author: KUHN, J. WHIPPLE, J,

text:
    Stephen J. WILLIAMS v. INTERNATIONAL OFFSHORE SERVICES, LLC.
    Nos. 2011 CW 1240, 2011 CW 1318, 2011 CA 1369.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 7, 2012.
    Rehearing Denied Dec. 28, 2012.

      Gilbert R. Buras, Jr., New Orleans, LA, Daniel A. Cavell, Camille A. Morvant, Christopher H. Riviere, Eric L, Trosclair, Thibodaux, LA, for Plaintiff/Appellee, Stephen J. Williams.
    Marc S. Whitfield, Harry J. Philips, Jr., Baton Rouge, LA, James Dasso, Jeffrey A. Soble, Pro Hac Vice, Chicago, IL, Martin S. Triche, Napoleonville, LA, for Defendant/Appellant International Offshore Services, LLC.
    Before CARTER, C.J., WHIPPLE, KUHN, GUIDRY, and WELCH, JJ.
   KUHN, J.

[ 2Pefendant-appellant, International Offshore Services, LLC (IOS) appeals the trial court’s judgment granting summary judgment in favor of plaintiff-appellee, Stephen Williams, declaring that he was not prohibited from engaging in certain business operations by the terms of either an employment agreement or an operating agreement entered into by the parties. Aso referred to this panel on review are two writ applications. Because we conclude that the trial court lacked subject matter jurisdiction over Williams’ claims, we vacate the judgment granting declaratory relief, dismiss 2011 CW 1240 as moot, and grant 2011 CW 1318 to sustain the exception raising the objection of lack of subject matter jurisdiction.

FACTUAL AND PROCEDURAL HISTORY

In 2006, Williams founded IOS, a corporation which owns and operates several marine vessels that provide support services to the oil and gas industry. In January 2009, Williams sold the majority interest in IOS to Ferry Holdings Corp. (Ferry), a subsidiary of Platinum Equity LLC. As part of the sale, Williams retained a 20% ownership interest and also entered into an employment agreement to work as the CEO of IOS for two years following the sale (the Employment Agreement), which included a non-compete provision.

|sIn July 2009, Ferry sought to refinance the purchase of its membership interest in IOS, which included bringing in more equity owners. As a result, a Third Amended and Restated Operating Agreement (the Operating Agreement) was executed by all members of IOS, including Williams. The Operating Agreement, dated July 7, 2009, contained a non-compete provision, which was substantially similar to the non-compete provision in the Employment Agreement, and also contained an arbitration provision.

After serving his two-year term, Williams resigned as CEO of IOS in January 2011. Following his resignation, Williams purchased four liftboats through his newly formed company, Alliance Lift-boats, LLC, for the purpose of providing liftboat services to the oil and gas industry.

On January 17, 2011, IOS and Ferry instituted a claim for arbitration with the American Arbitration Association, asserting that Williams breached the non-compete terms of the Operating Agreement and fiduciary duties he owed to IOS. IOS and Ferry requested that the arbitration panel: (1) enter an award in favor of IOS and Ferry and against Williams enjoining him from violating the Operating Agreement or his fiduciary duties; (2) declare the respective rights and obligations of Williams, IOS, and Ferry under the Operating Agreement; and (3) award damages to IOS and Ferry.

|40n January 19, 2011, Williams filed a petition for declaratory judgment, naming IOS as defendant. Although the original petition did not include any allegations about the non-compete provision in the Operating Agreement, Williams supplemented his petition, in March 2011, to include allegations that he was entitled to a declaration that his activities did not violate either the Employment Agreement or the Operating Agreement.

IOS filed a peremptory exception raising the objection of no cause of action and a dilatory exception raising the objection of prematurity, contending that it was entitled to a dismissal of Williams’ claims as related to the Operating Agreement because Williams failed to abide by the arbitration agreement as set forth in the Operating Agreement. After a hearing on May 25, 2011, the trial court denied relief in open court, and on June 24, 2011, signed a judgment overruling IOS’s exceptions of no cause of action and prematurity.

On July 8, 2011, IOS filed a writ application with this court, bearing number 2011 CW 1240, seeking review of the trial court’s June 24, 2011 judgment, denying the exceptions of no cause of action and prematurity with regard to the claims as to the Operating Agreement. This court ordered that the writ be referred to the panel to which the related appeal was assigned. See Williams v. Int’l Offshore Services, L.L.C., 2011-1240 (La.App. 1st Cir.7/22/11) (an unpublished writ action).

During May 2011, Williams filed a motion for summary judgment, averring that there was no genuine issue of fact regarding whether he was competing against IOS in contravention of the terms of the non-compete clauses in the Employment Agreement and Operating Agreement. Williams requested that the trial court decree that he was not prohibited from engaging in certain specified | ¡¡business activities. Williams also sought a declaration that the non-compete and nonsolicitation provisions in both the Employment Agreement and the Operating Agreement were null and unenforceable or, alternatively, did not prevent Williams from engaging in certain specified business.

Before the hearing on Williams’ motion for summary judgment, however, IOS passed a corporate resolution stating that it released Williams from all claims arising from the non-compete provision as found in the Employment Agreement. In the corporate resolution, IOS expressly reserved all its rights in connection with the non-compete provision as found in the Operating Agreement.

On May 26, 2011, IOS filed a declinatory exception raising the objection of lack of subject matter jurisdiction, averring that as a result of its corporate resolution, there was no longer a justiciable claim or controversy regarding the Employment Agreement, and, thus, any claim relating to it should be dismissed for lack of subject matter jurisdiction. Because the exception was not filed in compliance with the required time period prior to the scheduled hearing date as mandated by the district court rules, the trial court declined to hear the exception prior to ruling on Williams’ motion for summary judgment.

A hearing on Williams’ motion for summary judgment was held on June 8, 2011. The trial court concluded that Williams was not prevented or prohibited by either the Employment Agreement or the Operating Agreement from engaging in the lift-boat business, engaging in the business of providing oil and gas well plug and abandonment services, or engaging in any other specified business, and on June 21, 2011, signed a judgment granting summary judgment in favor of Williams. Also on June 21, 2011, the trial court heard IOS’s exception of lack of subject matter jurisdiction premised on the corporate resolution and overruled it in open court. A written judgment to that effect was signed on July 12, 2011.

| JOS subsequently filed a writ application, challenging the trial court’s overruling of its exception of lack of subject matter jurisdiction. That writ application, like the earlier one, was also referred to the panel to which the related appeal was assigned. See Williams v. Int'l Offshore Services, L.L.C., 2011-1818 (La.App. 1st Cir.8/15/11) (an unpublished writ action). Lastly, IOS filed this appeal challenging the June 21, 2011 judgment, which granted Williams’ motion for summary judgment on the merits of his claim for declaratory relief, and the July 12, 2011 overruling of the exception of lack of subject matter jurisdiction.

DISCUSSION

A court’s subject matter jurisdiction is an issue that cannot be waived or conferred by the consent of the parties. The issue of subject matter jurisdiction may be raised at any time, even by the court on its own motion, and at any stage of an action. Joseph v. Ratcliff, 2010-1342 (La.App. 1st Cir.8/25/11), 63 So.3d 220, 224. Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Motorola, Inc. v. Associated Indent. Corp., 2002-0716 (La.App. 1st Cir.4/30/03), 867 So.2d 715, 717.

Subject matter jurisdiction is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void. See La. C.C.P. arts. 3 and 925(C).

Both the federal and state arbitration acts indicate the strong legislative policies of both sovereigns favoring arbitration. See 9 U.S.C. § 1 et seq.; La. R.S. 9:4201 et seq. Any doubt as to whether a controversy is arbitrable should be 17resolved in favor of arbitration. Woodson Constr. Co., Inc. v. R.L. Abshire Constr. Co., Inc., 459 So.2d 566, 569 (La.App. 3d Cir.1984).

At oral arguments, the parties verified to this court that Williams’ claims under the Operating Agreement were in arbitration. Once arbitration has commenced, the courts are precluded from exercising jurisdiction. Peter Vicari General Contractor, Inc. v. St. Pierre, 02-250 (La.App. 5th Cir.10/16/02), 831 So.2d 296, 299 (citing Woodson Constr. Co., Inc., 459 So.2d at 570-71). Accordingly, sua sponte, we conclude that the trial court did not have subject matter jurisdiction over the claims arising out of the Operating Agreement and, therefore, incorrectly granted summary judgment in favor of Williams on this basis.

In appeal of the grant of summary judgment, as well in its writ application bearing number 2011 CW 1318, IOS challenges the trial court’s denial of the exception of lack of subject matter jurisdiction insofar as Williams’ claims to relief under the Employment Agreement. IOS urges that by virtue of the corporate resolution that released Williams from “any and all” claims IOS may have arising from the non-compete provisions in the Employment Agreement, Williams’ demand for declaratory relief seeking a decree of his obligations under the Employment Agreement was rendered moot, thereby further depriving the trial court of subject matter jurisdiction. Specifically, IOS contends that, based on its subsequent corporate action, there no longer remains any justiciable claim or controversy as to the non-compete agreement in the Employment Agreement.

If a case is moot, there is no subject matter on which the judgment of the court can operate. Council of City of New Orleans v. Sewerage and Water Bd. of New Orleans, 2006-1989 (La.4/11/07), 953 So.2d 798, 801. It is well settled that courts will not decide abstract, hypothetical, or moot controversies, or render 18advisory opinions with respect to controversies. In the Matter of E.W., 2009-1589 (La.App. 1st Cir.5/7/10), 38 So.3d 1033, 1036. Cases submitted for adjudication must be justiciable, ripe for decision, and not brought prematurely. A “justiciable controversy” is one presenting an existing actual and substantial dispute involving the legal relations of parties who have real adverse interests and upon whom the judgment of the court may effectively operate through a decree of conclusive character. Women’s Health Clinic v. State, 2002-0016 (La.App. 1st Cir.5/10/02), 825 So.2d 1208, 1210, writ denied, 2002-2002 (La.11/1/02), 828 So.2d 586.

Moreover, even though the requirements of justiciability are satisfied when the suit is initially filed, when the fulfillment of these requirements lapses at some point during the course of the litigation before the moment of final disposition, mootness occurs. In such a case, there may no longer be an actual controversy for the court to address, and any judicial pronouncement on the matter would be an impermissible advisory opinion. Thus, jurisdiction, although once established, may abate if the case becomes moot. In the Matter of E.W., 38 So.3d at 1037.

Because IOS voluntarily waived its rights arising from the non-compete provisions in the Employment Agreement prior to rendition of summary judgment in favor of Williams, and in light of the allegations of Williams’ petition, there was no justicia-ble controversy for the trial court, and consequently this court, to act upon; in other words, with the corporate resolution waiver, there no longer existed a controversy presenting an actual and substantial dispute involving the legal relations of the real adverse interests of the parties relative to the Employment Agreement. See Chauvin v. Wellcheck, Inc., 2005-1571 (La.App. 1st Cir.6/9/06), 938 So.2d 114, 118 (a litigant not asserting a substantial existing legal right is without standing to seek a declaratory judgment). Accordingly, we conclude that the trial court did not have subject matter jurisdiction over the claims |9arising out of the Employment Agreement and, therefore, incorrectly granted summary judgment in favor of Williams on this basis.

CONCLUSION

Because the trial court did not have jurisdiction over Williams’ claims arising out of either the Operating Agreement (as those claims were in arbitration pursuant to the arbitration provision) or the Employment Agreement (as IOS’s corporate resolution waiving any claims it may have had against Williams resulted in no justiciable controversy and, therefore, rendered his request for declaratory relief moot), we vacate the trial court’s judgment granting summary judgment in favor of Williams. Likewise, we grant 2011 CW 1818, filed by IOS, to reverse the trial court’s July 12, 2011 judgment overruling the exception raising the objection of lack of subject matter jurisdiction to decide Williams’ claims relative to the Employment Agreement. We hereby order that the exception be sustained, and we hereby dismiss Williams’ claims relative to the Employment Agreement. And because the trial court lacked subject matter jurisdiction over any of Williams’ claims for declaratory relief, writ application bearing number 2011 CW 1240, also submitted by IOS, wherein it sought review of the trial court’s June 24, 2011 judgment overruling its exceptions raising the objections of no cause of action and prematurity, is dismissed as moot. Appeal costs are assessed against plaintiff-appellee, Stephen Williams.

JUDGMENT VACATED; 2011 CW 1318 GRANTED AND 2011 CW 1240 DISMISSED.

WHIPPLE, J., dissents & assigns reasons.

CARTER, C.J., dissents for the reasons assigned by WHIPPLE, J.

WHIPPLE, J,

dissenting.

hi respectfully dissent from the majority’s opinion vacating the June 21, 2011 partial summary judgment and granting IOS’s writ application in 2011 CW 1318 and dismissing the writ application in 2011 CW 1240, each of which I address individually below.

2011 CW 1240

In this writ application, IOS challenges the trial court’s denial of its exceptions of no cause of action and prematurity, filed in response to Williams’s Second Supplemental and Amended Petition, wherein Williams challenged his obligations under the non-compete provision of the Operating Agreement. In support of these exceptions, IOS avers that, pursuant to the arbitration clause in the Operating Agreement, any dispute as to the terms of the Operating Agreement, including interpretation of the non-compete provision therein, must be decided in the arbitration forum.

At the hearing on IOS’s exceptions of no cause of action and prematurity, the trial court denied the exceptions in open court, concluding that Williams’s petition stated a cause of action and was not premature. Specifically, the trial court found that Williams had a cause of action and that “[wjhether or not that is concurrent with the arbitration agreement or not” was “not the issue for the [trial court].”

In the present matter, the parties do not dispute that there is a written arbitration provision in the Operating Agreement. Rather, the issue is |2whether this specific “non-compete issue” is referable to arbitration. IOS avers this issue is referable to arbitration, relying on the presumption of arbitrability and the language of the arbitration provision. IOS contends the arbitration provision in the Operating Agreement broadly covers “any controversy or claim.” Thus, IOS argues, because Williams’s supplemental petition for declaratory judgment seeks a declaration that the non-compete clause in the Operating Agreement would not restrict certain activities, this claim is subject to arbitration.

In opposition, Williams avers that public policy and judicial efficiency provide an exception under these particular facts, and that the non-compete issue should remain pending in the district court, ancillary to his original petition. As support, Williams notes that Louisiana has a strong public policy of restricting non-competition agreements, citing SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808 So.2d 294. Louisiana’s policy against non-competition agreements and the exceptions thereto are set forth in LSA-R.S. 28:921. Specifically, LSA-R.S. 23:921(A) provides:

(1) Every contract or agreement, or provision thereof, by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, except as provided in this Section, shall be null and void. However, every contract or agreement, or provision thereof, which meets the exceptions as provided in this Section, shall be enforceable.
(2) The provisions of every employment contract or agreement, or provisions thereof, by which any foreign or domestic employer or any other person or entity includes a choice of forum clause or choice of law clause in an employee’s contract of employment or collective bargaining agreement, or attempts to enforce either a choice of forum clause or choice of law clause in any civil or administrative action involving an employee, shall be null and void except where the choice of forum clause or choice of law clause is expressly, knowingly, and voluntarily agreed to and ratified by the employee after the | ^occurrence of the incident which is the subject of the civil or administrative action. [Emphasis added.]

In sum, LSA-R.S. 23:921(A)(2) clearly provides that every choice of forum and choice of law clause in agreements between employees and employers is null, unless agreed to by the employee after the incident. As such, Williams avers that: (1) it is undisputed that IOS was his employer; (2) IOS is now attempting to remove the “non-compete issue” as related to the Operating Agreement to a new forum, the arbitration forum; and (3) to allow such would violate the public policies set forth in La. R.S. 23:921(A)(2).

In evaluating these “public policy” arguments, I note that the parties do not cite (nor have I found) a case where an arbitration clause was set aside specifically for being in violation of Louisiana’s public policy against non-compete agreements. However, the clear language of LSA-R.S. 9:4201 provides an exception to arbitration clauses for “such grounds as exist at law or in equity for the revocation of any contract.” Furthermore, as stated by the United State Supreme Court in M/S Bremen v. Zapata Off-Shore Company, 407 U.S. 1, 15, 92 S.Ct. 1907, 1916, 32 L.Ed.2d 513 (1972), “A contractual choice-of-forum clause should be held unenforceable if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision.”

[4Counsel for IOS further argues that any “public policy” in LSA-R.S. 28:921 should not trump the Federal Arbitration Act. In support, IOS cites Dahiya v. Talmidge International Ltd., 05-0514 (La.App. 4 Cir. 5/26/06), 931 So.2d 1168. In Dahiya, a foreign maritime worker brought suit in a Louisiana district court for injuries. His maritime employer sought to stay the proceeding pending arbitration of the claim, as required by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Similar to the present matter, the plaintiff argued that Louisiana’s anti-forum-selection-clause provision as set forth in LSA-R.S. 23:921(A)(2) and the public policies therein conflict with and prohibit the Convention’s mandate to enforce the arbitration clauses. The Fourth Circuit ultimately rejected the argument and ordered arbitration, but only after weighing the two competing policies at play, i.e., Louisiana’s policy against forum selection clauses in employment agreements and the Convention’s policy of rigorous enforcement of arbitration agreements in order to have predictability in the resolution of disputes in the international commercial system. The Fourth Circuit found the federal policy outweighed the Louisiana public policy, noting the Louisiana policy seeks to protect Louisiana citizen-employees and the plaintiff in the case at hand was a resident and citizen of India. Notably, Dahiya did not establish a steadfast rule that federal law always supercedes state law that purports to nullify a forum selection clause; rather, Dahiya recognized that the competing purposes of the state and federal law must be weighed against each other.

On this basis, Williams counters that the operative language of the non-compete agreements in the Employment Agreement and Operating | (¡Agreement are identical and are both governed by Louisiana law. Therefore, he contends that maintaining the claim in the district court as it pertains to both the Employment Agreement and the Operating Agreement serves the interest of justice by avoiding or reducing the possibility of inconsistent judgments on the same material facts and application of law. ie., the district court finding that Williams’s proposed new business ventures did not violate the language of the non-compete agreement in the Employment Agreement, but the arbitration panel finding that the new business ventures did violate the same non-compete agreement as set forth in the Operating Agreement. I agree.

In particular, I note that LSA-R.S. 9:4201 specifically provides an exception to the application of arbitration clauses for “such grounds as exist at law or in equity,” which include judicial efficiency and the prevention of inconsistent decisions. Moreover, given the status of the parties, the nature of their relationship, and the timing and purpose underlying the confection of the subsequent Operating Agreement, I find no error in the trial court’s ruling denying these exceptions by the defendant.

Although it is well established that arbitration is favored under state and federal law, IOS’s arguments in this writ application raise several concerns. Plaintiffs petition for declaratory relief involves interpretation of a non-competition clause. Virtually the same non-competition clause is found in the Employment Agreement and the Operating Agreement between the parties. It is undisputed that the Employment Agreement does not contain an arbitration clause and that all claims related to the non-compete agreement as stated in the Employment Agreement are contractually and Illegally reserved to the district court. As such, I agree with Williams that inconsistent decisions could result if the district court interpreted the clause in the Employment Agreement, while the arbitration panel interpreted the same language but as found in the Operating Agreement.

However, the more compelling argument is that since the claim involves a non-compete clause between an employee and employer, allowing the defendants to transfer the claim to the arbitration panel and forcing plaintiff to be bound thereby would violate LSA-R.S. 23:921(A)(2) and the public policies therein. Although this precept is qualified by In Re Gulf Fleet Holdings, wherein the court held that the public policy considerations of LSA-R.S. 23:921— unequal bargaining power and loss of livelihood — do not come into play where the employee is the former owner of the company and the employment agreement was part of a multi-million dollar purchase of the company, these considerations are seemingly inapplicable under the particular facts presented herein. Specifically, in this case, the dispute involves two contractual agreements, the employee/owner has specifically agreed and acknowledged in both contracts that there is a reservation of some rights to compete, and the district court is exercising lawful jurisdiction to consider, in a properly filed declaratory judgment action by the employee, the very same provision which would be at issue in the subsequently confected Operating Agreement.

Accordingly, I conclude the trial court did not err in denying IOS’s exceptions of no cause of action and prematurity, and hereby deny this application for supervisory writs. Thus, I find no error in the trial court’s exercise of jurisdiction and to render declaratory judgment addressing the | parties’ respective claims and defenses related to the non-compete provisions in both the Operating Agreement and Employment Agreement.

2011 CW 1318

In this writ application, IOS challenges the trial court’s denial of IOS’s exception of lack of subject matter jurisdiction regarding Williams’s claim for declaratory judgment as to his obligations under the Employment Agreement. Specifically, IOS contends that by virtue of that the corporate resolution which it passed, through which IOS released Williams from any and all claims arising from the non-compete agreement in the Employment Agreement, Williams’s demand for declaratory judgment decreeing his obligations under the Employment Agreement was rendered moot, thereby further depriving the trial court of subject matter jurisdiction. Specifically, IOS contends that based on its actions, there no longer remains any justiciable claim or controversy as to the non-compete agreement in the Employment Agreement. Accordingly, in this writ application, IOS seeks reversal of the trial court’s July 12, 2011 judgment denying its exception and requests dismissal of the judicial proceedings (and any resulting rulings) in the trial court to the extent they relate to the Employment Agreement.

The corporate resolution passed by IOS provides, in pertinent part, as follows:

BE IT HEREBY RESOLVED, that International Offshore Services, L.L.C. (“IOS”) does hereby irrevocably and unconditionally release, Steven J. Williams (“Williams”) from any and all Claims (as defined below) whether known or unknown, asserted or unasserted, which are in any way on account of, relating to, or arising from Section 4 (“Limitation on Activities”) of the International Offshore Services L.L.C. Employment Agreement, signed by Williams on January 8, Ia2008, a copy of which is attached to this Resolution, and agrees that it will not enforce or seek to enforce any Claims against Williams for any breach of the “Limitation on Activities” provisions of said Employment Agreement.
BE IT FURTHER RESOLVED, that the above irrevocable release does not, nor does it in any way indicate any intent to, waive or release any Claims against Williams which are in any way on account of, relating to, arising out of, or arising from the Third Amended and Restated Operating Agreement of International Offshore Services, L.L.C., dated July 7, 2009 (“Third Amended and Restated Operating Agreement”), or any earlier version of the operating agreements of IOS, including without limitation the Non-Competition provisions contained in Section 13 of the Third Amended Operating Agreement or any similar provisions contained in any earlier versions of the operating agreements of IOS, by operation of law, or otherwise, and IOS does hereby expressly reserve all of its rights under said Third Amended and Restated Operating Agreement [and earlier versions] and all claims it may have against Williams under said Third Amended Operating Agreement and Williams agrees to and consents to this reservation of rights under the Third Amended Operating Agreement.
BE IT FURTHER RESOLVED, that for purposes of this Resolution, Release and Agreement, the term “Claims” comprehensively includes, but is not limited to, actions, lawsuits, proceedings, claims, causes of action, demands, grievances, liabilities, suits, and judgments, whether actual or potential, whether presently known or unknown, recognized by the law of any jurisdiction, whether arising in tort, in contract, at law, in equity, at common law, or under any federal, state, county or local statute or law, under any and all theories of recovery of whatsoever nature, under any theory of liability, whatsoever. [Emphasis added.]

In denying the exception of lack of subject matter jurisdiction, the trial court stated as follows:

The resolution by IOS seeks to walk away from the controversy. But it’s this Court’s position, and I do not feel, that defeats subject matter jurisdiction. Because it is still Mr. William’s right to determine the extent and scope of any limitations that the agreement may have put on him, whether or not IOS chose to participate in the battle, and certainly, they did until the very end.

If a case is moot, there is no subject matter on which the judgment of the court can operate. Council of City of New Orleans v. Sewerage and Water Board of New Orleans. 2006-1989 (La.4/11/07), 953 So.2d 798, 801. It is well settled that courts will not decide abstract, hypothetical, or moot controversies, or render advisory opinions with respect to controversies. In the Matter of E.W., 2009-1589 (La.App. 1st Cir.5/7/10), 38 So.3d 1033, 1036. Cases submitted for adjudication must be justiciable, ripe for decision, and not brought prematurely. A “justiciable controversy” is one presenting an existing actual and substantial dispute involving the legal relations of parties who have real adverse interests and upon whom the judgment of the court may effectively operate through a decree of conclusive character. Women’s Health Clinic v. State, 2002-0016 (La.App. 1st Cir.5/10/02), 825 So.2d 1208, 1210, writ denied, 2002-2002 (La.11/1/02), 828 So.2d 586.

Moreover, even though the requirements of justiciability are satisfied when the suit is initially filed, when the fulfillment of these requirements lapses at some point during the course of the litigation before the moment of final disposition, mootness occurs. In such a case, there may no longer be an actual controversy for the court to address, and any judicial pronouncement on the matter would be an impermissible advisory opinion. Thus, jurisdiction, although once established, may abate if the case becomes moot. In the Matter of E.W., 38 So.3d at 1037.

However, exceptions to the mootness doctrine have been recognized. Under the voluntary cessation exception, if a defendant voluntarily stops wrongful conduct, then that change alone does not make a case moot unless the defendant shows with assurance that there is no reasonable expectation that the alleged violation will recur. Cat’s Meow, Inc. v. City of New Orleans through Department of Finance, 98-0601 (La.10/20/98), 720 So.2d 1186, 1194. Where the defendant has voluntarily ceased the complained-of conduct, a court should consider: (1) whether there is any reasonable | ^expectation that the alleged violation will recur; and/or (2) whether there are unresolved collateral consequences (such as an outstanding claim for compensatory or monetary relief). In the Matter of E.W., 38 So.3d at 1037.

The corporate resolution in the instant case does prevent IOS from asserting “any and all claims” against Williams under the non-compete provision in the Employment Agreement. Thus, IOS would not be able to sue Williams under the non-compete provision of the Employment Agreement for any of the business ventures in which he is now involved. However, contrary to the assertions by IOS, the corporation resolution only releases Williams from any claims by IOS under the non-compete in the Employment Agreement; it does not release him from his obligations under the non-compete provision.

Also, with regard to unresolved collateral consequences, as noted by Williams, the resolution of the extent of his obligations under the non-compete clause is relevant with regard to Williams’s fiduciary obligations to IOS assumed pursuant to the Employment Agreement, for which IOS could presumably sue, alleging a violation of Williams’s fiduciary duties based on his current business activities. Accordingly, because Williams is still bound by the obligations of the non-compete agreement, I conclude that a justiciable controversy remains and he is entitled to have the extent of those obligations judicially determined through his declaratory judgment action.

For these reasons, I would deny IOS’s application for supervisory writs of review at IOS’s costs, challenging the trial court’s July 12, 2011 judgment denying IOS’s exception of lack of subject matter jurisdiction.

THE INSTANT APPEAL

Turning to the instant appeal, wherein IOS challenges the trial court’s June 21, 2011 judgment granting Williams’s motion for summary judgment, Inin the judgment, the trial court declared that Williams is not prevented by either the Employment Agreement or the Operating Agreement from engaging in certain listed business enterprises, which the trial court determined were not prohibited by the provisions of the two agreements.

|12On appeal, IOS again asserts that the trial court erred in: (1) ignoring a binding arbitration clause as to the non-compete provisions in the Operating Agreement; and (2) granting the summary judgment as to the renounced non-compete provisions in the Employment Agreement (where no justiciable controversy remained because of IOS’s waiver of all legal claims related to the non-compete provisions of that agreement). Essentially, IOS again avers that the trial court had no jurisdiction to decide claims arising under the Operating Agreement, contending the arbitration clause therein required those matters to be submitted to an arbitration panel, and further that the trial court lacked subject matter jurisdiction to decide claims relating to the non-compete provision in the Employment Agreement, where IOS, by corporate resolution, agreed not to enforce that provision in the Employment Agreement. Notably, there is no assignment of error challenging the merits of the trial court’s declarations in the June 21, 2011 partial summary judgment.

With regard to the portion of the June 21, 2001 partial summary judgment declaring that Williams is not prevented or prohibited by the provisions of the Operating Agreement from engaging in certain business activities, for the reasons set forth above in our disposition of writ application number 2011 CW 1240, I would affirm the judgment on appeal.

| lsWith regard to IOS’s second assignment of error, wherein it contends that the trial court erred in granting summary judgment as to the terms of the non-compete provision of the Employment Agreement because the corporate resolution it passed rendered this claim moot, for the reasons expressed in my analysis of writ number 2011 CW 1318 above, I likewise find no merit to this argument. Because the corporate resolution only releases Williams from any claims by IOS under the non-compete in the Employment Agreement but does not release him from his obligations therein, Williams was still bound by the obligations of the non-compete agreement (in addition to any fiduciary duties assumed through the Employment Agreement). Accordingly, a justiciable controversy remained, and Williams was entitled to have the extent of those obligations judicially determined through his declaratory judgment action.

Moreover, because IOS has not challenged the substance or merits of the trial court’s determination as to Williams’s obligations pursuant to the non-compete clause in the Employment Agreement, I note that issue is not before us.

I note, however, that the June 21, 2011 judgment provides in part that Williams is not prevented or prohibited by the Employment Agreement from engaging in “any other business that IOS was not engaged on January 8, 2009 ..., as defined by the four categories specifically listed in the noncompete clause.” (Emphasis added). Louisiana courts require that a judgment be precise, definite, and certain. Vanderbrook v. Coachmen Industries, Inc., 2001-0809 (La.App. 1st Cir.5/10/02), 818 So.2d 906, 913. Because these “four categories” are not specified within the judgment, this portion of the judgment lacks specificity and is not precise, definite and certain as required by the jurisprudence. However, the judgment clearly | ^recognizes that Williams’s business activities are limited only by those activities in which IOS was engaged at the time the parties entered into the Employment Agreement, and, as stated above, IOS has not challenged the substance of this ruling. Accordingly, I would amend the judgment to expressly state the four categories of business activities in which IOS was engaged at the time of confection of the Employment Agreement, as set forth in the non-compete provision therein. See LSA-C.C.P. art. 2164 and Brister v. Brister, 2010 CU 2278, p. 3 (La.App. 1st Cir.5/6/11) (unpublished).

For these reasons, I respectfully dissent.

      . Section 4.2 of the Employment Agreement states, in pertinent part:
      Non-Competition. Executive agrees that during the Employment Term and, provided that the Company continues to pay Executive his Base Compensation, Executive further agrees and covenants for a period of two years following the Termination Date within the Restricted Territory, Executive shall not, directly or indirectly:
      a. Carry on or engage in the Restricted Business....
      For this purpose, the “Restricted Territory" means (x) the State of Louisiana, Parishes of Acadia, Ascension, Assumption, Calcasieu, Cameron, East Baton Rouge, Iberia, Iberville, Jeff Davis, Jefferson, Lafayette, Lafourche, Orleans, Plaquemines, St. Bernard, St. Charles, St. James, St. John the Baptist, St. Landry, St. Martin, St. Mary, St. Tammany, Terrebonne, Vermilion, and West Baton Rouge, the State of Texas, County of Harris, and the State of Alabama, County of Mobile....
      The “Restricted Business” means the business presently conducted by the Company or any subsidiary, which the parties agree consists of (A) providing offshore marine transportation to the oil and gas industry, (B) operating offshore construction barge, offshore pipeline lay and bury barge, or offshore well intervention and diving support barge, (C) operating any offshore supply vessel or tug, or (D) acting as a broker or intermediary with respect to any of the foregoing.

      . Section 13.2 of the Operating Agreement defines "Restricted Business" and mirrors the language of Section 4.2 of the Employment Agreement, as set forth above.

      . The arbitration provision in the Operating Agreement states, in pertinent part:
      Binding Arbitration. Any controversy or claim arising out of or relating to this Operating Agreement, including to interpret or enforce any provision of this Operating Agreement, shall be settled by final and binding arbitration administered by the American Arbitration Association, under its Commercial Arbitration Rules ... and judgment on the award rendered by the arbitrators may be entered in any court of competent jurisdiction.... Any arbitration pursuant to this Section 17.19 shall be conducted in St. Louis, Missouri. Any arbitration award may be entered in and enforced by any court of competent jurisdiction and the parties hereby consent and commit themselves to the jurisdiction and venue of any state or federal court located in St. Louis, Missouri for purposes of the enforcement of any arbitration award. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of such venue or any defense of inconvenient forum. (Emphasis added).

      . IOS originally filed a writ application on these issues on June 21, 2011, but due to defects in the filing, the writ was not considered. See Williams v. Int’l Offshore Services, L.L.C., 2011-1122 (La.App. 1st Cir.6/30/11) (an unpublished writ action).

      . Both acts are almost identical in substance as they were both drafted from the Uniform Arbitration Act. See FIA Card Services, N.A. v. Weaver, 2010-1372 (La.3/15/11), 62 So.3d 709, 712.

      . A reconventional demand IOS had asserted was voluntarily dismissed with prejudice.

      . Zapata involved a contract for a tug owner to tow a barge from Louisiana to Italy. The contract contained a choice-of-forum clause for the London Court of Justice. Ultimately, the Supreme Court remanded the matter, stating:
      Although their opinions are not altogether explicit, it seems reasonably clear that the District Court and the Court of Appeals placed the burden on Underwater to show that London would be a more convenient forana than Tampa, although the contract expressly resolved that issue. The correct approach would have been to enforce the forum clause specifically unless Zapata could clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching. Accordingly, the case must be remanded for reconsideration.
      [Emphasis added.]

        Zapata Off-Shore Company, 92 S.Ct. at 1916.

      . Section 17.2 of the Operating Agreement states—
      Application of Louisiana Law. This Operating Agreement, and the application or interpretation hereof, shall be governed exclusively by its terms and the law of the State of Louisiana (without giving effect to principles of conflicts of laws).

      . I note that my colleagues conclude that the trial court had no jurisdiction herein because, although nothing in this regard appears of record, at oral argument (and by a letter from defendants thereafter), the parties’ counsel disclosed that some arbitration has occurred herein. However, I note that nothing has been presented to this court to establish that a final award has been confirmed. Moreover, in my opinion, the fact of (or propriety of) an arbitration panel’s exercise of jurisdiction is neither dispositive or persuasive in our resolution of the issues presented for review, where, as noted above, the dispute involves two separate contractual agreements, the employee/owner and the purchaser have specifically agreed and acknowledged in both contracts, that there is a reservation of some rights to compete, and the district court is exercising lawful jurisdiction to consider, in a properly filed declaratory judgment action by the employee, the very same provision which would be at issue in a subsequently confected Operating Agreement.

      . In its writ application, IOS also contends that the trial court erred in granting Williams's motion for summary judgment on his declaratory action claim involving the Employment Agreement before resolving IOS’s exception of lack of subject matter jurisdiction. However, I also reject this argument as meritless, finding no reversible error on this basis.

      . With regard to IOS’s appeal of the trial court's June 21, 2011 judgment granting Williams's motion for summary judgment, after the record was lodged, this court issued a Rule to Show Cause Order on September 19, 2011, which stated, in pertinent part:
      The June 21, 2011 judgment on appeal in this matter appears to be a partial summary judgment without the proper designation of finality required by LSA-C.C.Pr. art. 1915.... Therefore, the parties are hereby ordered to show cause by briefs on or before October 19, 2011, why this appeal should not be dismissed by showing that La. C.C.P. art. 1915(B) is not applicable or that there has been a designation of the judgments as final by the trial court under La. C.C.P. Art. 1915(B).
      In response to this order, the record in this matter was supplemented with a September 22, 2011 Order, signed by the trial court, which states:
      IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Judgment signed on June 21, 2011, granting summary judgment in favor of [Mr. Williams], and against [IOS] constitutes a full and final judgment as it grants the relief sought by plaintiff against the defendant and as such is immediately appealable.
      The June 21, 2011 judgment, which granted Williams’s motion for summary judgment granted him the relief that he prayed for in his motion for summary judgment in that it granted him declaratory relief. The judgment, however, did not grant Williams all of the relief that he prayed for in his original and supplemental petitions in that it did not grant his prayer for all costs and reasonable attorney’s fees, and as such, the judgment is not final under LSA-C.C.P. art. 1915(A). Accordingly, the June 21, 2011 judgment is "a partial summary judgment without the proper designation of finality” required by LSA-C.C.P. art. 1915(B), as set forth in this Court’s September 19, 2011 Rule to Show Cause Order. See Joseph v. Ratcliff, 2010-1342 (La.App. 1st Cir.3/25/11), 63 So.2d 220, 224.
      However, in considering the trial court's September 22, 2011 order in response to this court's show cause order decrees that the June 21, 2011 judgment "constitutes a full and final judgment as it grants the relief sought by plaintiff against the defendant and as such is immediately appealable,” while it does not reference LSA-C.C.P. art. 1915 or 1915(B), I would nonetheless consider the language of the order as constituting the appropriate and proper certification of finality required by Article 1915(B), since it refers to the June 21, 2011 judgment as being a "full and final judgment” and "immediately ap-pealable.”
      Moreover, based on a de novo review of the propriety of this certification, see R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La.3/2/05), 894 So.2d 1113, 1122, I find there is no just reason for delaying review of this partial summary judgment in that the issues raised in this appeal are closely aligned with the issues addressed by this court in the related writ applications that were referred to this panel. Accordingly, a review of the June 21, 2011 partial summary judgment at this time would facilitate final resolution of these issues in this case, thereby fostering judicial economy. Moreover, regarding the relationship between the adjudicated and unadjudicated claims, see Messinger, 894 So.2d at 1122, the remaining issues of costs and attorney’s fees before the trial court are distinct from the issues presented in the present appeal such that a final determination may be made as to the issues presently before this court.
      Accordingly, I would recall the Rule to Show Cause Order and maintain IOS's appeal of the June 21, 2011 partial summary judgment.

      . Although not listed as an assignment of error, IOS argues in its appellate brief that the trial court should have determined whether it had subject matter jurisdiction before it considered Williams's motion for summary judgment. A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is null. LSA-C.C.P. art. 3; Gisclair v. Louisiana Tax Commission, 2009-0007 (La.6/26/09), 16 So.3d 1132, 1133 n. 1. However, while the better practice may have been for the trial court to decide the issue of its continuing subject matter jurisdiction prior to ruling on Williams’s motion for summary judgment, in disposition herein of IOS’s writ application in 2011 CW 1318, I find that IOS’s corporate resolution did not deprive the trial court of subject matter jurisdiction over the claims related to the non-compete agreement in the Employment Agreement and, thus, in my view, that the exception of lack of subject matter jurisdiction was properly denied.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    Debbie FRANK and Joseph Frank v. BOOMTOWN L.L.C., of Delaware Service Company, Inc., Louisiana-1 Gaming, a Louisiana Partnership in Commendam, Pinnacle Entertainment, Inc., of Delaware, Full Service Systems Corporation and Southern Service Corporation of Florida.
    No. 12-CA-382.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2012.
    Rehearing Denied Feb. 15, 2013.

      William R. Mustian, III, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Lyon H. Garrison, Kevin F. Truxillo, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡¿Plaintiffs, Debbie and Joseph Frank, appeal the summary judgment dismissing their action against defendants for damages arising out of a slip-and-fall accident at Boomtown Casino. We affirm.

On January 22, 2010, plaintiffs, Debbie and Joseph Frank, filed suit against Louisiana I-Gaming and Full Service Systems Corporation (defendants) for damages arising out of a slip-and-fall accident at the Boomtown Belle Casino in Harvey, Louisiana. The designated record in this case shows that plaintiffs arrived to Boomtown Casino a little after noon on March 81, 2009. At some point, Mr. Frank accompanied his wife to the third floor of the casino to use the restroom. Plaintiffs allege that Mrs. Frank slipped in a wet substance in the casino restroom, causing her to fall and sustain physical injuries.

[sAfter initial discovery, defendants filed a motion for summary judgment contending that plaintiffs would be unable to present evidence sufficient to meet their burden of proof under La. R.S. 9:2800.6. Specifically, defendants argue that plaintiffs could present no evidence to prove that defendant created or had actual or constructive notice of any unreasonably dangerous condition.

Peggy Shano was the Boomtown security manager at the time of the alleged incident. In support of their motion, defendants attached excerpts of her deposition. Ms. Shano testified that she spoke with Mrs. Frank following her fall. She offered Mrs. Frank medical attention and instructed one of the casino’s officers to bring Mrs. Frank a wheelchair. Ms. Sha-no testified that, at some point while speaking with Mrs. Frank, she glanced over and noticed a housekeeper standing right outside of the restroom doorway. Ms. Shano approached the housekeeper, Ms. Maria Arias, and asked her if anyone had entered the restroom since plaintiffs fall or if she had cleaned the restroom since plaintiffs fall, to which Ms. Arias responded, “no.” Ms. Shano also testified that she did not recall if a wet floor sign was present, but stated that she likely would have taken a photograph of the sign if it had been present. Defendants also attached excerpts of Mrs. Frank’s deposition testimony. Mrs. Frank testified there were no warning signs either outside or inside the restroom. Mrs. Frank testified that she did not notice the liquid substance on the floor before her fall and was uncertain whether the liquid was water or urine. She further testified that she does not know how the floor became wet or what length of time the liquid remained on the restroom floor prior to her fall.

Plaintiffs filed an opposition to defendant’s motion for summary judgment attaching excerpts of the deposition testimony of the housekeeper, Ms. Maria Arias. Ms. Arias’ deposition was taken with the assistance of a translator because |4Ms. Arias is Spanish-speaking. Ms. Arias testified that her normal procedure when she mopped a restroom at the casino would be to put a wet floor sign outside of the restroom and to stand outside of the doorway and prevent patrons from entering until the restroom floor dried. Ms. Arias testified that she has no recollection of Mrs. Frank’s accident and does not recall speaking with Ms. Shano, stating that she never communicated with anyone at the casino in English. Ms. Arias further testified that she was instructed to remain in the spot where a reported accident occurred to wait for security to arrive. Ms. Arias stated, however, that she never witnessed nor reported any accidents while employed at the casino.

Defendants replied to plaintiffs’ opposition to the motion for summary judgment, arguing that Ms. Arias’ testimony stating she has no recollection of Mrs. Frank’s accident further confirms that there is no concrete evidence to prove defendants created or had actual or constructive notice of the alleged liquid on the restroom floor.

After a hearing, the trial court granted defendants’ motion for summary judgment. In his Written Reasons for Judgment, the trial judge made a specific finding that plaintiffs are required to meet their burden of proof set forth in La. R.S. 9:2800.6 and failed to do so. The trial judge opined that plaintiffs failed to meet their burden of proving that defendants had actual or constructive knowledge of the alleged condition, i.e., that defendants’ employees either created the hazard 15or had actual or constructive knowledge of the condition. Plaintiffs timely filed a Motion for Appeal, which the trial court granted.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Matthews v. Banner, 08-339, p. 3 (La.App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163. A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The summary judgment procedure is now favored under our law. La. C.C.P. art. 966(A)(2).

If the mover will not bear the burden of proof at trial, the mover’s burden on the motion for summary judgment does not require him to negate all essential elements of the adverse party’s claim, 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. La. C.C.P. art. 966(C)(2). Then, the burden shifts to the adverse party to produce factual support sufficient to show that party will be able to meet its evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). The party opposing summary judgment cannot rest on mere allegations of its pleadings, but must show that it can satisfy its evidentiary burden at trial. Allen v. Wal-Mart, 37,352, p. 2-3 (La.App. 2 Cir. 6/25/03), 850 So.2d 895, 897.

In this appeal, plaintiffs contend that genuine issues of material fact remain and that the trial court erred in granting summary judgment in favor of defendants. Plaintiffs also assign as error the application of La. R.S. 9:2800.6 to the Boomtown Casino, asserting that the casino does not meet the definition of a “merchant” as defined in the statute.

16First, we find that the Boomtown Belle Casino in Harvey, Louisiana is a “merchant” as defined in La. R.S. 9:2800.6. This Court has very recently applied La. R.S. 9:2800.6 to the Boomtown Belle Casino in Harvey, Louisiana — the exact casino in this case. Pellegrin v. Louisiana-I Gaming, 11-1021 (La.App. 5 Cir. 4/24/12), 93 So.3d 645. Further, this Court and other Louisiana circuit courts of appeal have consistently applied La. R.S. 9:2800.6 to accidents taking place inside of a casino. See Richardson v. Louisiana-1 Gaming, 10-262, p. 3 (La.App. 5 Cir. 12/14/10), 55 So.3d 893, 895; Rowell v. Hollywood Casino Shreveport, 43,306, p. 3 (La.App. 2 Cir. 9/24/08), 996 So.2d 476, 478 (citing Harrison v. Horseshoe Entertainment, 36,294 (La.App. 2 Cir.8/14/02), 823 So.2d 1124); Neal v. Players Lake Charles, L.L.C., 01-0244 (La.App. 3 Cir. 6/6/01), 787 So.2d 1213; Patin v. Evangeline Downs of Louisiana, Inc., 08-988 (La. App. 3 Cir. 2/4/09), 3 So.3d 638; and Smith v. Casino New Orleans Casino, 12-0292 (La.App. 4 Cir. 10/3/12), 101 So.3d 507 (noting that “[t]he jurisprudence has recognized that a casino is a merchant for purposes of this Act.”) Accordingly, this assignment is without merit.

To determine if summary judgment was properly granted, we must examine whether plaintiffs failed to establish a pri-ma facie case under La. R.S. 9:2800.6, which provides:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, 17or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

Plaintiff has the burden of proving all three elements set forth in La. R.S. 9:2800.6(B)(1) through (3) and failure to prove any of the requirements enumerated will prove fatal to a plaintiffs case. White v. Wal-Mart Stores, Inc., 97-0393, p. 4 (La.9/9/97), 699 So.2d 1081 and Richardson, 10-262 at p. 4, 55 So.3d at 895.

In this case, plaintiffs point to the deposition testimony presented and essentially ask this Court to infer that — because Ms. Shano testified that Ms. Arias was standing outside of the restroom door at some time following Mrs. Frank’s accident — the restroom had just been mopped. However, Ms. Arias’ deposition testimony reflects that she does not recall Mrs. Frank’s accident and had not reported any accident in the time period she worked in the casino; she did not testify or indicate that she had mopped the floor immediately before Mrs. Frank’s fall. In Mrs. Frank’s deposition, she stated that she is uncertain if the liquid that caused her to slip was water or urine and indicated that no wet floor signs were present before her fall. She further testified that she does not know how the floor became wet or what length of time the liquid remained prior to her fall.

“[M]ere speculation or suggestion is not enough to meet the stringent burden imposed upon a plaintiff by La. R.S. 9:2800.6.” Allen v. Wal-Mart, 37,852, p. 5 (La.App. 2 Cir. 6/25/03), 850 So.2d 895, 898. In the present case, plaintiffs have put forth no concrete evidence to prove that defendants either created or had actual or constructive knowledge of the condition of the restroom floor immediately prior to Mrs. Frank’s fall. Therefore, plaintiffs have failed to meet their burden of proof under La. R.S. 9:2800.6(B). Accordingly, the judgment of the trial court is affirmed.

AFFIRMED

      . The petition alleges that Louisiana I-Gaming is the owner and manager of Boomtown Casino and that Full Service Systems was the provider of janitorial services at the casino at the time of the accident. Plaintiffs also filed suit against Boomtown, LLC of Delaware, Service Companies, Inc., Pinnacle Entertainment, Inc. of Delaware, and Southern Service Corporation. These parties are irrelevant to the issues raised in this appeal.

      . The deposition testimony indicates that Mrs. Frank used the same restroom one additional time earlier that day.

      . In their opposition to defendants' motion for summary judgment, plaintiffs attached a letter addressed to Mrs. Frank from a claims adjusting company, Specialty Risk Services, denying Mrs. Frank’s claim. Defendants objected to this letter at the summary judgment hearing. The trial judge did not rule on defendants' objection and does not indicate in his Reasons for Judgment that he considered or relied upon the letter in rendering judgment. We decline to consider the letter as it was not properly offered and introduced into evidence at the summary judgment hearing. ''[Ajlthough La. C.C.P. art. 966(B) provides an exception for specific documents a court may consider on a motion for summary judgment without the need to formally introduce such documents into evidence at hearing, generally all other documents or things not enumerated in the article but relied upon by the parties must be verified or authenticated and officially offered and introduced into evidence.” Sheffie v. Wal-Mart Louisiana, LLC, 11-1038, p. 7 (La.App. 5 Cir. 5/31/12), 92 So.3d 625, 629. See also Denoux v. Vessel Mgmt. Services, Inc., 07-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88; Rudolph v. D.R.D. Towing Co., LLC, 10-629, p. 5 (La.App. 5 Cir. 1/11/11), 59 So.3d 1274, 1277; and Drury v. Allstate, Ins., et al, 11-509, p. 8 (La.App. 5 Cir. 12/28/11), 86 So.3d 634.

      . La. R.S. 9:2800.6(C)(2) defines merchant as follows:
      "Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.


author: GENOVESE, Judge.

text:
    Monica VITA v. CITY OF LAKE CHARLES.
    No. 12-594.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 2012.

      Thomas E. Townsley, Lake Charles, LA, for Plaintiff/Appellee, Monica Vita.
    Christopher E. John, Assistant City Attorney, Lake Charles, LA, for Defendant/Appellant, City of Lake Charles.
    Court composed of JIMMIE C. PETERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Lin this workers’ compensation case, Defendant/Employer, the City of Lake Charles (City), appeals the judgment of the Office of Workers’ Compensation in favor of Plaintiff/Employee, Monica Vita, finding she suffered a compensable lumbar injury during the course and scope of her employment. Ms. Vita has answered the appeal relative to the denial of her claim for penalties and attorney fees. For the reasons that follow, we affirm in part, reverse in part, and render.

FACTS AND PROCEDURAL HISTORY

Ms. Vita was injured in the course and scope of her employment with the City when she fell from a ladder on March 4, 2008. The City instituted payment of medical and indemnity benefits. An issue arose during the course of Ms. Vita’s medical treatment which prompted the filing of a Disputed Claim for Compensation when the City did not authorize medical treatment for her lower back; however, the City continued to pay Ms. Vita indemnity benefits and medical expenses resulting from the neck injury which she sustained. Thus, the only issues adjudicated at trial on October 6, 2011, were whether Ms. Vita’s lumbar complaints were causally related to her work accident and whether she was entitled to penalties and attorney fees for the City’s nonpayment of these medical expenses.

Following a trial on the merits, the workers’ compensation judge (WCJ) ruled that Ms. Vita’s lumbar injury was causally related to the March 4, 2008 work-related accident, thereby entitling her to payment of these medical expenses. Additionally, the WCJ denied Ms. Vita’s claim for penalties and attorney fees. The judgment also ordered that an independent medical examination (IME) be ^performed “to determine the claimant’s need for surgery.” A judgment in accordance therewith was signed on February 10, 2012.

On February 22, 2012, the City filed a Motion for New Trial, seeking to have the WCJ’s order relating to the IME expanded to also have the doctor render an opinion on whether the lumbar injury was causally related and to do so prior to the WCJ rendering a final decision. The City’s motion was denied, and a concomitant judgment was signed on March 14, 2012.

ASSIGNMENTS OF ERROR

The City asserts that the trial court erred in: (1) finding that Ms. Vita’s lumbar injury was causally related to her work-related accident; and (2) denying its Motion for New Trial. In her answer to appeal, Ms. Vita asserts error by the WCJ in not awarding her penalties and attorney fees.

LAW AND DISCUSSION

Causation

In its first assignment of error, the City argues that the WCJ erred in finding that Ms. Vita’s lumbar injury was causally related to her March 4, 2008 accident because she “failed to prove causation by a reasonable medical preponderance in view of [her] lack of credibility as a corroborative witness and extensive medical [evidence] showing no back complaints or treatment for almost one year.” We disagree.

The claimant bears the burden of proving, by a preponderance of the evidence, that the accident caused his injury and that the injury caused his disability. Hunter v. Alliance Compressors, 06-100 (La.App. 3 Cir. 6/21/06), 934 So.2d 225. Causation is a question of fact that will be reviewed under the manifest error standard of review. Id.

Baca v. Natchitoches Parish Hosp., 06-1132, p. 10 (La.App. 3 Cir. 2/7/07), 948 So.2d 1205, 1211.

Accordingly, Ms. Vita bears the burden of establishing the causal connection between her work-related accident and any resultant lumbar injury by a preponderance of the evidence. Thibodeaux v. Mech. Constr. Co., LLC, 10-739 (La.App. 3 Cir. 12/8/10), 52 So.3d 1084. “The test for determining the causal relationship between an accident and subsequent injury is whether the claimant proved through medical or lay testimony that it is more probable than not that the accident caused the subsequent injuries.” Elder v. Sierc Inc. Oil & Fuel, 10-144, p. 8 (La.App. 5 Cir. 10/12/10), 51 So.3d 54, 59 (quoting Newsome v. New Orleans Saints, 08-311, p. 7 (La.App 5 Cir. 10/14/08), 996 So.2d 637, 640).

In this case, the medical records reflect that on the day of her accident, Ms. Vita treated at Urgent Care for complaints of dizziness and neck pain. Her diagnosis was a closed head injury and neck strain/ pain. She returned to Urgent Care the next day, and a CT scan of her heard was ordered which confirmed the diagnosis.

Ms. Vita then saw Dr. Craig Morton, with the Center for Orthopedics, on June 11, 2008, with a chief complaint of neck pain. She received trigger point injections and returned for one visit on June 18, 2008, which again focused on cervical complaints.

While seeing Dr. Morton, Ms. Vita was also treated by Dr. Damon Cormier with Nature’s Way Chiropractic Center. Notably, at her first visit on June 4, 2008, Ms. Vita complained of dizziness, headaches, neck pain, and low back pain. The pain diagram completed by Ms. Vita indicated that her head was hurting as well and her neck and upper and lower back. According to Dr. Cormier, upon examination at her initial visit, Ms. Vita had objective indications of injury to both |4her neck and her back. Dr. Cormier’s diagnosis was “cervical sprain/strain type injury with ... some radiating pain down from the neck into the shoulders, [and] cervical cranial syndrome, meaning her cervical areas were causing some headaehes[.]” Dr. Cor-mier also diagnosed “her with muscle spasms in the cervical, thoracic, and lumbar region.” His diagnosis also included “subluxation at the C2 area, the L4 area, and in the thoracic region.” Ms. Vita’s complaints on subsequent visits included pain in both her neck and back.

According to Dr. Cormier, at Ms. Vita’s last visit on June 28, 2008, she continued to complain of ongoing headaches, neck, and mid-back and lower back pain. Dr. Cormier also noted that her symptoms were corroborated by a January 14, 2010 MRI that revealed a tear at L4-5, which was consistent with the injury he found upon examination. Ultimately, Dr. Cormier found that Ms. Vita’s low back complaints were consistent with his findings, and he was of the opinion that Ms. Vita’s low back injury was due to her fall from the ladder on March 4, 2008.

Ms. Vita also treated with Dr. Dale Ber-nauer, an orthopedic surgeon, on June 24, 2008. Dr. Bernauer explained that Ms. Vita did indicate on her patient intake form that she was having neck pain and back pain; however, she did not mention back pain to him during the exam. Dr. Bernauer’s initial diagnosis was a cervical strain. Dr. Bernauer confirmed that during the course of his treatment through March 4, 2009, he did not document any lumbar complaints. When questioned about the omission of lumbar complaints from his records, Dr. Bernauer opined that by the time Ms. Vita came to see him, her lumbar complaints, which had been treated by the chiropractor, had improved, but her neck remained symptomatic.

We note that Dr. Bernauer candidly admitted an oversight on his part in not asking Ms. Vita about the lumbar complaints that she had mentioned in her initial [ .^paperwork. He also testified that Ms. Vita did in fact voice complaints to the physical therapist and the pain management physician to whom she was referred. Ultimately, Dr. Bernauer concluded that “she has a fairly significant problem in her back which [he] feel[s] like probably evolved from a small injury to her back at the time of this fall but has evolved over time so that it worsened.” Dr. Bernauer, like the WCJ, attributed the absence of Ms. Vita’s lumbar complaints to her “personality and education status more than anything.”

Upon referral from Dr. Bernauer, Ms. Vita also saw Dr. Christopher Lew, with GulfCoast Pain Institute, on March 19, 2009. Dr. Lew’s records indicate that her primary complaints were neck and low back pain which radiated into her legs. These complaints were consistent with the initial patient questionnaire and the pain diagram completed by Ms. Vita. Dr. Lew’s initial diagnosis relative to her neck was cervical strain with radicular and myofaeial pain. With regard to her lower back, Dr. Lew’s diagnosis was lumbar strain and possible disc or facet disease. Dr. Lew ordered a lumbar MRI, performed on January 14, 2010, which revealed that Ms. Vita had bulging discs at L4-5 and L5-S-1, and a small annular tear at L4-5. Additionally, Dr. Lew’s notes of March 12, 2010, reflect “neck and back pain since work[-]related injury.” Moreover, his records refer to “neck and low back pain due to work[-]related injury.”

Given her complaints, Dr. Bernauer referred Ms. Vita to Dr. James H. Eddy with the Interventional Pain Management Clinic. A discogram demonstrated positive findings at both L4-5 and L5-SI, and the post-discogram CAT scan showed tears at L4-5 and L5-S1, all of which were consistent with her lumbar complaints.

| flWe acknowledge the evidence of record that two physicians did not causally relate Ms. Vita’s lumbar complaints to her work-related accident. On April 6, 2010, Ms. Vita saw Dr. Stanley Foster, with Acadia-na Orthopedic Group, for a second medical opinion. She also saw Dr. Harold Gran-ger, with Hamilton Medical Group, on July 26, 2010, for an IME. Although neither of these doctors related Ms. Vita’s lumbar complaints to her work-related accident, neither of them had been provided with the patient’s complete medical history showing her complaints of lumbar pain and the treatment that she received for same. Consequently, both of these physicians were rendering opinions on causation with the understanding that Ms. Vita was without lumbar complaints for almost one year, which was factually inaccurate. Additionally, as Dr. Bernauer explained, the diagnostic testing objectively confirmed that Ms. Vita suffered from significantly more than degenerative changes or a mere contusion as these doctors had concluded.

For the foregoing reasons, we find that the opinions of Dr. Cormier, Dr. Bernauer, and Dr. Lew all support the WCJ’s conclusion that Ms. Vita met her burden of proving “that she suffered a lumbar injury during the course and scope of her employment of March 4th, 2008, and that she is entitled to medical benefits under the Workers’ Compensation Act.” Ms. Vita obviously voiced lumbar complaints to Dr. Cormier, who rendered treatment for same. These same complaints were documented by her in the initial intake forms with Dr. Bernauer’s office, which he admittedly overlooked due to her more prevalent complaints of cervical pain. She again voiced lumbar complaints to Dr. Lew, as documented in his records. Finally, the diagnostic testing revealed positive findings at L4-5 and L5-S1, which is consistent with Ms. Vita’s complaints and constitutes corroborating objective medical evidence. Accordingly, we affirm the WCJ’s ruling on the issue of causation.

^¡Motion for New Trial

In its second assignment of error, the City contends that the WCJ erred in denying its Motion for New Trial; however, the City’s motion for appeal does not designate for appellate review the March 14, 2012 judgment denying its Motion for New Trial. The WCJ’s order only grants the City’s appeal from the judgment orally rendered on October 6, 2001, and signed by the court February 10, 2012. Therefore, the WCJ’s denial of the City’s Motion for New Trial is not properly before this court and will not be considered.

Answer to Appeal

Ms. Vita has answered the appeal, alleging error by the WCJ in not awarding her penalties and attorney fees. We agree.

Louisiana Revised Statutes 23:1201(E) provides: “[m]edical benefits payable under this Chapter shall be paid -within sixty days after the employer or insurer receives written notice thereof.” Failure to pay timely subjects the employer to penalties and attorney fees unless the claim is reasonably controverted or nonpayment results from conditions over which the employer had no control. La. R.S. 23:1201(F)(2). “A claim is reasonably controverted when the employer or insurer produces factual or medical information that reasonably counters the claimant’s evidence.” Bourgeois v. Brown’s Deli & Mkt., Inc., 09-290, p. 7 (La.App. 3 Cir. 10/14/09), 21 So.3d 1072, 1077. A WCJ’s decision on whether to award penalties and attorney fees is subject to great discretion which will not be disturbed absent an abuse of discretion. Briscoe v. McNeese State Univ., 11-872 (La.App. 3 Cir. 12/7/11), 80 So.3d 700.

Creole Steel, Inc. v. Stewart, 11-1285, pp. 1-2 (La.App. 3 Cir. 3/7/12), 86 So.3d 757, 759 (alteration in original).

Ms. Vita asserts that “[t]he City cannot rely upon its own error or the failure of its adjuster to obtain a full set of medical records from each physician, then allege that it reasonably controverted this claim.” In fact, it was the lack of complete medical records that led the City to question Ms. Vita’s lumbar injury. As discussed above, Ms. Vita did express lumbar complaints to Dr. Cormier, 18Pr. Bernauer, and Dr. Lew, which were subsequently corroborated by objective testing. Additionally, according to Dr. Cormier, he ordered an x-ray of her “lumbar spine which would have indicated it would have been a complaint or reason to look at the lumbar spine on the first visit.” Thereafter, his billing codes reflected manipulation of the cervical, thoracic, and lumbar areas as early as Ms. Vita’s initial visit.

For these reasons, we find that the City did not reasonably controvert this claim. Therefore, we reverse the WCJ’s judgment denying Ms. Vita’s request for penalties and attorney fees and render judgment in favor of Ms. Vita assessing the City with a $2,000.00 penalty and $5,000.00 in attorney fees.

Finally, we note that Ms. Vita, in her brief, contends that she is entitled to an “award [of] attorney fees for the defense of this appeal.” However, in her answer to appeal, Ms. Vita only asserts that the WCJ erred “in not awarding penalties and attorney fees in this matter.” Therefore, she requests “penalties and attorney fees be granted, as well as interest on the penalties and attorney fees be added to [her] award.”

Although Ms. Vita filed an answer to appeal, the only issue raised therein is the WCJ’s denial of her claim for penalties and attorney fees. Ms. Vita’s answer to appeal fails to request additional attorney fees for work necessitated by the present appeal; therefore, we cannot address her argument in brief that she is entitled to an “award [of] attorney fees for the defense of this appeal” as that issue is not properly before this court. See Trahan v. City of Crowley, 07-266 (La.App. 3 Cir. 10/3/07), 967 So.2d 557, writs denied, 07-2462, 07-2471 (La.2/15/08), 976 So.2d 185, 187 (citing La.Code Civ.P. art. 2133; Roszell v. Nat’l Union Fire Ins. Co., 602 So.2d 87 (La.App. 3 Cir.), writ denied, 605 So.2d 1365 (La.1992); Lolan v. La. Indus., 95-602 (La.App. 3 Cir. 11/2/95), 664 So.2d 616).

| JBECREE

For the reasons stated herein, the judgment of the Office of Workers’ Compensation finding Ms. Vita’s lumbar injury to be causally related to her work-related accident of March 4, 2008, is affirmed. We reverse that portion of said judgment denying Ms. Vita’s claim for penalties and attorney fees, and we render judgment herein in favor of Monica Vita and against the City of Lake Charles in the amount of a $2,000.00 penalty and $5,000.00 in attorney fees. We deny Ms. Vita’s claim for attorney fees on appeal. Costs of this appeal in the amount of $321.00 are assessed to the City of Lake Charles in accordance with La.R.S. 13:5112.

AFFIRMED IN PART, REVERSED IN PART; AND RENDERED.

      . An IME had been performed by Dr. Harold Granger on July 26, 2010; however. Dr. Granger had not been provided with Ms. Vita's complete medical records. Therefore, the WCJ did not rely upon the IME physician’s opinion when rendering her decision.

      . The City questioned Ms. Vita's credibility at trial and again in brief to this court. In this regard, we note that the WCJ expressly distinguished Ms. Vita as a claimant “with a limited intellect'' as Dr. Bernauer similarly intimated.