author: PITMAN, J.

text:
    James Clifford ARRANT, et al., Appellees v. GRAPHIC PACKAGING INTERNATIONAL, INC., et al., Appellants. Marvin Jack Barnett, Jr., et al, Appellees v. Graphic Packaging International, Inc., et al, Appellants. Kenneth Noel Bain, Sr., et al, Appellees v. Graphic Packaging International, Inc., et al, Appellants. George Emory Butler, et al, Appellees v. Graphic Packaging International, Inc., et al, Appellants. W.H. Auttonberry, et al, Appellees v. Graphic Packaging International, Inc., et al, Appellants. Jimmie Dewayne Baugh, et al, Appellees v. Graphic Packaging International, Inc., et al, Appellants. Melvin Ellis Bordelon, et al, Appellees v. Graphic Packaging International, Inc., et al, Appellants.
    Nos. 48,197-CA, 48,198-CA, 48,199-CA, 48,200-CA, 48,201-CA, 48,202-CA, 48,203-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.
    Rehearing Denied Nov. 14, 2013.

      Gary A. Bezet, Maxwell G. Kees, Carol L. Galloway, Robert E. Dille, Janice M. Culotta, Gregory M. Anding, Allison N. Benoit, Barrye Panepinto Miyagi, Baton Rouge, LA, Sarah E. Weissman, for Appellants, Olin Corp. & Graphic Graphic Packaging Int’l, Inc.

      The Steckler Law Firm, by Bruce W. Steckler, Kelly N. Reddell, Dimos, Ers-kine, Monroe, LA, by Jimmy N. Dimos, for Appellees, Hugh Calhoun, Tommie, Ford, Melvin E. Bordelon, Marvin J. Barnett, Jr., Jimmy Dewayne Baugh, W.H. Autton-berry, George, Emory Butler, Kenneth N., Bain, Sr., James Clifford, Arrant, Roy Robert, Vernice Pleasant, Jr., Jerry Hall & Ronald Ivy.
    Leigh Ann Tsehirn Schell, Michele Hale DeShazo, Sarah E. Roy, for IMO Industries, Inc.
    Joseph B. Morton, III, New Orleans, LA, Thomas W. Tardy, III, Jason D. Watkins, for Dresser-Rand Company.
    Glenn Lyle M. Swetman, Kay Barnes Baxter, Christopher O. Massenburg, Brandie M. Thibodeaux, New Orleans, LA, Margaret A. Casey, for Andritz, Inc.
    Before BROWN, CARAWAY & PITMAN, JJ.
   PITMAN, J.

| defendants Graphic Packaging International, Inc. (f/k/a Riverwood International USA, Inc., Riverwood International Corporation, Olinkraft, Inc., and Manville Forest Products Corporation), and Olin Corporation, (hereafter, “Graphic” and “Olin,” respectively), appeal the judgment of the trial court rendered in favor of Plaintiffs Hugh Calhoun, Roy Robert, Ronald Ivy, Jerry Hall, Tommy Ford and Vernice (Joe) Pleasant, awarding each plaintiff $50,000 for occupational noise-induced hearing loss (“NIHL”) caused by exposure to high noise levels at their employment at a manufacturing facility in West Monroe, Louisiana. For the reasons stated herein, we reverse the judgment of the trial court and find that NIHL is an “occupational disease” under La. R.S. 28:1031.1 and Defendants are entitled to the tort immunity provided to employers under the Louisiana Workers’ Compensation Act (“LWCA”). Further finding that the trial court lacked subject matter jurisdiction, we dismiss Plaintiffs’ suits.

FACTS

Plaintiffs are employees and former employees of a manufacturing plant located in West Monroe, Louisiana, who have worked at the plant currently owned by Graphic, and its predecessors, including Olin, since the 1960s. It is not disputed that Olin Mathieson Chemical Corporation operated the facility from 1955 until 1967, when Graphic assumed control of the mill. Multiple claimants filed various separate actions for hearing loss allegedly sustained as a result of being “occupationally exposed to hazardous levels of industrial noise.” Of the multiple claimants, six were Lchosen by the parties, from three separately filed captioned lawsuits, to represent the “first flight” of plaintiffs whose cases would be tried together.

The action of James Clifford Arrant, et al v. Graphic Packaging International, Inc., et al, was filed on February 1, 2005. Plaintiff Jerry Hall was added to the Arrant matter by a first amended petition filed on August 6, 2007. The case of W.H. Auttonberry, et al v. Graphic Packaging International, Inc., et al, was filed on February 1, 2005. Plaintiffs Hugh Calhoun and Roy Robert were 2 of 16 original plaintiffs. Plaintiff Ronald Ivy was added to the Auttonberry matter by a second amended petition filed on January 15, 2008. The case of Melvin Elvis Bordelon, et al v. Graphic Packaging International, Inc., et al, was filed on December 7, 2005. Plaintiffs Tommie Ford and Joe Pleasant were 2 of 82 original plaintiffs in that suit. On or about January 16, 2008, Plaintiffs, with the exception of Ivy and Ford, filed supplemental and amending petitions for damages in each of the cases, adding Olin as a party Defendant.

Graphic’s answer asserted an affirmative defense that it was Plaintiffs’ employer and, as such, entitled to tort immunity under the LWCA because it provided the employees’ exclusive remedy for the damages alleged.

Pertinent preliminary proceedings filed in the matter included Defendants’ peremptory exception raising the objection of prescription, claiming that Plaintiffs knew or should have known more than one year before suit was filed that they worked in a noisy environment, that noise could cause hearing loss and that they allegedly suffered hearing loss and |/ailed to file suit within that one-year prescriptive period. Plaintiffs invoked the legal theory of contra non valentem non currit prescriptio as an exception to the general rule of prescription and claimed that prescription does not run against a party who is unable to act. The trial court overruled Defendants’ objection of prescription.

Defendants also filed a motion for summary judgment claiming that they were entitled to tort immunity under the LWCA, contending that it covered the damages alleged as either having been caused by an “accident” within the meaning provided therein, or as an “occupational disease.” The trial court denied the motion for summary judgment on the basis that the gradual hearing loss alleged by Plaintiffs was not caused by an accident and, thus, was not compensable under the LWCA. The case proceeded as a tort action.

At the 14-day trial, the six plaintiffs testified that they had worked at the plant in West Monroe at various jobs and in different parts of the plant for decades. Mr. Hugh Calhoun was the earliest employee, having begun working there in 1956. He retired in 1998. All other Plaintiffs, except Mr. Tommie Ford, who was still employed there as of the date of the trial, retired between 2004 and 2007.

Plaintiffs uniformly testified to the extreme level of noise in the plant and complained that the noise was so loud people had to yell to be heard and had to read lips and use hand signals to understand what others were communicating. Plaintiffs all testified that their hearing was not tested on a regular basis by their employer and that, when their hearing was tested, they 14were not provided with the results of the tests or told that their hearing was being affected by the level of noise in the plant. Further, Plaintiffs testified that they were not provided with hearing protection until the late 1980s or early 1990s. Plaintiffs testified that the loss of their hearing occurred so gradually over a long period of time that they were not aware of the loss of function until approximately 2004 when their attorneys had them tested by experts. Some Plaintiffs also complained of constant tinnitus, or ringing in the ears.

Plaintiffs testified that after the hearing tests were conducted in 2004, they were fitted with sample hearing aids to determine if they would be of benefit to them. Five out of six of the plaintiffs testified that their hearing was better with the use of the hearing aids, although nothing alleviated the tinnitus suffered by some of them.

Plaintiffs’ expert in audiology, Dr. Ross Roeser, Ph.D., conducted hearing exams on the six plaintiffs and fitted them with hearing aids and conducted further tests to determine whether the plaintiffs were helped by the hearing aids. His testimony included a lesson on the anatomical structure of the ear, as well as a discussion of the nerves which carry sound to the brain. Dr. Roeser testified that the snail-shaped structure is the auditory portion of the inner ear called the cochlea. He explained that the cochlea has 2½ turns, which, if “unrolled” into a longitudinal structure, could be said to be “tonotopically” organized. He stated that tonotopically means that each distinct anatomical part is responsible for a different frequency and that high frequencies of sound are heard close to where the | ¡¡mechanical force enters the cochlea. Dr. Roeser further testified that the six plaintiffs appeared to have normal hearing of speech sounds, but had varying degrees of hearing loss at high frequencies.

Dr. Roeser stated that, when evaluating the effect of noise on hearing, the two most important factors to be considered are intensity and time. After an examination of the noise levels at the plant, which exceeded 85-90 decibels, and considering the amount of time each plaintiff spent in the plant per shift and per year, Dr. Roes-er’s opinion was that Plaintiffs had been exposed to excessive noise levels, and that occupational noise was a “substantially contributing factor or cause of their hearing loss.”

The deposition of Dr. Lawrence Danna, M.D., Plaintiffs’ expert in the field of oto-laryngology, was admitted in evidence. Dr. Danna evaluated all six plaintiffs and found that each had suffered hearing loss as a result of their employment at the plant. Dr. Danna’s opinion was that the employment with Graphic was the primary cause of Plaintiffs’ hearing loss.

After the very lengthy trial, the trial judge issued detailed reasons for judgment. The trial court did not mention the issue regarding tort immunity raised by Defendants as an affirmative defense or in the motion for summary judgment. The reasons for judgment note that Plaintiffs brought their action for recovery based on theories of negligence for failure to provide a safe place to work causing Plaintiffs to suffer hearing loss and strict liability due to Defendants’ ownership, custody and control of the West Monroe facility. The trial court discussed negligence, liability, | (¡causation, duty/risk and the need for Defendants’ conduct to be a substantial contributing cause of Plaintiffs’ hearing loss.

In summary, the trial court found that the evidence established that the daily, constant exposure of Plaintiffs to decades of hazardous levels of industrial noise while employed by Defendants was a substantial and significant cause-in-fact of their hearing loss and that any other potential cause pales in comparison. The trial court further concluded that Plaintiffs had suffered permanent and irreversible loss of hearing in varying degrees affecting every aspect of their lives and further stated that, although various devices, including hearing aids, may help in a given situation, they will not replace the loss of natural hearing.

The trial court also stated that it was mindful that each individual Plaintiff must be awarded damages according to his particular facts and circumstances; but, even so, considering the evidence, uniformity of the damage awards was mandated by the evidence. For those reasons, and Plaintiffs’ stipulation to the recovery of no more than $50,000 per claim, the court awarded $50,000 in damages to each Plaintiff, together with legal interest thereon from the date of judicial demand until paid.

| ./Defendants now appeal.

DISCUSSION

Defendants contend the trial court erred in ruling that Plaintiffs’ claims are not based on an occupational disease, which, had the court so found, would have barred Plaintiffs’ tort suit under the exclusivity provision of the LWCA. This decision was made by the trial court when it denied Defendants’ motion for summary judgment seeking recognition of the tort immunity granted to employers under the LWCA. Defendants contend that, at all times during their alleged exposure to noise, Plaintiffs were employed by Defendants, and their alleged injuries arose out of and in the course of their employment.

Before beginning the discussion of La. R.S. 23:1031.1, we note that, although prior to 1975 these particular plaintiffs, in theory, might have been able to file a tort suit against their employers, their gradual hearing loss had not yet manifested itself so that any claim was possible. Because the progression of their loss was so gradual that they did not recognize it had occurred, Plaintiffs apparently could not, and in fact did not, assert a cause of action until more than 25 years after the statute was amended. The greatest portion of the damage to their hearing was incurred in the years following 1975. For that reason, we will not linger on that portion or interpretation of the LWCA by which litigants were required to show an accident-caused injury. Instead, we focus this opinion on that portion of the LWCA which defines “occupational disease” and makes it compensatory.

\ ^Application of La. R.S. 23:1031.1, the “Occupational Disease” statute

The legislature first added a provision for occupational disease claims to the LWCA in 1952. The coverage provided was only for a schedule of diseases, which did not include hearing loss. See Rando v. Anco Insulations, Inc., 08-1163 (La.5/22/09), 16 So.3d 1065.

In 1975, La. R.S. 23:1031.1 was revised to amend the provision for coverage of an “occupational disease” by removing the list of specific diseases which was previously included and substituting an omnibus definition covering “only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process or employment in which the employee is exposed to such disease.” La. Acts 1975, No. 583, § 2. One of the purposes of La. R.S. 23:1031.1 is to relieve employees of the almost impossible task of proving an “accident” in connection with an occupational disease. O'Regan v. Preferred Enterprises, Inc., 98-1602 (La.3/17/00), 758 So.2d 124.

In 1975, the statute stated as follows:

A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment. (Emphasis added.)
B. An occupational disease shall mean only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.

| aIn 1989, subsection (B) of the statute was amended to substitute “means only” for “shall mean only” and to add a sentence listing specific exclusions:

B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivas-cular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

In 1990, subsection (B) was amended to add, as the second sentence, “Occupational disease shall include injuries due to work-related carpal tunnel syndrome.”

Today, La. R.S. 23:1031.1(H) contains the exclusive remedy provision of the statute and is the same as it was originally in 1952. La. R.S. 23:1031.1(H) provides:

The rights and remedies herein granted to an employee or his dependent on account of an occupational disease for which he is entitled to compensation under this Chapter shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents or relatives.

The question of whether a disease is compensable under the LWCA is a legal determination involving interpretation bf a statute. Terrance v. Dow Chemical Co., 06-2234 (La.App. 1st Cir.9/14/07), 971 So.2d 1058, writ denied, 07-2042 (La.12/14/07), 970 So.2d 534. When interpreting the LWCA, courts must take into account the basic history and policy of the compensation movement. O’Regan v. Preferred Enterprises, Inc., supra, citing Fruge v. Muffoletto, 242 La. 569, 137 So.2d 336 (1962).

110It is a well-recognized and long-established rule of statutory construction that a statute should be interpreted as a whole to effect the legislative intent and should be construed in such a way as to reconcile, if possible, apparent inconsistencies so that each part is given effect. The primary object is to ascertain and, if possible, give effect to the intention and purpose of the legislature as expressed in the statute. Since the meaning is to be determined from a general consideration of the act as a whole, all parts, provisions or sections must be read together. Each must be considered with respect to, or in the light of, all the other provisions and construed in harmony with the whole. The intent as deduced from the whole will prevail over that of a particular part considered separately. Meaning should be given, if possible, to each and every section, and the construction placed on one portion should not be such as to obliterate another. So, in determining the meaning of a word, phrase or clause, the entire statute is to be considered. O’Regan v. Preferred Enterprises, Inc., supra.

An occupational disease has been defined as the result of a series of events, often imperceptible in nature, which are eventually evidenced in the manifestation of a disability. Vargas v. Daniell Battery Mfg. Co., 93-1249 (La.App. 1st Cir.5/20/94), 636 So.2d 1194, citing Freeman v. Poulan/Weed, Eater, 618 So.2d 618 (La.App. 2d Cir.1993), reversed on other grounds, 630 So.2d 733 (La.1994). See also Coats v. City of Bossier City, 31,164 (La.App. 2d Cir.10/30/98), 720 So.2d 1283, writ denied, 99-0019 (La.2/12/99), 738 So.2d 581. Indeed, with the clear legislative Ininclusion in 1990 of work-related carpal tunnel syndrome as an occupational disease, the legislature indicated that, when cumulative damage or stress processes occur to the body, the resulting condition can be interpreted in the occupational disease context.

Plaintiffs in the case at bar suffered NIHL which, as shown by the evidence, resulted from the cumulative damage or stress process upon the ear caused by constant exposure to excessively loud noises. While the constant roar of noise of a single day at Defendants’ facility cannot be said to cause a personal injury by accident under the LWCA, every minute loss of hearing caused by the noise of the workplace every day for years accumulated to cause NIHL.

The evidence before this court is sufficient to meet the requirements for finding that gradual hearing loss caused by excessive noise is an “occupational disease” under La. R.S. 23:1031.1(B). A causal link between Plaintiffs’ hearing loss and their work-related duties has been established by a reasonable probability by Plaintiffs’ own testimony and that of their experts. It was shown at trial that the “occupational disease” was contracted during the course of employment and was the result of the nature of the employment. More importantly, expert testimony in the form of certified reports, depositions or direct examination in open court supported a finding of an occupational disease. Thus, the evidence established that Plaintiffs’ [^hearing loss “is due to causes and conditions characteristic of and peculiar to” Plaintiffs’ particular trade, occupation, process or employment with Graphic.

In O'Regan v. Preferred Enterprises, Inc., supra, the supreme court discussed the concept of “accident” and stated that it was no surprise that, when the legislature broadened the concept of “accident” by providing for occupational diseases in the workers’ compensation system, it engraft-ed the same phrases in its treatment of occupational diseases in La. R.S. 23:1031(A) and (B). The court examined the history of the occupational disease statute and stated that, although the 1952 and 1958 enactments listed specific occupational diseases, the 1975 amendment removed the list of specific diseases for which there was coverage under the LWCA and substituted a general definition of “occupational disease.”

The supreme court stated that the abandonment of the scheduled list scheme to the general definition scheme should be recognized as an attempt by the legislature to broaden, not restrict, those diseases compensable under the occupational disease act. The supreme court also stated that the important issue in the case before them was to distinguish those occupational diseases covered under the LWCA, because they were peculiar to the nature of the employment, from common diseases not covered by the LWCA, because they are not associated with the employment.

Plaintiffs dispute this view of NIHL as an occupational disease based upon other recent rulings of Louisiana courts of appeal. Becker v. Murphy Oil Corp., 10-1519 (La.App. 4th Cir.6/2/11), 70 So.3d 885, writ denied, 11-1750 (La.11/23/11), 76 So.3d 1154; Barbe v. American Sugar Refining, Inc., 11-0544 (La.App. 4th Cir.12/14/11), 83 So.3d 75, writ denied, 12-0124 (La.3/23/12), 85 So.3d 92; McCarthy v. Entergy Gulf States, Inc., 11-0600 (La.App. 3d Cir.12/7/11), 82 So.3d 336, writ denied, 12-0072 (La.3/9/12), 84 So.3d 553; and an unpublished opinion, Allred v. Georgia-Pacific Corp., 12-0424 (La.App. 1st Cir.4/16/13), 2013 WL 1912653, writ denied, 13-1109 (La.8/30/13), 120 So.3d 266.

While each of these cases involved employees with NIHL caused by long-term exposure to loud noises in various facilities, the analyses employed by the courts concerned only the issue of work-related injury from accident and/or the LWCA’s provision for compensation for hearing loss due to a single noise event under La. R.S. 23:1221(4)(p).

In Allred, supra, while the appellate court acknowledged the possibility that NIHL constituted an occupational disease, it reversed the district court’s summary judgment conclusion that NIHL was an occupational disease partially on grounds of insufficient evidence to support 114of the motion for summary judgment. Moreover, the cases cited by Plaintiffs do not specifically state that hearing loss caused by long-term exposure to noise in a work place does not meet the definition of “occupational disease” found in the LWCA. In Wex S. Malone & H. Alston Johnson, III, Workers’ Compensation Law and Practice § 286, in 13 Louisiana Civil Law Treatise (5th Ed.), it is stated:

In a series of cases marked by very little analysis of whether long-term hearing loss is either a “personal injury by accident” or an “occupational disease,” but rather using the amendment to R.S. 23:1221(4)(p) (which actually addresses neither one, but only governs what types of benefits can be received after this is proven under other provisions), it has been held by certain intermediate appellate courts that a tort action may be maintained for long-term hearing loss. See Barbe v. American Sugar Refining, Inc., 83 So.3d 75 (La.Ct.App. 4th Cir.2011); McCarthy v. Entergy Gulf States, Inc., 82 So.3d 336 (La.Ct.App.3d Cir.2011); Becker v. Murphy Oil Corp., 70 So.3d 885 (La.Ct.App. 4th Cir.2011). Barbe and McCarthy have virtually no analysis of the issue and simply cite Becker. At this writing, the supreme court has not resolved the issue.

La. R.S. 23:1031.1 specifically states that an employee who is disabled because of the contraction of an occupational disease shall be entitled to the compensation provided in the LWCA “the same as if said employee received personal injury by accident arising in the course of his employment.” For the foregoing reasons, we find that Plaintiffs’ gradual, but permanent, hearing loss caused by constant exposure to excessive occupational noise is exactly the kind of “occupational disease” covered by the LWCA in La. R.S. 23:1031.1.

Compensability and Remedy

Plaintiffs argue that La. R.S. 1221(4)(p) allows compensation benefits for hearing loss only for permanent hearing loss due to a single traumatic | ir,accident. Thus, Plaintiffs argue that the LWCA provides no remedy for NIHL because its effect on the employee’s ability to work is different from injury for other work place accidents or occupational disease. Citing O'Regan v. Preferred Enterprises, Inc., supra, Plaintiffs argue that the lack of effective remedies under the LWCA for their NIHL allows their recovery in tort.

In O’Regan v. Preferred Enterprises, Inc., supra, the supreme court recognized that “the Legislature cannot completely deprive citizens of the right to seek a remedy either under the [LWCA] or under our general law.” It further held that “[a] conceptual distinction must be made between injuries which do not come within the [LWCA’s] coverage provisions and injuries which are covered, but for which no compensation is payable.” O'Regan v. Preferred Enterprises, Inc., supra. “If the claim is not covered under the [LWCA], then the exclusivity provision does not apply. There has been no quid pro quo and thus the claimant has not lost the right to sue in tort.” Id.

The technical legal issue in O’Regan v. Preferred Enterprises, Inc., supra, involved the statutory presumption of La. R.S. 23:1031.1(D) which effectively barred an employee from making a claim for an occupational disease if he had been employed for less than 12 months in a workplace where the disease was contracted. Thus, O’Regan determined that the employee was specifically precluded by statutory hurdles from receiving benefits under the LWCA, and the employee’s claim was allowed to be pursued through an action in tort.

In Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, the supreme court stated that, once a workers’ compensation claimant has established the existence of an occupational disease, for his illness to be compensable, he must further establish that the illness is disabling. In Price v. City of New Orleans, 95-1851 (La.App. 4th Cir.3/27/96), 672 So.2d 1045, writ denied, 96-1016 (La.10/25/96), 681 So.2d 360, it was found that, although an employee in a workers’ compensation action based on occupational disease was seeking only medical expenses and not disability, his burden of proof was no different.

The compensation to be provided is dependent upon the proof of disability or impairment of function and its relation to the occupational disease. Upon proof of impairment of function, Plaintiffs are entitled to compensation under the LWCA, even if only under La. R.S. 23:1203, which obligates the employer to furnish medical and vocational rehabilitation expenses, prosthetic devices and other expenses. That statute states in pertinent part as follows:

A. In every case coming under this Chapter, the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services. Medical care, services, and treatment may be provided by out-of-state providers or at out-of-state facilities when such care, services, and treatment are not reasonably available within the state or when it can be provided for comparable costs.

An employer has a statutory duty to furnish all necessary medical treatment caused by work-related injury. Dangerfield v. Hunt Forest Products, Inc., 10-1324 (La.App. 1st Cir.3/25/11), 63 So.3d 214, writ denied, 11-0814 (La.6/3/11), 63 So.3d 1019.

Without addressing the issue of whether or not Plaintiffs’ injuries qualify for compensation under the LWCA, because that determination must now be made by the LWCA court, it suffices to point out that the LWCA would provide some compensation to Plaintiffs if they prove their claim, even if La. R.S. 23:1221(4)(p) does not apply because their hearing loss was not caused by a “single traumatic accident.”

For the foregoing reasons, we find that Plaintiffs have alleged a cause of action that is covered by the LWCA as an occupational-disease and that, if proven, would entitle them to seek at least the remedy of medical treatment and prostheses as provided by the LWCA. NIHL is compensa-ble under the LWCA and a remedy is available; therefore, Defendants’ right to tort immunity provided under La. R.S. 23:1031.1(H) is recognized.

Subject matter jurisdiction

Last, as a result of this ruling, this court must note that, because the LWCA provides Plaintiffs’ exclusive remedy, the trial court lacked subject matter jurisdiction to hear this case. The issue of subject matter jurisdiction addresses the court’s authority to adjudicate the cause before it. The issue may be considered at any time, even by the court on its own motion, at any stage of the action. La. C.C.P. arts. 1, 2, 3. Boudreaux v. State, Dept. of Transp. & Dev., 01-1329 (La.2/26/02), 815 So.2d 7. Lack of subject |ismatter jurisdiction may be raised on appeal by the court’s own motion. Nerness v. Christian Fidelity Life Ins. Co., 98-1827 (La.App. 3d Cir.4/21/99), 733 So.2d 146.

The jurisdiction granted by law to workers’ compensation judges is set forth in La. R.S. 23:1310.3(F), which states:

F. Except as otherwise provided by R.S. 23:1101(B), 1361, and 1378(E), the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, group self-insurance indemnity contract disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or workers’ compensation insurers or self-insurance group funds for indemnification or contribution, concurs proceedings pursuant to Louisiana Code of Civil Procedure Articles 4651 et seq. concerning entitlement to workers’ compensation benefits, payment for medical treatment, or attorney fees arising out of an injury subject to this Chapter.

Pursuant to this provision, the Office of Workers’ Compensation is granted exclusive jurisdiction over workers’ compensation claims arising out of the workers’ compensation law. Taylor v. Hanson North America, 08-2282 (La.App. 1st Cir.8/4/09), 21 So.3d 963.

Since this court has found that the judgment of the trial court should be reversed on the basis that Plaintiffs’ sole remedy is in workers’ compensation, we note that the trial court lacked subject matter jurisdiction to hear the cause, which should have been brought in the Office of Workers’ Compensation court pursuant to La. R.S. 23:1310.3.

{^CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of Plaintiffs, Hugh Calhoun, Tommie Ford, Jerry Hall, Ronald Ivy, Vernice Pleasant, Jr., and Roy Robert, and against Defendants, Graphic Packaging International, Inc., and Olin Corporation, et al, is hereby reversed, and Plaintiffs’ suits are dismissed. Costs of this appeal are assessed to Plaintiffs, Hugh Calhoun, Tommie Ford, Jerry Hall, Ronald Ivy, Vernice Pleasant, Jr., and Roy Robert.

REVERSED AND DISMISSED.

APPLICATION FOR REHEARING

Before BROWN, STEWART, CARAWAY, PITMAN and GARRETT, JJ.

Rehearing denied.

      . From this point on, the facility will be referred to as the Graphic mill, as it is referred to by the trial court, regardless of true ownership at the time period in question.

      . Shortly, before rendition of this opinion, this court was informed that the judgment rendered in favor of Plaintiff Vernice (Joe) Pleasant and against Graphic and Olin contained an error. Mr. Pleasant was not employed by Olin at any time; in fact, according to testimony presented at trial, he began working at the plant on January 31, 1967, after it was being operated by a former Graphic company. Therefore, this particular judgment rendered against Olin is in error, and Defendant has filed a motion in this court, which is unopposed by the Plaintiff, seeking a correction or modification to delete Olin from it. This motion was referred to the merits of the appeal. La. C.C.P. art. 2164 states that the appellate court shall render any judgment which is just, legal and proper upon the record on appeal. In this case, and considering the ultimate disposition of this appeal, this court considers it just, legal and proper upon the record on appeal to simply note that an error was made which would have no effect on the outcome of the case. The interests of equity and fairness require the court to correct the judgment, which was unquestionably unjust and erroneous due to confusion and the multiplicity of parties.

      . La. R.S. 23:1021 defines ''accident” as follows:
      (1) ''Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

      . La. R.S. 23:1221(4)(p) provides:
      In cases not falling within any of the provisions already made, where the employee is seriously and permanently disfigured or suffers a permanent hearing loss solely due to a single traumatic accident, or where the usefulness of the physical function of the respiratory system, gastrointestinal system, or genito-urinary system, as contained within the thoracic or abdominal cavities, is seriously and permanently impaired, compensation not to exceed sixty-six and two-thirds percent of wages for a period not to exceed one hundred weeks may be awarded. In cases where compensation is so awarded, when the disability is susceptible to percentage determination, compensation shall be established in the proportions set forth in Subparagraph (o) of this Paragraph. In cases where compensation is so awarded, when the disability is not susceptible to percentage determination, compensation as is reasonable shall be established in proportion to the compensation herein-above specifically provided in the cases of specific disability.

      . The Legislature’s provision for supplemental earnings benefits for permanent partial disability for hearing loss caused by a single traumatic accident, and its failure to provide for benefits for hearing loss caused by constant exposure to occupational noise levels sufficient to cause the same permanent partial disability, appear to have been an oversight which cannot be reconciled.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Monica SHIRLEY, Nee Dusenbery, Plaintiff-Appellee v. John Campbell SHIRLEY, Defendant-Appellant.
    Nos. 48,635-CA, 48,636-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 16, 2013.

      Donald L. Kneipp, Monroe, for Appellant.
    Chris L. Bowman, Jonesboro, for Appel-lee.
    Before WILLIAMS, CARAWAY and GARRETT, JJ.
   CARAWAY, J.

_[iThis appeal involves incidental demands in covenant marriage divorce proceedings. The trial court awarded joint custody of the two minor children of the marriage, child support, and interim and final periodic spousal support. In the judgment, the trial court awarded joint custody and child support with domiciliary status to the mother, but did not specify the amount of physical custody for each party. Finding the child custody and support rulings incomplete, we dismiss the appeal for those matters and remand for further proceedings. The remainder of the judgment concerning interim and final spousal support is affirmed.

Facts and Procedural Background

John Campbell Shirley (“John”) and Monica Shirley, Nee Dusenbery (“Monica”), entered into a covenant marriage on December 6, 1997. Two children were born of the marriage, ACS, born August 12, 1998, and VGS, born March 22, 2001. In 2008, Monica filed for judgment of separation from bed and board pursuant to La. R.S. 9:307(B) on the ground of habitual intemperance on the part of John. In the petition, she also filed for incidental relief such as periodic spousal support, child support, and child custody. This petition was followed by a brief reconciliation period in late 2009. Nevertheless, on June 3, 2010, John filed an answer to Monica’s original petition for separation and a reconventional demand for divorce on the ground of adultery. In August 2010, he amended his answer and reconventional demand seeking joint custody of the children, but domiciliary status of only ACS.

[2On September 7, 2010, Monica filed a motion to dismiss her petition for separation from bed and board due to the parties’ 2009 reconciliation. On the same day, she filed a new petition for separation from bed and board that was substantively the same as the first. On March 25, 2011, the trial court granted the motion to dismiss the original petition on the ground of reconciliation. John disputed that reconciliation occurred as a legal matter. However, the trial court ruled that the parties had in fact reconciled. This judgment was never appealed.

After a hearing on January 31, 2012, John orally amended his petition for divorce. He alleged that the parties had been living separate and apart for two years and that he was entitled to a covenant marriage divorce pursuant to La. R.S. 9:307(A)(5). Monica did not object to this amendment of the action or dispute the parties’ two years of separation. The trial court granted a divorce on this oral petition on the same day. The hearings on child custody, child support, and periodic spousal support occurred in January, February and June of 2012.

The evidence at trial regarding interim and final periodic support was adduced from the parties’ testimony and John’s accountant, David Johnston (“Johnston”). Monica testified that she had no current employment, but was searching for a job. She stated she inquired about jobs as a restaurant server at several locations but never applied because she would be unable to be at home when her children would arrive home from school. Monica testified that she had begun nursing school prior to her marriages to John and a previous husband. At that time, she needed only two semesters to obtain a ^nursing degree but would have to start anew if she were to go back to nursing school. Additionally, she testified she had experience as a restaurant server and bartender, as well as experience managing her mother’s restaurant in Houma. Furthermore, the parties agreed at the outset of the marriage that Monica would be a stay-at-home mother.

Monica executed an affidavit on June 20, 2012, listing her expenses for purposes of establishing her claim to the various support awards. It showed her total monthly net income as zero and her total monthly expenditures as $10,220 per month, with the largest portion being for housing at $3,500 per month. However, the trial court found that many of the expenses in the affidavit were admitted estimates and that many items were not necessities.

John and Monica’s 2008 joint tax return was entered into evidence showing a total income of $453,877 and an adjusted gross income of $440,978. Johnston testified regarding John’s income for 2009-2011 from various sources, such as his income as trust beneficiary, his income from various investments, his income from royalties from oil and gas leases, and income from his catering business, Campatori Catering, LLC, of which he and Monica are the only members. Those income sources totaled $256,955 in 2009, and $229,010 in 2010. Additionally, Johnston testified that John’s projected income in 2011 would be $176,747.

| Contesting John’s presentation of his income, Monica introduced into evidence John’s monthly expenses of $85,000, claiming that this should be the basis of determining his income rather than his tax returns or Johnston’s income assessment. Also introduced into evidence was a number of bank statements from various banks where the parties held accounts. The parties stipulated that John had liquid assets of at least $500,000.

Concerning the issue of fault, Monica testified that she had two sexual relationships. Prior to the parties’ reconciliation in late 2009 and after her original petition for separation from bed and board, she admittedly had a sexual relationship with a man named Webb. The only other adultery specifically alleged by John was an affair with a man named Rhodes. Monica testified that initially they had only a platonic relationship, but she admitted it became sexual as of August 11, 2010, after John’s reconventional demand in the summer of 2010. Rhodes’s deposition was also introduced into evidence, in which he substantiated Monica’s testimony by stating that the relationship became sexual sometime in August 2010. No other evidence of adulterous fault was presented.

After considering all the evidence, the trial court found that there had been no post-reconciliation fault by Monica and that she was in need of support. The court ordered John to pay interim spousal support in the amount of $8,600 retroactive to September 7, 2010, terminating 180 days after the date of divorce on June 30, 2012, for a total amount of $75,600. |sThe judgment further ordered John to pay Monica final periodic support in the amount of $2,200 per month for a period of three years beginning July 1, 2012, and terminating on July 1, 2015.

The issues of child custody and support were also litigated during the trial of these matters. The trial court ordered joint custody of the children and designated Monica as the “primary custodial or domiciliary parent.” The trial court also ordered a joint custody implementation plan (“JCIP”) be submitted within 30 days with the following provisions:

(1) No overnight guests of the opposite sex to whom the parties are not related.
(2) No consuming illicit drugs or alcohol when having the children.
(3) Provide for regular telephone and email communication time with whomever [sic] is the non-custodial parent at that time.
(4) A plan for how to share information when the other party has the child.
(5) Regular counseling for all parties to address communication and other issues for at least one year from the date of this judgement [sic ], as prescribed in Dr. Thigpen’s report.
(6) Mr. Shirley shall enroll in and successfully complete the La. Tech Domestic Abuse Prevention program or a Court approved program for anger management within 90 days of this judgment.
(7) Both parties shall attend Children in the Middle within 90 days of this judgment.
(8) Monica Shirley is to follow the parenting recommendations found in Dr. Thigpen’s report.

The judgment also stated the following in regard to the JCIP:

| fiAll in accordance with a Joint Custody Implementation Plan to be submitted at a future date. Each party shall submit the Joint Custody Implementation Plan within 30 days of the Judgment herein together with any memorandum in support thereof. Upon receipt of the requested documentation the judge will review and adopt a Joint Custody Implementation Plan.

The trial court’s judgment therefore did not specify the amount of time that each party is to have physical custody of the children.

The judgment also ordered John to pay child support to Monica in the amount of $2,799 per month in accordance with the joint obligation Worksheet A with credit given to John for $542 for a direct monthly payment to the Learning Tech Quest School for a total child support payment of $2,257.44 per month. The obligation was made retroactive to July 15, 2010, for an arrearage of $71,109.36 subject to a credit of $27,500 for previously paid support, leaving an arrearage of $43,609.36 as of February 15, 2013.

Regarding John’s ability to pay for both spousal and child support, the trial court considered the income figures presented by Johnston. The trial court found that Johnston’s testimony was helpful but not entirely conclusive and concluded that the report he prepared and opinions he gave were somewhat circumspect. Rather, the trial court made an upward adjustment for John’s estimated income for 2011. He took into account the estimated figure of $176,747 and considered John’s spending habits and sources of income. Ultimately, the trial court averaged John’s income according to Johnston’s report for the years 2010 and 2011 for a figure of $203,000 per year.

It is from this judgment that John appeals.

| tDiscussion

I.

John argues on appeal that the trial court erred in naming Monica the domiciliary parent. He also asserts that he has not been awarded a sufficient amount of physical custody, arguing instead for what he calls “shared custody.” In another related matter, John disputes the child support obligation imposed by the trial court’s ruling. Finally, as apparent from the trial court’s judgment and discussed extensively by the parties at oral argument before this court, the trial court’s judgment concerning physical custody is incomplete in that it only ordered the parties to “submit the Joint Custody Implementation Plan within 30 days of the Judgment herein together ■with memorandum in support thereof.” That JCIP for the designation of the sharing of actual physical custody remains pending. Because of this situation, as shown by the following law for a child custody and support dispute, we find that the trial court’s partial judgment in this matter requires dismissal of these matters for this appeal.

When determining custody in a proceeding of divorce or thereafter, the court shall award custody of a child in accordance to the best interests of the child. La. C.C. art. 131. In the absence of agreement, the court shall award custody to the parents jointly unless custody in one parent is shown by clear and convincing evidence to serve the best interest of the child. La. C.C. art. 132. To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally. La. R.S. 9:335(A)(2)(b). In the decree of joint custody, the court shall designate a |8domiciIiary parent except when there is an implementation order to the contrary or for other good cause shown. La. R.S. 9:335(B)(1). The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents. La. R.S. 9:335(B)(2).

Louisiana Revised Statutes section 9:335(A)(1) provides: “In a 'proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.” La. R.S. 9:335(A)(1) (emphasis added). Next, La. R.S. 9:335(A)(2) states that the “implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured frequent and continuing contact with both parents.” La. R.S. 9:335(A)(2) (emphasis added).

Additionally, Third Judicial District Court Rule 38.3, titled “Submission and Implementation of Joint Custody Plans” states, “In cases involving any dispute as to custody, it shall be required that all parties specifically comply with the provisions of Article 146 of the La. Civil Code, noting particularly that there shall be submitted a custody implementation plan to the court prior to the issuance of a joint custody decree.” (Emphasis added).

In calculating the total child support obligation, La. R.S. 9:315.8 mandates that the trial court consider the amount of time that a parent will have physical custody of the children. It states with emphasis added:

|fl(l) In cases of joint custody, the court shall consider the period of time spent by the child with the nondomiciliary party as a basis for adjustment to the amount of child support to be paid during that period of time.
(2) If under a joint custody order, the person ordered to pay child support has physical custody of the child for more than seventy-three days, the court may order a credit to the child support obligation. A day for the purposes of this Paragraph shall be determined by the court; however, in no instance shall less than four hours of physical custody of the child constitute a day.

La. R.S. 9:315.8(E). Joint custody, for the purpose of this statute, is “a joint custody order that is not shared custody as defined in R.S. 9:315.9.” Id. Shared custody is defined as “a joint custody order in which each parent has physical custody of the child for an approximately equal amount of time.” La. R.S. 9:315.9(A)(1). If the joint custody order is “shared custody” the support obligation is mandated by statute to be calculated differently using Worksheet B. See La. R.S. 9:315.9. When Worksheet A is utilized, the trial court may adjust the designated amount of the child support obligation. See La. R.S. 9:315.8.

A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814. La. C.C.P. art 2088(A). To determine the finality of the judgment for purposes of immediate appeal, La. C.C.P. art. 1915 clearly states that “[w]hen a court renders a partial judgment ... as to one or more but less than all of the claims, demands, issues, or theories, ... the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.” La. C.C.P. art. 1915(B)(1) (emphasis added).

|TnAs seen by these statutory provisions, the allocation of time periods for the sharing of joint custody is a factor for determination of the amount of the child support obligation. Although the trial court utilized Worksheet A in this instance, it was nevertheless under the directive to consider the amount of time that the parties would share custody in fixing the child support obligation. La. R.S. 9:315.8. Likewise, John’s argument for shared custody under La. R.S. 9:315.9 has not been completely foreclosed until the allocation of time through a final JCIP has been made. The case is remanded for finalization of the child custody ruling and for reconsideration of the child support award.

II.

Although we find the child custody portion of the judgment is not final, we do find that the portions of the appeal regarding spousal support are final judgments and may be considered at this time. John argues that the trial court’s determination of his income caused error in the awards of both interim and final periodic spousal support. The interim spousal support award was $3,600 per month and the final periodic support was $2,200 per month for three years. While the amount of income for 2008, $453,877, was not in dispute, the trial court utilized the average of the income reported by Johnston for 2010 and Johnston’s 2011 estimate, which was $203,000. John argues that the trial court abused its discretion because Monica presented no contradictory evidence and because the trial court deviated upward from the income estimate for 2011 determined by Johnston.

Inin a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage. La. C.C. art. 111. Upon motion of a party or when a demand for final spousal support is pending, the court may award a party an interim spousal support allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage, which shall terminate upon the rendition of a judgment of divorce. La. C.C. art. 113. The trial court is afforded much discretion in determining an award of interim spousal support, and such a finding will not be disturbed absent a clear abuse of discretion. Jones v. Jones, 38,790 (La.App.2d Cir.6/25/04), 877 So.2d 1061, citing Bagwell v. Bagwell, 35,728 (La.App.2d Cir.3/08/02), 812 So.2d 854; McDermott v. McDermott, 32,014 (La.App.2d Cir.6/16/99), 741 So.2d 186; see also Gremillion v. Gremillion, 39,588 (La.App.2d Cir.4/06/05), 900 So.2d 262.

Regarding the determination of the amount of a final periodic spousal support award, La. C.C. art. 112(B) provides:

The court shall consider all relevant factors in determining the amount and duration of final support. Those factors may include:
(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties.
(3) The earning capacity of the parties.
(4) The effect of custody of children upon a party’s earning capacity.
112(5) The time necessary for the claimant to acquire appropriate education, training, or employment.
(6) The health and age of the parties.
(7) The duration of the marriage.
(8) The tax consequences to either or both parties.

The basic tests for the amount of spousal support are the needs of the claimant spouse and the other spouse’s ability to pay. Gremillion, supra. Difficulty in finding employment suitable for the spouse’s age, training, and ability is a proper consideration in determining whether a claimant is voluntarily underemployed. Patton v. Patton, 37,401 (La.App.2d Cir.9/24/03), 856 So.2d 56, citing Falterman v. Falterman, 98-158 (La.App.5th Cir.1/13/99), 726 So.2d 1023; Fountain v. Fountain, 93-2176 (La.App.lst Cir.10/07/94), 644 So.2d 733. The trial court is vested with great discretion in making final periodic support determinations, and its judgment will not be disturbed absent a manifest abuse of discretion. Id.

The trial court’s use of approximately $200,000 as John’s annual income was not an abuse of discretion. In the preceding years, 2008-2010, for which tax returns were filed, the income of the community well exceeded that amount of income. That income, including any fruits of John’s separate property, continued to be derived solely by John or attributable to his property after the parties’ divorce. Johnston’s estimate of a possible lower amount of income for 2011 before the finalization of a tax return was unpersuasive to the trial court, and that ruling from our review of the record is not an abuse of the trial court’s discretion.

11sRegarding the actual amounts of the interim and final support awards, we likewise find no abuse of discretion. The $3,600 per month for interim spousal support was clearly within the standard of living enjoyed by the Shirleys, yet less than one-fourth of John’s annual income of $203,000 as determined by the trial court.

In awarding Monica $2,200 per month in final support for three years, the trial court relied upon factor 5 of Article 112(B), allowing a period of support for Monica to acquire appropriate education and training to enter the workforce. The evidence shows that the child custody situation has impacted Monica’s ability to become employed. The evidence also shows that ACS required special schooling due to behavioral disorders, which affects the determination under factor 4 of Article 112(B). The trial court correctly considered her ongoing essential expenses at a much lower level than Monica reported. We therefore do not find that the award for final spousal support was an abuse of discretion.

III.

In his last assignment of error, John asserts that Monica is not entitled to final periodic support because she is not free from fault. John argues that fault on the part of Monica, specifically, an admitted sexual relationship with Rhodes, occurred after the parties’ reconciliation in 2009 and while Monica’s petition for separation was pending. He argues that this bars her from recovering final spousal support. John supports this view by reference to rulings under the law for separation actions predating the 1990 revision of Louisiana’s divorce law when spousal fault could occur during an action 114for separation. He contends this law was revived by the covenant marriage regime. Additionally, John asserts that the relevant petition for divorce in this case is his orally amended petition of January 31, 2012, on which the divorce was granted on the ground of living separate and apart for two years. Monica’s admitted relationship with Rhodes occurred before that time.

The regime of covenant marriage, added to our law in 1997, does allow proceedings for separation in addition to providing for divorce. La. R.S. 9:272, et seq.; La. R.S. 9:307, et seq. Because under La. R.S. 9:293 “all of the laws governing married couples generally” apply in covenant marriage, the spousal support obligation of Civil Code Article 111 applies to couples in a covenant marriage. See also La. R.S. 9:308(D) (specifically listing spousal support as incidental relief in proceedings for separation for a covenant marriage).

Article 111 provides in pertinent part that “[i]n a proceeding for divorce or thereafter, the court may award ... final periodic support to a party ... who is free from fault prior to the filing of a proceeding to terminate the marriage.” La. C.C. art. Ill (emphasis added). Only misconduct of a serious nature, providing an independent contributory or proximate cause of the breakup, equates to legal fault. Id.; Allen v. Allen, 94-1090 (La.12/12/94), 648 So.2d 359. The policy behind this rule is that it is unfair to a claimant spouse to bar final support when her conduct is not [ )5the cause of the breakup of the marriage. See Kenneth Rigby, The 1997 Spousal Support Act, 58 La. L.Rev. 887, 900-01 (1998).

Pretermitting John’s contentions regarding the issue of fault during the pen-dency of Monica’s petition for separation, we find that the first interpretation of the rule concerning spousal fault under Article 111 must be made in consideration of John’s pleadings for divorce. John filed an answer and reconventional demand for divorce on the ground of adultery on June 3, 2010. His action of divorce was certainly a proceeding “to terminate the marriage.” Monica’s admitted sexual relationship with Rhodes began in August 2010, during the pendency of John’s action for divorce. From this assessment of the timeline of events, we hold that Article 111 prevents consideration of Monica’s actions in August 2010 from amounting to fault which would bar her recovery of spousal support. We view John’s filing to end the marriage in June 2010 as falling within the bright-line rule of Article 111. Events after such filing do not prevent consideration of Monica’s claim for spousal support. The ultimate grounds that John established for the divorce do not change the effect of the pendency of his action under Article 111 and its effect on the issue of fault.

Conclusion

For the reasons stated above, we affirm the trial court’s order for interim periodic spousal support and order for final periodic spousal support. We find the judgments regarding child custody and support incomplete for failure to include allocation of physical custody. Accordingly, because physical custody was not determined, we remand for a | ^determination of physical custody of the children and reconsideration of the child support award. Costs of these proceedings are assessed to appellant.

APPEAL DISMISSED IN PART; JUDGMENT AFFIRMED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

      . John's 2009 and 2010 tax returns listed his filing status as "married filing separately.” Therefore, these amounts of income were not reflected on those returns.

      . At the time of trial, John had not yet filed his income tax return for 2011.

      .Legal fault of one spouse prior to a reconciliation cannot be the basis for denying that spouse final periodic support. Hamsa v. Hamsa, 95-736 (La.App.5th Cir.1/17/96), 668 So.2d 1209.

      . Dr. Thigpen was appointed by the court to evaluate the parties as an expert for determining child custody.

        . We note that under La. R.S. 9:309(A) for covenant marriages, a judgment of "[sjeparation from bed and board does not dissolve the bond of matrimony, since the husband and wife are not at liberty to marry again.” Therefore, a petition for a judgment of separation from bed and board is arguably not a "proceeding to terminate the marriage” under Civil Code Article 111.


author: DREW, J.

text:
    Kamithia D. PENTON, Plaintiff-Appellant v. Michael A. CASTELLANO, Kelly Beason Castellano Hudson, The Caddo Parish School Board, and Pamela S. Bloomer, Defendant-Appellee.
    No. 48,433-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 23, 2013.

      Weems, Schimpf, Gilsoul, Haines, Landry & Shemwell (APLC), Shreveport, by Brian D. Landry, for Appellant, Kamithia D. Penton.
    Corkern, Crews & Guillet, L.L.C., Natchitoches, by Steven D. Crews, Lisa V. Johnson, for Appellees, Michael A. Castel-lano and State Farm Fire & Cas. Co.
    Casten & Pearce, A.P.L.C., Shreveport, by Marshall Reeves Pearce, for Appellee, Kelly Beason Castellano Hudson.
    Dale G. Cox, Jr., for Appellees, Caddo Parish School Board and Pamela S. Bloomer.
    Before BROWN, DREW and MOORE, JJ.
   DREW, J.

Lin this suit arising out of an incident in which an assistant principal/disciplinarian was injured when she was tripped by a second-grade student, the assistant principal/disciplinarian appeals judgments dismissing her' claims against the student’s parents.

We reverse the judgment dismissing the claims against the father and his insurer, and affirm the judgment dismissing the claims against the mother.

FACTS

“MAC,” the child at the center of this lawsuit, was born in November of 2002. He attended Evangel Christian Academy through most of first grade before being expelled because of disobedience. He was then enrolled at Summer Grove Elementary School in Shreveport near the end of first grade to finish out the 2009-2010 school year.

MAC had an extensive disciplinary record at Summer Grove during the first few months of the 2010-2011 school year. On September 9, MAC told two classmates that he would kill them at recess. On September 14, MAC was accused of cursing at another student. When his teacher told him to get off the floor and return to his chair, MAC began to crawl around the class and tried to hit another student with a pencil. MAC also threw his work on the ground and refused to go to recess. The next day, MAC told other students he was going to kill them. He also pulled and tugged away from a teacher when she told him to comply with her command to stand by a wall at recess. MAC received a suspension for his actions. MAC was' admitted to Brentwood Hospital following the incidents of September 15. |2He was diagnosed at Brentwood as being bipolar. MAC was discharged from Brentwood on September 27.

MAC returned to Summer Grove, and on September 29, he told a teacher that he could kill her because he knew jujitsu. Later that same day, MAC hit another student with pencils and chased the student around the classroom. MAC was suspended for threatening the teacher.

On October 5, 2010, MAC punched one student in the chest and then hit another student while swinging a jacket, stole another student’s erasers and a dollar from another student, and put his middle finger up at students in class.

On October 6, 2010, MAC threw and kicked chairs around the classroom, hit and kicked at an ISS teacher in the classroom, and kicked his teacher. He also screamed profane language in the classroom. MAC was suspended and referred to the child welfare officer. A hearing was also held after this incident. Kamithia Penton, the assistant principal and disciplinarian at Summer Grove, urged Principal Pamela Bloomer to remove MAC from the school because she considered MAC to be a danger to other students and staff. Bloomer decided that MAC should remain at Summer Grove because there were no alternative school options for him at his age.

On November 3, 2010, MAC pushed his teacher against a classroom locker. Pen-ton went to the classroom to escort MAC to the school office. On the way to the office, MAC tripped Penton, causing her to sustain injuries. MAC was moved to another school following this incident.

| ^Procedural History

MAC’S parents, Michael Castellano (“Michael”) and Kelly Castellano Hudson (“Kelly”), were divorced at the time of the incident. Penton filed suit against Michael as domiciliary parent and natural tutor, Kelly as natural tutrix, Bloomer, and the Caddo Parish School Board. La. C.C. art. 2318 was asserted as the basis for the parents’ liability.

Michael filed exceptions of no cause of action and no right of action on the ground he owed no duty to Penton at the time of the incident because Summer Grove had assumed a duty with respect to MAC, who was under their sole supervision and control.

Kelly filed a motion for summary judgment. She asserted that Michael was the sole custodial parent at the time of the incident as she had only visitation rights pursuant to a series of interim orders and amendments. She contended that liability under La. C.C. art. 2318 attached only to the custodial parent, and as the noncustodial parent, she could not be held liable for her son’s actions under art. 2318.

Penton amended her petition to add State Farm as a defendant in its capacity as the insurer, under separate policies, of Michael and Kelly.

Michael and State Farm filed a motion for summary judgment in which they contended that the missing element in Pen-ton’s claim against them was a duty on the part of Michael. They argued that while parents are normally responsible for the negligent conduct of their children under La. C.C. art. 2318, the school board and faculty and staff at Summer Grove ^assumed the duty to educate and supervise MAC, whom they knew had a mental illness. They further argued that Penton’s role as assistant principal and disciplinarian was analogous to that of a compensated caregiver.

The trial court rendered a judgment granting Kelly’s motion for summary judgment, as well as a judgment granting Michael’s motion for summary judgment and exception of no right of action.

Penton applied for supervisory writs with this court, which noted that the judgments were final judgments subject to appeal, and the notice of intent to seek writs was timely as an appeal. The matter was remanded to the trial court for perfection of the appeal.

DISCUSSION

The asserted basis for the parents’ liability for the acts committed by MAC is found in La. C.C. art. 2318, which provides:

The father and the mother are responsible for the damage occasioned by their minor child, who resides with them or who has been placed by them under the care of other persons, reserving to them recourse against those persons. However, the father and mother are not responsible for the damage occasioned by their minor child who has been emancipated by marriage, by judgment of full emancipation, or by judgment of limited emancipation that expressly relieves the parents of liability for damages occasioned by their minor child.

This is legally imposed strict liability, and fault is determined regardless of whether the parent could or could not have prevented the child’s act. Turner v. Bucher, 308 So.2d 270 (La.1975). The liability can be escaped when a parent shows the harm was caused by the fault of the victim or of a third person, or by a fortuitous event. Id.

|,4⅝ielly’s liability

Penton appeals the granting of summary judgment in favor of Kelly, dismissing all claims against her. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate, ie., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Id.

In order to review the granting of summary judgment, it is first necessary to recount the history of the parents’ divorce and custody action. Michael filed a petition for divorce on February 6, 2006. He sought sole custody with Kelly being given restricted and supervised visitation. An interim order was entered on March 27, 2006, granting Michael interim custody of MAC subject to Kelly’s restricted and supervised overnight visitation every other weekend pending trial on a rule that was set for the following month.

Kelly filed an answer and reconventional demand in the divorce action on April 11, 2006. Kelly prayed .that she and Michael be awarded shared custody of MAC and that they be designated as co-domiciliary parents. A second interim order was entered on August 16, 2006, appointing a mental health professional.

|fiKelly and Michael apparently worked out a visitation agreement on their own. On April 14, 2009, Kelly filed a petition to terminate the interim order and establish joint custody with herself named domiciliary parent and reasonable visitation given to Michael. Kelly asserted that beginning in April of 2007, Michael allowed her to have custody of MAC for two days a week unsupervised. She further stated that beginning in April of 2008, she picked up MAC from school every day and kept him at her home until Michael got off work. During the summer, she kept MAC when Michael was at work. She also had MAC for an overnight visit during the week when she did not have weekend visitation. Kelly contended that in February of 2009, Michael told her that she would receive only the visitation provided in the interim order.

On May 15, 2009, Michael filed a petition to amend the interim order. He admitted that he had recently allowed Kelly to have unsupervised visitation with MAC. However, after he told her that future visitation would have to be supervised in accordance with the interim order, she continued to have unsupervised visitation with her son. Accordingly, Michael sought the modification of the interim order to suspend the exercise of custodial periods by Kelly pending substitution of an appropriate supervisor or an interim recommendation by the appointed mental health professional.

An amended interim order was entered on June 3, 2009, prohibiting overnight visits by members of the opposite sex during any period of |7physical custody of MAC. All other provisions of the original interim order remained in full force and effect.

A second amended interim order was entered on August 11, 2009. It provided for Kelly’s unsupervised visitation with MAC every other weekend and every Wednesday. All prior orders except as modified were to remain in full force and effect. It stated that trial was set for September 29, 2009. There have been no further judicial actions regarding custody, and the parents have not obtained a final custody determination because, according to Michael, Kelly has abided by the existing interim order.

Penton argues that because legal custody of MAC is unresolved without a final determination of custody, both parents remained strictly liable under La. C.C. art. 2818 for the delictual acts of MAC at Summer Grove. Penton contends that the interim orders cannot bar recovery against Kelly under art. 2818 as both parents continue to have legal custody. She insists the interim orders are nothing more than agreements in the form of consent judgments that maintain the status quo of physical custody.

Kelly counters that the interim orders granted her visitation rights, but no custody rights. Since she was never granted custody rights, and none were taken from Michael, he remained the sole custodial parent on November 3, 2010. Kelly urges that the award of custody to Michael in the interim orders disrupted her parental authority and precluded imposing liability against her under art. 2318.

Penton cites Henderson v. Sellers, 2001-0529 (LaApp. 3d Cir.12/5/01), 815 So.2d 853, in support of her argument. There, the parents |8were granted joint custody with the father named as domiciliary parent. The custody plan contained a provision that responsibility for the acts of the children, including those acts contemplated in art. 2318, were to be borne by the parent in custody at the time of the act. As determined by the court on motion for summary judgment, the child was in the physical custody of his mother at the time he was involved in a fight. The appellate court concluded that while the responsibility provision was valid between the parents, it could not eviscerate the rights of an injured third party.

Henderson v. Sellers can be distinguished as joint custody had been awarded in that matter, whereas the interim orders awarded custody to Michael with visitation rights given to Kelly. Moreover, Kelly is not seeking to enforce the terms of an agreement specifically regarding art. 2318 liability, but is instead relying on the order of the court that provided her only with visitation.

The importance of legal custody versus where a child resided was examined in Audubon Ins. Co. v. Fuller, 430 So.2d 343 (La.App. 3d Cir.1983). The judgment of divorce granted custody to the mother with the father having visitation and custody during his vacation. At the time of the tort, the child was living with his father. The court noted that after a judgment of divorce, only the parent with legal custody of the child can be liable under La. C.C. art. 2318 for the child’s tortious acts. The court also noted that it was not enough to impose liability on the father under art. 2318 merely because the child was living with him at the time of the incident. 19The responsibility of the custodial parent under art. 2318 remained fixed, and the parental responsibility of the noncustodial parent under art. 2318 had been suspended by the force and effect of law, regardless of where the child actually resided. The court concluded that summary judgment was inappropriate because, recognizing the divided custody provisions in the decree, it remained a genuine issue of material fact whether the father had legal custody at the time of the incident.

Michael stated that he, not Kelly, made the decisions regarding MAC following their divorce. Michael was the parent who met with Penton and Bloomer when MAC first started at Summer Grove. Michael was called to the school after MAC’S incidents, although it appears that Kelly may have participated in some of the meetings with Summer Grove’s staff.

It is of no importance that there had not been a final custody determination. In Wilde v. McMilleon, 513 So.2d 551 (La.App. 2d Cir.1987), the mother obtained custody of the children in a judgment of separation rendered in Morehouse Parish. A judgment of divorce subsequently rendered in Arkansas did not mention custody. The original judgment on rule for custody was never modified, and it was not abrogated by the Arkansas divorce decree, so custody remained with the mother. The father correctly contended that he was not vicariously liable under art. 2318 for his son’s tort. The court concluded that the award of custody to the mother had disrupted the father’s parental authority and liability under art. 2318.

ImBased upon our de novo review of this record, we conclude that the trial court did not err in granting Kelly’s motion for summary judgment.

Michael’s liability

Penton also appeals the judgment granting Michael’s exception of no right of action and motion for summary judgment. Michael notes that the judgment which his attorney prepared should have read that both exceptions were granted along with his motion for summary judgment. However, he acknowledges that the motion for summary judgment essentially tracked both exceptions.

The exception of no cause of action and the exception of no right of action both present questions of law. Therefore, a court conducts a de novo review of the trial court’s action on these exceptions. Waggoner v. America First Ins., 42,863 (La.App.2d Cir.1/16/08), 975 So.2d 110.

Our supreme court has explained the difference between the exceptions of no cause of action and no right of action:

Although these two exceptions are often confused or improperly combined with the same exception, the peremptory exceptions of no right of action and no cause of action are separate and distinct. This court has recognized that one of the primary differences between the exception of no right of action and no cause of action lies in the fact that the focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, while the focus in an exception of no cause of action is on whether the law provides a remedy against the particular defendant.
The function of an exception of no right of action is a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. The exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation.
11TIn contrast, an exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. The exception is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. In reviewing a district court’s ruling sustaining an exception of no cause of action, appellate courts conduct a de novo review because the exception raises a question of law and the district court’s decision is based only on the sufficiency of the petition. An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. If the petition states a cause of action on any ground or portion of the demand, the exception should generally be overruled. Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial.

Citations omitted. Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 at pp. 6-7 (La.3/17/06), 929 So.2d 1211, 1216-7.

Michael contends that strict liability is not applicable in this matter because Penton was contractually obligated to care for MAC, and she was well aware of his behavioral problems. He argues that what is missing in Penton’s claim is a duty on his part under these circumstances since Summer Grove assumed a duty to educate and supervise MAC. Michael contends that the facts are not in dispute and whether the school board assumed a duty with respect to MAC is a legal issue.

Michael also points out that instead of waiting for the security coordinator to arrive and assist with MAC, Penton elected to escort him to the office alone. In addition, she could have also called Michael, who had come to school promptly in the past when called, and waited for him to arrive at the school before proceeding with MAC. Michael contends that either step would have helped prevent the injury that occurred. Michael |12argues that, like a compensated caregiver, Penton is not within the class of individuals who should be allowed to recover under these circumstances.

Penton counters that Michael failed to establish that Penton was outside the class of individuals who were legally entitled to assert a claim for his liability under art. 2318 for MAC’S actions. She argues that summary judgment was inappropriate as custody never shifted from Michael to the school. Michael did not lose responsibility for MAC’S actions while he was at school. In addition, Penton argues that she did not fall under any caregiver rule because she was not hired to guard against the danger of being injured by MAC, and she was not there to take care of MAC’S health needs.

In support of his arguments, Michael cites Griffin v. Shelter Ins. Co., 2002-2628 (La.App. 1st Cir.9/26/03), 857 So.2d 603, writ denied, 2003-2992 (La.1/16/04), 864 So.2d 635; Thibo v. Aetna Ins. Co., 347 So.2d 20 (La.App. 3d Cir.1977), writ denied, 350 So.2d 674 (La.1977); and Vinccinelli v. Musso, 2001-0557 (La.App. 1st Cir.2/27/02), 818 So.2d 163, writ denied, 2002-0961 (La.6/7/02), 818 So.2d 767.

The plaintiff in Griffin was hired to care for a totally disabled, elderly woman. She was injured when the elderly woman grabbed her arm while being transferred from her wheelchair. The court noted that the risk of the elderly woman grabbing Griffin’s arm while being transferred from her wheelchair was the type of risk that Griffin was contractually obligated to guard against. That particular risk of harm was not unreasonable for Griffin considering her job responsibilities, and under the facts and circumstances, 11sno duty was owed by the elderly woman to Griffin to guard against that particular risk.

In Thibo, a family’s housekeeper was injured while trying to dress their three-year-old developmentally disabled son. The trial court found that based on Turner v. Bucher, supra, the parents were strictly liable for the injuries caused by their son. The Third Circuit reversed, holding that Turner did not apply and the parents were not liable under art. 2318. The court noted that the housekeeper, who had been employed by the family for more than six months, knew of the child’s propensities to struggle with her while she was caring for him.

In Vinccinelli, the court determined that an Alzheimer’s patient owed no duty to her caregiver to protect her from slipping in ice cream on the kitchen floor at the patient’s home.

All three cases cited for support by Michael can be readily distinguished. The basis for the court’s holding in Thibo was that the housekeeper was barred from recovery under assumption of the risk. However, assumption of a risk no longer acts as a complete bar to recovery. See Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988). The plaintiffs in Griffin and Vinccinelli were specifically hired to care for the infirm. MAC was at Summer Grove to receive an education. While Pen-ton obviously looked out for MAC’s well-being, taking care of his health needs was not her primary function. She was not MAC’S caretaker.

In Nalle v. State Farm Fire & Cas. Co., 97-441 (La.App. 3rd Cir.10/8/97), 702 So.2d 854, writ denied, 97-2832 (La.2/13/98), 706 So.2d 994, a teacher was injured when her student, who had been assigned the task of holding the classroom door open while the class exited the room, suddenly turned around and dashed toward the classroom, when he collided with the teacher. The court rejected the argument of the. student’s parents that they should not be held responsible for the teacher’s injuries because they had entrusted the care, custody, and supervision of their child to the teacher. The court also reversed the assessment of 65% fault to the teacher, reasoning that no duty could have been imposed on the teacher for her to foresee the unpredictable action taken by her student.

We also reject Michael’s argument that his duty under art. 2318 was shifted to Summer Grove while MAC was at school. We find instructive this court’s treatment of a plaintiffs argument that La. C.C. art. 2320 made teachers vicariously liable for the misdeeds of students under their care:

To levy liability, as sought by plaintiff, would effectively place the teacher in the same position, vis-a-vis the student, as a parent occupies toward his child. Considering the many societal problems confronting modern education, an imposition of liability without fault, based upon the delictual conduct of students, would further handicap present-day school systems. If threatened with almost unlimited liability, academic institutions would be forced to divert additional attention from their fundamental role as centers of learning.
Thus, public policy strongly militates against assessing a school board with vicarious liability for the delictual acts of its students.

Adams v. Caddo Parish School Bd., 25,370 at p. 9 (La.App. 2d Cir.1/19/94), 631 So.2d 70, 76, writ denied, 94-0684 (La.4/29/94), 637 So.2d 466.

Michael stated that when MAC transferred to Summer Grove, he had an entry interview with Penton and Bloomer to give them MAC’s | ^background. He recalled telling them that MAC had disciplinary problems at Evangel and had been asked to leave, although he did not think he went into detail during the interview about specifically what had led to the expulsion. Michael also did not remember if he released MAC’s records from Evangel to Summer Grove. Penton contended that when she left this meeting, she was unaware of any disciplinary issues involving MAC as she did not have his disciplinary file from Evangel. MAC was still diagnosed with ADD at the time of the interview.

MAC was prescribed the medication Ability for his bipolar disorder. Michael stated that he knew he told someone at Summer Grove about the bipolar diagnosis and what medications MAC was taking because he did not want them to think he was ignoring MAC’s continuing problems at school. Michael also stated that the staff at Summer Grove knew that MAC had been treated at Brentwood because MAC returned to school with a doctor’s excuse from there. Nevertheless, Michael could not recall specifically discussing MAC’s condition or medicines with Penton.

Michael did not know if MAC was ever evaluated by the school system for special education services, and he never requested such an evaluation. MAC was never a special education student, but was in regular class.

According to Michael, the only other person injured by MAC was a school safety coordinator, who had his watch broken. MAC broke the 11fisafety coordinator’s watch while wrestling with him. He also apparently head butted the safety coordinator in the counselor’s office.

Penton testified that she referred MAC to a school counselor because of his worsening behavior. A hearing was held a week after the October 6 incident to determine whether MAC should remain at Summer Grove. Penton testified that her recommendation was that MAC be removed from the school because his bad behavior was escalating, but Bloomer told her that she wanted MAC to stay at Summer Grove because there was not an alternative school for second graders. While Penton was concerned that MAC might pose a danger to teachers and other students, she had to follow Bloomer’s recommendation since she was the principal.

Penton stated that she did not volunteer to work with MAC and was not consulted about his admission to Summer Grove. She also contended that she was not privy to any diagnoses or treatment of MAC, especially the bipolar diagnosis. She knew MAC was a continuing behavior problem, but she did not think she was placing herself into a dangerous situation when escorting him to the office based upon his small size and limited information about him.

As noted earlier, Louisiana no longer recognizes assumption of the risk as a total bar to recovery. The extent, if any, of Penton’s knowledge and acceptance of risks presented by MAC would be subject to a comparative fault analysis at a trial on the merits.

|17We conclude that the trial court erred in granting the exception of no right of action and motion for summary judgment and dismissing Penton’s claims against Michael and State Farm as his insurer.

DECREE

With Penton to bear her appeal costs, we affirm the judgment dismissing the claims against Kelly. With Michael and State Farm to bear their appeal costs, we reverse the judgment dismissing Penton’s claims against Michael and State Farm as his insurer, and remand the matter for further proceedings.

      . MAC’s pediatrician had originally diagnosed him as having ADD.

      . Bloomer and the School Board were later dismissed on summary judgment.

      . It would later be determined at the trial on the merits that the child was in his father’s physical custody at the time of the fight.

      . MAC'S first psychiatrist diagnosed the bipolar disorder and prescribed Ability.

      . We would have found the exception of no cause of action to have been erroneously granted had it been part of the judgment.


author: PAINTER, Judge.

text:
    LEVIER, LLC v. Yolander THOMAS.
    No. 13-472.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.
    Rodney M. Rabalais, Marksville, LA, for Defendant-Appellee, Levier, LLC.
    Yolander Thomas, Fort Worth, TX, pro se.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| j Defendant, Yolander Thomas (Thomas), appeals the trial court’s decision that a tax sale held without notice to a mortgagee was absolutely null and granting Plaintiff, Levier, LLC’s (Levier) motion for summary judgment and declaring Levier to be the owner of the disputed property. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Albert and Lucy Jacobs acquired the property at issue and executed a mortgage to First Fidelity Mortgage, Inc. (FFM). FFM assigned the mortgage to Provident Bank (Provident). In April 2001, the property was sold to Thomas at a municipal tax sale. No notice of the sale was sent to Provident. Provident foreclosed and bought it in at the subsequent sheriffs sale. Levier bought the property from Provident in November 2002.

The property was again sold for unpaid parish taxes in May 2002. Thomas was listed as the owner, and the property was adjudicated to the parish. Thomas redeemed the property.

Levier filed suit in December 2010, asking to be declared owner of the property. Thomas answered and asked the court to quiet her tax title. Levier and Thomas each filed motions for summary judgment. The trial court granted Levier’s motion and denied Thomas’s motion. Thomas appeals.

DISCUSSION

Summary Judgment

Louisiana Code of Civil Procedure Article 966(B) provides that a summary judgment shall be entered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Pursuant to Article 966(C)(2), the moving party bears the burden of proof. |2However, if the moving party will not be required to bear the burden of proof at trial, he or she is not required to “negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial[.]” Id. In such an event, there is no genuine issue of material fact. Id. An appellate court reviews a ruling on a motion for summary judgment under the de novo standard of review and uses the same criteria that governed the trial court’s consideration as to whether summary judgment is appropriate. Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670 (La.2/26/08), 977 So.2d 839.

Olson v. Rapides Parish Sheriff & Tax Assessor, 08-1288, p. 4 (La.App. 3 Cir. 4/1/09), 7 So.3d 797, 799-800, writ denied, 09-0982 (La.10/2/09), 18 So.3d 117.

Notice of Sale

We will first consider Thomas’s assertion that the evidence does not support the conclusion that Provident did not receive notice of the original municipal tax sale. Notice to the mortgage holder is required for a valid tax sale.

In Mennonite Bd. of Missions v. Adams, the Supreme Court recognized that the sale of property for nonpayment of taxes is an action affecting a property right protected by the Due Process Clause of the Fourteenth Amendment. 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180 (1983). In Mennonite, the mortgagee of a property contested a tax sale that occurred after the homeowner had failed to pay her property taxes. 462 U.S. at 794, 103 S.Ct. at 2709. The mortgagee was not provided notice of the homeowner/mortgagor’s delinquent payment of the taxes or the subsequent tax sale. Id. The Supreme Court held that “a mortgagee possesses a substantial property interest that is significantly affected by a tax sale” and therefore “is entitled to notice reasonably calculated to apprise him of a pending tax sale.” Id. at 798, 103 S.Ct. at 2711. The Supreme Court stated: “Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.” Id. at 800, 103 S.Ct. at 2712. Because the mortgagee was not afforded its constitutional right to due process, the Supreme Court reversed the decision that upheld the tax sale. Id.
| gArticle VII, Section 25(A) of the Louisiana Constitution of 1974 requires the tax collector to provide notice of the tax delinquency and the tax sale to all owners of record of any interest in the property. Lewis v. Succession of Johnson, 05-1192 (La.4/4/06), 925 So.2d 1172; C & C Energy, [L.L.C. v. Cody Investments, L.L.C.], 09-2160, p. 7, 41 So.3d [1134] at 1139 [ (La.2010) ].

Smitko v. Gulf South Shrimp, Inc., 11-2566, pp. 8-9 (La.7/2/12), 94 So.3d 750, 756 (footnote omitted).

Failure to give notice renders a tax sale an absolute nullity. Lewis v. Succession of Johnson, 05-1192 (La.4/4/06), 925 So.2d 1172; Smith v. Brooks, 97-1338 (La.App. 3 Cir. 4/15/98), 714 So.2d 735, writ not considered, 98-1869 (La.10/30/98), 723 So.2d 969.

In this case, Provident supported its motion for summary judgment with the affidavit of Myron G. Gagnard, Clerk for the City of Marksville at the time of the municipal tax sale. He stated in his affidavit that he was responsible for procéssing all notices and publications and for the conduct of tax sales, including the sale of the Jacobs property; that he did not check the Avoyelles Parish Clerk of Court records or obtain a mortgage certificate from the Clerk of Court to determine if there were any liens against the property; and that he did not send notice of the pending tax sale relative to the Jacobs property to Provident Bank.

Since no issue of fact remains and the documents introduced in support of Levier’s motion for summary judgment show that no notice was sent to Provident, the trial court correctly found that the tax sale was null and that, as a result, it did not serve to transfer title to Thomas. Further, since no question of fact remains but that Levier bought the property at a subsequent sale pursuant to foreclosure, the trial court correctly declared it to be the owner of the property. Having so found, we pretermit consideration of the remaining assignments of error.

1 CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Defendant-Appellant, Yolander Thomas.

AFFIRMED.