text:
    Julia B. VOINCHE, et al. v. Joseph Beaud CAPPS, et al.
    No. 14-671.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.

      David M. Ellison, Jr., Ellison & Ellison, Baton Rouge, LA, for Defendants/Appellants, Beaud & Fontaine, L.L.C., Beaud & Capps, L.L.C., Beaud Farms, L.L.C., Beaud Farms, A Partnership, Charles Beaud, L.L.C.

      Stacey Moak, Jonathan D. Mayeux, Christopher W. Stidham, James C. Under-hill, Stacey Moak & Associates, Baton Rouge, LA, for Defendant/Appellant, Charles Beaud, Individually.
    Andrew L. Plauché, Jr., James K. Orde-neaux, Attie Babin Carville Plauché, Ma-selli, Parkerson, LLP, New Orleans, LA, for Defendant/Appellant, Louisiana Farm Bureau Casualty Company.
    Rodney M. Rabalais, Marksville, LA, for Plaintiffs/Appellees, Celeste Voinche Gau-thier, Samantha K. Voinche, Julia B. Voinche, Christopher G. Voinche.
    Kenny L. Oliver, David Oliver Way, Oliver & Way, Lafayette, LA, for Defendants/Appellees, Joseph Beaud Capps, Permanent General Assurance Company.
    W. Ransom Pipes, Hannah, Colvin, & Pipes, L.L.P., Baton Rouge, LA, for Defendant/Appellee, Travelers Property Casualty Company of America.
    Donald R. Klotz, Jr., Casler Bordelon & Lawler, Metairie, LA, for Defendants/Ap-pellees, Joseph Beaud Capps, Progressive Security Insurance Co.
    Seth Andrew Schmeeckle, Daniel Bernard Centner, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for Defendant/Appellee, Travelers Property Casualty Company of America.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

| ¶ After Nickie Voinche died as a result of a motor vehicle accident allegedly caused by Joseph Beaud Capps, Mr. Voinche’s heirs brought this wrongful death and survival action. The instant issue concerns a motion for summary judgment filed by Mr. Capps and his insurer, seeking a determination that he was in the course and scope of his employment at the time of the accident. Charles Beaud, one of Mr. Capps’ purported employers, filed a cross motion for summary judgment seeking a determination that he was not Mr. Capps’ employer and to be dismissed from the case. The trial court granted Mr. Capps’ motion for summary judgment and denied Mr. Beaud’s motion for summary judgment. Mr. Beaud, his insurer, and Beaud Farms now appeal. For the following reasons, we reverse, render judgment, and remand for further proceedings.

Factual and Procedural Background

According to the allegations in the record, at approximately six o’clock a.m. on a Saturday morning in September 2011, Joseph Beaud Capps and Brian Major were driving northbound and Nickie Voinche was driving southbound on Louisiana Highway 1 in Pointe Coupee Parish. Mr. Capps was driving a vehicle he had borrowed from a friend, Joseph Garrett. Mr. Voinche was driving a truck owned by his employer, Gilchrist Construction Co., LLC. Mr. Major’s vehicle was in front of Mr. Capps’ vehicle, and, when Mr. Major slowed down to make a right-hand turn, •Mr. Capps struck Mr. Major’s vehicle on the driver’s side rear corner, went to the center line, and struck Mr. Voinche’s vehicle head-on. Mr. Voinche was killed as a result of the accident. •

|2The plaintiffs, Julia Voinche, Christopher Voinche, Celeste Voinche Gauthier, and Samantha Voinche, are Mr. Voinche’s wife and children. They filed the pending wrongful death and survival action against Mr. Capps, Progressive Security Insur-anee Company, Permanent General Insurance Company, Louisiana Farm Bureau Insurance Company, Charles Beaud d/b/a Beaud Farms, Beaud Farms (a partnership comprised of Charles Beaud, LLC, Beaud & Capps, LLC, and Beaud & Fon-taine, LLC), and Travelers Property Casualty Company of America. Mr. Capps and Progressive subsequently filed a motion for summary judgment, alleging that there was no genuine issue of material fact and that they were entitled to judgment as a matter of law with regard to the issue of whether Mr. Capps was in the course and scope of his employment at the time of the accident. Mr. Beaud filed a cross-motion for summary judgment, seeking a determination that he was not Mr. Capps’ employer.

After a hearing, the trial court granted Mr. Capps’ and Progressive’s motion for summary judgment and denied Mr. Beaud’s cross-motion for summary judgment.

Mr. Beaud and the Beaud Farms partnership appeal, asserting as error that:

1. The trial court committed legal error when it granted Joseph Beaud Capps’ and Progressive Security Insurance Company’s motion for partial summary judgment since disputed issues of material fact exist as to whether Joseph Beaud Capps was in the course and scope of his employment with Beaud Farms and/or Charles Beaud, individually[,] at the time of the September 17, 2011 accident.
2. The trial court and this Court committed legal error when the trial court denied that part of Charles Beaud’s cross-motion for summary judgment relating to whether Joseph Beaud Capps was in the course and scope of his employment with Charles Beaud, individually, and also when this Court denied Charles Beaud’s supervisory writ application on February 21, 2014, since no genuine issue of material fact exist[s] as to whether Joseph Beaud Capps was in the course and scope of employment with Charles Beaud, individually[,] at the time of the September 17, 2011 accident.
|¾3. The trial court and this Court committed legal error when the trial court denied the entirety of Charles Beaud’s cross-motion for. summary judgment relating to whether Joseph Beaud Capps was in the course and scope of any employment with Beaud Farms and/or Charles Beaud, individually, and also when this Court denied Charles Beaud’s supervisory writ application on February 21, 2014, since Joseph Beaud Capps’ testimony concerning his alleged stop at the shop prior to the accident and his alleged call to Arturo Navarro about work prior to the accident amounts to nothing more than a mere denial and not substantiated by any other evidence in the record.

Additionally, Louisiana Farm Bureau, Mr. Beaud’s insurer, appeals, asserting as error that:

1. The Trial Judge erred in granting the Motion for Summary Judgment of Joseph Beaud Capps and Progressive Security Insurance Company (and thereby finding that Joseph Beaud Capps was within the course and scope of his employment with Beaud Farms when the accident occurred) by impermissibly weighing voluminous competing evidence. Where there are genuine material issues of fact as to whether or not an alleged tortfeasor was in the course and scope of his employment, summary judgments are improper. (Citation Omitted.)
2. The Trial Judge improperly ignored precise and uncontradicted evidence from both sides which supported the Cross Motion for Summary Judgment based upon Joseph Beaud Capps never being employed by Charles Beaud, individually, and thereby never in the course and scope of employment of Charles Beaud, individually. The Charles Beaud Motion for Summary Judgment should have been granted because Charles Beaud and Joseph Beaud Capps agreed that Joseph Beaud Capps was not an employee of Charles Beaud individually. (Citation Omitted.)

Discussion

Summary Judgment

Summary judgment is designed to secure the just, speedy and inexpensive determination of actions and is now favored in our law. La.Code Civ.P. art. 966(A)(2). The appellate courts review summary judgments de novo, using the same criteria which the trial court uses to determine if summary judgment is appropriate. Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131. A party is entitled to summary judgment if “the pleadings, depositions, answers to | ¿interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2). “Facts are material if they determine the outcome of the legal dispute.” Baggett v. Brumfield, 99-1484, p. 6 (La.App. 3 Cir. 3/1/00), 758 So.2d 332, 336, writ denied, 00-927 (La.5/12/00), 761 So.2d 1292.

The burden of proof remains with the moving party, although, if the moving party will not bear the burden of proof at trial, “its burden on the motion does not require it to negate all essential elements of the adverse party’s action, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim.” Richard, 874 So.2d at 137. Thereafter, the adverse party must provide sufficient factual support to show that they will be able to satisfy their evidentia-ry burden of proof at trial; otherwise, there is no genuine issue of material fact. Id. (citing La.Code Civ.P. art. 966(C)(2)). Additionally, pursuant to La.Code Civ.P. art. 967(B):

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

Course and Scope of Employment

Mr. Capps’ motion for summary judgment addresses whether or not he was within the course and scope of his employment at the time of the accident. Pursuant to La.Civ.Code art. 2320, an employer is “answerable for the damage occasioned by [its] servants ... in the exercise of the functions in which they are employed.” More specifically, an employer will be liable for its employee’s torts |fiif the employee was acting within the course and scope of his employment. Timmons v. Silman, 99-3264 (La.5/16/00), 761 So.2d 507.

In Richard, 874 So.2d at 137-38, the supreme court reiterated the basic principles concerning whether an employee’s conduct was within the course and scope of his employment, stating:

In determining whether a particular accident may be associated with the employer’s business enterprise, the court must essentially decide whether the particular accident is a part of the more or less inevitable toll of a lawful enterprise. Ermert [v. Hartford Ins. Co., 559 So.2d 467, 476 (La.1990)], citing 5 F. Harper, F. James & O. Gray, The Law of Torts, § 26.7, at 28 (2d ed.1986). When considering which risks the employer must bear under vicarious liability, the proper test bears resemblance to that which limits liability for workers’ compensation, because the employer should be held to anticipate and allow for risks to the public that '“arise out of and in the course of’ his employment of labor [sic]. Ermert, 559 So.2d at 476, citations omitted. While the course of employment test refei’s to time and place, the scope of employment test examines the employment-related risk of injury. Russell v. Noullet, 98-0816, p. 4 (La.12/1/98), 721 So.2d 868, 871 (reh’g denied 1/15/99). The inquiry requires the trier of fact to determine whether the employee’s tor-tious conduct was so closely connected in time, place and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared to conduct motivated by purely personal considerations entirely extraneous to the employer’s interests. Id.

Phrased another way, an employee’s conduct is considered to be within the course and scope of his employment if it is “of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer.” Orgeron v. McDonald, 93-1353, p. 4 (La.7/5/94), 639 So.2d 224, 226-27. An employer is generally not liable for acts committed by its employee while the employee is going to or coming from work. Id. See also Hargrave v. Delaughter, 08-1168 (La.App. 3 Cir. 3/4/09), 10 So.3d 245. However, application of this rule becomes more complicated in cases where the employee is dispatched to different work locations, especially when the employee is not required to “check-in” at a central location before being dispatched to the work site for the day. Orgeron, 639 So.2d 224.

In making that determination, the court should consider factors including: 1) the employer’s payment of wages to the employee; 2) the employer’s power of control; 3) the employee’s duty to perform the particular act; 4) the time, place, and purpose of the act in relation to service of the employer; 5) the relationship between the act and the employer’s business; 6) what benefits the employer received from the employee’s act; 7) the employee’s motivation in performing the act; and 8) the employer’s reasonable expectation that the employee would perform the act. Orgeron, 639 So.2d 224. Accidents have been found to be within the course and scope of employment when the employer provides transportation used by the employee to go to and from work, pays wages or expenses for the time spent traveling in the vehicle, or the operation of the vehicle was incidental to the performance of some employment responsibility. Woolard v. Atkinson, 43,322 (La.App. 2 Cir. 7/16/08), 988 So.2d 836 (citing Vaughan v. Hair, 94-86 (La.App. 3 Cir. 10/5/94), 645 So.2d 1177, writ denied, 95-123 (La.3/10/95), 650 So.2d 1186). The third exception has usually been found to be applicable when the employer retains some control over the employee when the employee is in his personal vehicle. Baggett, 758 So.2d 332.

Our review of the record reveals that the determination of whether Mr. Capps was within the course and scope of his employment is rife with genuine issues of material fact and, accordingly, summary judgment is inappropriate with regard to this matter. The uncontested facts in the record indicate that, although their operations are spread out over multiple tracts in three separate parishes, |7Beaud Farms maintains a farm shop at Sugarland Plantation in Pointe Coupee Parish. Beaud Farms provides housing at that location to several of its employees, including Mr. Capps. On the date of the accident, operations were to be conducted at Belleview Farm in Lettsworth. Mr. Capps had not spent the night at the housing provided by Beaud Farms, but instead spent the night in New Roads. The record indicates that Mr. Capps was expected to begin work at 5:80 a.m. Although the record does not establish exactly what time Mr. Capps left New Roads, it indicates that, approximately between 5:00 a.m. and 5:30 a.m., Mr. Capps left New Roads to travel to work. The accident occurred shortly after 6:00 a.m.

However, there is conflicting evidence concerning both Mr. Capps’ actions between the time he left New Roads and the accident and whether Beaud Farms took an interest in Mr. Capps’ transportation. With regard to Mr. Capps’ actions between the time he left New Roads and the accident, Mr. Capps contends that he stopped at Sugarland and picked up a box of cutter blades and filled his personal water cooler before continuing on his way to Belleview. However, one of Beaud Farms’ other employees, Arturo Navarro, testified in his deposition that he was at Sugarland that morning and that he left the shop at approximately 5:15 a.m. to go to Belleview. Mr. Navarro testified that he did not see Mr. Capps at the shop before he left. According to Mr. Navarro, there was no reason for Mr. Capps to stop and pick up the cutter blades because Mr. Navarro’s truck contained everything needed to maintain the cutters. Further, Mr. Navarro testified that he performed maintenance on the cutters every evening and that Mr. Capps had not | ^informed him that the cutter needed new blades. In addition to this testimony, there was deposition testimony that shortly after the accident Mr. Capps said that he was going “straight” to Belleview and that he did not say that he stopped anywhere on the way there. Further, the third driver involved in the accident, Mr. Major, testified that he did not recall seeing a water cooler in the back of Mr. Capps’ truck after the accident, and Mr. Beaud testified that there were no cutter blades in the truck:

Another dispute concerns whether a phone call made by Mr. Capps to Mr. Navarro at approximately 5:50 a.m., i.e., some few minutes before the accident, was for personal or business purposes. It is undisputed that Mr. Capps was an hourly employee and that, as a supervisor, he conducted business for Beaud Farms on his cell phone. According to Mr. Beaud, Mr. Capps’ time would start “whenever he started working for me.” Mr. Capps testified in his deposition that he called Mr. Navarro to determine whether the other employees had all of the equipment they needed, including coolers and that his timekeeping would have started when he called Mr. Navarro. However, Mr. Navarro testified that Mr. Capps only called to instruct Mr. Navarro to find an oil cap for Mr. Capps’ personal vehicle.

The record indicates that Beaud Farms’ laborers started getting paid for their time when they left the shop at Sugarland. Thus, whether Mr. Capps stopped at Sug-arland is material to the determination of whether he was in the course and scope of his employment at the time of the accident. Further, whether Beaud Farms took an interest in providing repairs for Mr. Capps’ personal vehicle is in dispute. Thus, whether the content of Mr. Capps’ phone call was of a business or 18personal nature is material to whether his commute transitioned to one in the course and scope of his employment at that point.

It is not the function of a trial court to weigh conflicting evidence in deciding a motion for summary judgment. Edwards v. Larose Scrap & Salvage, Inc., 10-596 (La.App. 3 Cir. 12/8/10), 52 So.3d 1009. Given the conflicts in the evidence about whether Mr. Capps stopped at Sugarland before continuing to Belleview and whether his phone call to Mr. Navarro was of a business or personal nature, we find that there is a genuine issue of material fact with regard to these determinations.

We must also consider whether Beaud Farms took an interest in Mr. Capps’ transportation such that he would be in the course and scope of his employment at the time of the accident. It is undisputed that Beaud Farms previously provided Mr. Capps with a company truck. However, Mr. Capps was involved in another car accident that destroyed the company truck approximately two weeks before the accident at issue herein. According to Mr. Beaud, he refused to provide Mr. Capps with another company truck, and he told Mr. Capps that he was not allowed to drive any vehicle owned by Beaud Farms and that he needed to obtain rides from other Beaud Farms employees. Mr. Beaud also testified that he was aware that Mr. Capps was using a truck that he borrowed from Mr. Garrett, but that Mr. Capps was not supposed to put gas in the truck from the farm tank and that he “wanted no part of that truck.”

Mr. Capps contends that Beaud Farms provided him with gas and repairs for the borrowed truck. He testified in his deposition that he got gas from the farm tank and that he charged the Beaud Farms account for repairs for the borrowed truck’s lug nuts. However, he conceded that he did not ask Mr. Beaud for | inpermission to charge the repairs. Further, although Mr. Capps contends that Beaud Farms paid him for his transportation time and that he was “on call” at all times, he testified in his deposition that his timekeeping would have started when he called Mr. Navarro. Additionally, Amy Beaud testified in her deposition that the laborers’ timekeeping started when they left Sugarland to go to Belleview.

Given this evidence, we find that there are genuine issues of material fact with regard to whether Mr. Capps was commuting to work in his personal vehicle, without being paid for that time or compensated for any expenses for the vehicle, or whether Beaud Farms took an interest in Mr. Capps’ transportation sufficient to find that his commute was within the course and scope of his employment.

Thus, having found that genuine issues of material fact remain with regard to whether Mr. Capps was within the course and scope of his employment, we find that the trial court erred in granting Mr. Capps and Progressive’s motion for summary judgment.

Employment by Mr. Beaud or Beaud Farms

Mr. Beaud, Farm Bureau, and the Beaud Farms partnership contend that the trial court erred in denying his motion for summary judgment with regard to whether Mr. Capps was employed by Mr. Beaud, individually, as opposed to the Beaud Farms partnership. Mr. Beaud requests that he be dismissed from the case.

Having reviewed the record, we observe that the sole testimony in the record concerning this issue is Mr. Beaud’s deposition testimony. That testimony was that Mr. Beaud did not farm under any other name than “Beaud Farms” which was a partnership comprised of three limited liability companies, Charles Beaud, LLC, Beaud & Capps, LLC, and Beaud & Fon-taine, LLC. Mr. Beaud also testified that Mr. Capps was paid from the Beaud Farms account and that Beaud Farms | T contracted for the houses where the laborers stayed. The opposing parties presented no evidence indicating that Mr. Capps was employed by Mr. Beaud personally, and we note that the plaintiffs concede in their brief that “Mr. Capps was working for Beaud Farms[.]”

Pursuant to La.Code Civ.P. art. 966(C)(2), the burden of proof with regard to this issue initially lay with Mr. Beaud, the moving party. However, he has successfully pointed out an absence of factual support for this issue, and the nonmoving parties have failed to provide sufficient factual support to show that they will be able to satisfy their evidentiary burden of proof at trial. Accordingly, there is no genuine issue of material fact with regard to this issue. Richard, 874 So.2d 131.

Accordingly, the trial court erred in denying Mr. Beaud’s motion for summary judgment with regard to whether Mr. Beaud, individually, was Mr. Capps’ employer. Thus, we enter judgment on this sole issue below. However, we observe that, subsequent to Mr. Beaud’s cross-motion for summary judgment seeking dismissal from this matter, the plaintiffs filed a supplemental and amending petition asserting claims against Mr. Beaud in his individual capacity for negligent entrustment, negligent hiring, and negligent supervision. Therefore, although we find that Mr. Beaud is entitled to summary judgment on the sole issue of whether Mr. Beaud, individually, is Mr. Capps’ employer, because the record before us indicates that these new claims are still pending, we find that it is inappropriate to dismiss Mr. Beaud from this litigation at this time and deny his request for dismissal.

112DECREE

For the foregoing reasons, the trial court’s judgment granting the motion for summary judgment filed by Joseph Beaud Capps and Progressive Security Insurance Company is reversed and remanded for further proceedings. The trial court’s judgment denying the cross-motion for summary judgment filed by Charles Beaud is reversed. Finding that there is no genuine issue of material fact with regard to Charles Beaud, individually, not being the employer of Joseph Beaud Capps, and that Mr. Beaud is entitled to judgment as a matter of law, we render judgment granting Mr. Beaud’s cross-motion for summary judgment as to this sole issue. Costs of this appeal are assessed to the appellees, Joseph Beaud Capps and Progressive Security Insurance Company.

REVERSED, RENDERED, AND REMANDED FOR FURTHER PROCEEDINGS.

      . Mr. Voinche’s name is also spelled as "Nicky” in the record. We use the spelling in the petition.

      . We note that Mr. Beaud’s cross-motion for summary judgment addresses whether Mr. Capps was an employee of Mr. Beaud, individually, or Beaud Farms, a partnership. For convenience, in addressing whether the trial court erred in granting the motion for summary judgment with regard to whether Mr. Capps was within the course and scope of his employment, we refer to his employer as "Beaud Farms” without addressing whether that employment was with Mr. Beaud, individually, or the Beaud Farms partnership.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Robert H. RHYNE, JR. and Brent Trauth v. OMNI ENERGY SERVICES CORP.
    No. 14-711.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.

      Alan K. Breaud, Timothy Wayne Bas-den, Breaud & Meyers, APLC, Lafayette, LA, for Plaintiff/Appellee-OMNI Energy Services Corp.
    David Michael Kaufman, Elmore, Griffin, Lafayette, LA, André F. Toce, The Toce Firm, PLC, Broussard, LA, for Defendants/Appellants-Robert H. Rhyne, Jr. and Brent Trauth.
    Robert Joseph Burns, Jr., Baton Rouge, LA, for Defendant/Appellee-XL Specialty Casualty Company.
    David Michael Thorguson, Bourgeois Thorguson, L.L.C., Morgan City, LA, Randy Paul Angelle, Boyer, Hebert, Abels & Angelle, LLC, Breaux Bridge, LA, for Defendants/Appellees-Edward E. Colson, III, Dennis R. Sciotto, and Ronald E. Ger-evas.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

| ¶ This dispute boasts a lengthy and complex procedural history, in which Robert H. Rhyne, Jr. and Brent Trauth appeal a Lafayette Parish trial court judgment that (1) denied appellants’ exception of lack of jurisdiction, (2) granted appellee’s exception of no cause of action, and (3) granted defendant XL Specialty Insurance’s motion for summary judgment. Appellants Rhyne and Trauth asserted claims against OMNI Energy Services (OMNI), seven OMNI Directors, XL Specialty Insurance Company, Richard Mager, and Cove Properties, LLC in federal court, Iberia Parish, St. Martin Parish, and Lafayette Parish. The claims asserted related to a Stock Purchase and Sales Agreement (SPSA) between OMNI and Preheat Inc., sold by Rhyne and Trauth.

All claims against OMNI and the directors in their capacity as directors were ultimately dismissed in St. Martin Parish. Three directors then remained in the litigation for acts or omissions outside of their director capacity. The suit was transferred to Lafayette Parish and consolidated with a suit previously filed by OMNI against Rhyne and Trauth. That original Lafayette suit was appealed and a decision rendered by this Court in Omni Energy Services Corp. v. Robert H. Rhyne, Jr., et al., 14-251 c/w 14-322, 14-323 (La.App. 3 Cir. 10/15/14), — So.3d -. The remaining defendants in the current suit now before this Court were dismissed by the trial court via a grant of no cause of action and motion for summary judgment.

Reasoning that (1) the trial court had jurisdiction to hear the exceptions, (2) appellants have no right of action to maintain the suit after they confessed no claims against the directors outside their capacity as OMNI directors 12exist, and (3) XL Specialty Insurance Company is not liable to Rhyne and Trauth, we affirm the trial court’s April 14, 2014 judgment as amended.

I.

ISSUES

We are entreated to consider whether:

1. the trial court had jurisdiction to rule on the exception of no cause of action and motion for summary judgment when the question of venue was on appeal in the consolidated case.
2. the portion of the appeal relating to the April 26, 2011 judgment should be stricken from the appellants’ brief.
3. the trial court erred in granting defendants’ exception of no cause of action.
4. the trial court erred in granting XL Specialty Insurance’s motion for summary judgment.

II.

FACTS AND PROCEDURAL HISTORY

The claims originally asserted by plaintiffs/appellants related to a Stock Purchase and Sales Agreement (SPSA) between OMNI and Preheat Inc., whereby OMNI purchased Preheat via stock sold by Rhyne and Trauth. As per the agreement, Rhyne and Trauth would operate Preheat as OMNI employees. As part of the purchase price, OMNI issued two promissory notes. Payment on the promissory notes would not be made to Rhyne and Trauth, however, if either resigned or was terminated with cause before the maturity date on the notes. Prior to the maturity dates, Rhyne was terminated with cause, and Trauth allegedly resigned. Rhyne and Trauth filed suit alleging several alternative theories of 1¡¡recovery including nullity of the SPSA, wrongful termination, and tortious interference with the SPSA.

This suit currently on appeal arises from Docket Number 2013-4316 (Lafayette Parish II), which was originally filed in federal court. The federal issues were dismissed and the federal court declined to extend pendent jurisdiction over the remaining issues. The suit was later filed in St. Martin Parish on May 10, 2010, and ultimately transferred to Lafayette Parish. Once in Lafayette, the case was consolidated with Docket Number 2009-3396 (Lafayette Parish I) originally filed on June 9, 2009.

In response to the suit filed in St. Martin Parish, defendants OMNI and the directors filed exceptions of venue and lis pendens. Those directors included Richard White, Barry Kaufman, Brian Recatto, James Eckert, Dennis Sciotto, Edward Colson, III, and Ronald Gerevas. The district court granted the exceptions on April 26, 2011, specifically to OMNI, White, Kaufman, Recatto, and Eckert. The exceptions were also granted in part to Sciot-to, Colson, and Gerevas, but only for any acts or omissions occurring outside their duties as directors. Therefore, the remaining defendants after the judgment on the exceptions were Richard Mager, Cove Partners, Sciotto, Colson, and Gerevas, with the liability of the later three only arising from claims against them outside their capacity as directors. The judgment on the exceptions of venue and lis pendens was not appealed and a supervisory writ was not applied for.

The St. Martin Parish suit was then removed to federal court by defendants Richard Mager and Cove Partners, LLC, but ultimately remanded to St. Martin Parish on May 1, 2012. Appellants did not appeal or seek supervisory writs |4for the April 26, 2011 grant of exceptions of venue or lis pendens either before removal or after remand to St. Martin Parish.

Meanwhile, in Lafayette Parish I, appellants Rhyne and Trauth filed a reconven-tional demand that reiterated the allegations made by them in the St. Martin Parish suit, including those claims against parties that had been dismissed in St. Martin.

On March 6, 2013, defendant directors Sciotto, Colson, and Gerevas filed a peremptory exception of no cause of action in the St. Martin Parish suit. The directors stated that they were dismissed from the suit in their official capacity as directors of OMNI by the grant of improper venue and lis pendens. They next alleged that Rhyne and Trauth’s petition did not assert any claim against them outside of their official capacity, and, therefore, there was no cause of action remaining against them. Prior to the hearing on the exception, the remaining parties agreed to transfer the suit to Lafayette and consolidate it with the case already pending there. The suit was transferred to Lafayette and consolidated with Docket Number 2009-3396 (Lafayette Parish I) as per agreement of the parties. The suits continued on two separate tracts. The exception of no cause of action, originally filed in St. Martin Parish, was now set for hearing in Lafayette.

Prior to the no cause of action hearing, appellants Rhyne and Trauth filed a pleading titled “Peremptory Exception of Lack of Jurisdiction” alleging that the court had no jurisdiction to hear the exception. Rhyne and Trauth based their argument on the fact that Lafayette Parish I was on appeal. The appeal asked whether the trial court erred in partially denying a motion for new trial in Lafayette Parish I, which dismissed all claims against the directors, defendants-in-reconvention, in their official capacity on the grounds of prescription. Appellants | ¿contend that the decision on appeal would inherently decide whether or not venue had been proper in federal court and in St. Martin Parish for the claims against the directors. Furthermore, that the decision on appeal is intertwined with the no cause of action exception at issue in the Lafayette Parish II suit. The trial court in Lafayette Parish II ultimately denied Rhyne and Trauth’s exception of no jurisdiction in a judgment dated April 14, 2014. The trial court further granted defendant directors’ exception of no cause of action as well as XL Specialty Insurance Co.’s motion for summary judgment. Rhyne and Trauth now appeal that April 14, 2014 judgment in Lafayette Parish II.

III.

LAW AND DISCUSSION

Denial of Exception of Lack of Jurisdiction

An exception of lack of subject matter jurisdiction raises a question of law, which is reviewed de novo. Gandy v. Key Realty, L.L.C., 13-712 (La.App. 3 Cir. 12/11/13), 128 So.3d 678.

Appellants argue that the trial court in Lafayette Parish II was divested of jurisdiction to take any action while the partial denial of a motion for new trial in Lafayette Parish I was being appealed. The motion for new trial was related to a prior November judgment in Lafayette Parish I. In that judgment, the trial court granted plaintiffs-in-reconvention a new trial only for alleged tortious interference claims against three defendants-in-reconvention, namely Sciotto, Colson, and Gerevas. This judgment therefore denied the new trial, but carved out and maintained those claims pending in Lafayette II.

1 (According to Louisiana Code of Civil Procedure Article 2088, jurisdiction of the trial court is divested over all matters in the case reviewable under the appeal when one has been timely filed and granted. Matters not reviewable under the appeal, however, remain within the jurisdiction of the trial court. La. Code Civ.P. art. 2088.

When two cases are consolidated, they each retain their own status as separate procedural entities. Dendy v. City Nat. Bank, 06-2436 (La.App. 1 Cir. 10/17/07), 977 So.2d 8. “Procedural rights peculiar to one case are not rendered applicable to a companion case by the mere fact of consolidation” and “filing a pleading or motion in one of several consolidated cases does not proeedurally affect the others.” Id. at 12. The Louisiana Supreme Court has stated that consolidation is “a procedural device which allows a trial court to deal with similar issues of law or fact in one trial; it does not merge the parties, affect the running of delays, or authorize consolidation of judgments or appeals.” Davis v. Am. Home Prods. Corp., 95-1035, p. 1 (La.5/19/95), 654 So.2d 681, 681. Furthermore, an appeal in a proceeding that has previously been consolidated with another “does not serve as such to the benefit of another party in the joined action.” Darouse v. Mamon, 201 So.2d 362, 364 (La.App. 1 Cir. 6/30/67).

The issues remaining in the Lafayette Parish II suit, from which this appeal originates, are those involving the alleged intentional acts of defendant-directors Sciot-to, Colson, and Gerevas in their capacity outside that of directors for OMNI. Those issues pertaining to XL Specialty Insurance Company also remain. These are the sole remaining issues that were transferred to Lafayette Parish from St. Martin Parish. The St. Martin Parish trial court dismissed claims against OMNI |7as well as all directors in their official capacity for improper venue and lis pendens, thereby leaving only the claims against directors outside their director capacity.

The issues in front of the trial court in the Lafayette Parish II suit were specifically left out of the judgment rendered in Lafayette Parish I from which an appeal was taken. The judgment in Lafayette Parish carved out the issues of the directors outside their capacity as directors for future consideration. Therefore, the trial court did not lose jurisdiction over Lafayette Parish II because the issues in this suit were not reviewable on appeal in the consolidated case.

Motion to Strike the April 26, 2011 Judgment from Appellants’ Brief

Appellants Rhyne and Trauth essentially seek to appeal the April 26, 2011 judgment (2011 Judgment) rendered in St. Martin Parish, which dismissed several parties from the litigation based on improper venue and lis pendens. The parties dismissed were OMNI, Richard White, Barry Kaufman, Brian Recatto, and James Eckert. The judgment also dismissed claims against Dennis Sciotto, Edward Colson, III, and Ronald Gerevas in their official capacity as directors of OMNI, but maintained those claims against them in any capacity outside that of directors. Ap-pellees argue that the 2011 Judgment was an immediately appealable, final judgment, and that the time delay for appeal has run. Appellees, therefore, request that all argument related to the 2011 Judgment be stricken from appellants’ brief.

Louisiana Code of Civil Procedure Article 1915(A) states in pertinent part:

A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
. |s(l) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or interveners.

Therefore, when “one party is completely dismissed from a suit, the judgment is final under Article 1915(A)(1), and there is no requirement to have it designated as final.” Jeansonne v. New York Life Ins. Co., 08-932, p. 9 (La.App. 8 Cir. 5/20/09), 11 So.3d 1160, 1168. The judgment dismissing OMNI, White, Kaufman, Recatto, and Eckert was final under 1915(A) because these parties were completely dismissed from the suit, and was even designated as final by the district court judge in the 2011 Judgment. The judgment as to the remaining defendants, Sciotto, Colson, and Gerevas, was an interlocutory judgment and not immediately appealable.

Under Louisiana Code of Civil Procedure Article 1915(B)(1), “a partial judgment as to one or more but less than all of the claims, demands, issues, or theories against a party ... shall not constitute a final judgment unless designated as a final judgment....” There was no such designation by the judge in this case. The 2011 Judgment dismissed only those claims against Sciotto, Colson, and Gerevas in their capacity as directors, but left any claims against them outside that capacity to be litigated. The judgment as to these remaining parties was interlocutory and not final. “An interlocutory judgment is appealable only when expressly provided by law.” La.Code Civ.P. art. 2083.

However, the 2011 Judgment cannot be considered now on appeal even though it was an interlocutory judgment as to the parties then. The 2011 Judgment dismissed claims against the remaining defendants, now appellees, in their capacity as directors because of improper venue and lis pendens. In order to challenge a venue decision, if the judgment is not otherwise appealable, a timely | ^supervisory writ must be sought with the court of appeal. Land v. Vidrine, 10-1342 (La.3/15/11), 62 So.3d 36. “[Ljitigants are required to seek review via supervisory writs. Failure to timely file a writ application on a venue ruling amounts to a waiver of any objection thereto.” Id. at 40. Plaintiffs did not seek a supervisory writ for the venue issue at any time in this litigation and, therefore, the 2011 Judgment dismissing those claims against ap-pellees in their director capacity because of improper venue is final.

Based upon the foregoing, the only judgment properly before this Court is that of April 14, 2014 in the Lafayette Parish II suit, in which Sciotto, Colson, and Gerevas remain in a non-director capacity, as well as claims against XL Specialty Insurance Company. Appellants’ assignments of error and arguments addressing the 2011 judgment are hereby ordered stricken from appellants’ brief.

Grant of Peremptory Exception of No Cause of Action

At issue on this appeal is whether there existed a cause of action in the Lafayette Parish II suit. When the suit was transferred from St. Martin Parish to Lafayette, the remaining claims were against Dennis Sciotto, Edward Colson, III, and Ronald Gerevas for actions taken outside of their official capacity as directors of OMNI. A cause of action must exist on the face of the complaint. La.Code Civ.P. art. 891. “No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La.Code. Civ.P. art. 931. Therefore, in reviewing the trial court’s grant of no cause of action, the question presented is whether the original petition filed in St. Martin | inParish stated a cause of action against these remaining defendants in a non-director capacity.

However, due to a judicial confession made by Mr. Toce, appellants’ counsel, this Court will exercise its authority to take notice of an exception of no right of action in this case, as opposed to a no cause of action. According to Louisiana Code of Civil Procedure Article 927(B), the failure of a party to state a right of action may be judicially noticed on the court’s own motion at both the trial and appellate level. “Generally speaking, an exception of no right of action serves to question the right of a plaintiff to maintain [the] suit.” Roy O. Martin Lumber Co. v. Saint Denis Securities Co., 225 La. 51, 72 So.2d 257, 258 (1954). In determining whether the plaintiff has a legal interest in the litigation, the court is not limited to the petition as it is with determining whether a cause of action exists. Arcadian Corp. v. Olin Corp., 97-174 (La.App. 3 Cir. 6/18/97), 698 So.2d 9. Instead, evidence is admissible to show whether the plaintiff has the right he claims. Id.

Mr. Toce made an in-court statement that Rhyne and Trauth do not have any claims against Sciotto, Colson, and Gerevas as individuals outside of their capacity as OMNI directors. “A judicial confession is a declaration made by a party in a judicial proceeding. The confession constitutes full proof against the party who made it.” La.Civ.Code art. 1853. “Responses by counsel to questions posed by the court may constitute judicial confessions, thereby relieving the opposition of the necessity of introducing evidence.” Compensation Specialties, L.L.C. v. New England Mut. Life Ins. Co., 08-1549, p. 9 (La.App. 1 Cir. 2/13/09), 6 So.3d 275, 281, writ denied, 09-575 (La.4/24/09), 7 So.3d 1200.

On December 9, 2013, during the hearing for consolidation of the two Lafayette cases, Mr. Toce stated on the record that plaintiffs, Rhyne and Trauth, h/‘really don’t have any claims [against the remaining three defendants] outside their capacity as Directors. The tortious interference claim is because they were Directors and Officers ... Unless they are Officers and Directors, there is no tortious interference claim.” Therefore, because the only remaining claim in this suit is against Sciot-to, Colson, and Gerevas outside of their capacity as Directors for OMNI, and Mr. Toce has admitted that the plaintiffs do not have any claims against them in this capacity, no right of action exists. This Court recognizes, on its own motion, and grants an exception of no right of action, dismissing defendants Sciotto, Colson, and Gerevas.

Grant of Summary Judgment in Favor of XL Specialty Insurance Co.

The grant or denial of a motion for summary judgment is reviewed de novo, “using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83 (citations omitted); La. Code Civ.P. art. 966.

XL Specialty Insurance Company insured OMNI and OMNI directors by the definition of “Insured Person” in its policy with OMNI. All director defendants in their official capacity were previously dismissed in St. Martin Parish. Now, all claims against director defendants, in all capacities, in this litigation are dismissed. There is no potential coverage under the policy for which XL Specialty may be liable. The grant of XL Specialty Insurance Company’s motion for summary judgment was proper.

J12IV.

CONCLUSION

Based upon the foregoing, the April 14, 2014 judgment denying Rhyne and Trauth’s exception of lack of jurisdiction, and granting XL Specialty Insurance’s motion for summary judgment is affirmed. Further, the Court grants an exception of no right of action dismissing the remaining defendants. All costs of this appeal are assessed to Appellants, Robert H. Rhyne and Brent Trauth.

AFFIRMED.


author: PICKETT, Judge. AMY, J.,

text:
    Livingston C. GUIDRY, et ux. v. Kysha Lashane BERNARD, et al.
    No. 14-234.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.

      Thomas R. Hightower, Jr., A Professional Law Corporation, Lafayette, LA, for Defendant/Appellee, Livingston Guidry, Shelter Mutual Insurance Company.
    Glenn Armentor, J. Christian Lewis, The Glenn Armentor Law Corporation, Lafayette, LA, for Defendant/Appellant, Kysha Lashane Bernard.
    Nicholas Gachassin, Jr., Gary Delahous-saye, Gachassin Law Firm, Lafayette, LA, for Plaintiffs/Appellees, Livingston C. Gui-dry, Phena Guidry.
    Michael J. Breaux, Lafayette, LA, for Defendant/Appellee, Shelter Mutual Insurance Company as Underinsured Motorist Carrier of Phena Guidry.
    Ian A. Macdonald, Jones and Walker, Lafayette, LA, for Defendant/Appellee, Louisiana Farm Bureau Casualty Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   ON REHEARING

PICKETT, Judge.

|We granted rehearing in this case to consider the propriety of our original opinion and conclusion therein on the issue of liability. Upon reconsideration, we conclude that we |j>erred in our original opinion and reverse the trial court’s determination that neither party carried them burden of proof. We further conclude that Ms. Bernard carried her burden of proving that Mr. Guidry caused the October 10, 2010 automobile accident and that she suffered injuries as a result of the accident. Accordingly, we render judgment in favor of Ms. Bernard.

Liability

As set forth in our original opinion, the Guidrys alleged that Mr. Guidry turned right on to Louisiana Avenue from Carmel Drive on a green light and that the accident occurred north of the intersection when Ms. Bernard changed lanes and collided with their vehicle. Ms. Bernard alleged, however, that immediately before the accident occurred, she was traveling in the far right lane of Louisiana Avenue and entered the intersection at Carmel Avenue on a green light, but Mr. Guidry failed to yield to her and turned in front of her onto Louisiana Avenue, causing their vehicles to collide.

In her application for rehearing, Ms. Bernard argues that the majority erred in concluding that Mr. Guidry’s inconsistent testimony as to when and where the accident occurred — in the. intersection as he was turning right or north of the intersection after he completed his turn — “was due to a ‘misperception’ that did not reflect upon [his] credibility as to the color of the traffic light” when he made his turn. We agree.

We are mindful that the manifest error standard of review applies when the fact finder’s determination is based upon a credibility evaluation “for only the factfin-der can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citing Canter v. Koehring, 283 So.2d 716 (La.1973)). This standard cannot be applied blindly, however. Accordingly, “[w]here documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story,” we can conclude that “a finding purportedly based upon a credibility determination” is manifestly erroneous or clearly wrong. Id. at 844-45.

The trial court found that both parties were “very credible”; yet, it rejected Mr. Guidry’s testimony on two of the three determinative issues in this case. First, the trial court concluded that the physical damage to the parties’ vehicles supported Ms. Bernard’s testimony that the accident occurred in the intersection while Mr. Gui-dry was in the process of turning from Carmel Drive on to Louisiana Avenue. In doing so, the trial court rejected Mr. Gui-dry’s testimony that the accident occurred north of the intersection after he completed his turn. Notably, Mr. Guidry’s trial testimony on that issue contradicted his written statement given the day of the accident, where he stated that “while turning right ... my vehicle was struck.” Mr. Guidry testified this inconsistency was due to it being “hectic” with a lot of people around and his worry about his wife’s injuries after the accident. According to Mr. Guidry, he was so worried about his wife’s injuries that he “mistakenly” wrote down that the accident occurred when he was turning right, rather than after he completed his turn. Mrs. Guidry did not seek medical treatment for her injuries, however, until October 14, a week after the accident occurred.

Next, the trial court rejected Mr. Gui-dry’s testimony that he looked to his left before beginning his right turn but did not see Ms. Bernard approaching the intersection. Mr. Guidry testified at trial that he looked left before turning right. In his deposition, Mr. Guidry was asked whether he looked to his left before “actually turning your wheel to negotiate your right-hand turn,” and he testified that he did not recall. Mr. Guidry explained he testified in city court that he “wouldn’t have begun [his] turn without looking left” and that his testimony in city court took place at least two years before his deposition |swas taken. Nonetheless, the trial court accepted Ms. Bernard’s testimony on this issue and rejected Mr. Guidry’s explanation of the inconsistencies in his testimony, finding it was not possible that he looked to his left before beginning his turn but did not see Ms. Bernard approaching the intersection.

The trial court rejected Mr. Guidry’s testimony on these two issues, and the record supports these conclusions. Thus, the trial court found him not to be credible with regard to two of the three determinative facts in this case yet still found him to be credible as to the remaining determinative fact, whether his traffic light was green or red when he turned right. This finding contradicts the trial court’s own findings of fact regarding Mr. Guidry’s credibility and fails to recognize the internal inconsistency of Mr. Guidry’s contention that his written statement was accurate only with regard to the color of the traffic light. For these reasons, we conclude that a reasonable fact finder would not credit Mr. Guidry’s testimony that he had a green light when he turned from Carmel Drive onto Louisiana Avenue. Accordingly, we find the trial court’s conclusions that Mr. Guidry’s testimony on that issue was credible and that the evidence was in equipoise were manifestly erroneous.

Nothing in the record discredits Ms. Bernard’s credibility. Therefore, we accept the trial court’s assessment of Ms. Bernard as being credible and accept Ms. Bernard’s testimony that she had a green light when she entered the intersection. Accordingly, we conclude that Ms. Bernard carried her burden of proof and reverse the judgment of the trial court. We assess Mr. Guidry with 100% fault in causing the accident.

General Damages

Ms. Bernard seeks damages for a neck and shoulder injury she allegedly sustained in the accident. An ambulance was called to the scene of the accident, and Ms. Bernard was transported to Lafayette General Medical Center in a cervical collar where she received treatment in the emergency room. Thereafter, Ms. Bernard sought medical treatment off and on from various health care providers for complaints of pain in her right shoulder and trapezius musculature.

Determining the injuries Ms. Bernard suffered as a result of the accident and the treatment associated with those injuries has required close review of the medical evidence because she suffered injuries in other accidents that occurred before and after the October 10, 2010 accident (hereinafter referred to as “the 2010 accident”). After conducting a close review of the medical evidence relating to all the treatment she received for the period beginning in April 2008 and ending at the time of trial, we conclude that Ms. Bernard proved she suffered injuries in the 2010 accident and is entitled to awards for general and special damages.

Prior to the 2010 accident, Ms. Bernard had been involved in automobile accident on April 24, 2008. Following that accident, Ms. Bernard was treated for low back, neck, and right shoulder pain by Dr. John R. Humphries, an orthopedic surgeon. She last saw Dr. Humphries on November 18, 2008, at which time she reported having no pain for one and one-half weeks in her right shoulder. She also reported that her last neck pain was a “long time ago.” On examination, Dr. Humphries found that Ms. Bernard had full mobility of her neck with no reported pain. Dr. Humphries planned to see and release Ms. Bernard one month later if she had no further pain. Ms. Bernard did not return to Dr. Hum-phries and sought no further medical treatment for her shoulder or neck until the 2010 accident.

Ms. Bernard testified that she experienced pain in her right shoulder and tra-pezius when she was hit on October 7, 2010. After the 2010 accident, Ms. Bernard’s primary source of treatment for her injuries was at the Moss Street Medical Clinic where she was treated by Rickie Johnson, a physician’s assistant. Mr. Johnson’s treatment of Ms. Bernard was supervised by Dr. John Dugal, a general practitioner.

|4Mr. Johnson prescribed physical therapy for Ms. Bernard’s pain, but Ms. Bernard did not attend all of her scheduled therapy sessions. During the course of the physical therapy, the physical therapist questioned Ms. Bernard’s compliance with her exercises at home. As of January 26, 2011, the physical therapist felt that Ms. Bernard would not benefit from further therapy. Ms. Bernard explained that her employment as a child care provider in her home limited her ability to attend those sessions because she could not always find a substitute care provider for the children.

Ms. Bernard reported right shoulder pain to Mr. Johnson on her initial November 4, 2010, visit, and thereafter on January 6, April 28, and July 28, 2011. On referral by Mr. Johnson, Ms. Bernard saw Dr. Thomas Montgomery, an orthopedic surgeon, for an evaluation of her right shoulder pain on September 12, 2011. An MRI of her right shoulder showed possible bursitis. On examination, Dr. Montgomery noted exquisite tenderness in Ms. Bernard’s right trapezius musculature area midway between the cervical and AC joint. Dr. Montgomery concluded that her right shoulder examination was normal, but she had trapezius myofascial pain and recommended that she receive trigger point injections in the myofascial area of her trapezius musculature area. There is no evidence that Ms. Bernard requested or received the recommended injections.

Ms. Bernard did not seek treatment again for her shoulder pain until April 30, 2012, after she had fallen in a Walmart store on April 4, 2012. On April 30, 2012, she was seen at the Moss Street Medical Clinic for a pap smear, and she reported having right shoulder pain “at times.” Ms. Bernard testified that the fall at Walmart aggravated her right shoulder. There is no record of treatment for right shoulder pain again until April 30, 2013, when Ms. Bernard again sought treatment at the Moss Street Medical Clinic. On that date, she reported headaches, sore throat, sinus congestion, and worsening of her right shoulder pain after being involved in another automobile accident on April 16, 2013.

After the April 16, 2013 accident, Ms. Bernard complained of right shoulder pain, and an MRI of her neck on October 30, 2013, revealed reversal of the lordotic curvature centered at C5-C6 with mild disc desiccation at essentially every cervical level. Small disc osteophyte complex without significant canal or neural foraminal stenosis was identified at levels C2-C3 through C6-C7. Although Ms. Bernard testified, and her medical records show, that she had no pain extending up from her trapezius into her neck until after the April 16, 2013 accident, she sought to relate these MRI findings to the 2010 accident through Dr. Dugal’s testimony. Dr. Dugal initially testified that he believed Ms. Bernard’s cervical condition was related to the 2010 accident because nothing was ever found to be objectively wrong with her right shoulder. He opined that the pain in her right shoulder and trapezi-us muscle was radiating pain from her neck.

On cross-examination, Ms. Bernard’s April 24, 2008 accident and complaints of neck and shoulder pain to Dr. Humphries were made known Dr. Dugal, along with the fact that Dr. Humphries had never actually released Ms. Bernard from his care. As a result, Dr. Dugal retracted his original opinion and testified that with regard to Ms. Bernard’s cervical condition, he could not “point the arrow more at one than the other,” meaning he could not determine whether her cervical condition was related to the April 24, 2008 accident or the 2010 accident. Dr. Dugal also opined that if Ms. Bernard was pain free between her last visit with Dr. Humphries on November 18, 2008, and the 2010 accident, the pain in her right shoulder and trapezius was more probably than not related to the 2010 accident.

Based on this evidence, we conclude that Ms. Bernard’s injuries from her April 24, 2008 accident had resolved by the October 2010 accident and that she suffered right shoulder and trapezius myofascial pain as a result of the accident. Pursuant to Dr. Dugal’s testimony, we do not find that the cervical condition shown on the October 30, 2013 MRI was proven to be related to the 2010 accident.

| sThe right shoulder and trapezius pain caused by the 2010 accident appear to have substantially subsided after September 2011, when Ms. Bernard reported only having right shoulder pain “at times,” because she did not seek treatment again for that pain until after her April 2012 fall at Walmart. Moreover, she did not seek treatment again for right shoulder pain until April 30, 2013, after being involved in the April 16, 2013 automobile accident.

A review of jurisprudence for awards made for similar injuries revealed the following cases that we find helpful in assessing Ms. Bernard’s damages: Brooks v. Henson Fashion Floors, Inc., 26,378 (La.App. 2 Cir. 12/7/94), 647 So.2d 440 ($20,000 awarded in general damages for tendonitis of the shoulder with continued pain for twenty months); Talamo v. Shad, 619 So.2d 699 (La.App. 4 Cir.), writ denied, 625 So.2d 175 (La.1993) ($15,000 awarded to young woman who would suffer flare-ups of bicep tendonitis for the rest of her life); Mayeux v. Selle, 99-498 (La.App. 5 Cir. 11/10/99), 747 So.2d 1174 (award of $22,500 for a shoulder injury of fifteen months with residual complaints).

We award Ms. Bernard general damages in the amount of $20,000.00, which reflects that the pain in her right shoulder and trapezius musculature caused by the 2010 accident had become intermittent in nature by July 2011 and did not greatly affect Ms. Bernard because she did not follow the treatment recommendations of her physical therapist and physicians and she did not seek treatment for pain in those areas unless she sustained other injuries in unrelated events.

Medical Expenses

Ms. Bernard seeks reimbursement of medical expenses in the amount of $11,416.29. The defendants seek to reduce charges incurred by Ms. Bernard at the Moss Street Medical Clinic by $370.00 for visits that they assert are not related to the 2010 accident. Dr. Dugal and Ms. Bernard agreed that if she did not complain of right shoulder pain on a visit after the 2010 accident, the charges for those visits were not related to the accident. Dr. Dugal testified that two of Ms. Bernard’s visits to the Moss Street Medical Clinic were not related to the 2010 accident because she did not complain of right shoulder or trapezius pain on those visits. The defendants also assert that the April 30, 2013 visit to the Moss Street Medical Clinic should be excluded because although Ms. Bernard complained of pain in the right shoulder on that date, the April 16, 2013 automobile necessitated that visit. We agree. For these reasons, we reduce the amount Ms. Bernard seeks to recover in medical expenses sought by $370.00 the charges for the unrelated visits to Moss Street Medical Clinic.

The defendants seek to further reduce this recovery by medical expenses totaling $4,860.89 that were incurred after the April 16, 2013 accident. As noted above, Ms. Bernard did not seek treatment for right shoulder or trapezius musculature pain after July 2011, until after her April 2012 fall at Walmart. On April 30, 2012, she saw Mr. Johnson for a pap smear and reported having right shoulder pain “at times.” Ms. Bernard saw Mr. Johnson on July 24 and July 31, 2012, but did not complain of right shoulder or trapezius pain and , denied neck pain. She did not seek treatment again for right shoulder pain until after the April 16, 2013 accident, when she reported that her right shoulder pain had worsened after that accident. In light of this history and Dr. Dugal’s inability to relate her cervical condition to the 2010 accident, we agree that those medical expenses should be | (¡excluded from the medical expenses Ms. Bernard seeks to recover. Accordingly, Ms. Bernard is awarded medical expenses in the amount of $6,185.40. ■

Lost Wages

Ms. Bernard claims she lost wages in the amount of $1,109.00 that she associates with eighteen days of missed work due to doctor appointments and four hours of missed work she missed for medical treatment. Ms. Bernard testified that she was self-employed as a babysitter for four children whose parents paid her $15.00 per child per day for her services.

A plaintiffs testimony alone “is sufficient to prove lost wages as long as the testimony is uncontradicted and reasonably establishes the claim.” Richard v. Teague, 92-17, p. 22 (La.App. 3 Cir. 5/4/94), 636 So.2d 1160, 1174, writ denied, 94-1934 (La.11/11/94), 644 So.2d 388.

Based on Ms. Bernard’s medical records, she attended nine physical therapy sessions, seven doctor appointments, and one MRI session during the time that we determined she suffered with the injuries she sustained in the 2010 accident. Three of the doctor appointments have been determined to be unrelated to that accident. Accordingly, we award lost wages at the rate of $60.00 per day for fourteen days of missed work for a total of $840.00. DECREE

For the foregoing reasons, the judgment of the trial court is reversed. Judgment is awarded in favor of Kysha Lashane Bernard and against Livingston C. Guidry and Shelter Mutual Insurance as follows:

General Damages $20,000.00
Medical Expenses $ 6,185.40
Lost Wages $ 840.00

Costs of this appeal are assessed to Livingston C. Guidry and Shelter Mutual Insurance Company.

REVERSED AND RENDERED.

AMY, J., dissents and assigns reasons.

AMY, J.,

dissenting on rehearing.

11 Because I find that the trial court was not manifestly erroneous or clearly wrong in making its findings of fact, I respectfully dissent from the majority decision.

It is a long-standing tenant of Louisiana law that the trial court’s factual findings are subject to the manifest error / clearly wrong standard of review. Snider v. Louisiana Med. Mut. Ins. Co., 13-579 (La.12/10/13), 130 So.3d 922 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)). In order to reverse the factfinder’s determinations, the appellate court must determine both that a reasonable factual basis for the determination does not exist in the record and that the record establishes that the finding is clearly wrong / manifestly erroneous. Id. (citing Stobart v. State, through DOTD, 617 So.2d 880 (La.1993)). Thus, the appellate court’s determination is not whether the factfinder’s determination was right or wrong, but whether the factfinder’s determination is a reasonable one. Id. Additionally, great deference is due factual findings that are based on credibility determinations, and, where the factfinder’s determination is based on its decision to credit the testimony of one or more witnesses, those findings can “virtually never” be manifestly erroneous or clearly wrong. Id. at 938.

In a negligence action, it is an “unremarkable proposition” that the plaintiff bears the burden of proving his case. Miller v. Leonard, 588 So.2d 79, 83 (La,1991). Similarly, a plaintiff-in-recon-vention must prove his claim in the same manner as the plaintiff in the main demand. Id.

The trial court concluded that the determinative issue in this case was which party had the green light and that the witnesses said “diametrically opposing things about who had the light[.]” The trial court further noted that the physical evidence was not helpful and that there was no corroboration for most of the testimony. The trial court found that both parties were “very credible” and that, based on the evidence provided, she could not determine which party had the red light. Thus, the trial court determined that she could not find in favor of either party.

The majority finds that the trial court’s rejection of Mr. Guidry’s testimony on two of the three determinative issues in this case precludes a determination that Mr. Guidry was credible on the issue of which party possessed the green light. In my view, this impermissibly impinges on the factfinder’s prerogative to accept or reject, in whole or in part, the testimony of any witness. In re Succession of Lawler, 42,940 (La.App. 2 Cir. 3/26/08), 980 So.2d 214, writ denied, 08-1117 (La.9/19/08), 992 So.2d 939. Based on my reading of the record, I find that the trial court was not manifestly erroneous or clearly wrong in making its findings of fact and in determining that the evidence was insufficient to determine which party had the red light. Therefore, I find that the trial court did not err in determining that neither party met its burden of proof in this case and that neither party was entitled to recovery.

For these reasons, I respectfully dissent.

      . The dates and the associated charges of these three visits are: July 24, 2012-$ 115.00; July 31, 2012-$115.00; and April 30, 2013-$140.00.


author: PICKETT, Judge. PETERS, J.,

text:
    Joseph L. ADAMS v. LORI HEAPHY & ASSOC.
    No. 14-580.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 17, 2014.

      Michael B. Miller, Attorney at Law, Crowley, LA, for Plaintiff-Appellant, Joseph L. Adams.
    Frank X. Neuner, Philip H. Boudreaux, Jr., Lafayette, LA, for Defendant-Appel-lee, Lori Heaphy & Associates.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

hA workers’ compensation claimant appeals a judgment denying his claims that the court reporter hired by defense counsel to take and transcribe his deposition did not did not send a copy of his deposition for him to read and sign to his attorney as agreed and did not comply with the law because the copy of the original deposition she sent him was defaced. For the following reasons, we reverse the judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On October 25, 2013, Mr. Joseph L. Adams filed a WC-1008 Disputed Claim for Compensation against Lori Heaphy & Associates (Heaphy), a court reporting service, in which he identified the dispute at issue as: “Refused to provide transcript of deposition of Joseph Adams to attorney as requested and sent a defaced copy of deposition directly to client (Joseph Adams) without notice to attorney.”. The dispute arose after Mr. Adams was deposed by his employer in connection with his workers’ compensation claim. Joseph Adams v. Acadian Works, Inc., District 04, Docket 12-8716.

Heaphy answered Mr. Adams’ claim specifically denying that the court reporter who took and transcribed Mr. Adams’ deposition failed to comply with any obligations she owed under the Louisiana Workers’ Compensation Act and the Louisiana Code of Civil Procedure, including but not limited to, La.Code Civ.P. arts. 1445 and 1446. Heaphy also asserted a reconventional demand against Mr. Adams’ attorneys for sanctions, costs, and attorney fees, as provided in La.Code Civ.P. art. 863(D)(4) and/or La.R.S. 23:1310.9, asserting that Mr. Adams’ claim was filed “to harass and is not warranted by existing law.” Heaphy also raised peremptory exceptions of no right of action and no cause of action.

| ^Shortly thereafter, Heaphy filed a motion for summary judgment and supporting memorandum in which it set forth that Mr. Adams’ deposition had been taken and transcribed by one of its certified court reporters who, pursuant to La.Code Civ.P. art. 1445, sent a copy of the deposition to Mr. Adams for him to read and sign. Heaphy argued that the deposition submitted to - Mr. Adams was “word for word” a transcript of what had been submitted to the employer/insurer’s attorney and that while the deposition had a red line down the middle of each page, it was clearly legible. Heaphy further asserted that Mr. Adams signed and dated the Witness Attestation on which he indicated no changes to the transcript and returned it to Heaphy. Heaphy argued that it had complied with all the requirements imposed under the Code of Civil Procedure and that no law required the transcript provided to Mr. Adams’ attorney be free of charge. It sought dismissal of Mr. Adams’ claims and awards of sanctions, costs, and attorney fees.

In his opposition to the summary judgment, Mr. Adams asserted that at the conclusion of his deposition, the court reporter agreed to his attorney’s request that the transcribed deposition be sent to the attorney, not Mr. Adams, for Mr. Adams to review and sign. Mr. Adams further asserted that contrary to the agreement, Heaphy sent the deposition directly to him and that he read the deposition, completed a form, and returned the form to Heaphy as requested. As a result, Mr. Adams’ attorney did not have a copy of anything Mr. Adams returned to Hea-phy.

Mr. Adams complained that the copy of his deposition Heaphy provided to him was defaced as compared to the deposition provided to his employer in his workers’ compensation case because his copy consisted of four pages of the full deposition which were reduced and condensed to one page with a two and one-half | ¡¡inch red streak down the middle of each page, “defacing the document and making it more difficult to read.” He asserted that the differences in the copy provided to him resulted in the defendants having an advantage over him.

At the hearing on the motion for summary judgment, Heaphy argued that the basis of Mr. Adams’ complaint was that his attorney wanted a free copy of the deposition, rather than paying for it as provided in La.Code Civ.P. art. 1445. Mr. Adams’ attorney pointed out, however, that pursuant to La.Code Civ.P. art. 1446(A)(1), he could obtain a free copy of Mr. Adams’ deposition by getting the original from his employer/insurer’s attorney and copying it. He reiterated his complaints that Mr. Adams’ copy of his deposition is a legal document that had been defaced and that his client was entitled to have his deposition in the same form that was provided to the other party in the litigation. Counsel argued that court reporters are paid to perform work for the legal system and that the depositions they take and transcribe are property of the legal system. Counsel also complained that Heaphy’s court reporter did not act in accordance with their agreement and forward the deposition to him, not his client, for him to review with his client. Counsel’s primary complaint was that the copy of the deposition sent to his client was defaced with the wide red line. He argued that his client was not receiving equal treatment as required by law and that there is no legal authority for Heaphy’s defacing a legal document.

The workers’ compensation judge (WCJ) granted summary judgment in favor of Heaphy, finding that until Mr. Adams read and signed the deposition, “it is not yet an official public document.” The WCJ concluded that reducing and condensing four pages of the deposition to one page and imposing a two and one-half inch wide red line down the middle of each page of the condensed deposition |4provided to Mr. Adams did not result in “a significant impairment to the legibility” of the deposition. In reaching this conclusion, the WCJ noted that Mr. Adams read and signed the deposition without indicating there was an issue with his ability to read it. The WCJ denied Heaphy’s request for sanctions, costs, and attorney fees.

Mr. Adams appealed. He assigns two errors with the WCJ’s judgment:

1. The [WCJ] erroneously rendered judgment against Michael B. Miller and Jacqueline B. Manecke, the attorneys for Joseph Adams.
2. The [WCJ] erred in granting the Motion for Summary Judgment.

Heaphy answered the appeal, seeking sanctions, costs, and attorney fees as noted above.

DISCUSSION

Was Judgment Erroneously Granted Against Attorneys for Mr. Adams?

Mr. Adams argues the judgment in this matter should not have been entered against his attorneys because they are not parties to the suit. The Office of Workers’ Compensation, District 04, styled the Citation that accompanied Mr. Adams’ WC-1008 Disputed Claim for Compensation and included Mr. Adams’ attorneys’ names in the caption on the Citation pursuant to Mr. Adams’ allegation that the court reporter agreed to send the deposition to his attorney, not him. In turn, counsel for Heaphy styled their pleadings and the judgment in the same manner.

The WCJ’s jurisdiction is limited to claims or disputes arising out of workers’ compensation claims as provided in Louisiana Revised Statutes Chapter 23. La.R.S. 23:1310.3(F). Mr. Adams’ claims against Heaphy arise out of his workers’ compensation claim. Heaphy’s claims against Mr. Adams’ attorneys are third party claims that do not fall within the limitations of La.R.S. 23:1310.3(F). | r,Therefore, the WCJ did not have jurisdiction to award judgment against Mr. Adams attorneys, and the judgment is reversed to the extent that it does.

Summary Judgment

Appellate courts apply the de novo standard of review to judgments on motions for summary judgment, “ ‘using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.’ ” Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844 (quoting Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638). The motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for the purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2). “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” La. Code Civ.P. art. 967(A).

Personal knowledge means something the witness actually saw or heard, as distinguished from what he learned from some other person or source. The purpose of the requirement of “personal knowledge” is to limit the affidavit to facts which the affiant saw, heard, or perceived with his own senses. Portions of affidavits not based on personal knowledge of the affiant should not be considered by the trial court in deciding a motion for summary judgment.

Denbury Onshore, L.L.C. v. Puchen, 08-1210, p. 18 (La.App. 3 Cir. 3/11/09), 6 So.3d 386, 398, (quoting Hibernia Nat’l Bank v. Rivera, 07-962, pp. 8-9 (La.App. 5 Cir. 9/30/08), 996 So.2d 534, 539-40 (citations omitted)).

|Reposition Not Sent to Mr. Adams’ Attorney As Agreed

Mr. Adams argues that Heaphy did not comply with an agreement his attorney reached with the court reporter to send the deposition to his attorney in order for Mr. Adams to review and sign the deposition. He supports this claim with his attorney’s affidavit. Heaphy denied the allegations of Mr. Adams’ claim in its Answer.

The affidavit of Mr. Adams’ attorney sets forth, in pertinent part: (1) “at the end of [Mr. Adams’] deposition, Joseph Adams made a request that [Heaphy] provide the signing copy of the deposition to counsel’s office, not to his client, Joseph Adams;” (2) “the court reporter agreed to submit the deposition for signing to his attorney, at his attorney’s office;” (3) “the original deposition for signing was sent directly to Joseph Adams at his home and without notice to affiant;” (4) “affiant was made aware that the deposition was sent directly to Joseph Adams and had been returned to [Heaphy];” and (5) Heaphy “told affiant that he would not be provided with a deposition unless affiant paid the cost of the copy.”

Heaphy argues that the affidavit of Mr. Adams’ attorney is not competent evidence because it is not based on personal knowledge. A review of the affidavit shows that some of the statements therein are based on personal knowledge, but other statements are not. Although the affidavit could be interpreted as stating Mr. Adams personally requested that the deposition be sent to his attorney’s office, close reading of the first statement quoted above shows the request was made by the attorney as Mr. Adams’ legal representative. Even if the request was not made by the attorney, the deposition establishes that the attorney was present and, therefore, had personal knowledge of the request and the agreement.

|7The affidavit does not establish that the attorney’s statements in the affidavit that the deposition was sent to Mr. Adams and not his attorney are based on personal knowledge. Notwithstanding, these facts are established by admissions Heaphy made in its briefs and at oral argument.

Heaphy argues that it complied with the requirements of La.Code Civ.P. art. 1445; therefore, it is entitled to summary judgment. Article 1445 provides:

When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness unless the parties by stipulation waive the signing or the witness is ill or is absent from the parish where the deposition was taken or cannot be found or refuses to sign. If the deposition is not signed by the witness within thirty days of its submission to him, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed unless on a motion to suppress under Article 1456 the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. A video deposition does not have to comply with the requirements of reading and signing by the deponents.

Heaphy contends that because Article 1445 provides that a deposition be sent to the deponent to read and sign, it satisfied its duties. This defense does not address Mr. Adams’ claim that the court reporter' agreed with his attorney to send his deposition to the attorney. Such an agreement would amend the provisions of Article 1445. For these reasons, a genuine issue of material fact exists as to whether such an agreement was confected. Accordingly, Heaphy is not entitled to summary judg■ment on this issue, and the WCJ erred in dismissing the claim.

| ¡¡,Differences Between the Original Deposition and Mr. Adams’ Copy

Mr. Adams argues Heaphy failed to present authority that allows it to provide a different document to him than was provided to his employer/insurer. As argued by Mr. Adams, the deposition submitted to him was not in the same format as the deposition provided to his employer/insurer.

Mr. Adams relies on the guidelines for court reporters that detail the specific formatting requirements to be used when preparing depositions. Heaphy argues that the formatting requirements of Louisiana Administrative Code 46:XXI.1101(A)(5)(b) were not addressed in Mr. Adams’ original brief or oral argument before the WCJ; therefore, Mr. Adams’ argument based on those requirements are not properly before this court.

The well-settled rule of law is that “as a general matter, appellate courts will not consider issues raised for the first time, which are not pleaded in the court below and which the district court has not addressed.” Council of City of New Orleans v. Washington, 09-1067, p. 3 (La.5/29/09), 9 So.3d 854, 856. See also, Uniform Rules of the Court of Appeal, Rule 1-3.

Mr. Adams made the formatting of the copy of his deposition that Heaphy provided to him an issue in his 1008 claim when he alleged that it was defaced. He expounded on this in his affidavit, his opposition to, Heaphy’s motion for summary judgment, and at oral argument, arguing his copy was defaced because it consisted of four pages of the full deposition condensed to one page and each page had a two and two-half inch red stripe down the middle of it. Mr. Adams did not argue to the WCJ that the deposition does not satisfy the requirements of Louisiana Administrative Code 46:XXI.1101(A)(5)(b); however, he raised the issue when he | ^specified the ways in which his copy had been “defaced.” Accordingly, we find this issue was raised before the WCJ and is properly before this court on appeal.

Louisiana Administrative Code, Ti-fié 46, Part XXI, Chapter 11, § 1101 requires certified court reporters to follow the following guidelines when preparing depositions:

A. Every freelance certified reporter shall use the following transcript format rules on every deposition transcript prepared by that reporter.
1. Transcripts shall contain no fewer than 25 typed lines on standard 8 1/2 x 11 paper exclusive of page numbers and footers.
2. Transcripts shall contain no fewer than eight characters to the typed inch.
3. The distance between the left and right margins shall be no less than 6 3/8 inches.
4. Each question and answer shall begin on a separate line.
5. Either of the ■ following may be used.
a. Each question and answer shall begin no more than five spaces from the left-hand margin. The text shall begin no more than five spaces following the question and answer. Carryover question and answer lines shall begin at the left-hand margins.
b. Block Version. Each question and answer shall begin at the left-hand margin. The text shall begin no more than five spaces following the question and answer. Carryover question and answer lines shall begin no more than six spaces from the left-hand margin.
6. Either of the following may be used.
a. Colloquy material shall begin no more than 15 spaces from the left-hand margin, with carryover lines commencing no more than 10 spaces from the left-hand margin.
b. Colloquy material shall begin with the speaker ID on a separate line no more than 10 spaces from the left-hand margin. The actual text shall begin on the next line 15 spaces from the left-hand margin, with carryover lines no more than 12 spaces from the left-hand margin.
7. Quoted material shall be treated in the same manner as either question and answer | in(Subparagraphs 5.a or 5.b) or colloquy material (Subparagraphs 6.a or 6.b). Quoted material shall be single-spaced or double-spaced.
8. Parentheticals and exhibit markings shall begin no more than 15 spaces from the left-hand margin with carryover lines commencing no more than 15 spaces from the left-hand margin.
9. There shall be no numbered lines that are blank on a transcript page, excluding the last page of a transcript, title page, contents page, appearance page, stipulation page and certificate pages.

Without addressing these formatting requirements, Heaphy urges that it complied with the requirements of La.Code Civ.P. art. 1446; therefore, the WCJ properly granted summary judgment in its favor.

Louisiana Code of Civil Procedure Article 1446 provides in pertinent part (emphasis added):

A. (1) The officer as defined in Article 1434(B) shall certify on the deposition that the witness was duly sworn and that the deposition is a true record of the testimony given by the witness. He shall then securely seal the deposition in an envelope endorsed with the title of the action and marked “Deposition of (here insert name of witness)” and shall promptly send it by United States mail or by courier to the party at whose request the deposition was taken, who shall become the custodian of the deposition. The original of the deposition shall not be filed in the record, but shall be made available to all other parties in the matter for inspection or copying. The failure or lack of filing such original in the record shall not affect the use or admissibility of the original at trial or by the court if otherwise authorized or provided by law.
B. (1) Upon payment of reasonable charges therefor, the officer as defined in Article HSJp(B) shall furnish a copy of the deposition to, any party or to the deponent.
C. The party taking the deposition shall give prompt notice to all other parties of its availability for inspection or copying.

Heaphy argues that Mr.' Adams’ complaint is without merit because pursuant to La.Code Civ. art. 1446(B)(1), it has the right to require payment of a reasonable |1Tfee to provide counsel a copy of his client’s deposition. This argument ignores Mr. Adams’ argument that his attorney can obtain a copy of his client’s deposition free of charge by obtaining it from the party who took the deposition and copying it himself, as provided in La.Code Civ.P. art. 1446(A)(1) and (C). Moreover, Hea-phy’s argument overlooks the significant distinction between these two provisions. Section (B)(1) requires a court reporter to provide a party who requests one a copy of a deposition in exchange for the payment of a reasonable fee. Section (A)(1) provides, however, that “[t]he original of the deposition shall not be filed in the record, but shall be made available to all other parties in the matter for inspection or copying.” For these reasons, Heaphy’s arguments that Mr. Adams’ attorney merely wanted to obtain a free copy of his client’s deposition to which he is not entitled lacks merit.

In relying on La.Code Civ.P. art. 1446 as support for its motion for summary judgment, Heaphy failed to acknowledge the mandatory requirements it must follow for formatting depositions. The copy of Mr. Adams’ deposition that was provided to him does not satisfy the requirements of Louisiana Administrative Code 46:XXI.1101(A), and Heaphy has not cited any provision relieving it of these requirements. Neither Article 1445 nor Article 1446 relieves court reporters of the requirements. Heaphy argues that no requirement mandates the form of the copy provided to a deponent for his review. The only provision addressing the format of depositions is Louisiana Administrative Code 46:XXI.1101 (A)(5)(b). Without showing that a provision of law or a,n agreement between the parties relieves the court reporter of meeting those requirements, Heaphy has not proved that it is entitled to judgment as a matter of law.

[ ^Lastly, Heaphy argues that because Mr. Adams did not file a motion to suppress his deposition as required by La. Code Civ.P. art. 1456, he has failed to establish that it is not entitled to summary judgment. Louisiana Code of Civil Procedure Article 1456 provides:

Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under Articles 1437 through 1449 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

Article 1456 does not apply to Mr. Adams’ claim. Mr. Adams does not complain that the original of his deposition fails to satisfy the requirements of Louisiana Administrative Code 46:XXI.1101(A); he complains that the copy the deposition submitted to him for review and signature does not satisfy these requirements. Accordingly, we find this argument lacks merit.

The copy of Mr. Adams’ deposition that Heaphy provided to him does not satisfy the requirements of Louisiana Administrative Code 46:XXI.1101(A); therefore, the WCJ legally erred in finding that the copy of Mr. Adams’ deposition Heaphy submitted for Mr. Adams’ review satisfied the requirements a deposition submitted to a deponent for review must meet. Accordingly, the judgment in favor of Heaphy is reversed.

Sanctions, Costs, and Attorney Fees

Having determined that the WCJ erred in granting summary judgment in favor of Heaphy, we need not address the requests asserted by Heaphy in its Answer.

| ^DISPOSITION

The judgment granting summary judgment in favor of Lori Heaphy & Associates is reversed, and the matter is remanded for further proceedings. Lori Heaphy & Associates is cast with all costs.

REVERSED AND REMANDED.

PETERS, J., concurs and assigns additional reasons.

GREMILLION, J., concurs in the result.

PETERS, J.,

concurring.

pi agree that the grant of summary judgment in favor of Lori Heaphy and Associates (Ms. Heaphy) should be reversed, but for other reasons. The principal opinion finds that there are genuine issues of material fact concerning whether there was an agreement for the court reporter taking the deposition to send the deposition to Mr. Adams’ attorney rather than Mr. Adams, but I find that the record before us does not support that conclusion. However, given the record before us, I find that we need not even get to that point in reversing the grant of the summary judgment.

In support of her motion for summary judgment, Ms. Heaphy offered only the affidavit of Lauren Denham, the court reporter who recorded and transcribed Mr. Adams’ deposition. In her affidavit, Ms. Denham carefully avoided mentioning the dispute over where the deposition was to be sent after transcription and merely asserted that she had performed all of the duties required of her under La.Code Civ.P. art. 1445. On the other hand, the affidavit of Mr. Adams’ attorney submitted in opposition to the motion for summary judgment specifically states that there was an agreement to have the deposition sent to him instead of his client. | gGiven the fact that his statement is undisputed, there is no genuine issue of material fact concerning that issue, and Ms. Heaphy chose at a later time to ignore that agreement.

My conclusion that the matter should be reversed is based on the complete failure of Ms. Heaphy’s office to comply with the very basic requirements of La. Code Civ.P. art. 1445. Ms. Heaphy acknowledges that the purpose of her office’s actions in condensing the deposition to a copy of four pages of testimony for every original page transcribed and in overlaying each of those condensed pages with a two-and-one-half inch wide red line down the middle was to prevent Mr. Adams’ attorney from making a copy without paying her office for the copy. Nonetheless, she argues that she could do so without impunity because she had fully complied with the appropriate provisions of the Louisiana Code of Civil Procedure. I find this argument to be without merit.

Ms. Heaphy and her court-reporter employees are officers of the court. See La. Code Civ.P. arts. 372 and 1443(C). That being the case, neither she nor her employees can simply change the requirements associated with the taking of depositions for the personal purpose of collecting an additional fee. Louisiana Code of Civil Procedure Article 1466(B) provides, in part, that the attorney or firm taking a deposition is liable for the charges associated with the reporting and transcribing of the deposition, and that an attorney who attends the deposition and requests a copy of the deposition from the court reporter is liable for the cost of that copy. However, nothing in La.Code Civ.P. art. 1466(B) requires an attorney attending a deposition to request a copy from the court reporter and, as pointed out in the principal opinion, he or she can later obtain a copy without going through the court reporter. See La.Code Civ.P. art. 1446(A)(1).

|sWith regard to the signing requirement at issue in this litigation, La.Code Civ.P. art. 1445 provides that after the deposition has been transcribed, it (not a defaced copy or even an ordinary copy) “shall be submitted to the witness for examination[.]” (Emphasis added.) This mandatory requirement is not satisfied by the submission of a copy, much less one that is condensed and defaced as the one in this litigation. Once the deponent signs the deposition, he or she must return it to the court reporter. That officer of the court must then certify and seal the deposition pursuant to the requirements of La. Code Civ.P. art. 1446(A), and forward it “to the party at whose request the deposition was taken, who shall become the custodian of the deposition.” “The original of the deposition shall not be filed in the record, but shall be made available to all other parties in the matter for inspection or copying.” Id. (Emphasis added.) A question not addressed by the record now before us is whether Ms. Heaphy forwarded the original deposition to Acadian Works, Inc. (the party requesting the deposition) or to its attorney, after refusing to honor Mr. Adams’ request that the deposition be forwarded to him through his attorney.

The obvious purpose of handling of the original deposition as required in La.Code Civ.P. arts. 1445 and 1446, is to protect the integrity of deposition itself; and while there is no evidence in this case of improper conduct in that respect, to allow copies to be used in one instance and the original in another opens the door for mischief. Just as the attorney for the party taking the deposition (despite the language of La. Code Civ.P. art. 1446 requiring it to be sent to the party, not the attorney) becomes the custodian of the original deposition, it is understandable that the attorney for the deponent should have input with his or her client in signing the original. It is simply professional courtesy. The court reporter has been paid for |4services rendered, and it should be of no consequence to the court reporter if the deponent’s attorney makes a copy of the deposition.

In this case, no one disputes the fact that Mr. Adams did not receive and sign the original deposition. Therefore, Ms. Heaphy has yet to comply with La.Code Civ.P. art. 1445. I would reverse the grant of summary judgment on this basis,