facts set forth in the September 24, 2008 request for an advisory opinion served to provide the Ethics Board with knowledge of defendants’ violations of the Ethics Code that allegedly occurred prior to the receipt of the request. Thus, prescription to enforce the Ethics Code on the alleged past violations commenced to run on that date, more than two years prior to the filing of the action to enforce the Ethics Code.

Accordingly, this court held that the EAB erred in dismissing all of the charges filed against defendants and reversed that portion of the judgment sustaining the exception of prescription as to alleged violations occurring after September 24, 2008. We affirmed that portion of the judgment sustaining the exception of prescription as to those charges for violations occurring before that date. In re Louisiana Bd. of Ethics, 13-1602 at p. 7.

In both In re Louisiana Bd. of Ethics and the case presently before us, the requests for advisory opinions were very factually specific, referencing names, dates, contracts, and financial interests held by the parties, sufficient for the discovery of the alleged violations, occurring before the dates of the requests. Thus, finding the In re Louisiana Bd. of Ethics case to be controlling, we determine that the charges filed against the defendants in this matter for alleged violations occurring before the October 7, 2008 advisory opinion request, have prescribed. Likewise, because we also find that the prescriptive period did not start to run until either March 24, 2011, the date it received the confidential agency report detailing the conduct in which the defendants were allegedly engaged that served as a basis for the 2012 charges, or May 19, 2011, the date it reviewed the confidential report and voted to consider the charges, the charges filed by the Ethics Board on May 18, 2012, for violations occurring after October 7, 2008, were timely.

^CONCLUSION

For the above reasons, we find that the EAB erred in dismissing all of the charges filed against the defendants on the basis that they were prescribed. We reverse that portion of the December 13, 2012 final decision of the EAB, sustaining the exception of prescription as to alleged violations occurring after October 7, 2008. We affirm that portion of the judgment sustaining the exception of prescription as to those charges for violations occurring before that date. The case is remanded to the Ethics Adjudicatory Board to conduct proceedings consistent with this opinion. All costs of this appeal are assessed to the defendants, Bryan Krantz and Family Racing Venture, LLC.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . Louisiana Revised Statutes 42:llllC(2)(d) provides:
      (2) No public servant and no legal entity in which the public servant exercises control or owns an interest in excess of twenty-five percent, shall receive any thing of economic value for or in consideration of services rendered, or to be rendered, to or for any
      person during his public service unless such services are:

      (d) Neither performed for nor compensated by any person from whom such public servant would be prohibited by R.S. 42:1115(A)(1) or (B) from receiving a gift.

      . Louisiana Revised Statutes 42:1163 provides:

      . Louisiana Revised Statutes 42:1141C(3)(c) provides, in pertinent part:


author: McDonald, j.

text:
    Joseph Francis JACKSON v. T.K. STANLEY.
    No. 2013 CA 1686.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 2014.

      Michael C. Palmintier, Jonathan E. Mitchell, Baton Rouge, LA, Attorneys for Plaintiff/Appellee Joseph Francis Jackson.
    Leslie E. Hodge, Lindsay F. Louapre, Kelly F. Walsh, New Orleans, LA, Attorneys for Defendant/Appellant T.K. Stanley, Inc.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McDonald, j.

|2T.K. Stanley, Inc., (Stanley), appellant in this workers’ compensation matter, appeals the decision rendered by the hearing officer finding that the work-related injury of August 6, 2009, caused a fusiform aneurysm that necessitated surgery when the aneurysm ruptured. For the following reasons, we affirm.

FACTS

On August 6, 2009, Mr. Joseph Francis Jackson (Jackson) was employed by Stanley and was working to place a post in the ground. Holding the post-hole digger above his head, he lost his balance, causing the instrument to hit him on his head, which was covered with a construction style hard hat. He was sent to Dr. Jody Plaisance at the Family Doctor Clinic in Thibodeaux for evaluation on August 11, 2009. Dr. Plaisance diagnosed Jackson with a contusion, prescribed Motrin, and released him to return to work effective August 12, 2009. Following the incident, Jackson did not take time off of work and did not return to Dr. Plaisance.

Jackson continued to work full time for Stanley until January 10, 2010, when he was admitted to Thibodeaux Regional Medical Center with complaints of headaches, shortness of breath, and dizziness. He underwent a CAT scan and was diagnosed with an intraparenchymal hemorrhage in the left temporal and adjacent parietal lobes with subarachnoid hemorrhage. Jackson was subsequently transferred to West Jefferson Medical Center for emergency treatment.

At West Jefferson, Jackson was treated by Dr. Arthur Ulm, a neurosurgeon. According to the operative report, Dr. Ulm performed a three vessel cerebral arterio-gram, left-sided craniotomy hematoma evacuation, and resection of a myotic fusi-form aneurysm with clipping of afferent and efferent vessels. Jackson was discharged from West Jefferson Medical Center on February 2, 2010.

On August 4, 2010, Jackson filed a disputed claim for compensation alleging a severe head injury on August 6, 2009, requiring surgical intervention. Stanley | shad no evidence to support a causal connection between the work accident and the January 10, 2010 aneurysm until July 11, 2011, when Dr. Ulm submitted an affidavit, in conjunction with a motion for summary judgment, stating it was his opinion that the cause of Jackson’s intracerebral hemorrhage was the head trauma suffered during the work-related accident of August 6, 2009. Subsequently, Dr. Ulm gave two depositions, on January 16, 2012, and March 4, 2013, wherein he maintained his opinion that the cause of Jackson’s injuries was the work-related accident.

Thereafter, Stanley chose Dr. Najeeb Thomas, a neurosurgeon, to evaluate Jackson. It was Dr. Thomas’ opinion that Jackson sustained a local soft tissue injury to the head in the work-related accident that was unrelated to the January 10, 2010 aneurysm and hemorrhage. In arriving at this opinion, Dr. Thomas reviewed Jackson’s medical records, obtained a history from Jackson and his wife, and conducted a physical examination. In his deposition taken on February 19, 2013, Dr. Thomas maintained his opinion that the work-related accident of August 6, 2009, and the subsequent aneurysm and hemorrhage were unrelated. As a potential cause, Dr. Thomas noted Jackson’s uncontrolled hypertension as well as possible atheroscler-otic disease, and could not rule out a congenital cause or infection.

Given the completely divergent opinions, the hearing officer appointed Dr. Deepak Awasthi, a neurosurgeon, as an independent medical examiner. Dr. Awasthi evaluated Jackson on July 23, 2012, and prepared a report stating that a fusiform aneurysm was sustained by Jackson on January 10, 2010. Dr. Awasthi did not think it was caused by the work-related injury, but believed that Jackson either had an underlying background from which an aneurysm could form or that he was predisposed. While Dr. Awasthi noted that trauma can be a cause of an aneurysm, he maintained that he had never seen it cause a slowly progressing fusiform aneurysm.

|4A trial on this matter was held on April 24, 2013. The testimonies of Drs. Ulm, Thomas, and Awasthi were introduced by deposition. Mrs. Yvonne Jackson also testified. Post-trial briefs were filed by both parties on May 17, 2013. On My 1, 2013, the hearing officer rendered a written judgment finding that Jackson had established by a preponderance of the evidence that his work-related injury caused him to develop a fusiform aneurysm in the middle cerebral artery. Jackson was found permanently and totally disabled, and entitled to all reasonable and necessary medical treatment related to his workers’ compensation injury. Stanley requested reasons for judgment, and these were issued ón August 23, 2013.

Stanley appeals the judgment, alleging as an assignment of error that the hearing officer disregarded the weight of the medical evidence, especially the opinion of the independent medical examiner, in finding that there was a causal connection between the August 6, 2009 work accident and the January 10, 2010 aneurysm and hemorrhage.

DISCUSSION

Issues Presented and Standard of Review

Stanley alleges: (1) that the overwhelming weight of medical evidence precludes a finding of a causal connection between the August 6, 2009 work accident and the January 10, 2010 aneurysm and hemorrhage; (2) that the workers’ compensation court failed to give the proper legal weight to the opinion of Dr. Deepak Awasthi, the independent medical examiner; and (3) that the workers’ compensation court gave improper weight to the opinion of Dr. Arthur Ulm.

The Workers’ Compensation Act provides coverage to an employee for personal injury by accident arising out of and in the course of his or her employment. La. R.S. 23:1031(A). An employee must prove the chain of causation required by the workers’ compensation statutory scheme as adopted by the legislature. Riker v. Popeye’s Fried Chicken, 09-0527 (La.App. 1 Cir. 10/23/109),,, 29 So.3d 516, 520, writ denied, 09-2776 (La.2/26/10), 28 So.3d 279; Harrison v. Baldwin Motors, 03-2682 (La.App. 1 Cir. 11/3/04), 889 So.2d 313, 316, writ denied, 05-0249 (La.4/1/05), 897 So.2d 609. He or she must establish that the accident was work-related, the accident caused the injury, and the injury caused the disability. Id.; Roussell v. St. Tammany Parish School Board, 04-2622 (La.App. 1 Cir. 8/23/06), 943 So.2d 449, 457, writ not considered, 06-2362 (La.1/8/07), 948 So.2d 116. Initially, a workers’ compensation claimant has the burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he or she sustained an injury. Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). Next, the claimant must establish a causal connection between the accident and the resulting disability by a preponderance of the evidence. Id.; West v. Bayou Vista Manor, Inc., 371 So.2d 1146,1147 (La.1979).

The finding of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. Riker, 29 So.3d at 521. Ultimately the question of disability is a question of fact, and all factual findings in workers’ compensation cases are subject to the manifest error standard of appellate review. Johnson v. East Baton Rouge Parish School Bd., 06-1010 (La.App. 1 Cir. 3/28/07), 961 So.2d 388, 390.

The issues presented for review all have to do with the value placed by the hearing officer on the deposition testimony of the three neurosurgeons consulted in this matter. This value is a finding subject to the manifest error standard of review. The standard applies even when the decision of the workers’ compensation hearing officer is based on written reports, records, or depositions. Buxton v. Iowa Police Dept., 09-0520 (La.10/20/09), 23 So.3d 275, 287. It is also well established that the trier of fact has considerable discretion in accepting or rejecting expert testimony, and that the decision of the workers’ compensation hearing officer to accept the testimony of one expert over another should not be disturbed absent ^manifest error. Ross v. Remediation Services of Louisiana, 97-2102 (La.App. 1 Cir. 5/15/98), 714 So.2d 218, 223.

In response to Stanley’s request for written reasons for judgment, the hearing officer issued the following:

REASONS FOR JUDGMENT

This court rendered Judgment on July 1, 2013, in favor of the employee, Joseph Francis Jackson and against employer, T.K. Stanley, Inc. This court held Mr. Jackson met his burden of proof by a preponderance of the evidence to establish his August 6, 2009, work related injury caused him to develop a fusiform aneurysm at the middle cerebral artery, cortical branch artery location, (MAC M4). This court also held the claimant’s pre-existing hypertension caused the fusiform aneurysm at MAC M4 to rupture.
In weighing the evidence presented and in drawing its conclusion, this Court found Mr. Jackson’s treating physician/surgeon, Dr. Arthur Ulm, to have more insight, knowledge and surgical experience in addressing aneurysms and specifically addressing fusiform aneurysms. Dr. Ulm is a Fellowship trained surgeon in cerebrovascular neurosurgery with a specialization in aneurysms, vascular malformations and stroke. He is also Board Certified.
This Court was impressed by Dr. Ulm’s research and his ability to specifically identify the various locations where different types of aneurysms occur (Plaintiff exhibit 25). Dr. Ulm discussed the uniqueness of the location and the process of elimination procedure used to conclude Mr. Joseph’s initial head trauma suffered on the job lead to the development of the fusiform aneurysm.
Interestingly enough, due to the complexity of Mr. Jackson’s medical condition, the three different neurosurgeons deposed rendered three different conclusions as to what was the precipitating factor to create the aneurysm and what was the precipitating factor to rupture the aneurysm. All three neurosurgeons acknowledged that trauma induced fusi-form aneurysms can be slow to develop. They all agreed that time may elapse between a trauma occurring and the actual worsening of the condition to the status of an aneurysm which ruptures.
In addition to Dr. Ulm’s opinion, this Court found the initial work accident of August 6, 2009, was of a significant trauma to lead to the development of Mr. Jackson’s aneurysm. Mr. Jackson was driving/installing poles into the ground preparing for installation of a barbed wire fence when he lifted a large, heavy, iron pole-driver above his head. (Plaintiff exhibit 24). The pole-driver slipped and struck Mr. Jackson on the crown of his head. He was wearing a hard hat. The incident produced such force that a large raised area developed on the top of his head/forehead even though Mr. Jackson was wearing a hard hat. (Plaintiff exhibit 20).
|7In the medical records of the Family Doctor Clinic on August 6, 2009, (Plaintiff exhibit 10 page 1 and 2 after the certification page), Dr. Jody Plaisance noted in his records that Mr. Jackson reported a post-driver hit him on the top of his head producing a knot and complaints of headaches. Dr. Plaisance diagnosed Mr. Jackson as sustaining a contusion. A contusion is typically a soft tissue injury usually with bruising. A contusion is different than a hemato-ma.
In Mrs. Yvonne Jackson’s testimony at trial, she described seeing a bump on her husband’s head, visible to the naked eye, and visible as her husband walked through the door of their home on the date of the accident. She identified the knot on Mr. Jackson’s head as occurring at the hair line and mid-way to the back of his head.
Thus, this Court concluded there was physical evidence that the blow to the head went through the hard hat and created a visible “knot” on Mr. Jackson’s head. Furthermore, Dr. Ulm testified in his deposition (Plaintiffs exhibit 25, page 40 Line 19 to Page 41 Line 2,) when a patient suffers a soft tissue injury, the diagnosis does not exclude the patient from having a deeper injury under the contusion. Considering the above information, this Court concluded the work accident on August 6, 2009, created the fusiform aneurysm.
When addressing the issue of the preexisting hypertension, Dr. Ulm considered Mr. Jackson’s history. Dr. Ulm acknowledged that hypertension can create an aneurysm; however, he concluded Mr. Jackson’s hypertension would not cause the hemorrhage in the MAC M4 location where the aneurysm was found. Dr. Ulm concluded the trauma (from being hit in the head by the pile-driver) created the aneurysm, and the pre-exist-ing hypertension contributed to the rupture of the aneurysm. (Plaintiffs exhibit 25: Page 15 Line 3 to Page 18 line 2; and Page 27 Line 18 to Page 28 Line 8.) This Court gave greater weight to the opinion of Mr. Jackson’s treating physician/surgeon than to the other neurosurgeons.
This Court concluded the need for the surgery on January 10, 2010, was due to the combination of Mr. Jackson’s work accident and his pre-existing hypertension. Consequently, all medical treatment resulting from this aneurysm rupture is attributed to the work accident and is to be covered by T.K. Stanley Inc.’s workers’ compensation policy. The remainder of this Court’s judgment is self-explanatory as to the computation of indemnity benefits and the application and coverage of the medical benefits.
REASONS FOR JUDGMENT RENDERED, AND SIGNED in Houma, Louisiana, on August 22, 2013.

It is clear that the hearing officer gave greater weight to the testimony of Dr. Arthur Ulm because she was impressed with his credentials and experience with aneurysms, as well as the fact that he was the treating physician. Dr. Ulm 1¡¡performed Jackson’s emergency surgery. As the physician that performed the surgery, he observed the aneurysm and was in the best position to evaluate it. Also important was his knowledge, through research and review of medical literature, of types of aneurysms. Furthermore, jurisprudence establishes that great latitude is given to fact-finders in a workers’ compensation trial; especially the weight given to a finding concerning the testimony of doctors. See Mazoch v. Employers Cas. Co., 514 So.2d 1184 (La.App. 1 Cir.1987). The reasons for judgment also establish that the opinions of all the neurosurgeons were considered. We do not find the lack of dependence on Dr. Awasthi’s testimony of any significance.

CONCLUSION

Finding no merit in any of the issues raised by T.K. Stanley, Inc., the judgment rendered by the hearing officer is affirmed. Costs of this appeal are assessed against T.K. Stanley, Inc.

AFFIRMED.


author: WELCH, J.

text:
    Bryant A. ASHTON v. UNITED PARCEL SERVICE (UPS), Liberty Mutual Insurance Company.
    No. 2013 CA 1617.
    Court of Appeal of Louisiana, First Circuit.
    June 6, 2014.

      Peggy M.H. Robinson, Baton Rouge, LA, for Applicant Plaintiff, Bryant A. Ash-ton.
    J. Kris Jackson, Patrick F. Cole, Shreveport, LA, for Appellees Defendants, United Parcel Service and Liberty Mutual Insurance Company.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   WELCH, J.

| ¡Plaintiff, Bryant A. Ashton, appeals a summary judgment rendered by the Office of Workers’ Compensation (OWC) in favor of defendants, United Parcel Service (UPS) and Liberty Mutual Insurance Company (Liberty Mutual), and dismissing his workers’ compensation claim with prejudice. Also before this court is a motion filed by UPS seeking to dismiss the appeal as untimely. For the reasons that follow, we grant the motion and dismiss the appeal as untimely.

BACKGROUND

On May 9, 2012, Mr. Ashton filed a disputed claim for compensation (Form 1008) in the Office of Workers’ Compensation against a number of defendants, including his former employer, UPS, and its workers’ compensation insurer, Liberty Mutual. Mr. Ashton claimed he was injured on February 13, 2012, while lifting and delivering wine to a customer, reported the injury to his supervisor on February 16, 2012, and was terminated without cause on that day.

The disputed compensation claim was filed in OWC District 6, Covington. On May 10, 2012, the workers’ compensation judge (WCJ) voluntarily recused herself. An order issued by the Chief WCJ of the OWC appointed WCJ Robert Varnado of District 8, New Orleans, to handle the matter. The order further provided that the matter would be heard in the District 6 office and that all filings shall remain directed to OWC District 6.

UPS and Liberty Mutual filed a motion for summary judgment, which was heard and taken under advisement. On December 21, 2012, a judgment was signed by the WCJ granting the motion for summary judgment and dismissing Mr. Ashton’s claim against defendants for workers’ compensation with prejudice. A | ¡¡letter titled “Notice of Signing of Final Judgment” was mailed to all counsel of record on December 27, 2012, informing them that a final judgment had been entered on December 21, 2012, that new trials are permitted, and of the specific time delays regarding appeals. The notice incorrectly stated that the parties could submit their appeals to the Fourth Circuit Court of Appeal.

Mr. Ashton filed a motion for a new trial The motion for a new trial contains two stamp dates reflecting that on March 14, 2013, it was received in OWC District 8 and that on April 1, 2013, it was received in District 6. In the motion for new trial, Mr. Ashton alleged that at the time the judgment was forwarded to his attorney, his attorney was physically incapacitated, needed medical attention until January 21, 2013, and did not get an opportunity to respond to the signed judgment. The motion for new trial contains a certificate stating that the motion was mailed to counsel for defendants on January 30, 2013.

On February 4, 2013, UPS and Liberty Mutual filed an opposition to the motion for new trial asserting that it was not timely filed. Defendants submitted that because notice of the judgment was mailed on December 27, 2012, the delay for filing a motion for new trial elapsed on January 4, 2013, and Mr. Ashton’s motion, which was not filed by that date, was untimely.

On March 19, 2013, the trial court denied the motion for a new trial. On March 22, 2013, Mr. Ashton filed a motion and order for devolutive appeal in OWC District 6. The motion for appeal was granted on March 25, 2013, and made returnable to the Fifth Circuit Court of Appeal. Counsel for UPS and Liberty Mutual informed the OWC judge by letter that this matter arose out of District 6 and was therefore returnable to the First Circuit Court of Appeal. The appeal was lodged in this Court on September 19, 2013,

On September 25, 2018, UPS filed a motion to dismiss the appeal. Thereafter, this court issued a Rule to Show Cause Order directing the parties to |4file briefs on the issue of the timeliness of the appeal.

In response to the order, defendants argue that although the motion for a new trial bears stamp dates of having been received in the OWC offices on March 14, 2013, and April 1, 2013, it is undisputed that the earliest date on which the motion for a new trial could have been filed is January 30, 2013, as the certificate on the motion indicates it was mailed to counsel for defendants on that date. Defendants submit that the motion for new trial was untimely because it was not filed within seven days from the date notice of the judgment was mailed as required by La. C.C.P. art. 1974. They further rely on La. R.S. 23:1310.5, which addresses appeals of workers’ compensation matters, and provides that a devolutive appeal must be filed within 60 days and commences to run on the day after the judgment was signed or the day after notice of the judgment was mailed, whichever is later. According to defendants, the delay for filing a devolu-tive appeal began to run on December 28, 2013, and ended on February 25, 2013, and Mr. Ashton’s motion for appeal, filed on March 18, 2013, was untimely.

In his brief, Mr. Ashton insists that the exact date of the filing of the motion for new trial remains unclear. He suggests that while the record may not demonstrate it, the OWC could have received the motion for a new trial on or before the seven day delay set forth in La. C.C.P. art. 1974, despite the file dates stamped thereon. Mr. Ashton contends that any uncertainty as to the date of the filing of the motion for new trial and the subsequent motion for an appeal must be resolved in favor of. the right to appeal. He further asks this court to apply the doctrine of equitable tolling to find that the motion for an appeal was timely filed.

On March 13, 2014, another panel of this court referred the Rule to Show Cause and the motion to dismiss the appeal to the panel to which the appeal was ^assigned. Ashton v. United Parcel Service, 2013-1617 (La.App. 1st Cir.3/13/14) (unpublished order).

DISCUSSION

The delay for taking an appeal of the decision of a WCJ is set forth in La. R.S. 23:1310.5B. It states as follows:

The decision of the workers’ compensation judge shall he final unless an appeal is made to the appropriate court of appeal.. An appeal which suspends the effect or execution of an appealable judgment or order must be filed within thirty days. An appeal which does not suspend the effect or execution of an appealable judgment or order must be filed within sixty days. The delay for tiling an appeal commences to run on the day after the judgment was signed or on the day after the district office has mailed notice of the judgment as required by Louisiana Code of Civil Procedure Article 1913, whichever is later. Motions for new trial shall be entertained in disputes filed under this Chapter. The delay for filing an appeal when a motion for a new trial has been filed shall be governed by the Louisiana Code of Civil Procedure.

Pursuant to La. R.S. 23:1310.5, the delay for filing a devolutive appeal when a motion for a new trial has been filed is governed by the Louisiana Code of Civil Procedure. Louisiana Code of Civil Procedure Article 1974 provides that the delay for applying for a new trial shall be seven days, exclusive of legal holidays, which commences to run on the day after the clerk has mailed notice of the judgment. In this case, the judgment was mailed to the parties on December 27, 2012. The seven-day delay for filing a motion for a new trial commenced on December 28, 2012, and expired on January 9, 2013. Even if we were to consider January 30, 2013, as the date of the filing of the motion for a new trial (the date the motion indicates it was served on opposing counsel), rather than the stamped dates of March 14 or April 1, 2013, the motion for new trial was untimely because it was filed well beyond the seven-day delay as provided in La, C.C.P. art. 1974.

An application for a new trial does not interrupt the delay for applying for a new trial or the delays for appealing unless the application is timely, even if the trial court does not recognize the motion as untimely. Everett v. Baton Rouge Student Housing, L.L.C., 2010-0856 (La.App. 1st Cir.5/6/11), 64 So.3d 883, 886, writ denied, 2011-1169 (La.9/16/11), 69 So.3d 1149; Nelson v. Teachers’ Retirement System of Louisiana, 2010-1190 (La.App. 1st Cir.2/11/11), 57 So.3d 587, 590. Because of the lack of a timely filed motion for a new trial, the delays for filing a motion and order of appeal were not interrupted, and the 60-day period for filing a motion for a devolutive appeal set forth in La. R.S. 23:1310.5B commenced on the day after the mailing of the notice of the judgment. Thus, the appeal delay commenced on December 28, 2012, and ended on February 25, 2013, well before the motion for a devolutive appeal was received in the OWC on March 22, 2013. Accordingly, Mr. Ash-ton’s appeal was not timely filed.

Mr. Ashton asks this court to apply the doctrine of equitable tolling to excuse his counsel’s late filing of the motion for a new trial and subsequent motion for an appeal. He contends that after the notice of the judgment was mailed, his attorney became ill and was not in a position to promptly file the motion for a new trial. Mr. Ashton claims that his attorney’s illness affected her work up to January 21, 2013, and created “an extraordinary circumstance required for equitable tolling application.”

The doctrine of equitable tolling preserves a plaintiff’s claims when strict application of a statute of limitations would be inequitable. Lambert v. United States, 44 F.3d 296, 298 (5th Cir.1995). In Louisiana, the doctrine of contra non valentem is a jurisprudential doctrine under which prescription on a cause of action may be suspended. Jenkins v. Starns, 2011-1170 (La.1/24/12), 85 So.3d 612, 623. We conclude that these equitable principles, which are invoked to suspend liberative prescriptive periods for asserting causes of action, are not applicable with respect to appeal delays allowed by law.

17An appeal is taken by obtaining an order therefore, within the delay allowed, from the court which rendered the judgment. La. C.C.P. art. 2121. The appeal delays set forth by law are not prescriptive periods that are subject to interruption; rather, these time limits are jurisdictional. An appellant’s failure to file a devolutive appeal timely is a jurisdictional defect, in that neither the court of appeal, nor any other court, has the jurisdictional power to reverse, revise, or modify a final judgment after the time for filing a devolutive appeal has elapsed. Everett, 64 So.3d at 886. Although we recognize that appeals are generally favored in the law, because Mr. Ashton failed to file this devolutive appeal within the delays allowed by law, this court is -without jurisdiction to hear this appeal. See Nelson, 57 So.3d at 590.

CONCLUSION

For the above and foregoing reasons, the motion to dismiss the appeal is granted and the appeal is dismissed as untimely. All costs of this appeal are assessed to appellant, Bryant A. Ashton.

MOTION TO DISMISS APPEAL GRANTED; APPEAL DISMISSED.

      . UPS employees who were sued individually on claims of harassment and retaliatory discharge were dismissed from the proceedings in the OWC on July 25, 2012.

      . The summary judgment also dismissed defendant International Brotherhood of Teamsters.

      . Although the motion for appeal bears a stamp date indicating it was received in the OWC on March 22, 2013, the March 18, 2013 date referred to in defendants' brief appears to have been taken from the certificate of service on the motion for appeal indicating that the motion was served on opposing counsel on that date.

      . Even if we were to apply the appeal delay set forth in La. C.C.P. arts. 1974 and 2087, which together allow 67 days to file a motion for appeal, the result would be the same, as the 67th day would lapse on March 11, 2013, making the motion for appeal untimely.