author: PETERS, J.

text:
    STATE of Louisiana v. Jeffrey Billy SEPULVADO.
    No. 13-1167.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.
    Don Burkett, District Attorney, Anna Louise Garcie, Assistant District Attorney, Many, LA, for Appellee State of Louisiana.
    William D. Dyess, The Dyess Law Firm, Many, LA, Thomas Taylor Townsend, Kelly & Townsend, LLC, Natchitoches, LA, for Defendant/Appellant Jeffrey Billy Sep-ulvado, Jr.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

1 ,The defendant, Jeffrey Billy Sepulvado, Jr., entered pleas of guilty to two counts of forcible rape, violations of La.R.S. 14:42.1, and the trial court sentenced him to serve twenty years at hard labor on each count, with the sentences to run consecutively, and to be served without benefit of parole. He has appealed the sentences imposed, and for the following reasons, we affirm the defendant’s sentences in all respects.

DISCUSSION OF THE RECORD

On September 20, 2010, a Sabine Parish Grand Jury indicted the defendant for two counts of aggravated rape, violations of La.R.S. 14:42. Pursuant to a plea agreement, the defendant entered guilty pleas to the reduced charge of forcible rape on each charge on August 16, 2012. The State of Louisiana (state) provided the trial court with the following factual basis at the hearing wherein the defendant entered his guilty pleas:

[K.S.] age nine indicated that both she and her younger sister had been sexually molested by their father for two to five years. [K.S.] the nine year old stated that their father made her perform oral sex on him many times. One encounter of intercourse occurred between [K.S.] and her father where he placed his penis inside her vagina. [S.S.] the then seven year old stated that her father made her perform oral sex on him. She also stated that Sepulvado made her and her older sister watch each other as they performed oral sex on him.
[Mr. Sepulvado] admitted to performing oral — having [K.S.] the nine year old perform oral sex on him two times. He also admitted to placing his penis inside her vagina one time. He also admitted to making [S.S.] the seven year old perform oral sex on him one time.

The plea agreement did not include a sentencing recommendation or sentencing cap. After accepting the defendant’s pleas, the trial court ordered the preparation of a Presentence Investigation Report (PSI) and set sentencing for |gN ovemb er 15, 2012. The defendant initially responded to the two sentences imposed by the trial court by filing a motion to reconsider both. In his motion to the trial court, the defendant asserted that the sentences should have run concurrently instead of consecutively and further requested that the trial court remove the requirement that they be served without the benefit of probation, parole, or suspension. The trial court took the motion under advisement following the July 31, 2013 hearing and on August 15, 2013, issued a ruling denying the motion.

Thereafter, the defendant timely perfected this appeal, asserting in his one assignment of error that the trial court’s twenty-year consecutive sentences, when applied to him, “constituted cruel and unusual punishment in contravention to Article 1, § 20 of the Louisiana Constitution.”

OPINION

In sentencing the defendant, the trial court stated that it had read the content of the PSI and considered the statement of the grandmother of the two minors, the defendant’s criminal history, and “the sentencing guidelines regarding aggravating and mitigating circumstances.” While noting that the defendant was a first felony offender, the trial court concluded that “the facts are terrible” and that what the defendant did to the two victims was “atrocious.”

The state initially charged the defendant with two counts of aggravated rape, as that offense is defined in La.R.S. 14:42(A)(4). Specifically, the state charged the defendant with having committed oral or vaginal sexual intercourse without the lawful consent of his victims because both were under the age of thirteen years at the time of the offenses. The penalty for aggravated rape is “life imprisonment at | shard labor without benefit of parole, probation, or suspension of sentence.” La. R.S. 14:42(D)(1).

The defendant was not convicted as charged. Instead, he entered into a plea agreement which allowed him to plead to two counts of forcible rape. His plea reduced his incarceration exposure to a range of imprisonment “at hard labor for not less than five nor more than forty years” and “[a]t least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.” La.R.S. 14:42.1(B). His sentence on each count is in the mid-range of that provided in La.R.S. 14:42.1(B).

On appeal, the defendant makes the same arguments he made to the trial court in his motion to reconsider his sentences: namely, that the sentences should have been concurrent rather than consecutive because he is a first-felony offender; that the offenses arose out of a single course of conduct; that despite his young age, he has a good work and family history; that he needs to fulfill his responsibility to his family; and that he has strong family support. He points to the fact that the trial court did not set forth any reasons for imposing consecutive sentences, and he argues that the factors applicable to him slant toward concurrent sentences. However, unlike his argument at the trial court, the defendant does not argue that the sentences should be served with benefit of parole.

With regard to the question of whether a concurrent or consecutive sentence should be imposed on a defendant convicted of multiple offenses, La.Code Crim.P. art. 883 provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme |4or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.

While the defendant’s convictions arise from the same course of conduct, ie. the rape of small defenseless children, we find no merit in his argument that his convictions are based on the same act or transaction or constitute parts of a common scheme or plan. See State v. Massey, OS-839 (La.App. 3 Cir. 12/10/08), 999 So.2d 343; State v. H.B., 06-1436 (La.App. 3 Cir. 4/4/07), 955 So.2d 255; State v. Davis, 06-922 (La.App. 3 Cir. 12/29/06), 947 So.2d 201; and State v. Boros, 94-453, 94-454 (La.App. 5 Cir. 11/29/94), 646 So.2d 1183, writ denied, 94-3148 (La.5/12/95), 654 So.2d 347. All of these cases involved consecutive sentences for defendants convicted of multiple offenses who questioned the consecutive sentences on appeal. The consistent thread in these cases is best stated in H.B., 955 So.2d at 260, wherein the court stated that “[rjeview of the jurisprudence shows that different victims, places, or dates mean different transactions and different schemes or plans.”

In the matter now before us, although all of the defendant’s offensive conduct took place at the same location, it involved two separate victims, performing separate sexual acts, and at different points in time. Following the jurisprudence cited herein, we do not find that the offenses are based on the same act or transaction or constitute part of a common scheme or plan. Thus, because La.Code Crim.P. art. 883 requires that the defendant’s sentences should be served consecutively absent a direct order by the trial court otherwise, it was not |snecessary for the trial court to issue reasons for sentencing him to consecutive sentences.

The only inquiry remaining is whether the sentences imposed are unconstitutionally excessive.

The applicable standard of review for claims of excessiveness in imposition of sentence is found in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59 (alteration in original), wherein this court stated:

The Eighth Amendment to the United States Constitution and La. Const, art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Fairhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615,136 L.Ed.2d 539 (1996).

The fifth circuit, in [State u] Lisotta, [98-648 (La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:

1. The nature of the crime,
2. The nature and background of the offender, and
3.- The sentence imposed for similar crimes by the same court and other courts.

Applying the Lisotta factors to the matter before us, we first note that the offenses committed by the defendant constitute crimes of the worst nature. He is |fithe father of the two victims who were ages seven and nine years at the time of the offenses. He forced the victims to perform oral sex on him, and vaginally raped his nine-year-old daughter. To make horrific matters worse, he forced his daughters to watch as each performed oral sex on him.

With regard to the background of the defendant, the record establishes that he was twenty-nine years old when he entered his guilty pleas, and he was a first-time felony offender. However, it is difficult to find anything good about the defendant’s nature given the nature of his crime.

Our view of the jurisprudence suggests that the sentences imposed on the defendant are supported by sentences imposed for similar offenses. See State v. Vallery, 04-1589 (La.App. 3 Cir. 4/6/05), 899 So.2d 836 (the first-felony-offender defendant pled to a lesser charge of forcible rape, and he received a sentence of thirty-five years at hard labor without benefit of probation, parole, or suspension of sentence for the rape of his eleven-year-old stepdaughter at knife point); and State v. Wilson, 42,075 (La.App. 2 Cir. 5/9/07), 957 So.2d 345 (the first-felony offender defendant pled guilty to two counts of forcible rape of his stepdaughter as part of a plea bargain to seven other counts, and received a sentence of twenty years on each count with fifteen years of the second count to run consecutively with the first).

Applying-the Lisotta factors to the defendant’s offenses, we find no abuse of the trial court’s discretion in sentencing him to two consecutive twenty-year sentences. This was a mid-range sentence and, by entering into the plea agreement with the state, the defendant greatly diminished his sentencing exposure. For example, in State v. R.K, 10-982 (La.App. 3 Cir. 5/11/11), 64 So.3d 426, which is similar to the facts in this case, the defendant forced two minor children, ages eight years old and nine years old, to perform oral sex upon him. One of victims was his | stepdaughter. The defendant was sentenced to serve life imprisonment for each conviction, each term to be served consecutively.

DISPOSITION

For the foregoing reasons, we affirm the defendant’s sentences in all respects.

AFFIRMED.

      . Prior to the United States Supreme Court decision in Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) which declared La.R.S. 14:42.1(D)(2) unconstitutional, the defendant could have faced the death penalty for rape of a victim under the age of thirteen.

      . The defendant did not challenge his sentence on appeal.


source: Caselaw Access Project

author: KEATY, Judge.

license: Public Domain

text:
    John C. DUCK v. HUNT OIL COMPANY, et al.
    No. 13-628.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      James J. Davidson, III, Christopher J. Piasecki, Davidson, Meaux, Sonnier, McEUigott, Fontenot, Gideon & Edwards, Lafayette, LA, V. Russell Purvis, Smith, Taliaferro & Purvis, Jonesville, LA, J. Michael Veron, J. Rock Palermo, Alonzo P. Wilson, Veron, Bice, Palermo & Wilson, LLC, Lake Charles, LA, Counsel for Plaintiff/Appellant John C. Duck.
    Albert M. Hand, Jr., Scott L. Zimmer, James R. Sterritt, Ryan C. Williams, Cook, Yancy, King & Galloway, Shreveport, LA, Counsel for Defendant/Appellee Hunt Oil Company.
    Alex L. Andrus, III, James T. Gugliel-mo, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelousas, LA, Counsel for Defendant/Appellee Harvest Petroleum, Inc.
    Leonard L. Kilgore, III, Esteban Herrera, Jr., L. Victor Gregoire, Melissa M. Cresson, Richard D. McConnell, Jr., Victor J. Suane, Jr., Kean Miller LLP, Baton Rouge, LA, Michael R. Phillips, Louis M. Grossman, Kean Miller LLP, New Orleans, LA, Counsel for Defendant/Appellee Chevron U.S.A., Inc.
    John P. Wolff, III, Nancy B. Gilbert, Stephen M. Whitlow, Martin E. Golden, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, Counsel for Defendant/Appellee David New Operating Co., Inc.
    Morgan J. Wells, Jr., Evan J. Godofsky, Larzelere Picou Wells Simpson Lonero, LLC, Metairie, LA, Counsel for Defendant/Appellee Radzewicz Operating Corporation.
    James C. McMichael, Jr., McMichael, Medlin, D’Anna, Wedgeworth & Lafargue, L.L.C., Shreveport, LA, Counsel for Defendant/Appellee Seagull Operating Co., Inc.

      Paul M. Adkins, Blanchard, Walker, O’Quin & Roberts, Shreveport, LA for Defendant/Appellee Pinnacle Operating Co., Inc.
    Court composed of JOHN D. SAUNDERS, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

|! Property owner appeals the trial court’s judgment granting motions for summary judgment and exceptions of no cause of action and no right of action in favor of the defendants. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

The facts are not in dispute. John C. Duck acquired a half interest in a 5.2 acre tract of property located in Concordia Parish, Louisiana, on July 1, 2004. The act of sale did not contain an express transfer or assignment of any rights from the former owner of the property. In April of 2010, after a well was drilled on the property, Duck discovered that the well only produced saltwater. On May 20, 2010, Duck filed a petition for damages against various defendants, seeking to recover the cost of ridding his property of contamination allegedly caused by the defendants’ oilfield operations pursuant to mineral leases that had been entered into in 1950 and 1951. The first mineral lease was executed by Charles W. Burrill to Gulf Refining Company (the Burrill Lease) on September 30, 1950, and expired by its own terms in 1991. It covered eighty acres, which included the 5.2 acre tract subsequently acquired by Duck. The second mineral lease was executed by C.F. Farrar to Gulf Refining Company (the Farrar lease) on February 21, 1951, and did not cover the property that Duck subsequently acquired. In response to the petition, some of the defendants filed exceptions of no right of action and/or exceptions of no cause of action and motions for summary judgment, asserting that Duck could not claim damages for contamination caused by operations that took place prior to |2his purchase of the property. The following motions and exceptions were addressed at a January 10, 2013 contradictory hearing:

1. Motion for Summary Judgment filed by Hunt Oil Company,
2. Motion for Summary Judgment filed by Chevron U.S.A., Inc.,
3. Motion for Summary Judgment filed by Pinnacle Operating Company, Inc.,
4. Motion for Summary Judgment filed by Seagull Operating Company, Inc.,
5. Motion for Summary Judgment and Exception of No Cause of Action and No Right of Action filed by Radzew-icz Operating Corporation and Radzew-icz Exploration and Drilling Company,
6. Exception of No Right of Action filed by David New Operating Co., Inc., and
7. Exception of No Cause of Action and No Right of Action filed by Harvest Petroleum, Incorporated.

At the close of the hearing, the trial court granted the motions and exceptions in open court and dismissed Duck’s claims against those defendants with prejudice and at his costs. Written judgment was signed on January 24, 2013. Duck now appeals, alleging that the trial court erred: 1) in applying the subsequent purchaser theory described in Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267, 10-2272, 10-2275, 10-2279, 10-2289 (La.10/25/11), 79 So.3d 246, to bar his claims; and 2) in finding that the oil and gas leases affecting the property did not constitute a stipulation pour autrui in his favor.

DISCUSSION

Generally, an action can only be brought by a person having a real and actual interest which he asserts. La. Code Civ. Proc. art. 681. The exception of no right of action is designed to test whether the plaintiff |shas a real and actual interest in the action. La.Code Civ. Proc. art. 927(5). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation.

... [Ejvidence is admissible on the trial of an exception of no right of action to “support or controvert any of the objections pleaded, when the grounds therefor do not appear from the petition.” La.Code Civ. Proc. art. 931.

Indus. Cos., Inc. v. Durbin, 02-665, pp. 11-12 (La.1/28/03), 837 So.2d 1207, 1216 (citations omitted).

Summary judgment “is designed to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2). “The procedure is favored and shall be construed to accomplish these ends.” Id. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, ... show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2).

“The standard of review for both the motion for summary judgment and the exception of no right of action/no cause of action is de novo.” Richard v. Apache Corp., 12-441, p. 3 (La.App. 3 Cir. 3/20/13), 111 So.3d 1156, 1158, writs denied, 13-865, 13-869 (La.6/21/13), 118 So.3d 416.

At the start of the January 10, 2013 hearing, the parties agreed that through the exceptions and motions set for hearing that day, the defendants were asserting the subsequent purchaser defense to all of Duck’s claims, whether they sounded in tort, contract/lease, or in the nature of violation of the mineral code. Likewise, when the trial court granted the exceptions and motions at the close of the hearing, pit did so as to all of them without specifically referring to any individual exception, motion, or defendant.

Duck contends that the defendants are liable to him because their oilfield operations resulted in contamination to the property that he now owns, notwithstanding the fact that he did not own the property when the damage was incurred and/or the fact that he was not assigned any rights to recover for any pre-existing property damage claims in the act of sale in which he acquired the property. In support of his argument, Duck relies on the Mineral Code, which provides that mineral rights are real rights and that the mineral lease is one of the basic mineral rights that can be created by a landowner. See La.R.S. 31:16. Quoting Hoover Tree Farm, L.L.C. v. Goodrich Petroleum Co., L.L.C., 46, 153, p. 11 (La.App. 2 Cir.3/23/11), 63 So.3d 159, 166, writs denied, 11-1225, 11-1236 (La.9/23/11), 69 So.3d 1161, 1162, Duck submits that the “obligations of the lessee that are created in a mineral lease are real obligations and not merely personal.” Moreover, Duck points out that according to La.Civ.Code art. 1764, Revision Comments-1984 (b) and (c), “[a] real obligation attaches to a thing” and “passes to a subsequent acquirer of the thing to which it is attached without need of a stipulation to that effect.” Focusing on the real rights versus personal rights distinction made by the Eagle Pipe court, Duck contends that the trial court erred in applying the subsequent purchaser theory to bar his claims. Duck further submits that because the Burrill and Farrar Leases created real rights with correlative real obligations, those real rights attached to the land that he now owns without the need of an assignment of those rights. In addition, Duck claims that | Bthe Burrill and Farrar Leases created stipulations pour autrui in his favor thereby giving him a direct contractual right of action against the defendants to recover damages for the cost of ridding his property of contamination allegedly caused by their oilfield operations.

Subsequent Purchaser Theory

In Eagle Pipe, the plaintiff, a purchaser of land who discovered radioactive material on property it had acquired two decades earlier, filed suit against the former landowners and the oil and trucking companies that had leased the property and were allegedly responsible for the contamination. According to the petition, during a seven-year period before the plaintiff bought the land, the former landowners leased the property to Union Pipe and Supply, Inc., which operated a pipe yard/ pipe cleaning facility on the property. The petition further alleged that Union Pipe purchased used oilfield tubing from the oil company defendants which it then cleaned and sold. The tubing was allegedly transported by the trucking company defendants from the oil companies to Union Pipe’s pipe yard. The plaintiff asserted a claim for redhibition against the former landowners. It asserted causes of action for breach of contract, negligence, strict liability, fraud, and conspiracy against the remaining defendants.

The defendants filed peremptory exceptions of no right of action asserting that the plaintiff had no right to assert claims for damages to the property which occurred before it acquired the land. The trial court sustained the exceptions and dismissed the plaintiffs claims, and it denied the plaintiffs motion for new trial. On appeal, the fourth circuit initially affirmed the trial court’s ruling, but on rehearing, a five-judge panel reversed the trial court’s sustaining of the exceptions of no right of action. See Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 09-298 (La.App. 4 Cir. 2/10/10), 47 So.3d 428.

The Louisiana Supreme Court granted certiorari and reversed, explaining:

[Ijnjury to property must be understood as damage to the real rights in the property. A tortfeasor who causes injury or damage to a real right in property owes an obligation to the owner of the real right. This relationship arises as a matter of law and provides to the owner of the real right a personal right to sue the tortfeasor for damages. In the absence of an assignment or subrogation of this personal right, a subsequent purchaser of the property cannot recover from a third party for property damage inflicted prior to the sale.

Eagle Pipe, 79 So.3d at 279. After examining the act of sale in which the plaintiff acquired the property, the supreme court found “no express assignment or subrogation of the former property owners’ personal right to sue for damage.” Id. at 281. The supreme court was careful to note, however, that it “express[ed] no opinion as to the applicability of [its] holding to fact situations involving mineral leases or obligations arising out of the Mineral Code.” Id. at n. 80.

The lease at issue in Eagle Pipe was a surface lease whereas the leases at issue in the matter before us are mineral leases. By its own terms, Eagle Pipe does not apply to situations involving mineral leases. Thus, the trial court erred in applying the subsequent purchaser theory recognized in Eagle Pipe to bar the claims that Duck asserts in this matter as those claims arise under mineral leases.

Stipulation Pour Autrui

Article 16 of the Mineral Code provides that:

The basic mineral rights that may be created by a landowner are the mineral servitude, the mineral royalty, and the mineral lease. This enumeration does not exclude the creation of other mineral rights by a landowner. Mineral rights are real rights and are subject either to the prescription of nonuse for ten years or to special rules of law governing the term of their existence.

17Citing Article 16, Duck maintains that because mineral leases are classified as real rights, those rights, along with their correlative real obligations, automatically attached to the land that he now owns without the need for any assignment of those rights to him. We disagree.

“Although, Louisiana R.S. 31:16 provides that a mineral lease, as a mineral right, is a real right, a review of the Mineral Code and the jurisprudence shows that it is not purely a real right that automatically attaches to the property.” Frank C. Minvielle, L.L.C. v. IMC Global Operations, Inc., 380 F.Supp.2d 755, 774 (W.D.La.2004).

Strictly speaking, the mineral lease creates a kind of servitude called a “limited personal servitude.” See 3 A.N. Yianno-poulis, Louisiana Civil Law Treatise: Personal Servitudes § 223, at 450 (3d ed.1989). “Limited personal servitudes are real rights that confer on a person limited advantages of use or enjoyment over an immovable^ i.e., realty,] belonging to another person.” Id. at 448-49.

Id. at 774-75 (quoting Sketoe v. Exxon Co., 188 F.3d 596, 601 (5th Cir.1999)). “Thus, it is in the nature of a limited personal servitude that the mineral lease is a real right.” Id. at 775. “Although a right of use, i.e., a personal servitude, is a real right, it is one granted in favor of a person rather than an estate, and therefore it does not pass with the property upon sale of the property.” Id. Given the foregoing, the Minvielle court concluded that in order to file suit based upon an expired mineral lease, the subsequent landowner needed to have either “privity of contract, assignment of rights, or be the beneficiary of a stipulation pour autrui.” Id. at 776.

Based on the reasoning in Minv-ielle, we conclude that the right to sue the defendants for damages under the Burrill and Farrar Leases did not automatically pass to Duck when he acquired the land at issue. Further, because Duck was not a laparty to those leases and because he was not assigned any such rights when he purchased the land at issue, we must now determine whether the trial court erred in finding that the Burrill and Farrar Leases did not contain stipulations pour autrui in his favor.

Louisiana Civil Code Article 1978 provides that “[a] contracting party may stipulate a benefit for a third person called a third party beneficiary.” Duck claims that the two mineral leases under which the defendants historically conducted oilfield operations on the property he now owns, i.e., the Burrill Lease, or property adjacent to the property that he now owns, i.e., the Farrar Lease, each contained damage clauses intended for the benefit of third parties such as himself who later acquire the property after the expiration of the lease and thereafter discover underground contamination that has destroyed his fresh water supply. The damage clauses contained in section eight of the Bun-ill and Farrar Leases provided, in pertinent part, as follows (emphasis added):

No well shall be drilled nearer than two hundred (200) feet to the house or barn on said land without the written consent of Lessor, and Lessee shall be responsible for all damages caused by Lessee’s operations other than damages necessarily caused by the exercise of the rights herein granted. No injections of fluids herein authorized shall be made in fresh water strata which are capable of furnishing Lessor fresh water for irrigation, domestic or stock uses.

The Eagle Pipe court recognized that a subsequent purchaser could recover for damages done to the property if the contract between the former landowner and the oil and trucking companies, who allegedly damaged the property that they leased, contained a stipulation to benefit a third party, or a stipulation pour autrui, in his favor. After noting that such a stipulation pour autrui cannot be presumed, the supreme court directed that a party claiming the benefit of such a contract had the burden of proving that: “1) the stipulation for a third party is manifestly clear; |n2) there is certainty as to the benefit provided the third party; and 3) the benefit is not a mere incident of the contract between the promisor and the promisee.” Eagle Pipe, 79 So.3d at 283 (quoting Joseph v. Hosp. Serv. Dist. No. 2 of Parish of St. Mary, 05-2364 (La.10/15/06), 939 So.2d 1206). Since the issue arose in the context of an exception of no right of action, the supreme court accepted as true the allegations made in the plaintiffs petition as to elements one and two. As to element three, however, the supreme court found that any third-party benefit contained in the contract was intended “for the employees and subcontractors of the pipeyards entering into these contracts with the oil companies, and not for a subsequent purchaser of the property.” Id. Moreover, the supreme court found that “any benefit that [the subsequent purchaser] derived from these provisions of the contracts ... would be incidental to the contracts themselves, inasmuch as any person coming into contact with land has an interest in the land not being contaminated.” Id. Thus, the supreme court found that the contracts between Union Pipe and its customers did not include provisions for third-party beneficiaries such as the plaintiff.

In LeJeune Brothers, Inc. v. Goodrich Petroleum Co., L.L.C., 06-1557 (La.App. 3 Cir. 11/28/07), 981 So.2d 23, writ denied, 08-298 (La.4/4/08), 978 So.2d 327, a case that was decided before Eagle Pipe, this court considered whether a property owner was a third-party beneficiary to a mineral lease entered into between his predecessor in interest and a well operator so as to maintain a contract action against the well operator for damages to the property that resulted from the well operations. The damage clause in LeJeune had been modified from the version contained in the original lease. The original damage clause provided that “The Lessee shall be responsible for all damages to timber and growing crops |inof Lessor caused by Lessee’s operations.” Id. at 29. The clause was modified to omit the words “timber and growing crops of’ so that the final damage clause read, “The Lessee shall be responsible for all damages to Lessor caused by Lessee’s operations.” We concluded that damages permitted by the lease “were limited to the damages suffered by the Lessor,” and thus found no error in the trial court’s conclusion that the plaintiff was not a third-party beneficiary of the lease. Id. In doing so, we distinguished Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., 02-266 (La.App. 3 Cir. 4/2/03), 844 So.2d 380, writs denied, 03-1585, 03-1624 (La.10/31/03), 857 So.2d 476 and Andrepont v. Acadia Drilling Co., 255 La. 347, 231 So.2d 347 (1969), cases where stipulations pour autrui were found to exist because the damage clauses at issue in those cases did not restrict liability to just the damages suffered by the lessors. We believe that a review of the facts in those cases is relevant to the issue now before us.

In Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., 01-345 (La.App. 3 Cir. 6/20/01), 790 So.2d 93, the owner of a property which had been the location of oil and gas operations under a 1926 lease and which was still active at the time suit was filed in 1997 sought tort and contract damages from the alleged contamination to both the surface of the property and the underground aquifer. The 1926 lease provided that “Grantee shall be responsible for all damages caused by his operations.”

Id. at 101. All of the defendants had, at some point, operated wells pursuant to the 1926 lease. When the plaintiff bought the property, his ancestor in title reserved the mineral rights. As a result, this court held that the plaintiff did “not have a right of action as a party to or assignee of the mineral lease.” Id. at 100. Nevertheless, we went on to interpret the 1926 as providing a stipulation pour autrui in favor of the plaintiff. In doing so, we noted that “[t]he fact that I n Hazelwood was not specifically named as a third-party beneficiary in the mineral lease is of no consequence” because “[o]ur jurisprudence recognizes that stipulations may be made in favor of undetermined persons.” Id. at 101. Based on the stipulation pour autrui, we concluded that the trial court erred in using a motion to strike to dispose of the plaintiffs contract claims. After the case was remanded to the trial court on other grounds, the matter went to trial and the defendants were cast in judgment. On appeal to this court, the defendants challenged our prior ruling that the 1926 lease created a stipulation pour autrui in favor of the plaintiff. We declined to revisit the issue on the basis that our earlier ruling was the law of the case and not clearly erroneous. Hazelwood, 844 So.2d 380.

Andrepont was a suit by a share crop tenant farmer who had entered into a verbal surface lease with the landowner, who later executed an oil and gas lease on the property. The named defendants were the mineral lessees whom the plaintiff alleged had damaged his crops through their operations.

Paragraph 8 of the [mineral] lease originally read, “The lessee shall be responsible for all damages to timber and growing crops of lessor caused by lessee’s operations.” However, the words “to timber and growing crops of lessor” were struck out. Thus the lease provided: “The lessee shall be responsible for all damages caused by lessee’s operations.”

Andrepont, 231 So.2d at 348. In our original opinion, we failed to consider the farmer’s argument that the mineral lease created a stipulation pour autrui in his favor, and instead held that the farmer could not recover from the defendants since his oral lease with the property owner was unrecorded and the defendants were third persons. On rehearing, however, we recognized that the mineral lease did create a stipulation pour autrui and that as a beneficiary of that stipulation, the | ^farmer had “a direct right of action against the oil and gas lessee to recover for his damages.” Id. at 350.

The trial court in the instant matter found that the language in the Burrill and Farrar Leases does not provide Duck with a third-party beneficiary claim. After comparing the damage clause language in the Burrill and Farrar Leases, i.e., “Lessee shall be responsible for all damages caused by Lessee’s operations,” to the damages clause of the leases in LeJeune, Hazelwood, and Andrepont, we conclude that the Burrill and Farrar Leases do contain a stipulation pour autrui for the benefit of third parties. Like the damage clauses in Hazelwood and Andrepont, the damage clauses at issue herein do not restrict liability to only the damages suffered by the lessors. Thus, the trial court erred in finding that Duck is not a third-party beneficiary of the Burrill and Farrar Leases. Accordingly, this matter is remanded to the trial court for further proceedings.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed, and the matter is remanded for further proceedings consistent with this opinion. All costs of this appeal are assessed against the defendants.

REVERSED AND REMANDED.

      . Duck was married when he bought the property in 2004. When he and his wife later divorced, Duck acquired his former wife's interest in the property by quitclaim deed dated August 14, 2006.

      . Although other defendants were named in Duck’s original petition, when we refer to the defendants in this opinion, we are only referring to those defendants in whose favor judgment was rendered on January 24, 2013.

      . Louisiana Revised Statutes 31:1 provides that Title 31 "shall be known as the Louisiana Mineral Code” and that the provisions within it "may be referred to or cited either as Articles of the Mineral Code or as Sections of the Revised Statutes.”


author: THIBODEAUX, Chief Judge.

text:
    Welkin SMITH, Indiv., et al. v. RAPIDES HEALTHCARE SYSTEM, L.L.C., et al.
    No. 13-1172.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      Richard Lyons Weil, Weil & Associates, Bourg, LA, for Defendant/Appellee-Dave M. Rayburn, M.D.
    Randall M. Seeser, Joseph P. Landre-neau, Gold, Weems, Bruser, Sues & Run-dell, Alexandria, LA, for Defendant/Appel-lee-Rapides Healthcare System, L.L.C., d/b/a Rapides Regional Medical Center.
    John Mark Miller, Stamey & Miller, LLC, Natchitoches, LA, for Plaintiffs/Appellants-Welkin Smith, Individually and as Independent Administrator for the Succession of Linda Faye Smith, Deena D’Lynn Miles and Charles Edward Mangum, Jr.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

hln this medical malpractice case, Welkin Smith, the husband of a deceased patient, brought wrongful death and survival actions against Rapides Healthcare System, L.L.C. for negligent post-surgical care of his wife. The defendant moved for summary judgment, contending that the plaintiffs could not meet their evidentiary burden at trial as they failed to present any expert medical testimony that the defendant breached the applicable standard of care. The plaintiffs filed a late opposition to the motion, arguing that expert testimony is not always necessary in medical malpractice suits and that there were disputed facts regarding the level of care provided. Despite the late filing, the trial court agreed to admit the opposition, but it concluded that since there were no genuine issues of material fact, the defendant was entitled to summary judgment. On appeal, we find that the trial court’s decision to admit the late-filed opposition was within its discretion. However, as the plaintiffs failed to present necessary expert medical testimony to support their specific medical malpractice claims, we affirm the trial court's granting of summary judgment in favor of the defendant.

I.

ISSUES

We shall consider whether the trial court erred by:

(1) admitting plaintiffs' late-filed opposition to the motion for summary judgment into evidence; and
(2) granting defendant's motion for summary judgment.

II.

FACTS AND PROCEDURAL HISTORY

On February 1, 2005, Dr. Dave M. Rayburn performed an excision of the right breast with axillary node dissection on Linda Faye Smith at Rapides Regional Medical Center. After surgery, Mrs. Smith was released to a hospital room for recovery where she complained of severe pain. In response, the post-operative care nurse, Joan Ward, administered the pain medication, Buprenex, to Mrs. Smith. Shortly after receiving the medication, Mrs. Smith went into respiratory arrest and was unresponsive. After being intu-bated, Mrs. Smith slipped into a comatose state and became ventilator-dependent. On November 6, 2006, Mrs. Smith died of cardiac arrest.

Mrs. Smith's husband, Welkin Smith, acting both individually and as the Independent Administrator for the Succession of Mrs. Smith, brought a survival action and a wrongful death action against Dr. Rayburn and Rapides Healthcare System, L.L.C., d/b/a Rapides Medical Center, alleging medical malpractice and negligence in the post-surgical care of Mrs. Smith. Mr. Smith further requested a Medical Review Panel (hereinafter "MRP") to independently determine if there was a breach of the applicable standard of care. After the MRP issued an opinion concluding that the defendants did not breach the standard of care, Rapides Healthcare System filed a motion for summary judgment on January 25, 2013, arguing that the plaintiffs lacked the necessary expert testimony to show a breach. In support of its motion, the defendant filed the plaintiffs' petition, the answer to the petition, the plaintiffs' answer to interrogatories, the MRP opinion, and the affidavits of the two doctors who served on the MRP.

~After numerous continuances, the summary judgment hearing was set for May 6, 2013. The plaintiffs filed their opposition to the motion for summary judgment on April 29, 2013, arguing that reliance on the MRP opinion is misplaced as the requested hospital protocol for patient care submitted to the MRP for review was neither authenticated nor complete. Furthermore, in reviewing the potential breach of the standard of care, the MRP did not consider the later-filed affidavit of Mr. Smith, which conflicts with that of Joan Ward by stating that no nurse ever checked on Mrs. Smith after she received the pain medication. In support of the opposition, the plaintiffs submitted the affidavit of Welkin Smith and the submitted hospital protocol. Finding that there was no genuine issue of material fact, the trial court granted the defendant's motion for summary judgment. The plaintiffs now appeal the trial court's ruling.

III.

LAW AND DISCUSSION

Standard of Review

A trial court's ruling regarding a late-filed opposition to a motion for summary judgment will not be disturbed upon appeal absent an abuse of discretion. See Phillips v. Lafayette Parish Sch. Bd., 10- 373 (La.App. 3 Cir. 12/8/10), 54 So.3d 739; Higginbotham v. Rapides Found., 07-538 (La.App. 3 Cir. 10/31/07), 968 So.2d 1226.

Grants of summary judgment' are subject to de novo review “using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638. We shall consider the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-moving party. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764. If the mover will not bear the burden of proof at trial on the matter, then he must only present evidence showing a lack of factual support for one or more essential elements to the non-mover’s case. La.Code Civ.P. art. 966(C)(2); Simien v. Med. Protective Co., 08-1185 (La.App. 3 Cir. 6/3/09), 11 So.3d 1206, unit denied, 09-1488 (La.10/2/09), 18 So.3d 117. Once the mover has made a prima facie case that the motion should be granted, the non-mover must then present evidence sufficient to show a genuine issue of material fact. Id. If the non-mover fails to present some evidence that he might be able to meet his burden of proof at trial, the motion should be granted. Id.

Timeliness of Plaintiffs’ Opposition to the Motion for Summary Judgment

The plaintiffs filed their opposition to the. motion for summary judgment on April 29, 2013, which was within eight calendar days of the summary judgment hearing set for May 6, 2013. On appeal, the defendant argues that the plaintiffs’ opposition and supporting affidavit of Mr. Smith should have been stricken from the record for failure to comply with the mandatory filing deadlines imposed by La. Code Civ.P. art. 966(B)(1) and La.Dist. Ct.R. 9.9. While the opposition clearly was filed untimely, we find that the trial court did not abuse its discretion in considering the opposition and its supporting documents in its summary judgment determination.

| BThe Louisiana Code of Civil Procedure Article 966(B) (emphasis added) states that in summary judgment proceedings, “[t]he adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1313 within the time limits provided by District Court Rule 9.9.” Under La.Dist.Ct.R. 9.9(b) (emphasis added), “[a] party who opposes an exception or motion shall concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight, calendar days before the scheduled hearing.” While the usage of the language “shall” in these provisions implies a mandatory obligation to timely file, the Louisiana Supreme Court has interpreted the trial court’s decision to strike untimely filed oppositions to be discretionary:

The time limitation established by La. C.C.P. art. 966(B) for the serving of affidavits in opposition to a motion for summary judgment is mandatory; affidavits not timely filed can be ruled inadmissible and properly excluded by the trial court. See American Bank & Trust Company v. International Devel opment Corporation, Inc., 506 So.2d 1234, 1235-36 (La.App. 1 Cir.1987). Given the facts and circumstances of this case, we find no abuse of discretion by the trial court in excluding the opposition. ...

Buggage v. Volks Constructors, 06-175, p. 1 (La.5/5/06), 928 So.2d 536, 536.

Despite the mandatory language in the codal provisions, the courts of Louisiana have overwhelmingly followed the precedent set in Buggage by treating these procedural rules as discretionary:

Since Buggage v. Volks Constructors, supra, supreme court and appellate court decisions indicate that it is not an abuse of discretion to disallow the late-filed materials | ^because of the mandatory language of La. C.C.P. art. 966(B) and Rule 9.9. For example, in Guillory v. Chapman, 10-1370 (La.9/24/10), 44 So.3d 272, the supreme court held that the trial court, which refused to consider a late-filed affidavit, did not abuse its discretion in “choos[ing] to follow the mandatory language of La. C.C.P. art. 966(B)(2), which requires a party opposing the motion for summary judgment to serve opposing affidavits and any memorandum in support thereof ‘at least eight days prior to the date of the hearing.’ ” See also, Woodall [v. Weaver, 43,050 (La.App. 2 Cir. 2/13/08), 975 So.2d 750]. In Buggage, supra, rather than holding that untimely affidavits must be excluded by the trial court, the supreme court specifically stated that such affidavits “can” be excluded by the trial court, and noted that the trial court “acted within its discretion” in excluding the opposition. Buggage, 928 So.2d at 536. Other courts of this state have also indicated that district courts have discretion to consider late-filed opposition materials, absent prejudice to the mover, in application of this otherwise mandatory time period. See Phillips v. Lafayette Parish Sch. Bd., 10-373 (La.App. 3 Cir. 12/8/10), 54 So.3d 739; James Constr. Group, L.L.C. v. State ex rel. Dep’t of Transp. and Dev., 07-225 (La.App. 1 Cir. 11/2/07), 977 So.2d 989; Savoie v. Savoie, 03-893 (La.App. 5 Cir. 12/30/03), 864 So.2d 742. Hence, because the statutory language requiring a party to file its opposition at least eight days prior to the scheduled hearing, unless the court sets a shorter period, is mandatory, a district court has the discretion to allow the filing, unless the mover is prejudiced, but it is not required to make a finding of prejudice to disallow late-filed opposition documents.

Mahoney v. E. Carroll Parish Police Jury, 47,494, pp. 11-12 (La.App. 2 Cir. 9/26/12), 105 So.3d 144, 152, writ denied, 12-2684 (La.2/8/13), 108 So.3d 88.

Beyond jurisprudence, the Rules for Louisiana District Courts also provide for discretionary deviation from the rules. In particular, La.Dist.Ct.R. 1.4 states:

An individual judge may, in the interest of justice and upon notice to all parties, permit deviations from these Rules in a particular proceeding. Any such deviation shall be noted on the record in open court in the presence |7of all parties or by written order filed into the record of the proceedings and mailed to all parties or their counsel of record.

Here, as the plaintiffs’ opposition was filed seven days before the hearing, it clearly was untimely under La.Code Civ.P. art. 966(B) and La.Dist.Ct.R. 9.9(b). However, applying La.Dist.Ct.R. 1.4, the trial court deviated from the timeliness rules by admitting the opposition on the record:

THE COURT: ... before we begin, I want you to know — because I think this is the first time you’ve appeared before me — that I enforce Rule 9.9. But because you’ve not been here before, you don’t practice regularly in this court, I know there are some judges that do not enforce the Uniform District Court Rules. So, I typically do not let an attorney that has not timely filed their opposition argue. I’m going to allow you to argue today but for the future, please keep that in mind and get that in timely

Considering the jurisprudence, we find that the trial court’s decision to admit the plaintiffs’ untimely opposition and supports ing affidavit was not an abuse of discretion.

Motion for Summary Judgment

This motion for summary judgment involves a suit for medical malpractice. To prevail in a medical malpractice claim, a plaintiff must demonstrate by a preponderance of the evidence: (1) the applicable standard of care; (2) a breach of the standard of care; and (3) causation between the breach and the resulting injury. La. R.S. 9:2794. The defendant contends it is entitled to summary judgment since the plaintiffs have failed to present necessary expert medical testimony regarding a breach of the standard of care; thus, they failed to |scarry their evidentiary burden as to this essential element of the malpractice claims. We agree.

Louisiana appellate courts have consistently held that in medical malpractice suits, “[e]xpert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony.” Samaha v. Rau, 07-1726, pp. 5-6 (La.2/26/08), 977 So.2d 880, 884. The supreme court’s decision in Pfiffner v. Correa, 94-924, 94-963, 94-992, pp. 9-10 (La.10/17/94), 643 So.2d 1228, 1233-34 provides valuable guidance as to when such expert testimony is needed:

Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence. See Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713, 719 (La.1986). Failure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary are also examples of obvious negligence which require no expert testimony to demonstrate the physician’s fault. See id. at 719-20. Likewise, where the defendant/physician testifies as to the standard of care and his breach thereof, see, e.g., Riser v. American Medical Int’l Inc., 620 So.2d 372, 377 (La.Ct.App. 5th Cir.1993), or the alleged negligence consists of violating a statute and/or the hospital’s bylaws, see, e.g., Hastings, 498 So.2d at 722 (violation of [La.R.S.] 40:2113.4 which imposes duty on a hospital to make emergency services available to all persons in the community without regard to income or insurance protection and hospital bylaws establishing duties for on-call physicians), expert testimony is also unnecessary to establish a malpractice claim.... Though in most cases, because of the complex medical and factual issues involved, a plaintiff will likely fail to sustain his burden of proving his claim under [La. R.S.] 9:2794’s requirements without medical experts, there are | ¡instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can, or in which the defendant/physician testifies as to the standard of care and there is objective evidence, including the testimony of the defendant/physician, which demonstrates a breach thereof.

Given the facts surrounding this case, expert testimony is necessary for the plaintiffs to prove a breach of the standard of care. The alleged negligence does not involve an obvious careless act such as amputating the wrong limb or leaving a surgical instrument in the patient’s body. Furthermore, even if we acknowledge the factual discrepancy between Nurse Ward’s and Mr. Smith’s affidavits as to whether nurses checked on Mrs. Smith between the administration of the pain medication and the time she became unresponsive, this fact is not material to the case as there is still no evidence that the defendant violated any hospital protocol. Assuming that no nurse checked on Mrs. Smith as Mr. Smith contends, Nurse Ward’s affidavit indicates that the time period between the administration of the medication at 1351 and the discovery of the unresponsive patient at 1430 was thirty-nine minutes. While a lapse of thirty-nine minutes in patient care may possibly amount to negligence in this circumstance, it does not indicate an obvious failure to attend to a patient. As these assessments of conduct are not apparent to a laymen finder of fact, who is not familiar with proper medical protocol under these circumstances, expert medical testimony is required in this instance for the plaintiffs to prove that there was a breach of the standard of care.

Considering the necessity of expert testimony in this medical malpractice claim, the defendant, in moving for summary judgment, met its burden by “pointing out to the district court that the plaintiffs would be unable to bear their burden of proof at trial” since they “failed to obtain expert medical testimony to 1 msupport their claims.” Samaha, 977 So.2d at 886. This initial burden can be satisfied “by filing the motion and attaching the plaintiffs’ discovery responses.” Id. at 884. The defendant met this burden, as it supported the motion with the plaintiffs’ answers to interrogatories where the plaintiffs admitted that they “[anticipated] retaining expert witnesses regarding the allegations of negligence, causation, and damages as set forth in plaintiffs’ petition.” Arguing that expert testimony was necessary in this case, the defendant followed the precedent established in Samaha, pointing out that the plaintiffs cannot rely on anticipated retention of experts when discovery has been ongoing for years to meet their evi-dentiary burden at summary judgment. The defendant further submitted into evidence the certified MRP opinion and the affidavits of the doctors who served on the MRP, which concluded that the defendant did not breach the applicable standard of care.

The burden now shifted to the plaintiffs to present expert testimony that the defendant breached the standard of care. As they have had several years to attain such expert evidence through discovery and have failed to present any such testimony that there was a breach, they have failed to produce sufficient evidence |nto establish that they would be able to satisfy their evidentiary burden at trial, and thus, the trial court properly granted summary judgment in favor of the defendant. See Samaha, 977 So.2d 880.

IV.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s grant of the defendant’s motion for summary judgment. Costs are assessed against the plaintiffs.

AFFIRMED.

      . The citation for this codal provision in effect at the time of the summary judgment was La.Code Civ.P. art. 966(B). The citation for this provision under the now-in-effect version op the law is La.Code Civ.P. art. 966(B)(1). The actual quoted language was not changed in the amendments.

      . The plaintiffs raise several arguments on appeal that the MRP opinion should not be considered in evidence because it is concluso-ry .and based on incomplete information. However, these arguments are moot as the plaintiffs failed to object to the inclusion of the MRP opinion into evidence. While supporting affidavits that are conclusory cannot be considered on a motion for summary judgment, the MRP opinion is not an affidavit subject to this restriction, and even if it were considered as such, the argument that affidavits are inadequate "is waived unless the opposing party files a motion to strike or otherwise objects.” Samaha, 977 So.2d at 890. As there was no formal objection, the MRP opinion was properly admitted and may be considered expert medical evidence in assessing this summary judgment motion. See Samaha, 977 So.2d 880.

      . While one of these affidavits contained erroneous information regarding the doctors who served on the MRP, the other affidavit did not contain any such errors and could be properly considered. As there is no requirement that a party provide multiple affidavits establishing the same facts to support a summary judgment motion under La.Code Civ.P. art. 966, the presence of the erroneous affidavit is moot for purposes of this case.


author: GENOVESE, Judge.

text:
    Ursula Marie RATTLIFF v. REGIONAL EXTENDED HOME CARE PERSONNEL SERVICES, L.L.C.
    No. 13-1175.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      Mark T. Garber, Lafayette, Louisiana, for Plaintiff/Appellant, Ursula Marie Ratt-liff.
    James D. Hollier, Philip H. Boudreaux, Jr., NeunerPate, Lafayette, Louisiana, for Defendant/Appellee, Regional Extended Home Care Personnel Services, L.L.C.
    Stephen Winston Glusman, Glusman, Broyles & Glusman, Baton Rouge, Louisiana, for Intervenor, LUBA Casualty Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this workers’ compensation case, Claimant/Employee, Ursula Marie Rattliff, appeals the judgment of the Office of Workers’ Compensation granting summary judgment in favor of Defendant/Employer, Regional Extended Home Care Personnel Services, L.L.C. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 26, 2011, Ms. Rattliff, a licensed practical nurse, was employed by Regional Extended Home Care Personnel Services, L.L.C. (Regional) as a home health nurse. On that date, after leaving her home en route to the home of one of Regional’s clients, Ms. Rattliff was involved in a motor vehicle accident while operating her personal automobile. She subsequently filed a disputed claim for workers’ compensation benefits, seeking wage benefits, medical treatment, and penalties and attorney fees.

Regional denied Ms. Rattliff s workers’ compensation claim and filed a motion for summary judgment on the grounds that Ms. Rattliff was not in the course and scope of her employment with Regional at the time the accident occurred. Ms. Ratt-liff filed a cross-motion on the same issue. The Workers’ Compensation Judge (WCJ) granted Regional’s motion and dismissed Ms. Rattliff s claims. Ms. Rattliff appeals.

ASSIGNMENT OF ERROR

The sole issue before this court is the propriety of the WCJ’s grant of summary judgment in favor of Regional on the grounds that Ms. Rattliff was not in the course and scope of her employment with Regional when the accident occurred.

| LAW AND DISCUSSION

“Appellate courts review summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, and in the light most favorable to the non-movant.” Yokum v. 615 Bourbon Street, L.L.C., p. 25 (La.2/26/08), 977 So.2d 859, 876 (citing Swire v. Lafayette City-Parish Consol. Gov’t, 04-1459 (La.4/12/05), 907 So.2d 37). Louisiana Code of Civil Procedure Article 966(A)(2) states “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action,” and this “procedure is favored and shall be construed to accomplish these ends.” “[I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact,” then judgment shall be granted as a matter of law in favor of the mover. La.Code Civ.P. art. 966(B) and (C).
Kleinman v. Bennett, 11-947, p. 2 (La.App. 3 Cir. 12/7/11), 80 So.3d 689, 691-92.

Edwards v. Larose Scrap & Salvage, Inc., 11-1412, p. 4 (La.App. 3 Cir. 4/4/12), 89 So.3d 1227, 1230-1231, writ denied, 12-1510 (La.10/12/12), 98 So.3d 870.

Relative to a motion for summary judgment, La.Code Civ.P. art. 966(C)(2) provides that:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to 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, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

In this case, Ms. Rattliff bears the initial burden of proving that she suffered personal injury caused by an “accident arising out of and in the course of [her] employment” with Regional. La.R.S. 23:1031(A). If she is unable to meet this |sburden, then there is no genuine issue of material fact, and Regional is entitled to summary judgment.

The jurisprudence is replete with caselaw determining the compensability of injuries sustained by employees while traveling to and from work. Such considerations require courts to apply what has come to be known as the “going-and-coming rule.” Dean v. Southmark Constr., 03-1051, p. 8 (La.7/6/04), 879 So.2d 112, 117. “Normally, injuries sustained by an employee while traveling to and from work are not considered to have occurred within the course and scope of employment, and thus, are not compensable under the Workers’ Compensation Act.” Id. (citing McLin v. Indus. Specialty Contractors, Inc., 02-1539 (La.7/2/03), 851 So.2d 1135). As the supreme court opined, the rule “is premised on the theory that, ordinarily, the employment relationship is suspended from the time the employee leaves work to return home until he resumes his work.” Id. “Furthermore, an employee’s place of residence is a personal decision not directly controlled by the employer, and treating commuting time as part of the determination of course and scope of employment would remove manageable boundaries from the determination.” Martin v. Pride Offshore Co., Inc., 05-2373, p. 6 (La.App. 1 Cir. 11/3/06), 950 So.2d 805, 808-09 (citing Orgeron ex rel. Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224).

The jurisprudence has recognized exceptions to this general rule, such as: 1) if the accident occurred on the employer’s premises; 2) if the employee was on a specific mission for the employer; 3) if the employer had interested himself in the transportation of the employee as an incident to the employment agreement by either contractually providing for transportation or by reimbursement of the travel expenses to the employee; 4) if the employee was performing work for the employer and circumstances indicated that the employer’s consent could be fairly implied; 5) if the injury occurred while traveling to/from one work site to another; 6) if the injury occurred in an area immediately adjacent to his/her work place and the area contained a distinct travel risk to the employee; and 7) if the operation of the vehicle was one of the employee’s duties of employment.

Edwards v. Transwestem Publ’g, LLC., 06-1057, pp. 5-6 (La.App. 3 Cir. 3/7/07), 953 So.2d 1006, 1010.

In the case at bar, it is undisputed that Ms. Rattliff had left her home and was on her way to a patient’s home when she was involved in the accident. Thus, unless the facts of this case come within an exception to the going-and-coming rule, her accident did not arise out of and in the course of her employment with Regional, thereby precluding her from receiving workers’ compensation benefits.

Ms. Rattliff asserts that “[h]er case squarely fits within established exceptions” to the going-and-coming rule. We disagree.

Ms. Rattliff drove her own vehicle to work each day. She was not paid for the time that she spent traveling to and from work. Regional did not pay Ms. Rattliff for mileage or travel expenses. Ms. Ratt-liff was paid on an hourly basis for actual patient care while she was at the patient’s home, and she received no form of additional compensation. She was responsible for paying her own automobile insurance and her cell phone expenses. When the accident occurred, Ms. Rattliff was only assigned to care for one patient. She traveled the same route to the patient’s home each day, and there was no deviation on this particular day.

In an effort to circumvent the going- and-coming rule, Ms. Rattliff asserts that the accident occurred while she was on a special mission for Regional. However, her own testimony defeats this assertion. In her own words, Ms. Rattliff described the day of her accident as just a “[njormal day.” She stated that there was “[n]oth-ing special!,]” and she was just doing her usual “routine” as she did “every other day.” Clearly at the time of her accident, Ms. Rattliff was not on a special mission for Regional.

Ms. Rattliff alternatively seeks to classify her home as a worksite and argues that because she was traveling from one work-site to another, she was not subject to 1¡¡the going-and-coming rule. She makes much of Regional supplying her with a laptop and the use of her cell phone at home for work purposes. However, her own testimony likewise defeats her attempt to classify her home as a worksite. According to Ms. Rattliff, she rarely used her laptop for work at home. She would go to Regional’s office to turn in her paperwork and receive her paycheck. In fact, there was no evidence that she did work for Regional while at home, nor was she paid her hourly rate while she was at home.

Lastly, Ms. Rattliff argues that Regional had interested itself in her transportation as an incident of her employment. She points out that she was required by Regional to have a valid driver’s license, to submit proof of insurance, and to take a safe driving test. Given the nature of Regional’s home healthcare business, Ms. Rattliff posits that “driving to patients’ homes to provide ‘home health’ care was the performance of her employment duties[.]” Regional counters that all Louisiana motorists are required to have a driver’s license and proof of insurance; therefore, these facts are of no moment. Additionally, “[Requiring an employee to show up for work does not make the employee’s transportation incidental to the employment contract.” Notably, Regional did not contractually provide for Ms. Ratt-liffs transportation, nor did they reimburse her for her travel expenses. Also, Ms. Rattliff was not assigned to travel between different locations to care for different patients during the course of her workday. Rather, as Regional argues, she simply “was required to travel to work just as every other employee travels to his place of employment to start his/her day’s work.” However, “[h]er employment relationship with Regional did not begin until she arrived at her only client’s home each and every day.”

Given these facts, we do not find that Ms. Rattliff falls within any exception to the going-and-coming rule. Therefore, she did not meet her threshold burden of ^establishing that she suffered personal injury caused by an “accident arising out of and in the course of [her] employment[.]” La.R.S. 2S:1031(A). As she is unable to meet her burden of proof, there is no genuine issue of material fact, and, as a matter of law, Regional is entitled to summary judgment.

DECREE

For the reasons assigned, the judgment of the Office of Workers’ Compensation granting summary judgment in favor of Regional Extended Home Care Personnel Services, L.L.C. is affirmed. Costs of this appeal are assessed to Ursula Marie Ratt-liff.

AFFIRMED.

      . LUBA Casualty Insurance Company, Inter-venor, is also a party to the proceedings; however, its claims are not relevant to the present appeal.


author: EZELL, Judge.

text:
    Shermane HECTOR v. MO-DAD ENVIRONMENTAL SERV., LLC, et al.
    No. 13-1184.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2014.

      Charles A. Schutte, Jr., Guglielmo, Marks, Schutte, Terhoeve & Love, Baton Rouge, LA, for Defendants/Appellants, William A. Stegall, Jr. and William A. Ste-gall, Sr.
    Scott Webre, Webre and Associates, Lafayette, LA, for Plaintiff/Appellee, Sher-mane Hector.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

| William A. Stegall, Sr. and William A. Stegall, Jr. appeal a judgment piercing the company veil of Mo-Dad Global Environmental Systems, LLC (Global) and finding them personally liable to Shermane Hector. Shermane was injured while working for Global and entered into a settlement for her injuries which was reduced to judgment. Global did not purchase workers’ compensation insurance, and it never paid the judgment. For the following reasons, we affirm the judgment of the trial court.

FACTS

On August 5, 2005, Shermane was employed by Global as a secretary when she fell through a rotten area of flooring in the trailer where she worked. The trailer was owned by William A. Stegall, Sr. and used by Global at its business office located at the Port of New Iberia. Shermane filed a workers’ compensation claim against Global. On the morning of trial, Global agreed to a settlement in the amount of $35,000.00. Pursuant to the agreement, judgment was entered against Global on October 20, 2006, by the Office of Workers’ Compensation. Payment was not timely made, and another judgment was entered against Global for penalties and attorney fees. Once again, payment was never made.

Shermane also filed a workers’ compensation claim against her joint employer, General Staffing Resources, seeking the same relief. Again, when payment was not made, penalties and attorney fees were assessed.

Shermane filed suit on February 7, 2007, against Global to make the judgment rendered against it executory. Shermane amended her suit to include claims: (1) asserting a claim for damages pursuant to La.R.S. 23:1032.1 for failure to secure workers’ compensation insurance; (2) piercing the company veil of |2Global to both Mr. William Stegall, Sr. (hereinafter Bill as he refers to himself in brief) and Mr. William Stegall, Jr. (hereinafter William as he refers to himself in brief); and (3) adding a tort claim pursuant to La.Civ. Code art. 2322 against Bill, as owner of the trailer.

Trial was held on May 7, June 25, and July 2, 2012. Regarding Shermane’s claim for damages for failure to secure workers’ compensation insurance, the trial court determined that La.R.S. 23:1032.1 did not apply to the present action because it took effect on August 15, 2005, and applied prospectively only. The trial court also determined that the claim in tort against Bill had prescribed.

The trial court then rendered-judgment piercing the company veil to both William and Bill. It held them hable in solido with Global for the $35,000.00 judgment in addition to the $8,400.00 in penalties and $1,000.00 in attorney fees. The trial court also awarded an additional $10,000.00 in attorney fees. The Stegalls then filed the present appeal.

MEMBERSHIP OF WILLIAM STEGALL, JR. IN LLC

The defendants first argue that the trial court erred in finding that William was a member of Global. They argue that Global is a limited liability company established under LLC law and owned by Bill and his wife, each with a 50% share. They argue that WiUiam never made a capital contribution, never received a K-l for income tax purposes, and never received any distributions of profits or losses from Global. It is the defendants’ position that William was only the manager of Global.

The determination of whether someone is a member of a limited liability company is a finding of fact subject to the manifest error standard of review. Destiny Sens., L.L.C. v. Cost Containment Sens., L.L.C., 10-1895 (La.App. 1 Cir. 9/20/11), 2011 WL 4375318. Under the manifest error/clearly wrong standard of review, findings by the trial court based on the credibility of witnesses are entitled to great deference, because only the fact finder 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 (La.1989).

A “member” is “a person with a membership interest in a limited liability company with the rights and obligations specified under this Chapter.” La.R,S. 12:1301(A)(13). “Membership interest” is further defined as “a member’s rights in a limited liability company, collectively, including the member’s share of the profits and losses of the limited liability company, the right to receive distributions of the limited liability company’s assets, and any right to vote or participate in management.” La.R.S. 12:1301(A)(14).

Louisiana Revised Statutes 12:1305 provides for the filing of the initial report of the limited liability company, known as the Articles of Organization. Pursuant to this law, Global filed its Articles of Organization, signed on November 28, 2001, with the Louisiana Secretary of State. These articles specifically provided that Global would be member-managed by William A. Stegall, Jr. William was additionally listed as the first and only member. Furthermore, all subsequent annual reports filed with the secretary of state indicated that William A. Stegall, Jr. was a member. No additional members were shown on the reports.

Louisiana Revised Statutes 12:1319(D) specifically provides in pertinent part:

Except as otherwise provided in the articles of organization or an operating agreement, a limited liability company and its members, managers, and agents may recognize and treat a person registered on its records as a member, as such for all purposes, and as the person ^^exclusively entitled to have and to exercise all rights and privileges incident to the ownership of such membership interests.

Clearly, the members, managers, and agents can rely on the articles of organization to determine who are members of a limited liability company.

William testified that initially Global was going to be a company that he owned and ran. However, he testified that changed after his father loaned Global a lot of money. Bill took back the company as a payback for the loan of the money. William testified that membership was changed to his father and mother at some point, but he testified that he could not remember if it was formally changed.

A review of the evidence indicates that membership was never formally changed. The law provides that a certificate of correction can be filed with the secretary of state correcting any errors in the paperwork. La.R.S. 12:1310. This was not done.

It is clear that the records of limited liability companies are important in identifying the members of the company. Global’s records over the years have continuously indicated that William was the only member of Global. Clearly, third parties are entitled to rely on the company records as evidence of membership status.

The evidence and testimony further indicated that the losses Bill and his wife listed on their own income taxes was more for practical purposes than for their own needs. William testified that the CPA indicated that his father could use the losses generated by Global. William stated he did not need the losses.

We also find that William did make a capital contribution to Global. Pursuant to La.R.S. 12:1301(A)(3), a “capital contribution” is “anything of value that a person contributes to the limited liability company as a prerequisite for, or in ^connection with, membership, including ... services rendered....” By his own testimony, William could not remember if he had been paid a salary as manager of Global but did not think he had been paid a salary. Evidence and testimony indicated that Global paid William a commission on two occasions; this is the only money he received from Global. We find that William’s actions in managing Global without a salary were “services rendered” as a capital contribution to Global.

In making its decision that William was a member of Global, the trial court specifically found that William was not a credible witness, observing that he was very nervous in his demeanor and very evasive in his answers. We find no manifest error in the trial court’s conclusion that William Stegall, Jr. was a member of Global.

PIERCING THE CORPORATE VEIL

The defendants argue that the trial court erred in piercing the corporate veil of Global and holding William and Bill liable for Global’s debt to Shermane. They argue that it is only under extreme circumstances that the court should pierce the company veil of Global to make a member liable for the debts of the limited liability company.

The supreme court recently explored the concept of piercing the company veil of a limited liability company and observed that a limited liability company and its members are wholly separate persons. Ogea v. Merritt, 13-1085 (La.12/10/13), 130 So.3d 888. The supreme court, citing Charming Charlie, Inc. v. Perkins Rowe Associates, L.L.C., 11-2254 (La.App. 1 Cir. 7/10/12), 97 So.3d 595, recognized that piercing the company veil results in personal liability of the owner of the LLC, explaining that:

| fin narrowly defined circumstances, when individual member(s) of a juridical entity such as an LLC mismanage the entity or otherwise thwart the public policies justifying treating the entity as a separate juridical person, the individual member(s) have been subjected to personal liability for obligations for which the LLC would otherwise be solely liable. When individual member(s) are held liable under such circumstances, it is said that the court is “piercing the corporate veil.”

Id. at 895.

However, the supreme court did not further address the piercing the corporate veil doctrine, because it was neither relied upon by the lower courts nor invoked by the plaintiff.

In Charming Charlie, Inc., 97 So.3d at 598-99, the first circuit explained the application of the piercing the corporate veil doctrine as follows:

Louisiana courts have allowed a piercing of the corporate veil under only two exceptional circumstances, namely, where the corporation is an alter ego of the shareholders and the shareholders have used the corporation to defraud a third party (the “alter ego” doctrine) and where the shareholders have failed to conduct a business on a “corporate footing” to such an extent that the corporation ceases to be distinguishable from its shareholders. Riggins [v. Dixie Shoring Co., Inc.], 590 So.2d [1164] at 1168 [ (La.1991) ]; Imperial Trading Co.[,Inc. v. Uter], 837 So.2d [663] at 669-70 [ (La.App. 1 Cir.2002) ]. Some of the relevant factors considered in determining whether to apply the alter ego doctrine include: commingling of corporate and shareholder funds; failing to follow statutory formalities for incorporating and transacting corporate affairs; undercapitalization; failing to maintain separate bank accounts and bookkeeping records; and failing to hold regular shareholder and director meetings. Riggins, 590 So.2d at 1168; Imperial Trading Co., 837 So.2d at 670.
Furthermore, Louisiana courts are reluctant to hold a shareholder, officer, or director of a corporation personally liable for corporate obligations, in the absence of fraud, malfeasance, or criminal wrongdoing. Riggins, 590 So.2d at 1168; Imperial Trading Co., 837 So.2d at 670. In pleading fraud, the circumstances constituting fraud must be alleged with particularity, although knowledge may be alleged generally. La. C.C.P art. 856. There are three basic elements to an action for fraud against a party to a contract: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (3) the error induced by a fraudulent act must relate to a circumstance substantially influencing the victim’s 17consent to (a cause of) the contract. See La. C.C. art.1953; Shelton v. Standard/700 Associates, 01-0587 (La.10/16/01), 798 So.2d 60, 64. Thus, fraudulent intent, or the intent to deceive, is a necessary and inherent element of fraud. Fraud cannot be predicated upon mistake or negligence, no matter how gross. Terrebonne Concrete LLC v. CEC Enterprises, LLC, 11-0072 (La.App. 1st Cir. 8/17/11), 76 So.3d 502, 509, writ denied, 11-2021 (La.11/18/11), 75 So.3d 464.

Louisiana Revised Statutes 12:1320(D) provides for piercing the company veil and imposes liability on a member as justification to prevent the use of a limited liability company in defrauding creditors. ORX Resources, Inc. v. MBW Exploration, L.L.C., 09-662 (La.App. 4 Cir. 2/10/10), 32 So.3d 931, writ denied, 10-530 (La.5/7/10), 34 So.3d 862.

Whether a limited liability company is an alter ego of its members is a finding of fact subject to the manifest-error standard of review. Dishon v. Ponthie, 05-659 (La.App. 3 Cir. 12/30/05), 918 So.2d 1132, writ denied, 06-599 (La.5/5/06), 927 So.2d 317.

As background to the discussion of piercing the company veil, it is relevant to note that Global was not the only company set up by the Stegalls. William explained that the family started several companies, including Mo-Dad Companies, LLC; Mo-Dad Utilities, LLC; and Pavement Maintenance Unlimited, LLC, all of which were operating at the time of the trial. A previous company included Mo-Dad One, Inc. Another company was General Staffing, which was the predecessor entity to Abraham Payroll. General Staffing was a company organized for the issuance of payroll checks. The workers’ compensation insurance provider was not happy with the name of the company, so General Staffing was shut down and Abraham Payroll was started.

|sBill testified that he put his money into these companies so he would not have the liability. He further stated that he owned the assets of the companies, and “[t]he bad times stayed with the company, and the good times came to [him].”

The administrative duties for all the companies were performed at the office in Denham Springs. William and his wife, Susan, would perform the bookkeeping services for all of these companies, with Susan performing the majority of the work. Susan testified that she received her salary from Mo-Dad Utilities. She received no compensation from any of the other companies. Susan explained that the companies would loan money to each other. Either her husband or her father-in-law made the decision on what inter-company loans and personal loans were made.

William stated that if bills came due that needed to be paid, he would contact his father and then they would decide whether they were going to be able to fund the operations. William testified that any in-tra-company loans were “common manager” operated. In other words, if a company could pay back a loan, then it would pay it back. If the company could not pay back the loan, then at some point, it went out of business. These loans were also non-interest bearing.

Susan also testified that there was one American Express card that was used by all the companies. Frequently, one company would pay the American Express bill and then the expense was coded to the proper company. Susan further stated that when one company would pay the American Express bill of another company, it would be cash derived out of a loan from one company to another.

In setting up Global, Bill personally paid $106,000.00 for the purchase of the business. Additional installment payments of $5,000.00 were made on a monthly basis by Global, with Bill lending the money to Global to make the payments. At |nthat time, Bill testified that he received title to the property. By the end of 2004, Bill had loaned $218,400.00 to Global, which Global never paid back.

Global operated it’s business on property leased from the Port of Iberia. Bill and his wife entered into a lease with Global in which Global leased the buildings, owned by Bill and his wife, used for operating the business. Global did not own any vehicles either. The vehicles it used in its business were owned by Bill or another entity.

Even the handling of Shermane’s accident involved multiple entities. Most importantly, William testified that he had workers’ compensation insurance for another company, which he thought included all of the companies. After Shermane’s accident, he found out that the workers’ compensation insurance for the other company did not include Global.

There was also testimony regarding a payment made to Shermane’s attorney for her medical bills. In 2006, a check in the amount of $9,599.73 was made payable to Shermane’s attorney for the payment of medical bills. The check was written from Pavement Maintenance’s account as opposed to Global’s account. Not until 2009 was this error noticed. A correcting entry was made on the books, but money was never transferred from Global to Pavement Maintenance’s account.

Testimony also revealed that there was allegedly an account receivable that had been earmarked to pay the workers’ compensation judgment. However, Global never received the money from that account, and the judgment was not paid. Interestingly, Bill would advance money to Global to pay other debts but chose not | into advance money to Global to pay this debt. Shortly after the settlement had been reduced to judgment, Bill and William testified that they decided to shut down Global because Hurricanes Katrina and Rita had destroyed the business.

We find no manifest error in the trial court’s decision to pierce the company veil of Global and hold Bill and William personally liable to Shermane for the amount of money Global owes Shermane under the workers’ compensation judgments. Clearly, these businesses were not operated as separate entities from either each other or their members. There was extensive commingling of funds between the entities and members. Furthermore, Bill was completely funding the operations of Global personally. He admitted that he never received any distributions or profits from Global. It appears that these companies were set up to avoid liability, but no efforts were made to treat these companies as separate entities. The avoidance of their responsibility to Shermane is not what the law intended, especially in a case like this where the manner in which business was conducted between the different entities and the members fostered a situation in which workers’ compensation insurance was not purchased for Global.

ADDITIONAL ATTORNEY FEES

The defendants next claim that the trial court erred in awarding additional attorney fees in the amount of $10,000.00. They argue that the trial court did not have subject matter jurisdiction or legal authority to make an award of additional attorney fees against them. The defendants claim that the Office of Workers’ Compensation had the exclusive subject matter jurisdiction to award attorney fees and costs under La.R.S. 23:1201(G) for failure to pay the judgment.

District courts are vested with original jurisdiction over all civil and criminal matters unless the Constitution provides otherwise or except as provided by law for In administrative agency determinations in workers’ compensation matters. La. Const. Art. V, § 16. Louisiana Revised Statutes 23:1310.3(F) provides for the original and exclusive jurisdiction of the Office of Workers’ Compensation as follows:

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

We recognize that claims involving “piercing the corporate veil doctrine” fall under the Business Corporation Law found in Title 12 and do not arise out of the Workers’ Compensation Act. Covington v. A-Able Roofing, Inc., 95-1126 (La.App. 3 Cir. 3/6/96), 670 So.2d 611. Shermane had to file this action in district court.

Additionally, La.R.S. 23:1101(A) provides that an employee who has a workers’ compensation claim still has the right to also file a claim against third persons who may also be liable:

When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as “third person”) other than those persons against whom the said employee’s rights and remedies are limited in R.S. 23:1032, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or
his dependents, relations, or personal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations, or personal representatives may |12obtain damages from or proceed at law against such third person to recover damages for the injury, or compensable sickness or disease.

Therefore, pursuant to La.R.S. 23:1310.3(F) and La.R.S. 23:1101(A), Sher-mane’s right to proceed against the Ste-galls was also specifically excepted from the exclusive jurisdiction of the Workers’ Compensation Act as an executory suit for damages against third parties seeking to establish their personal liability for the debts of her employer, Global.

As a specific exception to the rule that the Office of Workers’ Compensation has exclusive jurisdiction, we find the district court properly applied La.R.S. 23:1201(G) in awarding attorney fees in this case. The district court was specifically granted jurisdiction in this case to determine a third party’s liability to Shermane for payment of a workers’ compensation judgment. Louisiana Revised Statutes 23:1201(G) provides for the payment of attorney fees when an award payable under the terms of a final, nonappealable judgment is not paid within thirty days. Nowhere does the statute limit its applicability to that of an employer or insurer whom has become liable for payment of the judgment under the workers’ compensation law. When William and Bill became liable individually for payment of the outstanding workers’ compensation judgment, the district court could apply La.R.S. 23:1201(G) and award attorney fees.

REDUCTION OF JUDGMENT AMOUNT

The defendants claim that the amount of the judgment should be reduced to no more than $50,000.00. They argue that they originally requested a jury trial but waived the jury trial after Shermane filed a stipulation to limit the amount of damages to $50,000.00.

11sThe judgment sought to be made exec-utory included the original settlement amount of damages in the amount of $35,000.00 from the October 20, 2006 judgment in addition to an $8,400.00 penalty and $1,000.00 in attorney fees also awarded in the December 13, 2006 judgment. The trial court then awarded an additional $10,000.00 in attorney fees for a total judgment of $54,400.00.

The term “cause of action” in [La.Code Civ.P.] art. 1732 is not synonymous with the term “amount in controversy” and does not refer to the amount of plaintiffs overall claim arising out of the transaction or occurrence. See, Benoit v. Allstate Ins. Co., 2000-0424 (La.l1/28/00), 773 So.2d 702. Generally, the amount in dispute does not include interest, court costs, attorney fees, or penalties, whether provided by agreement or by law. La. C.C.P. art. 4.

Wallace v. State Farm Mut. Auto. Ins., 36,099, p. 8 (La.App 2 Cir. 6/14/02), 821 So.2d 704.

Excluding the attorney fees and penalty, the cause of action is only $35,000.00, well below the $50,000.00 stipulated amount.

Furthermore, a review of the joint stipulation states that the “amount of damages” and “award of damages” would not exceed $50,000.00 exclusive of accrued legal interest and court costs. There was no limitation on penalties and attorney fees. This is because at the time the stipulated judgment was entered into, penalties and attorney fees were not at issue. There is no merit to this assignment of error.

PRO-RATA SHARE OF THE DEBT

The defendants argue that Bill cannot be held liable for more that his pro-rata share of the debt, i.e. 50%. They argue that the same rule for dissolution under La.R.S. 12:1341 should apply, which provides that a member cannot be held liable for more than his pro-rata share of the debt owed to a third party upon dissolution.

114However, La.R.S. 12:1820 providing for liability of members to third parties does not limit a member’s liability to a third party. This is because the liability of the member is not based on his negligence as a member in the limited liability company but based on his own personal negligent or wrongful act. Regions Bank v. Ark-La-Tex Water Gardens, L.L.C., 43,-604 (La.App. 2 Cir. 11/5/08), 997 So.2d 734, writ denied, 09-16 (La.3/13/09), 5 So.3d 119. The limited liability law was not intended to shield professionals from liability for personal negligence. Id.

Therefore, the trial court was correct in finding that the defendants should be held liable in solido for the debt to Shermane.

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to William A. Stegall, Jr. and William A. Stegall, Sr.

AFFIRMED.

      . We note that the trial court found that La. R.S. 23:1032.1, providing for a tort claim and penalties for failure to secure workers’ compensation insurance, took effect August 15, 2005. The trial court found that it was a substantive law to be applied prospectively only. Shermane could not assert a claim in tort against the defendants since her injury occurred before the effective date. This ruling was not appealed.