author: MAX N. TOBIAS, JR., Judge.

text:
    STEWART TITLE OF LOUISIANA v. CHEVRON, U.S.A., INC., Huntington Beach Company, Keiichi-Mar Investing and LTA, Inc.
    No. 2012-CA-1369.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 27, 2013.
    Matthew Louis Pepper, Pepper & Dor-ner, The Woodlands, TX, for Defendant/Appellant.
    Michael R. Phillips, Louis M. Grossman, Brittany L. Buckley, Kean Miller LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

| fin this concursus proceeding, the appellant, LTA, Inc. (“LTA”), appeals the trial court’s granting of summary judgment in favor of the appellees/defendants, Chevron USA, Inc. and Huntington Beach Company (collectively, “Chevron”), entitling Chevron to the monies deposited into the registry of the trial court. For the reasons that follow, we find that genuine issues of material fact remain precluding summary judgment. Accordingly, we reverse the trial court’s judgment and remand this matter for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Stewart Title of Louisiana (“Stewart Title”) initiated the instant concursus proceeding following the breach of a Purchase and Sale Agreement (“PSA”) executed on 14 June 2010 between Keiichi-Mar Investing, LLC (“Keiichi-Mar”) and Chevron. Pursuant to the PSA, Keiichi-Mar agreed to purchase from Chevron the former Chevron building, located at the corner of O’Keefe Avenue and Gravier Street in New Orleans. The appellant, LTA, was not a signatory to the PSA. |2The PSA required an initial $300,000.00 deposit by Keiichi-Mar as purchaser upon its acceptance, which became non-refundable after the 15-day inspection period. In the event of Keiichi-Mar’s default, the PSA provided for Chevron as seller to retain the deposit as liquidated damages.

Keiichi-Mar signed the PSA on 9 June 2010. The following day, LTA, which undeniably stood to profit from Keiichi-Mar’s successful purchase of the Chevron building by virtue of a supplementary agreement executed by Keiichi-Mar in LTA’s favor, delivered a company check in the amount of $300,000 to Stewart Title’s chief operating officer, Sharall Grissen, with specific verbal instructions that the money not be referenced or earmarked to any particular purchase agreement or escrow document number. Chevron then executed the PSA on 14 June 2010. On 17 June 2010, Chevron threatened to back out of the PSA unless Keiichi-Mar deposited the earnest money required by the contract by noon of the following day. Within twenty-four hours, the $300,000 check | ^previously delivered to Stewart Title by LTA was deposited into Stewart Title’s commercial escrow account on 18 June 2010. As previously instructed by LTA, the deposit was not posted to any specific contract or purchase agreement. Thereafter, Joyce Du-Saules, Stewart Title’s commercial department assistant, emailed Ed Rubenstein, a senior real estate project manager at Chevron, notifying Chevron that $300,000 of “earnest money” had been deposited into Stewart Title’s escrow account, and subsequently confirmed for him that the check deposited was a company check.

During the ensuing days, it appeared that the sale was moving forward.

Then, on 28 June 2010, Kenneth Lobell, on behalf of LTA, requested that Stewart Title return to LTA the funds that LTA had previously deposited with it in escrow. At the direction of Ms. Grissen, Stewart Title issued a refund check to LTA that same day in the amount of $300,000. Mr. Lobell personally procured the refund check and deposited the funds into LTA’s account at Chase Bank.

Following receipt of LTA’s refund request, Ms. Grissen sent an email to Mr. Rubenstein on the afternoon of 28 June 2010 at Chevron advising him of LTA’s request for a refund check. On 1 July 2010, operating under the assumption that LTA intended for its $300,000 deposit to be considered and treated as Keiichi-Mar’s earnest money deposit under the PSA, and since Keiichi-Mar and Chevron both indicated their intentions to move forward with the sale, Chevron demanded that Stewart Title place a stop payment on the $300,000 refund check it issued to LTA. Accordingly, Stewart Title retracted the monies that were previously refunded to LTA on 28 June 2010.

l4Under the terms of the PSA, the inspection period ended at 5:00 p.m. on 29 June 2010. At no time prior to 29 June 2010 did Keiichi-Mar or Chevron notify Stewart Title that the PSA had been can-celled or that the sale was not going through. Thereafter, however, Keiichi-Mar breached its obligation to purchase the Chevron building, which Chevron argued entitled it to the $300,000 initial deposit made by LTA on behalf of Keiichi-Mar as liquidated damages under the express terms of the PSA. Contrarily, LTA argued that the $300,000 deposit was made on its own behalf and for its own benefit and, thus, LTA was free to withdraw the money at any time.

In accordance with the terms of the PSA, because Chevron and LTA asserted competing interests to the $300,000, Stewart Title deposited the money into the registry of the court and initiated the instant concursus proceeding.

Chevron moved for summary judgment on the basis that the testimony and evidence established that no genuine issue of material fact existed as to whether the $300,000 deposited with Stewart Title by LTA was intended by the parties to be considered and treated as Keiichi-Mar’s initial deposit required under the PSA and, as such, when Keiichi-Mar breached the PSA, Chevron was entitled to the deposit as liquidated damages. The trial court determined that “the facts supported the conclusion that LTA intended its check to be used and considered as Keiichi-Mar’s deposit.” Accordingly, on 5 April 2012, the trial court, assigning reasons, granted Chevron’s motion entitling Chevron to the funds deposited into the registry of the court as a result of Keiichi-Mar’s breach of the PSA.

It is from this judgment that LTA filed the instant appeal.

| r,DISCUSSION

Initially, we consider Chevron’s contention that LTA’s appeal raises an issue that is not properly before the court. Specifically, citing Canons from the Code of Judicial Conduct, LTA assigns as error the trial judge’s failure to recuse herself. LTA did not raise the recusal issue in the trial court and, thus, has not properly preserved the issue for appeal. ' Recusal of a judge is governed by La. C.C.P. arts. 151 through 161. La. C.C.P. art. 154 specifically requires that a party desiring to re-cuse a judge of a district court file a written motion, assigning the ground for recusation. The record in the instant case contains no written motion for recusal. Moreover, the trial court made no ruling concerning recusal. With no motion by LTA and no ruling by the trial court, this court has nothing to review. This assignment is without error.

In addition, LTA assigns four reasons why the trial court erred in granting Chevron’s motion for summary judgment entitling Chevron to receive the $800,000 held in the court’s registry. Because we find a genuine issue of material fact precluding summary judgment exists as to whether LTA intended for the $300,000 check it deposited with Stewart Title to constitute Keiichi-Mar’s initial deposit under the PSA, or was intended by LTA to be used solely for its own benefit in the event the sale fell through and LTA desired to move forward with the purchase of the building, we pretermit discussion of the remaining assignments of error and remand this matter for further proceedings consistent with this opinion.

| ^Appellate courts review summary judgments de novo under the same criteria that govern a trial court’s consideration of whether summary judgment is appropriate. John C. Bose Consulting Engineer, LLC v. John T. Campo & Associates, Inc., 07-1001, p. 2 (La.App. 4 Cir. 2/20/08), 978 So.2d 1033, 1034. This procedure is now favored and shall be construed to accomplish those ends. La. C.C.P. art. 966 A(2).

A summary judgment is appropriate only when no genuine issue of material fact exists. La. C.C.P. art. 966 B. If the court finds that a genuine issue of material fact exists, summary judgment must be rejected. Oakley v. Thebault, 96-0937, p. 3 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. Even though summary judgment is now favored, it is not a substitute for a trial on the merits, and it is inappropriate for judicial determination of subjective facts, such as motive, intent, good faith, or knowledge that calls for credibility determinations and the weighing of testimony. S.J. v. Lafayette Parish School Bd., 06-2862, p. 5 (La.6/29/07), 959 So.2d 884, 887. Credibility of a witness is a question of fact. In determining a motion for summary judgment, the court must assume that all affiants are credible. Hutchison v. Knights of Columbus, Council No. 5747, 03-1533, p. 8 (La.2/20/04), 866 So.2d 228, 234. Additionally, summary judgment is rarely appropriate for a determination based on subjective facts such as intent, motive, malice, knowledge or good faith. Penalber v. Blount, 550 So.2d 577, 583 (La.1989); Coto v. J. Ray McDermott, S.A., 99-1866, p. 4 (La.App. 4 Cir. 10/25/00), 772 So.2d 828, 880. Facts are “material” if they are determinative of the outcome of the dispute. Penalber, 550 So.2d at 583. If reasonable minds could differ as to an issue of material fact, summary judgment is improper. Woodland Properties, LLC v. New Orleans Sewerage and Water Board, 10-0331, p. 4 (La.App. 4 Cir. 9/29/10), 49 So.3d 443, 445.

With these legal precepts in mind, we now turn to the facts presented by the case sub judice to determine whether the trial court’s grant of summary judgment in favor of Chevron was proper.

Chevron’s Position

Chevron contends that the uncontested facts indisputably establish that LTA intended for its $300,000 check deposited with Stewart Title to serve as Keiichi-Mar’s initial deposit under the PSA. In support of its contention regarding LTA’s intent, Chevron relies upon the affidavit of Ed Rubenstein and the deposition testimony of Sharall Grissen, Joyce DuSaules, and Kenneth Lobell, that set forth the following:

1. The PSA between Keiichi-Mar and Chevron required an earnest money deposit upon execution in the amount of $300,000, which is the exact amount of the LTA check Mr. Lobell delivered to Stewart Title.
2. At the time the LTA check was delivered to Stewart Title, LTA was aware that only one signed and executed purchase agreement involving the sale of the Chevron building existed, and that was the agreement between Keiichi-Mar and Chevron.
3. LTA was not a party to the agreement between Keiichi-Mar and Chevron.
4. By virtue of a “Supplementary agreement and instruction to Stewart Title” executed by Keiichi-Mar on 2 June 2010, LTA was to receive a single payment of $1,000,000 at the closing of the sale of the building to Keiichi-Mar, in exchange for the benefit to Keiichi-Mar of LTA’s prior | «contract negotiations for the building with Chevron and in anticipation of LTA’s expertise in leasing and property management. Payment to LTA was contingent upon Keiichi-Mar’s actual purchase of the Chevron building.
5. Keiichi-Mar executed the PSA on 9 June 2010. On the following day, though LTA was not a party to the PSA and had no obligation to make an earnest money deposit thereunder, Mr. Lobell delivered a $300,000 check written on LTA’s account to Ms. Grissen at Stewart Title, which referenced “Chevron Bldg” in the memo portion of the check.
6. Following receipt of LTA’s check, Ms. Grissen emailed Keiichi-Mar’s owner, broker, and attorney advising them that Stewart Title had received the $300,000 check from LTA “as the earnest money as stated in the contract.”
7. In an email dated 17 June 2010, Chevron threatened to back out of the PSA if an earnest money deposit was not made by the following afternoon. This email was received by Joyce DuSaules, Stewart Title’s Commercial Department Assistance, who testified that she would have forwarded it to both Ms. Gris-sen and Stewart Title’s president, Jim Smith.
8. Less than 24 hours later, on 18 June 2010, at the alleged direction of Mr. Lobell, LTA’s check was deposited by Stewart Title into its escrow account. That same day, Ms. DuSaules sent an email to Mr. Rubenstein at Chevron attaching a copy of the bank deposit slip and referencing the deposit as the “earnest money received.”
|<)9. At no time did Chevron receive notification that Stewart Title’s deposit of LTA’s $300,000 check was intended to be anything other than the “earnest money” required under the executed PSA between Kei-ichi-Mar and Chevron.
10. During his deposition, Mr. Lobell described various conversations he had with Keiichi-Mar regarding LTA’s advancing funds on behalf of Keiichi-Mar, or allowing Keiichi-Mar to use LTA’s deposit as its earnest money deposit.
11. Chevron first learned of LTA’s request for a refund of its check on 28 June 2010 in an email received from Ms. Grissen at Stewart Title, who advised that she did not know the reason behind Mr. Lobell’s request.
12. Neither Chevron nor Keiichi-Mar communicated to Stewart Title that the sale of the building was being cancelled or terminated as both parties at that time intended to proceed with the act of sale.
13. Even after Mr. Lobell’s attempt to withdraw LTA’s deposit, the parties proceeded towards an intended closing on Keiichi-Mar’s purchase of the Chevron building. When Keiichi-Mar ultimately breached the PSA, Chevron notified Keiichi-Mar of its intention to seek the $300,000 deposit as liquidated damages.

Based on the above evidence and deposition testimony, especially as it relates to the timing of both Mr. Lobell’s delivery of LTA’s check to Stewart Title and the date the check was actually deposited into Stewart Title’s escrow account, coupled with the fact that LTA stood to make a $1,000,000 fee from Keiichi-Mar upon the completion of the sale, Chevron concluded — and the trial court agreed — [thatin LTA’s $300,000 deposit was intended by LTA to be considered and treated as Keii-chi-Mar’s earnest money deposit under the PSA.

LTA’s Position

According to LTA, it intended for its deposit to be used solely by LTA in the event Keiichi-Mar defaulted on the PSA so that LTA, assuming it still desired to purchase the building, could move forward with the purchase agreement it had previously negotiated but did not execute with Chevron. In support of its position, LTA relies upon the affidavit and deposition testimony of Sharall Grissen, and the affidavit and deposition testimony of Kenneth Lobell.

In her affidavit, Ms. Grissen states that the $300,000 was delivered by Mr. Lobell to Stewart Title “on behalf of LTA” and that as per Lobell’s specific instructions, Stewart Title had “no executed purchase agreement or other agreement of any kind tying those funds to any purchase contracts.” Her affidavit further provides that the “funds were for LTA’s purposes only.”

Ms. Grissen’s affidavit was corroborated by her deposition. She testified that when Mr. Lobell delivered LTA’s check to Stewart Title, he specifically explained to her that the check was LTA’s money and that he did not want it to be associated with anything other than LTA. Ms. Grissen was questioned regarding the various emails generated by Stewart Title to Keii-chi-Mar and Chevron that referenced LTA’s funds as the “earnest money” required by the PSA. In particular, Ms. Grissen was questioned as to whether Mr. Lobell had instructed her to use those exact terms and, despite Chevron’s suggestion that he did, Ms. Grissen testified that she could not state for certain that this was the case, especially since Mr. Lobell had specifically advised her that the money was solely for LTA’s use. Additionally, Ms. Grissen testified that upon receipt of the LTA check, she took it Indirectly to Ms. DuSaules and explained that Stewart Title was supposed to be receiving an additional agreement with further instructions regarding how Stewart Title was to handle the check. In the interim, in order to ensure for Mr. Lobell that LTA’s check would not be mixed up with Chevron and that it remained clear that the money was LTA’s, Ms. Grissen instructed Ms. DuSaules to place the money in Stewart Title’s escrow account without designating a particular document number or posting the funds to any specific account. Both Ms. Grissen and Ms. DuSaules testified that Stewart Title never did receive any controlling document or agreement advising how LTA’s money was to be handled.

Mr. Lobell conceded that at the time he delivered LTA’s $300,000 check to Ms. Grissen at Stewart Title, he knew only one signed PSA for the sale of the Chevron building existed and that it did not involve LTA or obligate LTA to make any sort of deposit. Mr. Lobell explained that LTA had previously negotiated for months with Chevron for the sale of the building resulting in an identical, albeit unexecuted, PSA with the same terms and conditions (ie., requiring a $300,000 earnest money deposit), and he did not want to lose the building in the event Keiichi-Mar failed to go through with its purchase. Therefore, according to Mr. Lobell, LTA delivered the $300,000 check to Stewart Title with the intent that it be available for LTA’s immediate use to move forward on the unexe-cuted LTA/Chevron PSA in the event the Keiichi-Mar/Chevron PSA fell through and LTA still desired to purchase the building.

Mr. Lobell also conceded that LTA stood to benefit substantially from the Kei-ichi-Mar/Chevron sale, but only in' the event Keiichi-Mar actually purchased the building. Mr. Lobell testified that Keii-chi-Mar indicated to him that they had the funds available to make the requisite earnest money deposit. Nonetheless, in | Tsiorder to facilitate the sale, Mr. Lobell explained that he was amenable to allowing Keiichi-Mar to use LTA’s $300,000 as its own earnest money deposit, but that in order to do so, Keiichi-Mar would have to first execute an assignment giving him control over the contract. According to Mr. Lobell, he specifically instructed Ms. Grissen at Stewart Title not to release LTA’s money to the Keiichi-Mar/Chevron contract until such time and only if Keii-chi-Mar either gave him a contract, executed an assignment of the contract, or LTA executed its own contract for the building.

It is undisputed that Keiichi-Mar never executed any assignment or other document giving Mr. Lobell and/or LTA control over the Keiichi-Mar/Chevron PSA. Consequently, LTA contends it neither intended for Keiichi-Mar to use, nor was Keiichi-Mar at liberty to rely on, LTA’s deposit to fulfill its own obligation to make an earnest money deposit.

The Trial Court’s Judgment

Essential to the trial court’s ruling granting Chevron’s motion for summary judgment is its determination regarding the following as set forth in its reasons for judgment:

There is no dispute that the only PSA signed is between the Chevron defendants and Keiichi-Mar. LTA contends that because it was not a party to the PSA, there was no obligation on behalf of LTA and accordingly, LTA is due a return of its $300,000.00 payment. LTA asserts the $300,000.00 was a deposit to be used solely by LTA in the event LTA desired to purchase the Chevron Building. The Court finds the facts do not support this position.

According to the trial court, having determined that LTA intended for its $300,000 check to be used and considered as Keiichi-Mar’s earnest money deposit, and because neither Chevron nor Keiichi-Mar had communicated to Stewart Title [ isthat the sale of the building had been cancelled or terminated prior to 29 June 2010, the final day of the inspection period, pursuant to the terms of the PSA, the $300,000 deposit became non-refundable on that day. Consequently, the trial court determined that Chevron was entitled to the deposit as a result of Keiichi-Mar’s subsequent breach of the PSA. We disagree.

Based upon our de novo review of the conflicting testimony and evidence contained in the record, we find that reasonable minds could differ as to whether, absent any document or agreement whereby Mr. Lobell and/or LTA was given an assignment or control over the Keiichi-Mar/Chevron PSA, LTA intended for its $300,000 deposit to be considered and treated as Keiichi-Mar’s “earnest money” deposit required by the PSA. “Intent” is generally an issue of fact and required the trial court to make credibility determinations that are not appropriate on summary judgment. The trial judge erred in doing so in this case.

CONCLUSION

For the above and foregoing reasons, the judgment appealed from granting summary judgment in favor of Chevron and Huntington is reversed and this case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Keiichi-Mar and Chevron mutually agreed upon Stewart Title as the escrow and title company to handle the closing of Keiichi-Mar’s purchase of the Chevron building.

      . Previously, in May and June 2010, LTA had participated in negotiations with Chevron for the purchase of the Chevron building. A purchase agreement was prepared, but never executed by the parties. Instead, Kenneth Lo-bell, the sole principal of LTA, was put in contact with representatives of Keiichi-Mar, who subsequently negotiated and executed an identical PSA with Chevron for the Chevron building.

      . Specifically, the PSA provided:
      Purchaser ... shall deposit the sum of Three Hundred Thousand and No/100 Dollars ($300,000.00) in Chase in an interest bearing escrow account ... with a title company mutually agreeable to the Purchaser and Seller.... [T]he Deposit shall become nonrefundable at 5:00 p.m. CDT on the final day of the Inspection Period.

      . In addition to the PSA, on 2 June 2010, Keiichi-Mar executed a separate document entitled, "Supplementary agreement and instruction to Stewart Title Company,” which provided, in part, that upon completion of the sale of the Chevron building, Keiichi-Mar would pay an additional $1,000,000 through escrow to LTA for consultative services. This one-time payment was contingent upon Keii-chi-Mar’s ultimate purchase of the building. This consulting fee was being paid to LTA in exchange for the benefits Keiichi-Mar was receiving from LTA’s prior negotiations with Chevron for the sale of the building and in anticipation for LTA’s assistance to Keiichi-Mar in getting the building leased, and for managing tenant improvement construction following the sale.

      . The record reflects that Chevron threatened to cancel the PSA after it had made numerous inquiries regarding the deposit and being advised by Ms. Grissen that no deposit had been made.

      . It is undisputed that, other than the $300,000 deposited with Stewart Title by LTA, no earnest money deposit was ever independently made by Keiichi-Mar.

      . By judgment dated 23 March 2012, Stewart Title was relieved of any and all liability to any of the named parties for the money deposited into the registry of the court.

      . The trial judge’s son is a practicing attorney at the law firm that represented Chevron in the negotiations for the sale of the Chevron building. According to LTA, once the trial judge realized her son’s law firm was potentially exposed to liability for damages arising out of the transaction, she should have re-cused herself. We note that even had LTA properly preserved the issue of recusal for appeal, we find no factual or legal grounds to support recusal in this case.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    Janeka HILLS v. McDONALD’S.
    No. 12-CA-673.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2013.

      David A. Dalia, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    David T. Butler, Jr., Attorney at Law, Baton Rouge, LA, for Defendant/Appellee.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON, and ROBERT A. CHAISSON.
   JUDE G. GRAVOIS, Judge.

| ¡^Claimant, Janeka Hills, has appealed a May 1, 2012 judgment dismissing her claim for workers’ compensation benefits. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On March 28, 2011, claimant filed a Disputed Claim for Compensation, alleging that on April 10, 2010, while working as a crew member at a McDonalds restaurant in Destrehan, she fell and injured her buttocks, back, and hands. Claimant alleged that she had removed a box of French fries from a freezer, and as she went to place the box onto a cart, “because of the grease on the floor my feet just left from under me.” Claimant further alleged that she “fell back on my butt.” Claimant’s employer, Valman Destrehan, L.L.C. d/b/a McDonalds, denied the allegations of the claim.

At trial, the fifty-one-year-old claimant testified that she started working at Me-Donalds in Destrehan on April 3, 2010 and the accident occurred on April 6, I.^OIO. She explained that after getting the box of fries out of the freezer, as she was lifting the box to place it onto a cart, she slipped and fell in some grease that had leaked onto the floor from a fryer. She asserted that the fall was witnessed by the store manager on duty at the time, identified simply as “Keisha.” Claimant told Keisha that she was “o.k. for right now,” and then went to sit in the dining area of the restaurant for about an hour. She stated that she had a headache after her fall, but took some aspirin and was later able to finish her shift. She said that she had “no extreme pain” at the time and worked at McDonalds for three or four more days after the accident without much pain. About eight or nine days after her fall, she claimed that the pain became “excruciating.” She testified that she was told by her supervisors at McDonalds that if she went to the doctor, she would lose her job. She further testified that when her pain got too extreme, she called the general manager of the store, Ian, to tell him that she wanted to go to the doctor. She claims that she called Ian every day several times per day over an extended period of time, but he would not return her calls. When she finally spoke to Ian several months after the accident, he told her to call the owner’s main office in Baton Rouge. Claimant stated that Ms. Sulik, the person to whom she spoke at the owner’s office in Baton Rouge, arranged an appointment for her with Dr. St. Germain in LaPIace. Claimant testified that both Ian and Ms. Sulik told her that McDonalds would only allow her one visit to the doctor.

Claimant testified that Dr. St. Germain checked her reflexes and range of motion and said he did not see anything wrong with her. He refused her request for a prescription for pain medication. Claimant asserted that her pain continued to worsen over time and became unbearable when the weather changed. Also, |4sometimes her leg “goes out,” causing her to fall. Her ex-husband has taken her to several doctors because of pain.

Claimant testified that she advised her supervisors at McDonalds that she was unable to work on Sundays because of lack of transportation; however, her supervisors continued to schedule her to work on Sundays. When this happened, she called in and missed work. This resulted in her being given less and less hours of work per week. Claimant testified that in June 2010, she resigned from McDonalds because she got another job at Angel’s Aftercare, a job which, she testified, would not require her to do any lifting. She testified that she sometimes had to miss work from that job because of pain. After leaving that job, she went to work at Central Marketing, where she also had to miss work because of pain. She stated that she was terminated from both of those jobs because of missing work. During part of this time, claimant was also attending school and had to make up classes she missed because of pain.

Although she admitted that she had been in other accidents (including an accident while working at a Burger King in which a chair fell on her foot, an accident in which a crate of water fell on her at the grocery store, injuring her shoulder, and a car accident in which she injured her neck), claimant stated that she never had any pain like the pain she had after her fall at McDonalds. She stated that her pain is at the base of her spine.

Claimant testified that she sought treatment for her pain from Dr. Verrette at the St. Charles Community Health Center. He referred her to a neurologist at the LSU Medical Center, and she was awaiting this appointment at the time of trial.

On cross-examination, claimant admitted that in January 2010, she filed for Social Security disability benefits, explaining that this was because of her neck, not her back. She also admitted going to the doctor on April 22, 2010 to have her |fiblood pressure treated and that her record of this visit did not mention back pain. She explained that her blood pressure “raises when you’re in pain.” When confronted with medical records in May 2010 that did not mention any complaints of back pain, claimant explained that her chief complaint at that time was her high blood pressure, and although she told the medical personnel at that visit of her back pain, it was not mentioned in her medical record of this visit. Claimant also testified that when she went to the doctor on July 21, 2010 to have paperwork filled out in connection with her application to work at “Aftercare,” she was not having any problems at all on that particular day. She acknowledged that the record of that visit states that she was physically fit to perform the duties of a personal care attendant. She explained that she made that statement to the medical attendant because she needed a job. Claimant testified that her back “really started” hurting around August or September, although she agreed that the first mention of back pain in her medical records at the St. Charles Center was at her December 15, 2010 doctor’s visit. As for the remaining medical records which do not mention back pain, claimant stated that the medical records do not mention all of her complaints, only her “chief complaint.”

The employer called Ian Patton, the general manager of the Destrehan Mc-Donalds, to the stand. He testified that when he first became aware of claimant’s slip and fall, he offered to send her to the doctor. She refused. He testified that the assistant manager also offered medical treatment to claimant. Mr. Patton stated that he worked alongside claimant following her slip and fall and she never complained of pain, never appeared to be in pain, and never asked to go to the doctor. He testified that claimant was terminated from her job at McDonalds because of her failure to come to work on her scheduled shifts. When claimant Rlater contacted him about going to the doctor after she had been terminated, he handled it through his supervisor in Baton Rouge.

On cross-examination, Mr. Patton denied telling claimant that he did not have the paperwork needed for her to schedule a medical appointment after her accident. He denied that McDonalds has a policy whereby an employee who is injured on the job is allowed only one doctor’s visit.

Lauren Sulik, the risk manager for Mc-Donalds, testified that she was contacted by claimant in August 2010. At that time, claimant complained of her back bothering her with changes in the weather. Since it was four or five months after the incident, Ms. Sulik explained to claimant that she would authorize an initial doctor’s visit and would then “refer to the medicals” to determine if she needed further medical care. Ms. Sulik testified that Dr. St. Germain, the physician to whom she sent claimant, found claimant’s examination to be normal and released her to return to regular duty work. Ms. Sulik saw no need for any further medical care and no need to refer claimant to a specialist. Ms. Sulik testified that she did not receive any further requests for medical treatment from claimant, nor any requests for payment of any further medical treatment. Ms. Sulik asserted that indemnity benefits had not been paid to claimant because her office had no information regarding any disability and Dr. St. Germain deemed claimant able to work.

On cross-examination, Ms. Sulik testified that after reviewing the medical records from claimant’s treating physician, she probably still would not have authorized further treatment because causation between the accident and the injuries had not been established.

At the conclusion of the trial, the trial judge denied claimant’s claim, explaining that in order to recover workers’ compensation benefits, a claimant |7must prove by a preponderance of the evidence that a work-related event occurred and that an injury was sustained. While recognizing that a claimant’s testimony alone may be sufficient to discharge this burden, the judge found that the medical records in this case were not consistent with claimant’s testimony. The trial judge concluded that there was not sufficient evidence to prove by a preponderance of the evidence that an injury occurred due to this fall. This timely appeal followed.

ANALYSIS

On appeal, claimant argues that, because she presented unrebutted medical evidence and lay testimony supporting her cause of action and no contradictory evidence was presented by her employer, the trial judge erred in finding that she failed to meet her burden of proof. She also contends the trial judge erred in stating that her injuries were degenerative when no evidence was admitted to support that conclusion. The employer responds that the trial judge correctly denied claimant’s claim.

An injured employee is entitled to receive benefits for an injury that arises out of and in the course of his employment. La. R.S. 28:1031. The injured employee (the claimant) bears the initial burden of establishing the causal connection between his disability and the employment accident by a preponderance of the evidence. Pearce v. Medallion Construction, 36,351 (La.App. 2 Cir. 11/6/02), 830 So.2d 576, 578. The claimant is not required to establish the exact cause of the disability; however, the claimant must demonstrate by a preponderance of proof that the accident had a causal connection with the disability. Thompson v. Dillard’s Department Store, 32,974 (La.App. 2 Cir. 5/10/00), 759 So.2d 1074, 1076. Proof by a preponderance of the evidence exists when the evidence, taken as a whole, shows the facts sought to be proved are more ^probable than not. Harris v. Coushatta Industrial Sand, Inc., 31,977 (La.App. 2 Cir. 6/16/99), 741 So.2d 143, 147.

A claimant’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the claimant’s version of the incident; and (2) the claimant’s testimony is corroborated by the circumstances following the alleged incident. Jackson v. Savant Insurance Co., 96-1424 (La.App. 1 Cir. 5/9/97), 694 So.2d 1178, 1180. Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551, 556. For an appellate court to reverse a trial court’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Winfield v. Jiffy Lube, 01-0341 (La.App. 1 Cir. 3/28/01), 813 So.2d 428, 430.

Our review of the record indicates that the employer presented evidence that contradicted claimant’s evidence. Accordingly, claimant’s argument to the contrary on this point is without merit. While there was no evidence presented that claimant did not fall, there was considerable evidence presented that claimant was not injured in the fall. Claimant herself testified that she continued to work at McDonalds for several months after the fall and that the reason her hours were decreased was because she did not report to work on Sundays due to a lack of transportation. Claimant did not testify that she missed work at McDonalds due to InPain. Further, the employer’s manager, Mr. Patton, testified that he worked alongside claimant after the fall and she never complained of pain, never appeared to be in pain, and never requested medical treatment. He explained that claimant was initially offered medical treatment, which she refused. Additionally, when claimant finally requested medical treatment, she was referred by Ms. Sulik to Dr. St. Germain, who examined her on September 1, 2010. The medical records from this doctor’s visit indicate that claimant reported that she “slipped on oil on the floor and landed on my butt,” and that “since the rainy season has started my whole body is starting to hurt.” She reported that her pain was intermittent and was located on the “[right] side of head, [right] side of face, [right] side of neck, [right] shoulder, [thoracic] region, lumbar region, [right] buttock, [left] buttock.” The nurse taking the history of that visit commented in the medical record that she “never could really get a straight answer out of patient.” The nurse further noted that claimant refused to “perform lumbar flexion stating that she is unable to bend @ waist, but please note statement above that she did bend @ waist to show me where her foot was hurting & didn’t even realize it.” Dr. St. Germain found claimant’s physical examination to be normal, that she was able to continue regular work duties, and that she did not need any follow-up treatment.

Most telling, however, are claimant’s medical records from the St. Charles Community Health Center. These records indicate that claimant had been treated at this Center for several years for conditions ranging from hypertension to headaches and a sore throat. A review of claimant’s medical records from the St. Charles Center during the pertinent time period can be summarized as follows, to-wit:

• On April 22, 2010, claimant presented to the Center clinic for a follow-up appointment for blood pressure management. She complained of a headache with an abnormal “feeling in her left arm when she sleeps | mwhich is for two months no new complain[t] today.” She was given a full physical examination that did not reveal any abnormalities. She was counseled to take her medication and stop smoking.
• On May 26, 2010, she returned to the clinic for a pap smear. The record indicates that she had not taken her blood pressure medicine for one to two weeks, that she had no new symptoms, and that she was just at the clinic for a pap smear. She was given a full physical examination that did not reveal any abnormalities.
• On July 21, 2010, claimant returned to the clinic for follow-up treatment of hypertension and because she “needs paperwork filled out for her job.” This record states she was here for blood pressure and “physical no complaint today.” She was given a full physical examination that did not reveal any abnormalities.
• On December 15, 2010, she returned to the clinic for medication refills and “back pain.” This record states “here for back pain upper and lower. [Patient] had a car accident in 87 and was fi’eated for injury to several discs in her back, in 2008 she had a neck injury.... In April of 2010 she fell in McDonalds for which she felt fine until Aug or Sept when she saw Dr. St. Germain who ‘did nothing’ ”. S he was given a full physical examination. This exam specifically states that her back was not tender to palpitation and she had no muscle spasms. The record further states that the cervical, thoracic, lumbar, and lumbosacral spine “exhibited no abnormalities.” She was prescribed an anti-inflammatory medication and a muscle relaxer, but no pain medication.
• Claimant did not return to the clinic until May 3, 2011 for a blood pressure check. This record states that claimant “reports having been hit, kicked, punched or otherwise hurt by someone in the past year.” She was given a full physical examination that did not reveal any abnormalities. She was not prescribed an anti-inflammatory, a muscle relaxer, or pain medication.
• On October 7, 2011, she returned to the clinic for a blood pressure check and painful urination. She was given a complete physical examination and the only abnormality noted was that her bladder was tender to palpation. She was prescribed medication for a urinary tract infection and an antianx-iety medication, but no anti-inflammatory, muscle relaxer, or pain medication.
• On November 15, 2011, she returned to the clinic for a blood pressure check and reported feeling light headed and dizzy. She also reported “back pain/ did have unusual activities with work/ now low back hurts and feels tight/ does not radiate.” She was prescribed an anti-inflammatory.
• She returned to the clinic on December 12, 2011 where claimant reported that she “fell on her butt the month of April 2010.” She complained of low back pain radiating to her legs. The pain starts suddenly and is intermittent. The history reports that she had “been hit, kicked, punched | nor otherwise hurt by someone in the past year.” Physical examination revealed a palpable muscle spasm in the left lumbar area with decreased reflexes in her lower leg and a sensory deficit. She was prescribed an anti-inflammatory, muscle relaxer, and pain medication.
• On December 28, 2011, she returned to the clinic complaining of low back pain after a fall at home. No abnormalities are noted in the medical record, but she was given a prescription for pain medication.
• On December 29, 2011, claimant had an MRI of the lumbar spine which showed minimal disc bulging at L3-4 and mild disc bulging at L4-5 and L5-Sl. The impression on the MRI was “mild degenerative changes of disc.”
• On January 4, 2012, claimant returned to the clinic for the results of the MRI. Physical examination revealed a palpable muscle spasm in the left lumbar area with decreased reflexes and strength in the left leg. The assessment was “lumbar disc degeneration, bulging lumbar disc, muscle spasm.” She was given pain medication.
• On February 8, 2012, claimant returned to the clinic where she stated she was there to “follow up on hip pain from a fall while working at Mc-Donalds.”

A review of claimant’s medical records as a whole indicate that claimant did not seek any type of medical treatment for back pain until September 1, 2010, nearly five months after her fall. The results of this examination were normal and claimant was released to return to full duty work without any restriction and without any recommendations for follow-up care. The medical records do not show any further complaint of back pain until December 15, 2010, a full eight months after the fall. Contrary to claimant’s assertion that only her “chief complaint” is recorded in the St. Charles clinic’s medical records, a review of these records indicates that on numerous occasions when claimant went to the clinic for treatment of high blood pressure, other complaints were recorded and addressed. Additionally, employment records from Angels Aftercare Solutions, Inc. indicate that from June 18, 2010 until October 18, 2010, claimant was working as a “direct service worker” caring for disabled individuals. Contrary to claimant’s assertion that this job did not require lifting, the job duties for this position include assisting |12the “consumer” with bathing, dressing, grooming, bowel and bladder care, transfers, housekeeping, laundry, meals, shopping, transportation, and recreation.

Thus, we find that the record, taken as a whole, clearly supports the trial judge’s finding that claimant failed to prove by a preponderance of the evidence that her fall had a causal connection with her alleged disability. The record clearly establishes a reasonable factual basis for the trial court’s finding and that the finding is not clearly wrong. The testimony of Mr. Patton, as well as claimant’s work history and medical records, casts serious doubt upon claimant’s testimony regarding her condition after the fall. Further, claimant’s testimony is not corroborated by her work history and medical records following the fall. Accordingly, claimant failed to carry her burden of proving that she sustained an injury when she fell while working at McDonalds in April 2010.

CONCLUSION

For the foregoing reasons, the judgment of the trial court under review is affirmed.

AFFIRMED

      . Although it is not disputed that a slip-and-fall accident involving claimant occurred at the McDonalds restaurant, the record contains inconsistencies as to the date the accident occurred. Claimant testified that the fall occurred on April 6, 2010, the Disputed Claim for Compensation states that the fall occurred on April 10, 2010, and the employer's incident report states the fall occurred on April 12, 2010.


author: GENOVESE, Judge.

text:
    SUCCESSION OF Johnson BRACKINS, III.
    No. 12-1311.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.

      Roshell Jones, Lafayette, LA, for Appellant, Verna B. Brackins.
    Joseph J. Vincent, Crowley, LA, for Ap-pellee, Laraine Workman Ryner.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   GENOVESE, Judge.

| Appellant, Verna B. Brackins (Verna), appeals the trial court’s grant of a motion for involuntary dismissal in favor of Appel-lee, Laraine Workman Ryner (Laraine), finding that Verna failed to produce clear and convincing evidence that the decedent, Johnson Brackins, III, lacked testamentary capacity at the time he executed his last will and testament naming Laraine as his sole legatee. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The record indicates that Johnson Brac-kins, III (decedent), died on November 3, 2011. Prior to his death, decedent executed a notarial will dated February 14, 2011, before attorney Lyle 0. Fogleman, Jr. (Attorney Fogleman), in which his entire estate was left to his girlfriend, La-raine. On November 9, 2011, Laraine filed the will for probate. On November 28, 2011, Verna, sister of decedent, filed a Petition Contesting the Probate of the Will, alleging (1) lack of testamentary capacity, (2) undue influence, (8) fraud, and (4) lack of authenticity.

On July 23, 2012, trial of this matter was held. At the close of Verna’s case, La-raine moved for an involuntary dismissal. In oral reasons for ruling, the trial court addressed Laraine’s motion for a judgment of involuntary dismissal stating:

There’s no evidence. A notarial testament is self-proving. It needs no proof to be probated. And in order to nullify it, there has to be some |2proof of incapacity or undue influence. There’s been none, no evidence.
The only people who were there at all testified, without contradiction, that he well knew what he was doing when he executed the will.
The closest [Verna’s] case comes to showing any incapacity at all is the testimony of Mr. Donnie Brackins who said that during those many months before [decedent] died that sometimes he was confused[,] but that he also had periods of lucidity. That doesn’t come close to proving that on February 14, 2011, he was anything less than fully capable of executing a testament and having testamentary capacity.
There’s no proof, and I’m going to grant your motion[.]

A written judgment was signed on August 6, 2012. Verna appeals.

ASSIGNMENT OF ERROR

In her sole assignment of error, Verna asserts:

The trial court manifestly erred when it granted [Laraine’s] Motion for Involuntary Dismissal yet failed to invalidate the decedent’s will after testimony was presented that the Notary Public and testator signed the will in the intensive care unit of a hospital in Lafayette, Louisiana, while the witnesses signed the will at a hospital in Crowley, Louisiana.

LAW

“A trial court’s granting of an involuntary dismissal is reviewed for manifest error.” Chenevert v. Hilton, 07-1223, p. 6 (La.App. 3 Cir. 3/5/08), 978 So.2d 1078, 1083, writ denied, 08-731 (La.5/30/08), 983 So.2d 901 (citing Basic Home Care Serv., Inc. v. Dore, 06-1036 (LaApp. 3 Cir. 12/6/06), 945 So.2d 861).

“Capacity to donate mortis causa must exist at the time the testator executes the testament.” La.Civ.Code art. 1471. “To have capacity to make a donation ... mortis causa, a person must also be capable to comprehend generally the nature and consequences of the disposition that he is making.” La.Civ.Code art. 1477. “In an action to annul a notarial testament ... the plaintiff always has the burden of proving the invalidity of the testament.” La.Code Civ.P. art. 2932(B). “ ‘A party is ^presumed to have testamentary capacity, and the opponent bears the burden of defeating this presumption by putting forth clear and convincing evidence to the contrary.’” In re Succession of Sandifer, 05-860, p. 3 (La.App. 3 Cir. 3/1/06), 923 So.2d 862, 865 (quoting Succession of Fletcher, 94-1426, p. 4 (La.App. 3 Cir. 4/5/95), 653 So.2d 119, 121, writ denied, 95-1105 (La.6/16/95), 655 So.2d 338).

Louisiana Civil Code Article 1577 states:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this_ day of_,_”

“The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null.” La.Civ. Code art. 1573.

DISCUSSION

Verna argues that the decedent’s will should have been nullified by the trial court because the formalities required by La.Civ.Code art. 1577 were not met. According to Verna, “testimony was presented that [Attorney Fogleman] and [decedent] signed the will in the intensive care unit of a hospital in Lafayette, Louisiana, while the witnesses signed the will at a hospital in Crowley, Louisiana.”

Noteworthy is the fact that Verna’s case at the trial of this matter dealt with whether the decedent possessed the requisite testamentary capacity on February 14, |42011; however, the argument presented in Verna’s appeal concentrates on alleged defects in formality. Though the issue of defects in formality was not brought before the trial court and, therefore, is not properly before us, we feel obliged to address the misinterpretation of the evidence as presented by Verna. Based upon our review of the evidence, we find Verna’s version of the trial testimony to be inaccurate.

According to the record, the will was prepared and notarized by Attorney Fo-gleman. The witnesses to the execution of the testament were Linda W. Eaglin and Ruth B. Victoria. In her appellate brief, Verna asserts that the evidence at trial was such that Ms. Eaglin and Ms. Victoria signed the will as testamentary witnesses in Crowley, while decedent and Attorney Fogleman signed the will as testator and notary, respectively, in Lafayette. The evidence in the record refutes that assertion.

Attorney Fogleman testified that he met decedent, Laraine, Ms. Eaglin, and Ms. Victoria, on February 14, 2011. However, there is a discrepancy in Attorney Fogle-man’s testimony as to where the will was signed. When asked whether decedent’s will was signed at his office, he replied, “No[,] ... I believe it was done at the hospital.” When asked at what hospital, he replied, “I’m not sure. It was in Lafay-ette_ I’m pretty sure it was Lafayette.” Attorney Fogleman described the process as:

[W]hen I did arrive ... [, decedent] knew I was there. We visited, and I read the will to him verbatim and asked him if that’s what he had requested and what he wanted, and he said yes, and executed the will in front of me, the two witnesses. Everybody signed it and I notarized it.

laWhen questioned about the will indicating it was signed in Acadia Parish, and not Lafayette Parish, Attorney Fogleman again acknowledged “I think it was at the hospital in Lafayette.” Counsel for Verna also asked Attorney Fogleman, “[W]as [decedent] acting in an ill manner or in a capacity of someone who was really sick?” To which he responded, “I don’t recall. But I can tell you that had I thought [decedent] was not aware of what he was doing[,] I would not have proceeded with the document.”

Both Ms. Eaglin and Ms. Victoria testified that they were called by Laraine on February 14, 2011, to be witnesses to the execution of decedent’s will. They testified that they met decedent, Laraine, and Attorney Fogleman at American Legion Hospital in Crowley, Louisiana. According to Ms. Eaglin and Ms. Victoria, decedent signed the will; they signed as witnesses; and Attorney Fogleman signed as notary at the American Legion Hospital in Crowley.

Laraine corroborated the testimony of Ms. Eaglin and Ms. Victoria. According to Laraine, she and decedent met with Attorney Fogleman at his law office in Crowley a few days before February 14, 2011, to request that he draft decedent’s will. When decedent began suffering from a bowel blockage on February 14, 2011, he sought treatment at the emergency room of American Legion Hospital in Crowley. While there, decedent requested that La-raine contact Attorney Fogleman, Ms. Eaglin, and Ms. Victoria, in order for him to finalize his will. Laraine testified that decedent’s will was executed, witnessed, and notarized at American Legion Hospital in Crowley.

Based upon our review of the record, there is no proof that the formalities required of La.Civ.Code art. 1577 were not met. Verna presents the flawed recollection of Attorney Fogleman as proof for invalidation of decedent’s will. However, although Attorney Fogleman was uncertain as to where he remembers | fithe will being signed, what was unequivocal was his testimony that decedent signed the will in his presence and in the presence of Ms. Eaglin and Ms. Victoria and that he notarized the will in the presence of all. Whether the will was executed in Lafayette or Crowley is of no consequence. Hence, all of the necessary formalities required by La.Civ.Code art. 1577 were met.

We also find that the evidence does not support Verna’s position that decedent lacked testamentary capacity. Attorney Fogleman, Ms. Eaglin, Ms. Victoria, and Laraine were the only individuals to testify who actually saw decedent on the day his will was executed. These four individuals all testified that decedent did not exhibit any cognitive impairment or confusion whatsoever. To the contrary, they testified that decedent, though ill, was capable of understanding the will he was signing. The testimony of Donnie Brackins and Roy Brackins, Sr. may establish that decedent’s mental state was different before his death; however, this is insufficient to substantiate accusations that he lacked testamentary capacity on February 14, 2011. Thus, we find no manifest error in the trial court’s holding that Verna failed to prove, by clear and convincing evidence, that decedent lacked testamentary capacity in the execution of his last will and testament.

DECREE

Based on the foregoing reasons, we affirm the trial court’s grant of the motion for involuntary dismissal in favor of Appel-lee, Laraine Workman Ryner. Costs of this appeal are assessed against Appellant, Verna B. Brackins.

AFFIRMED.

      . See La.Civ.Code arts. 1576-1580.1.

      . Decedent’s will also named Laraine as the executrix of his succession.

      . The procedure governing motions for involuntary dismissal is found in La.Code Civ.P. art. 1672(B), which provides as follows:
      In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

      . Louisiana Code of Civil Procedure Article 2164 provides, in pertinent part: "The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.”


author: KEATY, Judge.

text:
    Patricia SASSER-FORD v. STATE FARM FIRE & CASUALTY CO., et al.
    No. 12-1375.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.
    Allen J. Mitchell, II, Mitchell & Blanco, LLC, Lake Charles, LA, for Defendants/Appellees, State Farm Fire & Casualty Company, Ronnie Johns.
    Brian W. Arabie, Arabie Law Firm, Lake Charles, LA, for Plaintiff/Appellant, Patricia Sasser-Ford.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

h Plaintiff appeals from the trial court’s granting of summary judgment in favor of Defendant. For the following reasons, we reverse and remand the matter to the trial court for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff, Patricia Sasser-Ford (Sasser-Ford), and Dr. Roy Sasser, Jr. (Dr. Sas-ser) were married in 1987. Once married, they lived in Sulphur, Louisiana. The Sas-ser property consisted of a main house located at 3236 Queen Circle and a guest house located at 3235 Castle Drive. Sas-ser-Ford and Dr. Sasser lived in the main house, and Dr. Sasser’s parents lived in the guest house.

The Sasser property was covered by a homeowner’s insurance policy with State Farm Fire & Casualty Company (State Farm) since 1984. The original application for coverage was completed by Dr. Sasser on October 30, 1984. A copy of the policy was provided to Dr. Sasser at the inception of coverage. It was noted on this original insurance application that Dr. Sas-ser was furnishing a guest house to his parents and that there was no remuneration with regard to same.

Dr. Sasser died on January 22, 1997. Following his death, Dr. Sasser’s parents continued to reside in the guest house. On August 20, 1997, Sasser-Ford requested that the name on homeowner’s policy be changed from Dr. Sasser to hers. At that time, Sasser-Ford was listed as the named insured on the homeowner’s policy covering the main house. It is undisputed that she was not provided with a copy of the policy after it was changed to list her as the named insured.

The guest house continued to be used as a home for Sasser-Ford’s in-laws until 1998. Shortly after the death of her father-in-law, Sasser-Ford began to rent |2out the guest house to various tenants. She consistently rented the guest house from 1998 through September 24, 2005, the date of Hurricane Rita. As a result of Hurricane Rita, a large tree fell onto the guest house causing both exterior and interior damage. Hurricane Rita also damaged the main house.

Sasser-Ford filed a claim under the State Farm homeowner’s policy for the damages to the main house and guest house. State Farm paid Sasser-Ford for all damages that were sustained to the main house but denied coverage for the damage sustained to the guest house based on an exclusion in the policy. This exclusion provides that there is no coverage for a dwelling extension that has been rented or held for rental to a person not a tenant of the dwelling.

As a result of the denial of coverage for the damages to the guest house, Sasser-Ford filed the subject lawsuit against State Farm and her insurance agent, Ronnie Johns (Johns). State Farm filed a motion for summary judgment based on the policy exclusion which was subsequently granted by the trial court. That judgment was not appealed and became final. Johns also filed a motion for summary judgment arguing that he did not owe any particular duty to Sasser-Ford; and even assuming that he did, any claim by Sasser-Ford would be perempted as a result of her not having filed suit within three years of the alleged act, omission, or neglect. The trial court denied Johns’ motion for summary judgment.

Sasser-Ford’s claims against Johns proceeded to trial by jury on December 6 and 7, 2010. At the conclusion of Sasser-Ford’s case, defense counsel moved for a directed verdict on the grounds that Sas-ser-Ford’s claim was barred by peremption. The trial court agreed and dismissed all claims against Johns. Sasser-Ford filed a motion for new trial alleging that the trial court erroneously made a credibility determination in granting the directed verdict. Sasser-Ford’s motion for new trial | c.was granted. Johns thereafter applied for a supervisory writ to this court seeking a review of the correctness of the trial court’s granting of a new trial. The supervisory writ was denied by this court. See Patricia Sasser-Ford v. Ronnie Johns, an unpublished writ bearing docket number 11-1021 (La.App. 3 Cir. 9/9/11).

Johns then applied for a supervisory writ to the Louisiana Supreme Court seeking review of this court’s writ denial and the trial court’s granting of a new trial. The supreme court granted the writ. The trial court’s judgment granting the new trial was vacated and set aside, and the matter was remanded to the trial court with instructions. Patricia Sasser-Ford v. Ronnie Johns, 11-2189 (La.11/23/11), 78 So.3d 749. After a hearing on the motion for new trial, the trial court again granted Sasser-Ford’s motion for new trial.

Johns filed another motion for summary judgment asserting that he did not owe a duty to Sasser-Ford under the facts of the subject case. Following a July 17, 2012 hearing, the trial court granted the motion for summary judgment and dismissed all claims against Johns. It is from this ruling that Sasser-Ford appeals.

DISCUSSION

Sasser-Ford contends that the trial court erred in ruling that where a client gives specific notice to the agent that she is using her property in a way that voids coverage under a policy exclusion, the agent owes no duty to advise his client that the policy he sold to her does not provide coverage for her property.

“Summary judgments are reviewed de novo on appeal, with the reviewing court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.” La. Safety Ass’n of Timbermen Self-Insurers Fund v. La. Ins. Guar. Ass’n, 09-23, p. 5 (La.6/26/09), 17 So.3d 350, 353.

I. Applicability of the Louisiana Supreme Court’s Holding in Isidore

In Isidore Newman School v. J. Everett Eaves, Inc., 09-2161 (La.7/6/10), 42 So.3d 352, Isidore Newman School (Newman) suffered damage to its physical structure following Hurricane Katrina. As a result, Newman was closed for over two months and suffered a loss of tuition revenue/income totaling approximately $3,166,606. Newman filed a suit against their insurance agency and the agency’s errors and omissions insurer, alleging that a broker from the agency “was negligent in failing to advise the school that the [Business Income and Extra Expense (BI & EE) ] coverage covered income/tuition losses and that amount was not sufficient to cover tuition losses, and in misleading the school into believing that the BI & EE coverage was limited to physical damages to buildings.” Id. at 354. The supreme court held the following:

An agent has a duty of “reasonable diligence” to advise the client, but this duty has not been expanded to include the obligation to advise whether the client has procured the correct amount or type of insurance coverage. It is the insured’s responsibility to request the type of insurance coverage, and the amount of coverage needed. It is not the agent’s obligation to spontaneously or affirmatively identify the scope or the amount of insurance coverage the client needs. It is also well settled that it is [the] insured’s obligation to read the policy when received, since the insured is deemed to know the policy contents.

Id. at 359. The supreme court also stated the following:

The courts have noted that “the ‘advice’ that an agent had an affirmative duty to give the insured” involved “aspects of the policies ... that were not within the knowledge generally held by a lay person,” i.e., “the agent’s specific knowledge of the insured’s individual situation triggered that duty to disclose.”

Id. at 358 (quoting Parker v. Lexington Ins. Co., 06-4156, p. 3 (E.D.La.11/15/06), 2006 WL 3328041).

The trial court in the instant matter granted the motion for summary judgment based on Isidore and held, in pertinent part:

But Ms. Sasser-Ford, I think, would have to — in order to prevail, would have to have had put State Farm on notice that she intended to rent, and because of that, ask for rental coverage. She has to utter those words. She has to make the request for the type of insurance that she would need. That’s putting a lot on the insured, but that’s what the case law has concluded.

Thus, the trial court read Isidore to require Sasser-Ford to specifically ask Johns for rental insurance. The trial court held that once requested, Johns’ duty was that he either had to provide the insurance requested or inform Sasser-Ford that he could not provide the requested coverage.

Sasser-Ford alleges Isidore is factually distinguishable from the present case. Even if Isidore were not so easily distinguished, Sasser-Ford alleges the trial court erroneously applied it in such a way that relegates insurance agents to mere order takers whose duty to provide their clients with the appropriate coverage arises only when the client utters the so called “magic words.” Sasser-Ford contends the supreme court’s holding in Isi-dore does not relieve agents of their fiduciary duties when their clients fail to make use of the appropriate “magic words.”

In opposition, Johns contends the holding in Isidore represents the prevailing law in Louisiana addressing the issue of an agent’s duty to an insured and that Isidore cannot be distinguished from the present case. Johns contends that under Louisiana law, even if he knew that the guest house was being rented, he did not have a duty to recommend or advise Sasser-Ford concerning rental coverage. | (¡Johns alleges that under the law it was Sasser-Ford’s duty to request the types and amount of coverage that she wanted. Upon Sasser-Ford’s request, Johns would then have a duty to obtain what was requested or notify the insured if he was not able to do so. Accordingly, Johns contends summary judgment was appropriate.

In the present case, we find that the holding in Isidore does not relieve Johns of his fiduciary duty to disclose an exclusion regarding Sasser-Ford’s homeowners’ policy. As noted by other courts in Isidore as discussed above, Johns owed a duty to disclose any exclusion in Sasser-Ford’s homeowners’ policy if she notified him that she was using her property in a way that voided coverage under her policy. Had Johns notified Sasser-Ford of such exclusion in her homeowners’ policy, she could have subsequently requested that Johns procure rental insurance. As such, the issue is whether Johns had specific knowledge of Sasser-Ford’s rental property that triggered his duty to advise her about the exclusion in her homeowners’ policy.

II. Duty /Knowledge

In Benniefiel v. Zurich American Insurance Co., 08-1416, p. 4-5 (La.App. 8 Cir. 5/6/09), 10 So.3d 381, 384-85, this court noted:

In Bell v. Gold Rush Casino, 04-1123, p. 7 (La.App. 3 Cir. 2/2/05), 893 So.2d 969, 973-74, this court set forth the following jurisprudence pertinent to a determination of whether summary judgment is appropriate:
In Brittain v. Family Care Services, Inc., 34,787, p. 4 (La.App. 2 Cir. 6/20/01), 801 So.2d 457, 460, the court stated:
Even though the summary judgment procedure is favored, it is not a substitute for trial and is often inappropriate for judicial determination of subjective facts such as motive, intent, good faith or knowledge. Oaks v. Dupuy, 32,070 (La.App.2d Cir. 8/18/99), 740 So.2d 263 (citing Greer v. Dresser Industries, Inc., 98-129 (La.App. 3d Cir.7/1/98), 715 So.2d 1235). One reason is that these subjective facts call for credibility evaluations and the weighing of testimony and summary judgment is inappropriate for such determinations. Id. Moreover, it is not a function of the trial court on a motion for summary judgment to determine or even inquire into the merits of issues raised or to weigh conflicting evidence on the existence of material facts. See, Harrison v. Parker, 31,844 (La.App.2d Cir.5/5/99), 737 So.2d 160.

In the present case, the evidence supporting and opposing the motion for summary judgment included the deposition testimonies of Johns, Sasser-Ford, Barbara Hanks (Hanks), and the trial testimonies and transcript. After our review of this evidence, we believe a genuine issue of material fact exists regarding whether Johns had knowledge of Sasser-Ford’s rental property.

Specifically, Sasser-Ford testified that she personally delivered a flyer advertising her property for rental to Hanks, a real estate agent employed by Johns for twenty-three years. Hanks testified as to her duties as a licensed agent. She said that her role as an agent was to make sure that Johns’ customers get the right insurance. She testified that State Farm agents undergo annual training on how to assure that they provide their customers with the right insurance. In her role of selecting the right insurance for clients, Hanks admitted that one of her duties was to make sure her client’s use of their property does not run afoul of any policy exclusions:

[SQ Would one of the things that you would watch out for in selecting the right kind of insurance is whether or not a client might be using the property in a way that might trigger an exclusion and void the property (sic)?
A Yes, sir.
Q So, it’s part of your job to watch out and catch those sort of things.
A Yes, it is.
Q I think in your deposition you talked about how when somebody buys a new home you make it a point to ask what they’re doing with the old home.
A That is correct.
Q And why is that?
A ‘Cause if that exposure is still there we need to know, because if they’re no longer living in the home — what are you gonna do with it? Are you gonna rent it? If you are planning on renting it then we tell the customer we have to convert this to a Rental Dwelling policy because your homeowner’s is no longer in force.
Q So that’s something that you’re on the watch for.
A That is correct.
Q You had a name for that in your deposition.
A I sure did.
Q What did you call it?
A A red flag.
Q That’s a red flag.
A Yes, sir.

Finally, Hanks admitted that a flyer advertising the property would have been sufficient to put her on notice of the insured’s specific situation so as to trigger her duty to advise the client:

|9Q Do you ever recall Mrs. Patricia stopping by and dropping off a flyer—
A No, sir.
Q If she had done that, that would have been a great, big red flag.
A Red flag. Yes, sir.
Q It would have been the trigger for you to ask or any agent to ask—
A Correct.
Q —more questions about whether or not that was the guest house, whether or not that house was being rented.
A Yes, that’s correct.
Q Because that would trigger the exclusion?
A That’s correct.

As evidenced by Hanks’ own testimony, she and Johns’ job was to make sure that Sasser-Ford had the right kind of insurance and this duty included being aware of Sasser-Ford’s specific situation so as to make sure that the property was not being used in a way that triggered a policy exclusion. Further, Hanks testified that the rental flyer was a “red-flag” sufficient to put Hanks on notice that the property was being used in a way that voided the policy. Hanks’ understanding of her duties to the clients of Johns’ agency is in agreement with what Sasser-Ford believed to be their job duties. Sasser-Ford testified that she believed her agent was a professional with expertise in insurance and she relied upon him and his expertise to help her in selecting the type of insurance that she needed.

Both the agent and the insured in this case have shown that it was the agent’s duty to make sure that the insured had the right type of insurance coverage that was suited for the specific needs of the insured. Further, Hanks admits that if they had | inreceived the flyer advertising the property for rental, that would have been more than sufficient notice to trigger the agent’s duty to advise the client about the policy exclusion. Of course, Hanks disputes Sas-ser-Fords’ testimony that she personally delivered a flyer to her [Hanks] advertising her [Sasser-Ford] property for rental. Thus, a genuine issue of material fact exists as to whether Sasser-Ford delivered a flyer to Hanks regarding the rental property, making this case inappropriate for disposition by summary judgment. The judgment of the trial court is reversed, and this matter is remanded for further proceedings.

DECREE

The judgment of the trial court is reversed and this matter is remanded to the trial court. All costs of this appeal are assessed against Ronnie Johns.

REVERSED and REMANDED.

      . This case is not reported in F.Supp.2d.

      . Sasser-Ford testified at the December 7, 2010 trial of this matter. At the end of the July 17, 2012 hearing on the instant motion for summary judgment, the trial court made the trial testimony, memorandum, attachments, and exhibits part of the instant record.

      . Hanks testified at the December 7, 2010 trial of this matter. At the end of the July 17, 2012 hearing on the instant motion for summary judgment, the trial court made the trial testimony, memorandum, attachments, and exhibits part of the instant record.


author: AMY, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Kenneth FORRESTIER, et al.
    No. 12-1391.
    Court of Appeal of Louisiana, Third Circuit.
    April 3, 2013.
    Katherine Paine Martin, Martin Ma-yard, LLC, Lafayette, LA, James E. Brouillette, Metairie, LA, for Plaintiff/Ap-pellee, State Farm Mutual Automobile Insurance Company.
    Matt D. McConnell, Lafayette, LA, for Intervenors/Appellants, Brooke Loiseau, Ryan Loiseau.
    Erica R. Mayon, Simien & Miniex, APLC, Lafayette, LA, for Defendants/Ap-pellees, Lafayette City-Parish Consolidated Government, Kenneth Forrestier.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

11 The plaintiff, an insurance company, filed suit as subrogee of its insured in order to enforce its subrogation rights. Thereafter, the insured and her husband intervened. The intervenors sought damages for the insured’s personal injuries and for property damage and for her husband’s loss of consortium. The defendants filed exceptions of prescription and no right of action, which were granted by the trial court. The intervenors appeal. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, State Farm Mutual Automobile Insurance Co., filed this action on June 14, 2011, “as subrogee of Brooke Loiseau.” Therein, State Farm alleged that on June 16, 2010, Ms. Loiseau’s automobile was negligently rear-ended by a city bus driven by one of the defendants, Kenneth Forrestier. According to the petition, Ms. Loiseau was injured as a result of the accident. State Farm also alleged that the bus was owned by the Lafayette Consolidated Government (LCG). State Farm contends that it issued an insurance policy to Ms. Loiseau and that it paid for property damage and medical expenses and sought to recover those amounts.

On January 17, 2012, Ms. Loiseau and her husband, Ryan Loiseau, filed a petition of intervention alleging substantially the same facts. Ms. Loiseau sought recompense for damages stemming from the accident, including “great bodily injuries” and property damage, and Mr. Loiseau asserted a loss of consortium claim.

|2The defendants filed an exception of prescription with regard to both of the Loiseaus’ claims and an exception of no right of action with regard to Mr. Loi-seau’s claim. The Loiseaus’ attorney did not file an opposition to the exceptions and did not appear at the hearing on the exceptions. Accordingly, the trial court granted the exceptions and dismissed, with prejudice, the Loiseaus’ claims. Thereafter, the Loiseaus filed a motion for new trial. At the hearing on the motion for new trial, the Loiseaus’ attorney asserted that he only learned about the hearing on the exceptions when he received the order granting the exceptions. After considering the parties’ arguments, the trial court denied the motion for new trial.

The Loiseaus appeal, asserting that the trial court “committed prejudicial legal error by applying La. C.C.P. art. 1067 and Stenson to sustain exceptions of prescription and dismiss with prejudice appellants’ un-prescribed intervention claims.”

Discussion

Prescription & the Applicability of La. Code Civ.P. art. 1067

The defendants filed exceptions of prescription and no right of action in this case, which were granted by the trial court after a hearing. The Loiseaus argue that they and State Farm are co-obligees, and thus, in their view, prescription is interrupted as to their claims as well.

In Wells v. Zadeck, 11-1232, pp. 6-7 (La.3/30/12), 89 So.3d 1145, 1149-50, the supreme court discussed the exception of prescription, stating:

Is An exception of prescription must be specifically pleaded and may not be supplied by the court. LSA-C.C.P. art. 927(B). Generally, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it; thus, of two possible constructions, that which favors maintaining, as opposed to barring an action, should be adopted. Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261, 1268; Bailey v. Khoury, 04-0620 (La.1/20/05), 891 So.2d 1268.
The rules of prescription are designed to prevent old and stale claims from being prosecuted. Ordinarily, the ex-ceptor bears the burden of proof at the trial of the peremptory exception. Campo v. Correa, 01-2707, p. 7 (La.6/21/02), 828 So.2d 502, 508. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed. Campo, 01-2707 at p. 7, 828 So.2d at 508; Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La.1993). In the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, and all allegations contained therein are accepted as true.

Our review of the record does not indicate that evidence was introduced at either the original hearing on the exceptions or at the hearing on the motion for new trial. Accordingly, the allegations in the petition are accepted as true, and the exception must be decided upon those facts. Wells, 89 So.3d 1145. Both the Loiseaus and State Farm allege in their petitions that the accident occurred on June 16, 2010. State Farm filed its main demand on June 14, 2011, within the one-year prescriptive period for delictual actions. See La.Civ.Code art. 3492. However, the Loiseaus filed their petition of intervention on January 17, 2012, well after the one-year period had expired. Thus, the Loiseaus’ petition had prescribed on its face and the burden of proof shifted to them to show that their claims had not prescribed.

14According to the record, the trial court dismissed the Loiseaus’ claims on the basis of La.Code Civ.P. art. 1067. That article provides that:

An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.

The Loiseaus assert that La.Code Civ.P. art. 1067 is not applicable and rely on Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979), to argue that, because State Farm brought its action as a subrogee of Ms. Loiseau, prescription is interrupted as to the Loiseaus’ claims as well.

However, the application of La.Code Civ.P. art. 1067 was more recently discussed in Stenson v. City of Oberlin, 10-826 (La.3/15/11), 60 So.3d 1205. We find that Stenson, 60 So.3d 1205, and not Allstate, 376 So.2d 950, is applicable to the facts herein. In Stenson, 60 So.3d 1205, the supreme court addressed whether La. Code Civ.P. art. 1067 or the “relation back” doctrine delineated in La.Code Civ.P. art. 1153 applied to petitions of intervention. The Stenson plaintiffs were a group of homeowners who filed suit against the defendants, alleging that they suffered damages due to sewerage overflow. After the prescriptive period had | ¿passed, the intervenors filed a petition of intervention asserting allegations similar to those made by the other plaintiffs. One of the defendants filed an exception of prescription with regard to the interve-nors’ petition. The trial court sustained the exception of prescription on the basis that the intervenors’ petition was not filed in compliance with La. Code Civ.P. art. 1067. The appellate court reversed, finding that the intervenors’ petition “related back” to those of the original plaintiffs.

However, the supreme court reversed the appellate court’s decision and reinstated the trial court’s judgment. Stenson, 60 So.3d 1205. In reaching that determination, the supreme court noted that there had been “confusion in the jurisprudence in determining whether La.Code Civ.P. art. 1153 or La.Code Civ.P. art. 1067 applies to a petition filed by an intervening plaintiff.” Id. at 1208. Thus, the supreme court reviewed the existing jurisprudence on that issue, including Allstate, 376 So.2d 950. In its review, the supreme court noted the four-part “relation back” test expressed in Giroir v. South Louisiana Medical Center, Division of Hospitals, 475 So.2d 1040 (La.1985), and quoted the portion of Allstate that used an analysis similar to that of Giroir. Ultimately, the supreme court concluded that La.Code Civ.P. art. 1067 is the appropriate article to apply when considering whether incidental demands, such as a petition to intervene, had prescribed. Stenson, 60 So.3d 1205. The supreme court stated:

Article 1067 clearly provides an exception to prescription or preemption for incidental demands. An intervention is an incidental demand, see La. Code Civ. Proc. art. 1031, and thus Article 1067 is the applicable statute for governing the exception to prescription or preemption for an intervention. See Moore v. Gencorp, Inc., 633 So.2d [1268] at 1269, 1270 [ (La.1994) ]. Article 1153, by contrast, provides a means for determining when an amendment adding a plaintiff, claim, or defendant relates back to the date of an earlier filed pleading for prescriptive purposes.

Id. at 1214 (emphasis added). On this basis, the supreme court found that the petition of intervention had prescribed and that the trial court did not err in sustaining the exception of prescription. Id.

Our review of the record reveals that the Loiseaus’ petition of intervention does not satisfy the requirements of Article 1067. Although the main demand, that of State Farm, was not barred by prescription when it was filed, the Loiseaus filed their petition of intervention after the one-year prescriptive period had run, see La. Civ.Code art. 3492, but failed to file their intervention within ninety days of the date of service of the main demand. Thus, the Loiseaus’ claims have prescribed pursuant to La.Code Civ.P. art. 1067.

Further, we find no merit to the Loiseaus’ claims that prescription was interrupted as a result of State Farm’s filing of the main demand. In Stenson, 60 So.3d at 1214, the supreme court stated that “Article 1067 is the applicable statute governing the exception to prescription or preemption for an intervention.” As already discussed, the Loiseaus have failed to establish that them petition of intervention fits within the parameters of Article 1067.

Therefore, we find no merit to the Loi-seaus’ assignment of error. Accordingly, we find no error in the trial court’s grant of the exceptions and affirm the trial court’s judgment.

LDECREE

For the foregoing reasons, we affirm the trial court’s grant of the exceptions with regard to all claims asserted by the inter-venor-appellants, Brooke and Ryan Loi-seau. Costs of this appeal are allocated to Brooke and Ryan Loiseau.

AFFIRMED.

      . Mr. Forrestier’s name is spelled as both "Forrestier” and "Forestier” in the record. We use the spelling in the defendants’ answer.

      . The defendants note that the correct name for LCG is the "Lafayette City-Parish Consolidated Government.”

      . The Loiseaus argue that, because the trial court granted both exceptions on the basis of La.Code Civ.P. art. 1067, a determination that their claims had not prescribed necessarily mandates that the grant of the exception of no right of action be reversed. Because we find that Mr. Loiseau's claim, which was the subject of the exception of no right of action, had prescribed, we do not reach the Loiseaus' argument in this regard.

      . Although the original hearing on the exceptions was granted after the Loiseaus’ counsel did not submit any opposition to the defendants’ exceptions and did not appear at the hearing, we observe that the defendants submitted a memorandum in support of their exceptions relying on La.Code Civ.P. art. 1067 and that, after the Loiseaus filed a motion for new trial, the trial court conducted a full hearing on the Loiseaus' arguments.

      . In Allstate, 376 So.2d 950, the plaintiff, a workers' compensation insurance company, filed suit seeking to recover workers’ compensation benefits and medical expenses from a defendant who negligently caused an automobile accident that exacerbated the work-related injuries of one of the plaintiff's claimants. The claimant subsequently intervened in the suit. However, the plaintiff’s claims were dismissed on an exception of no cause of action. The defendants filed an exception of prescription, alleging that the claimant’s action had been brought after the expiration of the prescriptive period. On appeal, the supreme court found that the claimant’s action was not barred by prescription, stating "[n]one of these basic prescriptive values are offended when a subsequent claimant, closely connected in relationship and interest to the original plaintiff, enters the timely-filed suit to assert a claim based upon the same factual occurrence as that initially pleaded.” Id. at 954.

      . Although the record does not contain a return of service indicating when the defendants were served with the main demand, the defendants assert in their memorandum in support of their exceptions that they were served on June 23, 2011. Further, the Loi-seaus did not contest that their petition of intervention was filed more than ninety days after service of the main demand.